this is the supreme court opinion in the recent case about the california law restricting minors’ access to violent video games. i’ve had the tab open for weeks because i keep going back to justice thomas’ dissenting opinion whenever i need a giggle. it is a killer source of giggles - if you can block out the idea that this thinker is hugely influential in american law and policy.
let’s walk through it so we can giggle together!
thomas’ core argument is that the court’s holding assumes that first amendment protections apply to speech directed at minors, which thomas thinks is WRONG WRONG WRONG. he explains that the ”original public understanding of the First Amendment … 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.” and now the fun starts, as thomas explains why the first amendment is entirely irrelevant!
why does thomas think this? well, he explains his theories of constitutional interpretation, which he supports by citing his own opinion in a previous case, an opinion that not a single other justice joined! in case that citation was insufficient, he then … cites another opinion of his that no other justice joined! essentially, he has said “we, the supreme court of the united states, interpret the constitution of the united states in this manner, and we know this because i said it twice before even though nobody at all has ever agreed with me, ever, in any way.” this is a BOLD move.
but thomas has more “evidence” to present! he is going to explain his ideas about why the first amendment does not apply to speech directed at minors by … listing a whole bunch of cherry-picked quotes from a bunch of books about what puritans thought about children. (they are “innately sinful” and in need of close parenting in order to “suppress [their] natural depravity!”) then he quotes some locke and rousseau about children being blank slates and parents had to be careful to avoid “humouring and cockering their children [lest] they poison’d the fountain and later tasted the bitter waters.” then he quotes like 900 other books about the role of children in historic times.
but all of this is just a warmup. we are still getting to the fabulous part. this is the part when thomas starts talking about what thomas jefferson believed about raising his children. and thomas is talking about this because, in his mind, we have to use exactly the interpretation of constitutional language that the founders did - which means we have to imagine exactly what they would have thought, looking at the historic record to guide us. and so thomas, with scrupulous attention to every detail of jefferson’s parenting practices, totally fails to mention any of jefferson’s children except the white ones he had with his wife. reading the opinion, you would not know that jefferson had any children for whom he did not “dictat[e] her daily schedule of music, dancing, drawing, and studying.”
thomas keeps writing, quoting a whole mess of nonsense about puritan beliefs and how this all fits in to our world of television and video games and why parents and guardians have an absolute right to control every bit of speech or information that reaches their children. but he never again approaches the pinnacle of brilliance of basing american legal theory on thomas jefferson’s parenting practices while willfully omitting a major and significant fact about those practices. how could he top that?
