Could one of our readers — perhaps someone from the great state of Florida, from whence this regulatory situation hails — point me to some context or explanation that makes this less ridiculous than it seems?

Because it looks ppretty freaking ridiculous.

(Click to embiggen)

Remember: the regulatory state is its own justification and its own constituent.

Hat tip to reader Dustin.

Which enumerated power of Congress allows the federal government to prosecute a Texas state court judge accused of beating his daughter with a belt?

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Bonus question:  Does Article II, Section 4 apply to the United States attorney investigating this case?  If so, please give your answer in the form of an essay, in comments.

Update: see comments.

"We found out later on that, Constitutionally, you can not ban a type of music," said Ma. "Plus, I, like my opponents said, I didn't really know what was going on."

–Assemblywoman and Speaker Pro Tem Fiona Ma

Children.

The EU toy safety directive, agreed and implemented by Government, states that balloons must not be blown up by unsupervised children under the age of eight, in case they accidentally swallow them and choke.

As a practical matter this means that children aren't going to be allowed access to balloons at all.  European balloons must be sold only to trained, licensed mimes.

No balloon for you, kid! Those things things are dangerous! You could accidentally inhale one, and require a tracheotomy. Then you'd be a mute! Just like me.

Also banned are those fwippy things that children blow into and then they roll out like a, you know.  Those things are banned for children under 14 because they can poke out eyes.  As a practical matter, this means they're banned period.  Europeans above the age of fourteen have better things to do with their time: things like alcohol, heroin, sodomy, wrist-slitting, writing regulations, and pogroms.

It would be interesting to know how many European children have died or been seriously maimed by unlicensed balloons, or lost eyes from rogue fwippy things roll out like a, you know.  The Union doesn't say.  A few years ago we engaged in a scientific study of a similar threat, based on efforts by American nannies to place warning labels on hot dogs.

We concluded that your child's odds of choking to death on a hot dog are, at a maximum, one in 181,230.  And possibly much lower.

Thanks to the nannies of the European Union, the odds that a given child will grow up to be a coddled, emotionally stunted dweeb are getting higher every day.

Rodney Dangerfield Should Have Run For Mayor: Via Marc Randazza, I see that Tucson Mayor Bob Walkup thinks that people petitioning the local government should be compelled by law to show "respect." Mayor Walken alleges that City Attorney Mike Rankin told him that a law requiring that petitions be respectful would pass First Amendment muster. Hey Mayor Walkup — with all respect, you're a douchebag and a moral weakling. And with all respect to Mike Rankin, if he told Mayor Walkup that the respect requirement is constitutional, he's incompetent.

Are You Now, Or Have You Ever Been, A Goth?: Via Free Range Kids, I see that if your kid cuts her finger in shop class (something that happens when messing around with tools, you know), she may be subjected to an inquisition and forced to sign statements guaranteeing that she is not a self-cutter:

They forced this girl to fill out a range of forms stating that she did not cut herself on purpose, and that she would pledge NOT to start cutting herself on purpose in the future.

The Government Knows Best: Via SayUncle, here is a story of a judicial decision about food freedom that is all the more appalling because it is probably a correct exposition of the state of our Wickard v. Filburn law:

“no, Plaintiffs do not have a fundamental right to own and use a dairy cow or a dairy herd;”

“no, Plaintiffs do not have a fundamental right to consume the milk from their own cow;”

“no, Plaintiffs do not have a fundamental right to produce and consume the foods of their choice…”

I've Always Thought That Interpretive Dance Was Shovel-Ready: Finally, courtesy of , a story about how stimulus dollars were used. As reflected on Recovery.org, you — the taxpayer — spent $762,372 to create 1.5 jobs doing this:

The PI and her team of technologists, choreographers and artists will work together to define an evolving system that assists in the design and production of interactive dance performances with real-time audience interaction. The Dance.Draw system will enable dancers' motions, tracked via small RF transmitters worn in satin cuffs, to act as input streams that can be flexibly applied as control parameters for interactive visualizations. The system will log dancers' motions and will be able to composite video of the dancers with different visualizations, enabling post-hoc analysis of the choreography and exploration of prospective mappings between the motion and the projected media. This will allow choreographers to explore interactive dance without always having a full cast of dancers present. In addition, it will enable other stakeholders, such as artists and musicians, to experiment offline with their media and adjust how these interplay with the choreography.

Leaving aside the thorny question of the role of the government in the arts, let me ask this: if stimulus money is supposed to create jobs to stimulate the economy, can we really not do better than paying half a million dollars per job?

Alyssa Rosenberg writes for Think Progress and The Atlantic. Today she was mad. Why? Because Brooke Shields is going to be in a movie about a famous abuse of eminent domain.

