It's uncommon for two of us to blog about the exact same thing here at Popehat; usually one of us strikes first and the other snipes from the comments. However, rather than pollute Patrick's thoughtful piece about art and taste with my banal legalities, I've decided to blog separately about Brown v. Entertainment Merchants Association, today's Supreme Court ruling striking down the California law restricting the sale of "violent video games" to minors.

I write separately (and in far less entertaining fashion) to point out that Entertainment Merchants Association illustrates one of the themes that I've been belaboring: the government's use of categorical thinking to build its own power. The government most often does this politically — for instance, by trying to sell us the war on drugs or movie piracy as fitting into the anti-terrorism category, or trying to convince us that shameful sex offender laws are really about defending children. However, the tactic also also crops up in legal analysis. As Patrick referenced, the Supreme Court recently struck down another censorious law in U.S. v. Stevens, firmly rejecting the government's invitation to create a new categorical exception to the First Amendment for depictions of cruelty to animals.

Stephens aside, and despite today's good result, Entertainment Merchants Association demonstrates that the categorical temptation remains. Take Justice Thomas' dissent. Thomas appeals to the original intent of the Framers to resolve the dispute, saying that California's law passes muster because the men who drafted the Bill of Rights never intended for the First Amendment to apply to an entire category of speech: talking to other people's kids:

In my view, the “practices and beliefs held by the Founders” reveal another category of excluded speech: speech to minor children bypassing their parents.

This rather breathtaking conclusion demonstrates that the "conservative" and "liberal" political labels are often a poor fit for constitutional analysis. Justice Thomas suggests a an approach to the First Amendment that is nominally "conservative" (in that it is based on original intent analysis and declines to strike down a statute based on a Constitutional right) but would be appealing to many "liberals", among them nanny-state ninnies who want to restrict commercial speech to all children rather than parent their own.

Justice Breyer is not quite as ready to carve such abroad categorical exception from whole historical cloth, but he's perfectly ready to find one amidst the Court's precedent:

In doing so,the special First Amendment category I find relevant is not (as the Court claims) the category of “depictions of violence,” ante, at 8, but rather the category of “protection of children.”

Kids: America's social and jurisprudential buzzkills.

SCOTUS went 7-2 against California's violent video games law, but two of those seven thought that a narrower law might pass muster. That's encouragement for the likes of the law's author, California legislator Leland Yee, who waved your kids around like a bloody shirt against the evils of the Supreme Court, the First Amendment, and Corporate America, somehow neglecting terrorists and child molesters:

In a statement, Yee said: “Unfortunately, the majority of the Supreme Court once again put the interests of corporate America before the interests of our children. As a result of their decision, Wal-Mart and the video game industry will continue to make billions of dollars at the expense of our kids’ mental health and the safety of our community. It is simply wrong that the video game industry can be allowed to put their profit margins over the rights of parents and the well-being of children.

Come play games with me, Leland Yee. I badly want to headshot you and then teabag you. For the children.

Last 5 posts by Ken White

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