This week I want to talk about violent video games and their sale to minors. Yesterday, the United States Supreme Court struck down a California law that would have restricted the sale of violent video games. The definition of violent video games, under this law, is a game which includes killing, maiming, dismembering, or sexually assaulting an image of a human being, if those acts are depicted … [in a] patently offensive way … [and that] causes the game, as a whole to lack serious literary, artistic, political or scientific value for minors.”
That language is similar to such found in obscenity laws upheld by the court as constitutional. The question for the court was this: Is a violent video game protected under the First Amendment? Or can it be treated similarly as obscenity, and therefore unprotected by the First Amendment?
The Supreme Court majority ruled that a violent video game is protected, the California law violates the First Amendment, and retailers can freely sell such games to minors without parental consent. Justice Scalia wrote the opinion for the majority. Interestingly, liberal justices Ginsburg, Sotomayor and Kagan joined swing vote Justice Kennedy in Scalia’s opinion. The two dissenting opinions were Justices Breyer and Thomas. That mix of opinions alone makes for some fascinating legal discussion. The progressives and libertarian Scalia outvoted the old-school liberal and the conservative Clarence Thomas.
As a conservative, I think Justice Thomas got it right – not only is California’s law permissible, but the basis of parental rights must take precedence. Justice Thomas, who spent most of his dissent articulating the context of the First Amendment through the eyes of our Founding Fathers who created it, argued that, “The freedom of speech, as originally understood, does not include a right to speak to minors without going through the minor’s parents or guardians.”
By the way, the California law did not prohibit minors from getting their hands on violent video games. It simply stipulated that if children were going to play violent video games, they would do so with parental permission. A parent could buy the game and give it to the kid, but the kid could not buy the game on his or her own.
Justice Scalia, ever the libertarian on matters of parental authority, argued that case law in support of such a prohibition does not exist and that lack of precedent tells him that such sales are protected by the First Amendment.
Let me be clear about my position. I certainly believe that parents have legal authority over and responsibility for their minor children. I believe that that authority is independent and prior to governmental powers. I believe that if a parent doesn’t want her kid to play a violent video game, that parent has the right to prohibit it.
That said, I also believe that government is an extension of these natural rights. This doesn’t mean I believe that a government can do to a child everything a parent can do. But it does mean that reasonable laws that reinforce a natural right – in this case a parental right – not only are constitutional but justified.
Only an ideologue – be they liberal or libertarian – could concoct a legal argument that would prohibit a reasonable reflection of the will of the people.
I understand that there are “nanny state” ideas created by busybodies that interfere with parental rights. The California law is not one of them. The California law reaffirmed parental rights. It said to a minor, “If you want to purchase a violent video game, you’ll have to have your parent or guardian come in here and buy it for you.” That’s just not unreasonable.
For Justice Scalia to cloak a violation of parental rights with the mask of the First Amendment isn’t surprising to me. With consistent ideological fervor, he doesn’t really believe in parental rights because they aren’t explicitly stipulated in the Constitution. This case is a perfect example of ideology overtaking common sense. It gives both civil libertarians and political libertarians something to beat their chests about – as if the justices saved the Constitution from ruin – but, ultimately, all the justices did yesterday was hurt parental authority and the fundamental unit of society.
For Sutherland Institute, I’m Paul Mero.