That abuse was at the heart of the case Kelo v. New London, in which SCOTUS famously and disgustingly ruled that the state can take your property and give it to another private party if it can come up with some theory about how that transfer will benefit the public. In New London, the issue is whether the city could force homeowners to sell their homes and turn land over to private developers in order to remove "blight" and promote "development." That concept made SCOTUS positively giddy:

Those who govern the City were not confronted with the need to remove blight in the Fort Trumbull area, but their determination that the area was sufficiently distressed to justify a program of economic rejuvenation is entitled to our deference. The City has carefully formulated an economic development plan that it believes will provide appreciable benefits to the community, including–but by no means limited to–new jobs and increased tax revenue. As with other exercises in urban planning and development, the City is endeavoring to coordinate a variety of commercial, residential, and recreational uses of land, with the hope that they will form a whole greater than the sum of its parts.

Well, back in 2009 I wrote about how that turned out by quoting a WSJ story:

Now, four years after that decision gave Susette Kelo’s land to private developers for a project including a hotel and offices intended to enhance Pfizer Inc.’s nearby corporate facility, the pharmaceutical giant has announced it will close its research and development headquarters in New London, Connecticut.

The aftermath of Kelo is the latest example of the futility of using eminent domain as corporate welfare. While Ms. Kelo and her neighbors lost their homes, the city and the state spent some $78 million to bulldoze private property for high-end condos and other “desirable” elements. Instead, the wrecked and condemned neighborhood still stands vacant, without any of the touted tax benefits or job creation.

But in all fairness, I have to point out that there has been an important update since 2009, when I suggested that the city and the state had wasted $78 million and forced citizens out of their homes to facilitate a phantom development and had not produced any jobs or anything of value. The condemned land has recently started providing value and jobs. I apologize for suggesting that it never would. Specifically, the condemned land is producing jobs and value in the Post-Hurricaine-Vegetation-And-Debris-Disposal-Industry.

Now, we learn from the local newspaper, The Day, that following the hurricane Irene, the city has designated the Fort Trumbull redevelopment site as a place to dump vegetation debris. For a video of locals dumping that stuff on the site, click here.

Anyway, that's the subject of Brooke Shields' new movie, apparently. The prospect of such a movie on the Lifetime Channel irritated Alyssa Rosenberg, who said the movie would be "anti-eminent-domain" and described it thusly:

I’d had the vague sense that Brooke Shields’ career wasn’t in the best place (as Entourage tells me, if she’s involved in a project with Johnny Drama, that’s not a good sign), but I’m sort of depressed, both because of what it means for her talent and what it means for her politics, that she’s starring in an anti-eminent domain movie on Lifetime about the Kelo case. Speaking out about postpartum depression and the idea that seeking treatment for it isn’t shameful is really useful and important. Sparking fears that the government’s going to take your property is a lot less useful.

Challenged on this, she tried to clarify that sure, there are occasional abuses, but that's only because corporations SUCK:

Apparently, this post has given people the impression that I think the Kelo ruling was good. I don’t think it’s good that corporations can manipulate eminent domain for their own benefit. But I don’t think a Lifetime movie is going to differentiate between Kelo and eminent domain as it ought to function. Instead, I think it is likely to take a conservative, totally anti-eminent domain tack that will not further the conversation. I should have made the connection between those two points stronger.

Hence, Alysse Rosenberg's reaction to an impending movie about a grotesque injustice and abuse of government power is to be angry because it might imply conclusions that do not suit her ideological biases. This is roughly the equivalent of Ann Coulter getting in a snit that someone is making a movie about Cameron Todd Willingham because it will just be a way for liberals to make the death penalty look bad.

E.D. Kain reacts by asking, not unreasonably, why aren't progressives upset by Kelo in particular and eminent domain abuse in general?

Progressives should be deeply bothered by a case like this, and should celebrate the fact that at least a television movie is being made about Kelo. Government should not be in the business of cronyism and theft, and liberals should be up in arms when government enriches private corporations at the expense of ordinary citizens.

And I should be 175 pounds with abs of steel and all my hair. But blogger's reach should exceed his grasp, or what's a heaven for? The truth is that too often we react based not on the merits of a particular story or case, but based on the political and cultural baggage the case carries. That's how a crowd can cheer 234 executions in Texas even when there are Cameron Todd Willinghams. That's how Rosenberg can get upset that someone is telling Kelo's story even though it's so clear that Kelo was wronged.

If we discovered that PeopleEnergyCom had used money and influence to convince elected officials to detain citizens so PeopleEnergyCom could use them as human batteries to provide cheap power, progressives like Rosenberg would be saying "corporations are so awful!," and Rosenberg's conservative equivalents would be saying "government is so awful!" [Libertarians would be saying "PeopleEnergyCom should only be able to do that if they negotiate arms-length revocable contracts at market rate with their human batteries!"]

