Court’s ultimate originalist strikes again

Monday, June 27, 2011

Justice Clarence Thomas has done it again in First Amendment jurisprudence.

The U.S. Supreme Court’s ultimate originalist — meaning he interprets the Constitution as he believes the Founders intended — Thomas has taken another bold, unusual position unique among Court opinions.

In Brown v. Entertainment Merchants Association, released today, Thomas dissented from the Court’s ruling that a California law preventing the sale or rental of violent video games to minors violates the First Amendment. Thomas said the Founding Fathers did not believe that the First Amendment protected “speech to minor children bypassing their parents.” He wrote that “historical evidence shows that the founding generation believed parents had absolute authority over their minor children.”

Thomas has a history of staking out his own positions on the Court. Sometimes he argues for a position that contracts First Amendment freedoms; other times he would expand them.

In Morse v. Frederick (2007), he was the only justice to argue that the Court’s seminal student-speech opinion, Tinker v. Des Moines Independent School District (1969), should be overruled. Conversely, in 44 Liquormart v. Rhode Island (1996), Thomas held that truthful commercial speech should receive the same protection as political speech — a position the Court has yet to adopt.

Thomas’ dissent in the violent video-game case would constrict First Amendment freedoms for young people, much as his concurrence in Morse v. Frederick would. Frankly, his parental-authority opinion is strange.

Justice Antonin Scalia hinted as much in a footnote in his majority opinion, writing that Thomas “cites no case, state or federal, supporting this view, and to our knowledge there is none.”

In fairness, it should be noted that Thomas was careful to say that he would not decide whether the California law would survive an as-applied challenge or a vagueness challenge.

But he clearly continued his disturbing trend of failing to respect that people under 18 have any free-speech rights independent of parental control.

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