The Justice's interpretation of the Constitution is one of pick-and-choose history
There is much to chew over in the Supreme Court's two First Amendment decisions, Brown v. Entertainment Merchants Association and Arizona's Free Enterprise Club's Freedom Club PAC v. Bennett. They provide an intriguing contrast in First Amendment methodology, and though both reach nominally speech-protecting results, they do so with differing rationale and differing lineups on the various sides of the issue.
But one thing is liable to be lost in the result: Justice Thomas's dissent in Entertainment Merchants Association, the violent video games case, which provides a revealing window in the limits (if that is the term) of the "originalist" methodology. It's easy to ignore Thomas's solo dissents, which seem destined for obscurity; but they are often fascinating reading.
Have Thomas's clerks found legal cases from the founding period holding that entertainment for children can be restricted or banned?
As I've written before, "originalists" like to claim that they are restrained and faithful in their constitutional interpretation, while all others are mushy-minded "living constitutionalists" who twist the Constitution to meet their present policy desires. But the fact is that, in nine cases out of ten, "originalists" are the ones employing free-form interpretive techniques, applying them to carefully selected historical materials rather than to the text and structure of the Constitution. The result is a claim that ancestral voices have told them how to resolve present legal disputes. Justice Thomas's dissent should stand, for a while, as the most egregious example of this voices-in-my-head originalism. Indeed, one could go further and point to it as an example of how "originalism" can become entirely unmoored from reality and drift dangerously toward what Newt Gingrich might once have called "right-wing social engineering."
To recap, Entertainment Merchants concerned a California statute that made it a crime to sell a "violent video game" to a minor--defining "violent video game" as one that "appeals to a deviant or morbid interest" in violence, is "patently offensive" to community standards, and lacks "serious literary, artistic, political, or scientific value for minors." The Court today decided, 7-2, that the statute is unconstitutional. In his opinion for five Justices, Justice Scalia writes a textbook First Amendment opinion. He notes that violent expression (unlike obscenity or fraud, for example) is not a "historical exception" to the First Amendment, and that because it is not, the government must prove that its content-based restriction on video games passes "strict scrutiny." Not surprisingly, it does not. (Justice Alito, joined by Chief Justice Roberts, write separately to say that the California statute should be struck down only because its definition of "violent video game" is vague.)
The two dissenters make an odd couple: Thomas, the most rigidly conservative Justice, and Stephen Breyer, perhaps the Court's most self-conscious progressive. Both dissents exhibit a kind of unmoored philosophy. Breyer's method, which merits its own post, basically slips past the First Amendment by suggesting that new technology has made it largely obsolete, and that it should be enforced, if at all, by courts that eschew historical analysis or caselaw in favor of an ad hoc balancing of the value of speech against the expected social value of regulation or suppression.
Thomas takes a different approach. The majority's decision, he writes, "does not comport with the original public understanding of the First Amendment...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."