I basically endorse Adam’s take on today’s other big decision, in which the Supreme Court struck down a California law restricting the commercial availability of violent video games to minors. While I tweeted a joke about how Cornell’s Legal Information Institute included only the good parts of Breyer’s dissent (which can actually be read here), he does in fact have a valid point about the longstanding American violence/nudity double standard. (As Dwight Macdonald said in his review of Psycho, “Our censors…see nothing wrong in showing with intimate, suggestive detail a helpless woman being stabbed to death, but had Mr. Hitchcock ventured to show one of Janet Leigh’s nipples, that would have been a serious offense against morals and decency.”) It’s just that the right answer is to level up to more free speech rather than leveling down to less.
In addition to Breyer splitting with his liberal colleagues, the fissures among the Court’s conservatives were also evident. Thomas, consistently applying the radical views about the applicability of the Bill of Rights to minors that recently led him to the conclusion that the Fourth Amendment permits the arbitrary strip-search of teenage girls by state officials, dissented because of his belief that freedom of speech “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.” Scalia — by his own admission a “faint-hearted originalist” — brushes off Thomas in a footnote.
This case is also another example of Alito and Roberts’s disinterest in grand theory, rejecting both Thomas’s originalism and seeking a more “minimalist” approach than Scalia’s preference for clear rules. George W. Bush’s appointees agreed that the California law was unconstitutional but wanted a narrower approach that would permit further state experimentation, an argument Scalia has some fun with. The majority is right to reject this approach for its chilling effects on free speech, although I wish they could also see the similar chilling effects and arbitrary censorship that has resulted from trying to apply balancing tests to evaluate state regulations of obscene materials.