One bright warm Spring in the mid-seventies I had a lemonade stand on the sidewalk outside my house, less than a mile from where I live now. You need a hook in the lemonade game, and I had one — I offered free pollywogs from the pond out back, thoughtfully provided in the same cups in which I sold the lemonade. Doesn't everyone like pollywogs?

You see why I am a lawyer and not a businessman.

No one bothered me back then — least of all customers. I'm not sure I could get away with it now, thirty-five years later. There's a war on, you know — a war on lemonade.

Over at The Inductive, Christopher Carr's kid had a hook too — fruit punch and green tea. Maybe that's what attracted the attention of the Massachusetts State Police, who made his twelve-year-old stepson shut the stand on his streetcorner down. Carr also discovered that the Staties have the staff to go about shutting down kids' lemonade stands, but not the staff to answer phone calls from citizens about it. Funny, that.

Now an again it might be reasonable to hold a kid's lemonade stand to the same standard as an adult business enterprise — like when a kid sets up the stand at a commercial venue like a fair to compete with grown-ups. But when cops go about shutting down juveniles' lemonade stands because the law technically permits them to do so, we see the danger in broad, discretionary laws. Regulators tell us that the state can be trusted with broad authority because they will exercise good judgment and discretion. Really? What indication do we have of that?

Years ago, Coyote Blog did a great taxonomy of all the folks who want to run our lives for various reasons. It remains instructive, and it reminds us of why cops and bureaucrats defend shutting down lemonade stands — because the government has our best interests at heart, and knows better, and if the state lets the little things skate, next people will be questioning it on the big things. Might I catch some awful creeping crud from a kid's lemonade stand after the kid used standing pondwater with pollywogs to make the lemonade? Possibly. And God forbid that citizens start to think that maybe I can assess that risk myself, act accordingly, and accept the results.

Yesterday I talked about how the Colorado Department of Public Health knows, in creepy-abusive-spouse detail, what is best for your kids. Sometimes the government realizes all by itself that it is a better parent than you are. But other times the government has this epiphany as a result from prodding from its partners in academia.

Take, for instance, Harvard. Harvard has long been a source of Deep Thinkers with Important Ideas about government's role in society, leading to examples of well-thought-out government intervention like the Vietnam War. We've discussed the sort of insight that comes out of Harvard before.

Today, courtesy of the redoubtable Walter Olson, I saw a new instance inflaming the news media and blogosphere today: two Harvard researchers have written a commentary in the Journal of the American Medical Association called "State Intervention in Life-Threatening Obesity" suggesting that obese children should, in some instances, be removed from their parents by the state for the good of the children. The Harvard folk are David S. Ludwig and Lindsey Murtagh (hat tip to Future of Capitalism for those links).

My first instinct, like that of Walter, is outrage and contempt and all the other pulse-elevating feelings on the I-must-blog-about-this spectrum. My second instinct, though, is to ask this: exactly what are these Harvard researchers advocating?

I knew in advance not to expect to learn much from the news media. Like legal reporting, science reporting is so inadequate that it is the butt of jokes in comics — at least the sort of comics read by the sort of people who care about the quality of science reporting.

My expectation was not thwarted. The reporting on the article was vague and ambiguous and failed either (1) to educate me about the exact scope of the custody-meddling that Ludwig and Murtagh are advocating, and (2) to convince me that this wasn't the sort of OMG MAD SCIENCE! reporting that the comics linked above lampoon.

JAMA does not provide full text of its articles online. I was therefore thwarted in my attempt to figure out whether Ludwig and Murtagh are respectable clinicians or nasty totalitarians or something in between. I was ready to write about this anyway. Then I thought how can I complain about lousy science reporting while perpetrating it myself? So I bit the bullet and paid $30 to download the JAMA article. I comfort myself that (1) JAMA is, in general, a good cause, (2) this isn't the stupidest thing I will have spent money on this week, and (3) the Popehat promise is that we read things like JAMA so you don't have to.

I was concerned that the JAMA article might be beyond my little political-science-major brain. I should not have worried. "State Intervention in Life-Threatening Obesity" is a puff piece suitable for a popular magazine or newspaper and largely free of substance. With footnotes, it's two two-column magazine pages long. It does little but set up the existence of childhood obesity in America, discuss in brief some of the health risks of such obesity, note that existing law generally allows some state intervention in parenting choices when a child's health is at risk, and opine quite generally that in some extreme cases custodial interference by the state may be warranted. This is as specific as it gets:

In severe instances of childhood obesity, removal from the home may be justifiable from a legal standpoint because of imminent health risks and the parents’ chronic failure to address medical problems. Indeed, it may be unethical to subject such children to an invasive and irreversible procedure without first considering foster care. Nevertheless, state intervention would clearly not be desirable or practical, and probably not be legally justifiable,
for most of the approximately 2 million children in the United States with a BMI at or beyond the 99th percentile. Moreover, the quality of foster care varies
greatly; removal from the home does not guarantee improved physical health, and substantial psychosocial morbidity may ensue. Thus, the decision to pursue this option must be guided by carefully defined criteria such as those proposed by Varness et al, with less intrusive methods used whenever possible.

