July 2011 Newsletter

Last month, by a 7-2 vote, the Supreme Court struck down a California law regulating the sale or rental of violent video games to children.  The decision (summarized here, and discussed in more detail here and here), sparked a lively email conversation among the FPR editors. We thought we’d give you a chance to “evesdrop.”

Patrick Deneen: A pernicious decision.  Seems that the same reasoning should overturn age restrictions on pornography and movies (I realize the two are nearly identical) . . . I’ll defer to more incisive legal minds . . .

Rod Dreher: Scalia said in his majority opinion that our legal tradition has never held violence to be obscene.  Not so for sexuality.  As repulsive as these videogames are — and I would ban them if I could — what would the legal rationale be for banning their sale to minors, but not (to use one of Scalia’s examples) Grimm’s Fairy Tales?

Jeremy Beer: Why does a democratically constituted legislature need a rationale? I’m sure not a lawyer, thank God, but no federally “protected category” of persons is at stake here. Neither is political speech. There is no reason why the First Amendment should apply — certainly not from an originalist or strict-construction perspective.

Thus, if a legislature wants to say that Grimm’s Fairy Tales are OK and not certain video games, they should be allowed to do so. If the people don’t like it, throw em out or cut off their heads.

Plus, I’d imagine that the people of California are probably able to intuit that there is a difference between Grimm’s and Mortal Kombat, or whatever, even if they can’t articulate it. I seem to recall that being good enough for the Supremes before…

Decisions like this are utterly diastrous for localism, and of course illustrate just how hopeless is our cause, probably. Not that it isn’t worth fighting…

Caleb Stegall: Justice Thomas, as is almost always the case, gets this one exactly right.  (For those willing to brave reading a legal document, here’s a link to Thomas’ dissent)

Dirk Sabin: Scalia’s aims, like much of our fretfully idotic government might be accidentally correct, but we’ll take relief where we can get it.  If only the Corporation might someday shoulder their responsibility as a “citizen with the rights of the same” and therefore possess a modicum of morality . . . and conduct themselves upon this fine ark.

Caleb Stegall: In no sense can the decision be attributed to a “conservative” majority.  Sotomayor, Kagan, Ginsburg. . . hardly a conservative murderers row. . . need a better framework if we want to understand this. Further, Alito and Roberts concurred with the result but not scalias rationale.  Their opinion is reasonably “conservative” and Thomas’ dissent is truly conservative and is the right opinion.  Calling Scalia conservative has never been accurate.  This decision illustrates as much.

Russell Fox: I find myself rather disappointed with Alito, whom I thought saw the real stakes in these decisions clearly (as I elaborated here).  He expressed sympathy with the right side in his concurrence, but it wasn’t enough for him to join Thomas and Breyer in getting the decision correct, in my view.

Katherine Boyer: All – This is a small point amidst the larger ones (not adults, not political speech), but the argument that reading about magical violence is at all comparable in emotional effect to seeing realistic humans bloodily blown away on a screen — and pushing the electronic trigger — runs counter to the experience of most of us.  Children and adults both are far more likely to have nightmares after a scary movie than after any fairy tale, because as good as our imaginations are at times at keeping us up, we are far more affected by what we see with our eyes than what we see with our mind’s eye.  That certainly holds for desensitizing too.  Let’s measure a justice’s heart rate as he or she reads Hansel and Gretel, and then again as the justice watches Full Metal Jacket, and see what we find. 

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