Monday, June 27, 2011

For the Dissent...

The First Amendment can be scary when you really begin to examine it. We love to trot it out as an example of the incredible freedom which our forefathers acknowledged as our right. We have latitude to speak, to assemble, to publicize, to complain to our government and to worship without restriction in accordance with our own beliefs rather than those imposed by the state. What's not to like about that?

For most folks there is nothing to object to, at least until we get to something which they personally find in violation of their own standards. When you begin to say things, do things, portray things, protest things that are held sacrosanct by the majority it gets immeasurably more difficult to support the First Amendment. Ask about flag burning for example. Discuss the photographic work of Robert Maplethorpe. Try to find out where the threshold is on obscenity/pornography.

I usually go through a sequence in class on what should be prohibited as obscene. I'll start with something very common, such as the sight of a woman's naked breast. Not much problem. What about a totally naked woman? Two women? A man? A man and a woman? Man and two women? Two or more men? Usually they find a place they won't go when I get to two women, a man, a dwarf, a tiger and a large basket suspended by a chain over a pit of alligators. Everyone has a limit. The First Amendment does not.

A blow was struck for liberty by the Supreme Court today with a decision about video games. The simple act of writing that sentence gives me pause. What is the federal government doing legislating video games in the first place? Is that the limited government our Forefathers envisioned? Read for yourself:

Violent Viddies Vetted for Kiddies

Where does that decision fit on your threshold of what needs to be done by government to protect the children? Note here that whenever anyone says that government needs to act in some manner to protect the children, you should be digging through your kit bag for your dog-earred copy of the Constitution because your rights are about to be attacked.

I particularly found the dissent to be telling.

And an unlikely duo, conservative-leaning Clarence Thomas and liberal-leaning Stephen Breyer, agreed that the California video game ban should have been upheld, but for different reasons.
Breyer said the court's decision creates an insurmountable conflict in the First Amendment, especially considering that justices have upheld bans on the sale of pornography to children.
"What sense does it make to forbid selling to a 13-year-old boy a magazine with an image of a nude woman, while protecting the sale to that 13-year-old of an interactive video game in which he actively, but virtually, binds and gags the woman, then tortures and kills her?" Breyer said. "What kind of First Amendment would permit the government to protect children by restricting sales of that extremely violent video game only when the woman — bound, gagged, tortured and killed — is also topless."
And Thomas said the majority read something into the First Amendment that isn't there.
"The practices and beliefs of the founding generation establish that "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," Thomas wrote.
What is telling there is the difference in outlook even while dissenting. The liberal Breyer sees nothing wrong with restricting freedom and imposing a governmental standard if it is done under the justification of protection of children. Government, in his view, is there to be our guide, parent and guardian.

Justice Thomas, however, cuts right to the crux. The parents or guardians are the gatekeepers of what a child could and should have access to. It is not the job of government to apply a uniform standard, nationwide to all minors (anyone under the age of 18) without regard to maturity or supervision. Parents have that responsibility.

1 comment:

PickYourBattles.Net said...

Great post. You nailed the importance of the First Amendment.