In short, Ludwig and Murtagh seem to be doing little more than attempting to "start a conversation" about when obese children should be removed from their parents by the state. For specific diagnostic criteria, they punt to an article in Pediatrics called Childhood Obesity and Medical Neglect; that article is available fully online through the link. That article is fairly cautious:

In our opinion, 3 conditions must be met to justify state intervention, that is, a high likelihood of serious imminent harm, a reasonable likelihood that coercive state intervention will result in effective treatment, and the absence of alternative options to address the problem. In the case of childhood obesity, it is not the mere presence or degree of obesity but rather the presence of comorbid conditions that is critical for the determination of serious
imminent harm. All 3 criteria are met only in very limited cases, that is, the subset of obese children who have very serious comorbid conditions and for whom all alternative options have been exhausted. In these limited cases, a trial of removal from the home to protect the child may be indicated.

The linked Pediatrics article gives some examples of types of health risks.

Supporters of this research could reasonably argue that this standard is not really different from what courts and child authorities would apply if children were facing a risk other than obesity. In short, to the extent that media coverage of this article suggests that Harvard researchers say that the government should take your kids away if they are fat, that coverage is woefully deficient.

But that doesn't let Ludwig and Murtagh off the hook.

The proof of the pudding is in the eating; the proof of the regulatory scheme is in its drafting and implementation. There are good reasons to be highly suspicious of any social movement — driven by medical professionals or not — to encourage interference with parental custody.

The medical community is an increasingly popular vector for social agendas and state control of the individual. Norms about government control start narrow in theory — like "in the most extreme cases, some morbidly obese children facing imminent serious health consequences might be taken from their parents' homes if those parents refuse to address the health problems." In practice, though, the norms get broadened and twisted to justify social, political, and religious agendas, to increase government fiefdoms, and to wage cultural wars. The norms are implemented not by the knowledgeable professionals who envisioned them, but by bureaucrats of mixed capacity and motives under regrettable conditions. The result, amongst actual people, is inevitable: norms permitting limited state intervention into the lives of citizens are capriciously and maliciously applied, usually in a disproportionate fashion against the unpopular or the powerless. Moreover, when the state trains and equips to exercise power upon some justification, it tends to see that justification whether or not it exists. In our society, the natural and probable result of normalizing state custodial interference of extremely obese kids is not sparing application; the natural and probable result is abuse and misapplication.

Ludwig and Murtagh may well take the Beckian stance that they are "just asking questions" — simply raising the topic for greater discussion, not advocating any hasty broadening of state power over citizens' children. I interpret their brief column as exactly that — an attempt to start the discussion and lend JAMA's credibility to the proposition that forcible removal of obese children is supported by medical academia at the highest level. But the state always thirsts for such power, and is always too eager to get academic support for seizing it. Sooner or later, Ludwig and Murtagh will be cited in some local bureaucrat's application to take a child from his or her parents. Will that child meet the narrow diagnostic criteria that Ludwig and Murtagh have in mind? Perhaps — and perhaps not. The strong possibility that those footnote-referenced diagnostic criteria will be neither understood nor met is, I submit, a factor that Ludwig and Murtagh have not weighed adequately. They have started the dialogue, but distant, barely-supervised and poorly-restrained state officials will finish it for them. Ludwig and Murtagh might also have suggested that parents could buy vicious attack dogs to scare their fat children away from the refrigerator; though the dogs could be trained, in theory, to do so in a safe and appropriate manner, the natural and probable result is blood on the floor.

Most of us probably expect the government to regulate child care businesses to a certain extent, with sensible rules like "no open sewers" and "no chainsaw juggling" and "no registered sex offenders working as nurses," and so forth.

But such minimalistic regulations ignore an important fact: people in government are much smarter than we are and know much better exactly how our children should be cared for. And when I say exactly, I mean "with an unsettling, Rain-Man-like level of obsessive specificity."

For example, I give you the recently proposed Colorado Department of Human Services Proposed Child Care Center Rules, which have gotten a certain amount of coverage.

It's not easy to mix worrying vagueness and unmedicated-OCD-level detail, but the Colorado Department of Human Services manages. Its 98 pages of dense regulations for child care centers range from the catch-all-provision-allowing-regulators-to-do-anything-they-want . . . .

