I'm as behind free expression as anyone on this planet. I don't think there should be censorship of any kind. If you want to make something, make it. If you want to say something, say it. If it's profane or shocking or just plain stupid, so be it.
The SCOTUS decision today uses this kind of free speech absolutism to justify getting rid of California's ban on the sale of violent video games to children. Here's what Justice Scalia had to say about this.
“Like the protected books, plays and movies that preceded them, video games communicate ideas — and even social messages — through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world),” Justice Scalia wrote. “That suffices to confer First Amendment protection.”
I'm totally with him as far as that statement goes. Fist Amendment protection all the way. But here's the problem. California wasn't banning this type of expression. At all. It was only saying that you couldn't sell violent games to minors. That is a completely different thing. It's not even a First Amendment issue.
I don't see how this is any different than not letting kids into R-rated movies. Or (and you knew this was coming) giving them access to porn. Really. If we follow the logic here, and not very far at that, then no one in government has any right to say that children shouldn't have unfettered access to all of the porn they can consume.
Here's Scalia again.
Justice Scalia acknowledged that Justice Alito had identified some disturbing images. “But disgust,” Justice Scalia wrote, “is not a valid basis for restricting expression.”
Again, this ban did not restrict expression. It did not tell video game makers what kinds of games they could make. It simply said they couldn't sell them to minors. Just like porn. Or violent movies.
I think I may agree with Clarence Thomas here for the first time ever.
“ ‘The freedom of speech,’ as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians,” Justice Thomas wrote.
“He cites no case, state or federal, supporting this view, and to our knowledge there is none,” Justice Scalia wrote of Justice Thomas.
Okay. I'll be happy to approach any one of Scalia's underage relatives and begin a conversation with them about how much sex I'd like to have with them. Then I'll show them some nice hardcore porn. And a Takashi Miike film fest. And maybe "Triumph of the Will". I'm sure he'll find absolutely nothing wrong with that. After all, they should be exposed to new ideas. To hell with their parents.