Dear Walter and Paul:
Well, I was wrong about the originalist dissenter this morning, and also wrong about the nature of the originalist dissent. It wasn’t Samuel Alito voting to uphold the California ban on the sale of violent video games to minors—it was Clarence Thomas. (Justice Stephen Breyer dissented separately, but not on originalist grounds.) And the problem wasn’t that Thomas Jefferson didn’t have an Xbox. Instead, responding to Justice Antonin Scalia’s majority opinion finding that such games represent speech protected by the First Amendment, Thomas dissented on originalist, First Amendment parenting grounds.
As Thomas explains at great length today, “The practices and beliefs of the founding generation establish that ‘the freedom of speech,’ as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.” In other words, Thomas would uphold the California ban because the Framers never intended to protect “speech to minor children bypassing their parents.”
And then, like a nostalgic colonial version of Michael Chabon, Thomas launches into what is surely one of the oddest, most discursive examinations of the Joys of Puritanical Parenting. He scoots across the centuries, from the late 1600s in “the New England Colonies, [where] fathers ruled families with absolute authority,” to late 18th-century Monticello, where Thomas Jefferson told his daughters how to dress. “The Puritans rejected many customs, such as godparenthood, that they considered inconsistent with the patriarchal structure,” Thomas notes. He observes that colonial parents were warned not to “let their children read ‘vain Books, profane Ballads, and filthy Songs’ or ‘fond and amorous Romances, … fabulous Histories of Giants, the bombast Achievements of Knight Errantry, and the like.’ ” He notes, further, that in colonial Massachusetts, “a ‘son’ of 16 years or more committed a capital offense if he disobeyed ‘the voice of his Father, or the voice of his Mother.’ ” With a nod to Locke and Rousseau and changing views of parenting, Thomas observes that John Adams, Noah Webster, Gouvernor Morris, Sir William Blackstone, and others were adamant that the pliability of the youthful mind required vigilance in the upbringing of one’s children, and that this imperative was impressed upon the Founders. He notes, I suppose with approval, Thomas Jefferson’s bossy and controlling letters to his daughters. He describes early school textbooks containing “vignettes illustrating the consequences of disobedience,” including one called “Pictures of the Vicious ultimately overcome by misery and shame,” and a treatise from 1848 warning that the “number of children who die from the effects of disobedience to their parents is very large.” (I am going to go out on a limb here and guess that—title notwithstanding— Thomas’ Snowsuit is not on the justice’s list of childhood classics.) Indeed were it not for the obscenity bit, Thomas might even be willing to blurb the wildly popular new children’s book, Go the F*** to Sleep.
Thomas details briefly the rights of the colonial child (short version: Daddy Owns You) and then concludes that “[i]n light of this history, the Framers could not possibly have understood ‘the freedom of speech’ to include an unqualified right to speak to minors.” In his view, such speech has “been historically unprotected [and has] not yet been specifically identified or discussed as such in our case law.” Unlike Scalia, who isn’t inclined to create new classifications of unprotected speech, Thomas wants to reach back through the centuries and restore an old one: the right to have nobody else speak to your child. In Thomas’ view, since the California law doesn’t preclude a parent or guardian from buying their child a violent video game, the law serves only to ensure that sellers cannot bypass a parent by selling to the child without parental consent.
Scalia dismisses most of Thomas’ argument in a terse footnote in his majority opinion. Thomas’ stated new rule, he writes, amounts to denying “that persons under 18 have any constitutional right to speak or be spoken to without their parents’ consent.” Scalia adds that Thomas “cites no case, state or federal supporting this view, and to our knowledge there is none.” Scalia agrees with Thomas that parents have had broad authority to control their children, but “it does not follow that the state has the power to prevent children from hearing or saying anything without their parents’ prior consent.” If Thomas’ views were to prevail, writes Scalia, children could not be solicited to attend rallies or church services unless their parents agreed. The speech aspects of this case are interesting, yes, but not half as interesting as the debate over the rights of children versus parents versus the state.
Paul, you noted in your excellent post on the Arizona public-financing case that “the majority seems undeterred, maybe even energized, by criticism of its First Amendment holdings in the campaign-finance realm.” I think that’s right. So too, I think that Thomas is often energized by his culture-war critics, and this kind of visceral longing for the days of spare-the-rod is a good example of it. I am not sure what this walk down scary-memory lane adds to his dissent or to the doctrine. It reads a bit like “Blessings of a Skinned Bottom”—just to elicit the wrath of the New York Times’ parenting set.
I have more to say in response to your post on Elena Kagan’s dissent in the Arizona case, but I as I haven’t yet mastered reading and typing at the same time, it will have to wait.