ALL PERSONNEL SHALL REFRAIN FROM CONDUCT THAT WOULD ENDANGER THE SAFETY OR WELL BEING OF CHILDREN.

. . . . to the terrifying, future-dystopian micro-regulation of common human activities, like two pages with multiple points and sub-points precisely dictating all adult and child hand-washing.

You may think that you, as a parent, are capable of choosing a child care center based on its staff, curriculum, equipment, and approach to learning. You may think that you can best determine, in consultation with the child care center staff, what your child should be doing all day. The CDHS disagrees. The CDHS knows better than you, for instance, exactly how much screen time your child should have per day, and when and how it may be viewed:

TELEVISION, VIDEO, AND COMPUTER TIME IS LIMITED TO 20 MINUTES PER DAY UNLESS IT IS A SPECIAL OCCASION.
4. TELEVISION AND VIDEO VIEWING SHALL NOT BE ALLOWED FOR CHILDREN UNDER THE AGE OF TWO (2).
5 TELEVISION, VIDEO AND COMPUTER TIME SHALL NOT BE AVAILABLE DURING SNACK OR MEAL TIMES.

You may think that your child care center can determine by itself which toys to stock, and that maybe you'll supplement it with donations. Once again, you're wrong. The CDHS knows, down to the number of paintbrushes and the type and number of blocks, what kind of toys your child should play with:

EACH INFANT AND TODDLER CLASSROOM SHALL HAVE AT LEAST ONE (1) SET OF 6 OR MORE SOFT VINYL OR PLASTIC
BLOCKS.

SCHOOL AGE BLOCKS AND ACCESSORIES
A. EACH CLASSROOM SHALL HAVE AT LEAST TWO (2) SETS OF BLOCKS WITH A MINIMUM OF TEN (10) BLOCKS PER SET.
B. EACH CLASSROOM SHALL HAVE A VARIETY OF AT LEAST FIVE (5) ACCESSORIES FOR EACH BLOCK SET. THE ACCESSORIES
SHALL BE STORED WITH THE BLOCK SETS AND SHALL BE REPRESENTATIVE OF PEOPLE, ANIMALS, TRANSPORTATION ETC.

Speaking of toys, maybe your kid isn't Anglo. Mine aren't. Do you care if the child care center has non-white dolls? Would you like to donate (for instance) an Asian doll, like we did, so your kid will have a doll that looks like him or her? Or do you not care? It doesn't matter, your government has regulated doll ethnicity for you:

DOLLS SHALL REPRESENT THREE (3) RACES.

Do you think you can work out the details of things like whether your child wears a sweater, and when and if your child wears sunscreen? Fool. The government knows, in queasy detail, exactly how your child should be protected from Mr. Sun:

D. Sun Protection
1. THE CENTER SHALL INFORM PARENTS OR GUARDIANS,
THROUGH THE POLICIES AND PROCEDURES STATEMENT OR AN
AUTHORIZATION FORM, THAT SUNSCREEN WILL BE APPLIED TO
THE CHILDREN’S EXPOSED SKIN PRIOR TO OUTSIDE PLAY. A
DOCTOR’S PERMISSION IS NOT NEEDED TO USE SUNSCREEN AT
THE CENTER. PARENTS OR GUARDIANS SHALL NOTIFY THE
CENTER STAFF IF SUNSCREEN HAS BEEN APPLIED TO THE
CHILD’S SKIN PRIOR TO ARRIVING AT THE CENTER.
2. SUNSCREEN SHALL BE APPLIED ACCORDING TO THE
MANUFACTURER’S INSTRUCTIONS FOR APPLICATION AND IN
ACCORDANCE WITH THE MANUFACTURER’S RECOMMENDED
AGE FOR USE.
1. The center must obtain the parent or guardian's written authorization and
instructions for applying sunscreen to their children's exposed skin prior
to outside play. A doctor's permission is not needed to use sunscreen at
the center.
23. When supplied for an individual child, the sunscreen must SHALL be
labeled with the child's first and last name.
3. 4. If sunscreen is provided by the center, parents must SHALL be notified
in advance, in writing, of the type of sunscreen the center will use.
45. Children over FOUR (4) years of age may ARE ALLOWED TO apply
sunscreen to themselves under the direct supervision of a staff member.
6. A WRITTEN STATEMENT FROM A CHILD’S HEALTH CARE
PROVIDER AND PARENT OR GUARDIAN IS NEEDED IF
DRAFT–PROPOSED CHILD CARE CENTER RULES–04/28/11–DRAFT
Revised on September 7, 2010 45 of 98
SUNSCREEN IS NOT TO BE APPLIED. A WRITTEN PLAN TO
PROTECT THE CHILD FROM OVER EXPOSURE TO THE SUN SHALL
BE IN PLACE AND KNOWN TO STAFF CARING FOR THE CHILD.

