Wednesday, June 29, 2011

Court keeps expanding First Amendment

I spent three decades defending the First Amendment and exercising the press freedom that it guarantees. At times, however, I have to doubt the reasoning that extends First Amendment protections to practices I consider unrelated to the authors' definition of free speech.

The Supreme Court this week found in the First Amendment's language a prohibition against any state limiting the sale of violent video games to minors. Any such prohibition, the court majority said, inhibits free speech protected by the First Amendment. Having read press accounts of the decision, I cannot understand whose First Amendment rights are being inhibited. Is it the right of minors to expose their young minds to destructive violence or is it the right of game makers to sell its deleterious products? If the former, I question whether First Amendment protections are meant for minor children (would the court protect an adolescent's "mooning" of his parents or teachers or shouting "you suck!" over a bullhorn?). If it's the right of game makers, I question whether the First Amendment was ever intended to protect that kind of speech.

Andrew Cohen wrote an interesting explication of this week's two First Amendment cases for the Atlantic.

The video games case divided the court in an interesting way. The ruling left liberal Stephen Breyer and conservative Clarence Thomas in the minority with conservative Antonin Scalia (usually Thomas' philosophical mentor) defending the "liberal" position of free access for children to violent games. The California law the court shot down (excuse the violent metaphor) only required that children have a parent's permission to buy a "mature" rated video game. If parents have any role in child development (and that might be an open question these days), a state should be able to reinforce that role by statute. Extending full constitutional protection to the whims of immature children will inevitably lead to conflicts with parents who believe their role is to help mold children into mature, responsible, caring adults.

If the argument is that video game makers have a right to express their "art" in any way they see fit (including the murder of innocent "virtual" bystanders), the California law did not inhibit their ability to create their "art." It did not prohibit the use of violent video games by children. It only prohibited the purchase of these games without a parent's permission. Taken to its logical conclusion, the court could find that distillers should be allowed the freedom to sell their "artistic expressions" to 6-year-olds. Although the Constitution does not expressly mention it, there are and should be rights of parents to discipline and nurture their own children.

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