Justice Thomas, Parental Paternalism, and Originalism at the Wrong Time

June 27th, 2011

I did not blog Justice Thomas’ opinion in EMA in detail this morning because I found it really curious, and I knew I need some time to digest it. In short, he argues that the Framing Era did not view children as deserving of free speech rights, and no right exists for people to speak to children without their parents’ consent (that includes video game purveyors). Ergo, the FIrst Amendment does not conflict with the California law, and it is Constitutional.

A few things stand out.

First, this broad view of parental paternalism continues a philosophy that Thomas discussed in his opinions in Troxel v. GranvilleMorse v. Frederick, Safford v. Redding, and most recently in Turner v. Rogers. Broadly stated, he does not view minors as holders of rights, and puts a lot of stake in parents (specifically a “nuclear family”) to protect the interests of the child. When there is any doubt, Thomas will side with the parents (and therefore the state).

Even assuming that video games are speech, in most applications the California law does not implicate the First Amendment. All that the law does is prohibit the direct sale or rental of a violent video game to a minor by someone other than the minor’s par- ent, grandparent, aunt, uncle, or legal guardian. Where a minor has a parent or guardian, as is usually true, the law does not prevent that minor from obtaining a violent video game with his parent’s or guardian’s help. In the typical case, the only speech affected is speech that bypasses a minor’s parent or guardian. Because such speech does not fall within “the freedom of speech” as originally under- stood, California’s law does not ordinarily implicate the First Amendment and is not facially unconstitutional.3

After assuming that a minor has a parent or guardian–perhaps usually true, but not always so–Thomas is confident a parent can ensure that his or her child is properly cared for.

Second, we see another case where Justice Thomas is willing to eschew stare decisis to reflect what he views as an originalist understanding of the Constitution. This mirrors his rejection of the Slaughter-House Cases in McDonald v. Chicago.

Admittedly, the original public understanding of a constitutional provision does not always comport with modern sensibilities. See Morse, 551 U.S., at 419 (THOMAS, J., concurring) (treating students “as though it were still the 19th century would find little support to- day”). It may also be inconsistent with precedent. See McDonald, 561 U. S., at ___–___ (THOMAS, J., concurring in part and concurring in judgment) (slip op., at 48– 52) (rejecting the Slaughter-House Cases, 16 Wall. 36 (1873), as inconsistent with the original public meaning of the Privileges or Immunities Clause of the Fourteenth Amendment).

This, however, is not such a case.

For this, Justice Scalia smacks down his frequent-partner-in-law:

JUSTICE THOMAS ignores the holding of Erznoznik, and denies that persons under 18 have any constitutional right to speak or be spoken to without their parents’ consent. He cites no case, state or federal, supporting this view, and to our knowledge there is none. . . . In the absence of any precedent for state control, uninvited by the parents, over a child’s speech and religion (JUSTICE THOMAS cites none), and in the absence of any justification for such control that would satisfy strict scrutiny, those laws must be unconstitutional. This argument is not, as JUSTICE THOMAS asserts, “circular,” ibid. It is the absence of any historical warrant or compelling justification for such restrictions, not our ipse dixit, that renders them invalid.

Thomas, citing Heller, is adamant that the lack of precedents is irrelevant if originalism dictates a different result

The majority’s circular argument misses the point. The question is not whether certain laws might make sense to judges or legislators today, but rather what the public likely understood “the freedom of speech” to mean when the First Amendment was adopted. See District of Columbia v. Heller, 554 U. S. 570, 634–635 (2008). I believe it is clear that the founding public would not have understood “the freedom of speech” to include speech to minor children bypassing their parents. It follows that the First Amendment imposes no restriction on state regulation of such speech. To note that there may not be “precedent for [such] state control,” ante, at 8, n. 3, “is not to establish that [there] is a constitutional right,”

Third, 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.”

The prac-tices 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.

In my view, the “practices and beliefs held by the Founders” reveal another category of excluded speech: speech to minor children bypassing their parents. McIntyre, supra, at 360 [A Thomas opinion] 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 chil- dren. 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 it an abridgment of “the freedom of speech” to support parental authority by restricting speech that bypasses minors’ parents.

Attitudes toward children were in a state of transition around the time that the States ratified the Bill of Rights. A complete understanding of the founding generation’s views on children and the parent-child relationship must therefore begin roughly a century earlier, in colonial New England

In the decades leading up to and following the Revolu- tion, attitudes towards children changed. See, e.g., J. Reinier, From Virtue to Character: American Childhood, 1775–1850, p. 1 (1996) (hereinafter Reinier). Children came to be seen less as innately sinful and more as blank slates requiring careful and deliberate development. But the same overarching principles remained. Parents con- tinued to have both the right and duty to ensure the proper development of their children. They exercised significant authority over their children, including control over the books that children read. And laws at the time continued to reflect strong support for parental author- ity and the sense that children were not fit to govern themselves.


The Revolution only amplified these concerns. The Re- public would require virtuous citizens, which necessi- tated proper training from childhood.

The history clearly shows a founding generation that believed parents to have complete authority over their minor children and expected parents to direct the devel- opment of those children. The Puritan tradition in New England laid the foundation of American parental author- ity and duty. See MacDonald 6 (“The Puritans are virtu- ally the inventors of the family as we know it today”). In the decades leading up to and following the Revolution, the conception of the child’s mind evolved but the duty and authority of parents remained. Indeed, society paid closer attention to potential influences on children than before.

Although much has changed in this country since the Revolution, the notion that parents have authority over their children and that the law can support that authority persists today.

But this Court has never held, until today, that “the free- dom of speech” includes a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents. To the contrary, “[i]t is well settled that a State or municipality can adopt more stringent controls on communicative materials available to youths than on those available to adults.” Erznoznik, supra, at 212; cf. post, at 3 (BREYER, J., dissenting).

Fourth, and finally, his originalist inquiry was rather perfunctory, and a bit Ipso Facto.

In light of this history, the Framers could not possibly have understood “the freedom of speech” to include an unqualified right to speak to minors. Specifically, I am sure that the founding generation would not have understood “the freedom of speech” to include a right to speak to children without going through their parents. As a conse- quence, I do not believe that laws limiting such speech— for example, by requiring parental consent to speak to a minor—“abridg[e] the freedom of speech” within the origi- nal meaning of the First Amendment.

That is a rather weak argument. The entire analysis section, actually looking at the California law, was about 1.25 pages long.

This is almost underwear gnomes logic.

Step 1: Founders gave children no rights

Step 2: ?

Step 3: California Law is constitutional

Justice Thomas remains an iconoclast, and an individualist on the bench.