I can’t remember two dissenting opinions reaching the same result that are more different that the video games dissents of Justices Stephen Breyer and Clarence Thomas. Justice Breyer appeals to the views of the current academic experts on the psychological harm resulting from playing video games. Justices Thomas appeals to the views of the experts of the 17th and 18th centuries who believed, as Dahlia notes, in strong parental control. There is almost no overlap in the reasoning of these two opinions, each of which nevertheless argues for reversal of the decision below.
I think that there is a lot to be said for Justice Thomas’ notion in the violent video games case that the freedom of speech “as originally understood” did not include “a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.” At least, it seems to me that he focuses on the right question: The issue is not whether minors can have access to this violence, but whether merchants can sell to them without the advance permission of their parents. It’s important to understand, as Justice Alito recounts in his concurrence, just how horrible some of these games are: Children are allowed to guide figures through games whose purposes range from the rape of Native American women to killing as many African-Americans, or Latinos, or Jews as possible; to putting a bullet into President John F. Kennedy’s head; to re-enacting the Columbine killings; to pretending to maim and kill suffering people who are begging for mercy. My God.
The truly horrible nature of the video games in question makes me wonder whether states could establish some age at which merchants could be forbidden to sell this stuff directly to children. Is a state really precluded from saying that a merchant cannot sell a video game that involves visual enactment of violent rape to children under 8 without their parents’ consent? Under 6? If that is the First Amendment answer, could states respond by setting some age below which merchants could not sell any product (yes, it would have to include even a Mother’s Day present) to a very young minor without permission of the child’s parents? Such a law would not single out speech activities and thus arguably would be neutral and thus permissible under the First Amendment.
Not a single Justice joins Justice Thomas’ parental control opinion. The majority, speaking through Justice Antonin Scalia, in fact strongly rejects Thomas’ argument that “the state has no power to prevent children from hearing or saying anything without their parents’ prior consent.” Justice Scalia’s majority opinion notes that Thomas’ concept of parental control would free states to enact laws making it a crime to admit minors to a political rally without the prior written consent of a parent, even if the rally supported laws against corporal punishment of children. Other horrors the majority imagines could include laws against giving a person under 18 a religious tract without prior parental consent.
I agree that the First Amendment should preclude such laws. But it is interesting to note that Justice Scalia’s majority opinion does not mention other laws that would actually be more likely to be enacted by some jurisdictions—namely, laws that limit the access of minors to information about contraception and abortion. But no matter that they go unmentioned. The majority opinion is so unequivocal about the First Amendment right of minors to gain access to information without parental involvement that this decision surely provides firm support for the right of minors to information about their reproductive options. If I’m right, that is an important (and in my view, positive) development.