You might think that such detail is unnecessary. But the CDHS — and government entities like it — are staffed with people who are more attuned to the particular needs of your child than you. If it weren't for their superior grasp of your child's well being, there is a clear and present danger that your child's sunscreen might be labeled with only her first or last name, not both. THAT, my friend, is what proper regulation can do for YOUR family.

See, the CDHS and its staff are part of the global village necessary to raise your child. They are kin to the concerned folks everywhere who, through litigation or regulation, would like to help you raise your children by regulating their pets and walking habits and Happy Meal contents and anything else that concerned, important people can think of. This is a Good Thing, particularly in this economy. Folks need jobs. If the CDHS' staffers weren't paid with your tax dollars to sit around and think of exactly how your child's day should be spent, how would they feed their own families?

If this level of state control creeps you out, don't worry. The government will never be able to regulate the core of your child-care experience — the personal relationships you develop with your kids' teachers and child-care workers, relationships that often develop into friendships. The government can't regulate human interaction on that level . . . .

CHILDREN SHOULD BE GREETED INDIVIDUALLY AND
PLEASANTLY UPON ARRIVAL AND DEPARTURE

. . . . yet.

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.

It won't surprise long-time readers to learn that I approve of Justice Scalia's majority opinion in Brown v. Entertainment Merchant's Association, which struck down California's ban on the sale of violent videogames to minors.  The opinion is more or less mandated by United States v. Stevens, another case we cheered.

So I won't dwell (other than to applaud it briefly) on the majority's holding that minors do have First Amendment rights, nor on the cynicism of California's attempt to end-run the First Amendment by claiming that all speech may be regulated in the name of protecting children.

I want to dwell on the concurring opinion of Justice Samuel Alito, which shows the danger posed by statutes such as California's Violent Videogame Act, and of judges who believe their opinions as art critics ought to be the law of the land.  This passage:

It is certainly true, as the Court notes, that “ ‘[l]iterature, when it is successful draws the reader into the story, makes him identify with the characters, invites him to judge them and quarrel with them, to experience their joys and sufferings as the reader’s own.’ ”  Ante, at 11 (quoting American Amusement Machine Assn. v. Kendrick, 244 F. 3d 572, 577 (CA7 2001)).  But only an extraordinarily imaginative reader who reads a description of a killing in a literary work will experience that event as vividly as he might if he played the role of the killer in a video game. To take an example, think of a person who reads thepassage in Crime and Punishment in which Raskolni- kov  kills the old pawn broker with an  axe.  See F. Dostoyevsky, Crime and Punishment 78 (Modern Library ed. 1950).  Compare that reader with a video-game player who creates an avatar that bears his own image; who sees a realistic image of the victim and the scene of the killing in high definition and in three dimensions; who is forced to decide whether or not to kill  the victim and decides to do so; who then pretends to grasp an axe, to raise it above the head of the victim, and then to bring it down; who hearsthe thud of the axe hitting her head and her cry of pain;who sees her split skull and feels the sensation of blood onhis face and hands.  For most people, the two experiences will not be the same.

illustrates the problem perfectly.

For those who haven't read it, spoilers follow:

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Summer!

When I was a kid, summer was a magical time of freedom. I'd lurch out of the house rubbing my eyes with the birdsong at dawn and not return until dinner, filthy and tired and delirious with possibilities fulfilled. My parents would have a basic idea where I was — going to Eric's or Brian's (to start, at least) or to the movies — but they would not know with a GPS-anklet level of specificity. I walked through wild chaparral canyons and hills to friends' houses, rode my bike to the little one-screen movie house and ice cream shop miles away in Montrose, and roamed the horse trails of Flintridge, dodging piles of horse crap and playing militaristic versions of Calvinball with hooting friends. Physical activity that made me whine during the school year (like walking uphill a mile and a half to get home, alone, from first grade on) suddenly was all part of the fun. I might occasionally check in with mom by phone, as a courtesy, but in the days before message machines or call-waiting or cell phones, who could blame me if there were great, sprawling blocks of time when I was untraceable?

Now, of course, I'm a parent of young kids, living just a couple of miles from where I grew up. Would I let them roam the hills I grew up in unsupervised? Would I let them flit from one friend's house to the next, unscheduled, driven by whim and by whose Atari was working that week? Would I let them ride their bikes a mile to the boulevard for a candy bar? Hell no. Because I have caved fully and completely to the relentless message of the media, the government, and the people-who-know-such-things: my children are on constant peril.

