The Harlan Institute’s Josh Blackman has a very sharp analysis of Supreme Court Justice Clarence Thomas’ dissent in Brown v. Entertainment Merchants Association, where Justice Antonin Scalia’s majority opinion struck down California’s ban on the sale of violent video games to children. As I noted yesterday, Thomas argued that “the founding generation would not have considered abridgment of ‘the freedom of speech’ to support parental authority by restricting speech that bypasses minors’ parents.” But as Blackman points out:
Justice Thomas is guilty of “originalism at the wrong time.” Here we have a California Law that touches the First Amendment. We are not talking about the First Amendment directly, but rather the First Amendment as applied through the 14th Amendment. The relevant temporal inquiry is not the founding era, but 1868 (when the 14th Amendment was ratified).
Yet he cites, at great length the views of the founding generation on the “Freedom of speech.”
This same issue came up during the gun rights case McDonald v. Chicago, which asked whether the Second Amendnent was applicable to the states via the 14th Amendment. In that case, it was Thomas whose landmark concurring opinion offered something of a history lesson on the 14th Amendment and its original public meaning. So it is strange indeed to find Thomas apparently ignoring the relevent historical information here.