Justice Clarence Thomas on Selling Violent Video Games to Children: "I Don't Think the First Amendment Stretches That Far."


In 2003, Reason named Supreme Court Justice Clarence Thomas one of our "35 Heroes of Freedom" due to his support for federalism and limited constitutional government and because he was "a reliable defender of freedom of speech in such diverse contexts as advertising, broadcasting, and campaign contributions." That judgement still holds up, but today's dissenting vote by Thomas in Brown v. Entertainment Merchants Association doesn't do it any favors.

As Jacob Sullum noted earlier, Justice Antonin Scalia delivered a sweeping victory for the First Amendment in that case by striking down California's ban on selling violent video games to minors. "Reading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat," Scalia wrote for the 7-2 majority. "But these cultural and intellectual differences are not constitutional ones. Crudely violent video games, tawdry TV shows, and cheap novels and magazines are no less forms of speech than The Divine Comedy."

Justice Thomas took a much dimmer view of constitutionally protected speech, arguing in his dissent that "The Court's decision today does not comport with the original public understanding of the First Amendment." And it's not because Thomas sees Mortal Kombat as a lesser art form than The Divine Comedy. Here's the main thrust of his argument:

The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood "the freedom of speech" to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors' parents. The founding generation would not have considered abridgment of "the freedom of speech" to support parental authority by restricting speech that bypasses minors' parents.

This sounds like Thomas might even uphold a ban on selling Dante to minors, which doesn't sound very much like freedom of speech to me.