I'm dwelling on this sad fact this week because of this maddening story over at Free Range Kids, the excellent site I first mentioned three years ago. Blogger Lenore Skenazy describes how a mother was admonished by police that letting her kids play in the neighborhood the way I used to play — indeed, the way kids have played since before anyone could remember — is illegal:

Dear Free-Range Kids: Our kids have always been “Free -Range.” Unfortunately, today, someone called the police because of the “unsupervised children” running around the neighborhood. My son is six (seven in September), and we allow him to ride his bike to friend’s houses up the street (we live in a small, three-street neighborhood far from any major roads), rollerblade down the road, play with friends in the little patch of woods across the street from our houses, play in sprinklers with the neighbors, etc. There are constantly kids running around our neighborhood, playing with their friends — kids of all ages.

The officer said that kids under ten, by law, are not allowed outside, unsupervised except in their parents’ yard. The officer did not come to our house, but visited the mom of two of my son’s good friends. The people who called reported that all the way back in the winter, a “whole bunch of unsupervised kids were sled riding down the hill” that is across from our townhouse units.

This cop might be all wet about the laws of his state or locality. But the sentiment he expresses — which would have been reviled and regarded as un-American fifty or even thirty years ago — is now mainstream. The media pummels us with stories about children in peril. Politicians snatch low-hanging fruit by demanding more and more and more laws protecting children. Schools and other institutions, rocked by frivolous lawsuits and by the collapse of personal responsibility, ban anything that might lead our little special snowflakes to skin their knees. And so we fear — and we deny our kids the sort of freedoms that we enjoyed.

Our fears are largely spectral — or, at least, vastly exaggerated. We're led to believe that every shrub hides a lurking child molester. Yet all reliable statistics indicate that such crimes against children have steadily declined (not to mention the fact that children have always been at greatest risk for abuse at home, not running around in the wild). Morons driving badly are still a danger, but not more to kids than to adults, and not more now (when they are distracted by texting) than they were back in the day (when they were distract by jamming the 8-Track into the player). Our parents weren't careless, nor were they made of more fearless stuff — they simply weren't bombarded with the daily message of danger, danger, danger. If the Leave It To Beaver/Norman Rockwell vision of America glossed over many ugly truths, at least it did not send the insidious message that little Cindy and Bobby would be kidnapped if they rode to the park and decapitated if they used an off-brand pool toy.

Why should you care? Well, you should care because the danger danger danger drumbeat and our capitulation to it is part of the process of making us more dependent upon the government, more subservient to authority, more willing to let the state use kids as an excuse to tell us what do to in an increasingly wide and unprincipled array of circumstances. Accepting that kids' lives must be heavily structured normalizes the idea that all of our lives must be structures. And it's self-sustaining. We crank and rant about youth being the slackoisie, but can you really blame them? Kids raised in the whiffle life are taught dependence and fear, not self-reliance and self-assurance. Do you think those kids are going to grow up and vote for more personal freedom and liberty when you're an old crank? Or are they going to look to the Nanny State, lovingly embodied by their own dear parents, to tell everyone what to do, just as it has always told them? Can you expect them to respect your desire to wander where and how you please, when they've always been taught they mustn't do that because it's dangerous? Sure. Good luck with that.

Now excuse me — my kid has a scheduled playdate.

Edit: Forgot to note that the Free Range Kids story was courtesy of Walter Olson.

The recently and awesomely re-launched blog Nobody's Business has a couple of posts addressing a core nanny-state issue from a couple of angles: the problem of children.

No, not the problem that they are maniacal and impossible to reason with.

I'm talking about the problem that children bring out our most authoritarian impulses. Children take our theoretical devotion to liberty and reduce it to a practical appetite for Mrs. Grundyism and micromanagement. Children are the bloody shirt waved by the most enthusiastic and controlling nannies amongst us. I've just created a new tag — Think of the Children! — to aggregate all of our posts discussing how real and imagined threats to children lead us to tolerate intrusions into their lives and ours. (I also retroactively applied the tag to appropriate past posts. I need a drink now.)

Nobody's Business has two important posts touching on this phenomenon.

First, Rick Horowitz talks about how eager we are to judge parents — and involve the government — when we conclude, based on limited information, that parents are not doing a good enough job of watching their kids. If you've ever been on a mommy blog or an adoption blog or a parenting blog, you've seen it: someone tells a story about seeing neighbor kids out late unsupervised, and suddenly the thread is full of people telling the storyteller to call Child Protective Services — as if that's rational based on the information presented, as if a call to Child Protective Services is likely to work to the benefit of the children. This goes to an ethos that is at the heart of why we allow our fellow citizens to use kids as excuses to violate everyone's rights: people who are lovely, open-minded, and un-judgmental about other issues are often judgmental assholes about parenting. That's how citizens of a free society can talk themselves into using laws, or lawsuits, to micromanage everyone else's parenting: because many people think that everybody but them sucks as a parent.

Second, Mark took apart economist Steven Levitt's "daughter test" — the admission that in considering what society should criminalize something, he thinks about whether he'd want his daughter to do that thing. As Mark suggests, Levitt's sin is being too honest — he admits to what too many citizens are secretly thinking. We want the state to parent for us — to forbid things we don't want our kids to do. We want the state to step in to parent other people's kids as well, because — as established above — we secretly think those people suck as parents.

I was completely unprepared for how powerfully I would love my kids, so I sympathize with the tendency of kids to impair our capacity for rational thought and lead us astray from our ideals. But as Rick suggests, we have to stay strong for their sake — ultimately they won't thank us if we chain ourselves, and them, out of fear and for their putative own good.

Edited to add: Fixed messed-up links. Sorry.

From multiple sources, I see that an Illinois high school kid has been arrested, charged with "disorderly conduct," and referred to juvenile court for writing, posting, and distributing a list "ranking" girls in his school:

The list emerged in January and described the girls by explicit, derogatory nicknames and assessed their physical appearance, sexual desirability, sexual activity and other characteristics. It was posted on Facebook and hundreds of copies were printed and distributed at the high school during lunch period, before the school administration intervened.

Let's get one thing straight — this kid is a loathsome pimple on the face of humanity. He's been badly raised and is likely to live badly. High school boys tend towards aggravated dickery in the first degree, but he's raised it to a new level. Of course this is deeply humiliating to the high school girls it targets, who are already in life's most hellish social circle.

But should the government be criminalizing aggravated dickery?

The cops are apparently relying on this:

(a) A person commits disorderly conduct when he knowingly:
(1) Does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace;

Yeah, that's not vague and ambiguous and subject to enforcement at government whim.

Look, I can actually see where a "disorderly conduct" theory could be applied in a situation like this consistent with the First Amendment — say if the kid was distributing a flier with the list at school during lunch and it was causing a riot and he kept doing it anyway. But this prosecution amounts to "this kid is an utter turd and we're not letting him get away with it." The problem is that Americans (1) have wildly varying ideas of what it means to be an utter turd and (2) support free speech more in the abstract than in the particular and (3) oppose government getting its nose in our business more in the abstract than in the particular. Do we really want the police arresting teens for being assholes? Do we want them arresting anyone for being assholes? Bear in mind some cops already thing that you're an asshole who should be arrested if you fail to genuflect to them.

Moreover, why criminalize dickery when social sanctions are more effective? Get ten bloggers to name this asshole kid and describe what he did and embed his name in their post titles and tags. Assuming his name isn't too common, his dickery will follow him around until Google crumbles. Feel like asking for a date when you're in college, kid? Hope she doesn't Google. Looking for a job? Hope they don't Google. Character is destiny, you know. Just ask, say, Alex Kochno. Harsh? Maybe. Maybe even harsher than juvie court. But hey, that's the marketplace of ideas. If you want to post a nasty ranking of 50 classmates, then maybe people you haven't met yet should be able to discover easily that you're the sort of person who likes to make nasty rankings of 50 classmates.

The kid's a juvie, so I don't see his name online yet. Maybe it will go public. Aw, little high school bro, you may be in for a rough social life.

Edit: By the way, the list is online. I won't link it. But how about a taste, with the name changed, so you can see what the little darling is like?

24. Fished Faced Gook: [NAME] is the first Asian (Zipper Head) to ever be on the list. But she’s not your typical Gook. She has a nice ass, huge rack, and takes idiot math with coons. So as you can see not all stereotypes are true, though a lot are because I’m pretty sure she reeks of Wasabi sauce. You can also add to her list of uncharacteristic traits the fact that she hangs out with some of the ghettoest girls in the grade, not to mention the smelliest. But besides all that she’s The List’s only and best looking Asian and kudos for being the only Jr. to make [TEAM]

42. Ms. Chokesondick: I don’t know who is dumber. [NAME] or her parents. Lets weigh it out. Her parents adopted a mud blooded wet back and tried to civilize her by giving her the last name [NAME] and also let her play a brutally dangerous sport. Then there is [NAME]. Thinking she can make a difference in the greatest sport ever invented. Not knowing the only time a women should be on the field is during half time doing theatrical dances or asking male players about the cold whether. Or how about for not knowing the simple fact the genital herpes last forever. Well I think [NAME] wins. The only logic I can think of for her pure stupidity is Syphilis. If Syphilis is not treated in its early stages it can lead to insanity. Add that with her already bipolar personality and you once again have Jack Nickelson in the movie “One Flew Over the Coo Coo’s nest”.

They shot Americans for less.

They look down on all of us, in shame at what we've become.

Via