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

Justice Thomas’ opinion in EMA is rather curious. 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. FrederickSafford 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.

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.

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 considering the California law, was about 1.25 pages long.

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

Cross-Posted at JoshBlackman.com.

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11 Responses

  1. Brett Bellmore says:

    “When there is any doubt, Thomas will side with the parents (and therefore the state).”

    Doesn’t this formulation presume that parents and the state never will come into conflict? Scarcely strikes me as the sort of assumption Thomas would make.

  2. Josh Blackman says:

    Yes, you are right. This conclusion is a bit broad. In fact, I can think of a case like Troxel were Thomas sided with the parent’s interests, over the state (and in which he favorably cited Myers v. Nebraska). Where the parents and the state are the same side, this statement may be more apt.

  3. Josh Blackman says:

    Make that Pierce v. Society of Sisters, not Myers.

  4. C says:

    Wouldn’t an originalist see no substantive difference between applying the First Amendment directly and applying the First Amendment through the 14th Amendment? An originalist would understand the prevailing understanding of the First Amendment would be the same in 1868 as it was in 1791.

  5. Josh Blackman says:

    Do you know that the “prevailing understanding of the First Amendment” is the “same in 1868 as it was in 1791.” Thomas does not establish this, and I am not willing to chalk it up to common sense. A single sentence to the effect of “The understanding of free speech was effectively the same in 1868” would satisfy me.

    With respect to the right to keep and bear arms, I have written elsewhere that the understanding of this right had evolved from the founding era to 1868. In fact, the notion of the individual right was much stronger during Reconstruction than it was during the post-Revolutionary era.

  6. Larry Rosenthal says:

    The understanding of the rights of free speech and a free press evolved a bit from 1791 to 1868. By then, many believed that the First Amendment compelled recognition of a defense of truth in defamation actions, and many though that the suppression of antislavery speech prior to the Civil War violated the First Amendment as well. Yet, these developments were far from entrenched — as late as 1907, in Patterson v. Colorado, Justice Holmes wrote the opinion of the Court characterizing the First Amendment as involving nothing more than a rule against prior restraint. In any event, there was a broad consensus that the government retained broad regulatory power over speech under a deferential “bad tendency” test. For details, see http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1481478

    In light of the breadth of the bad tendency test in vogue as of 1868, I think it more likely than not that the California statute would have been upheld if the 1868 understanding of the First Amendment were applied in the EMA case. At a minimum, the 1868 understanding provides no support for the Court’s position that any content-based regulation of speech must survive strict scrutiny.

    Larry Rosenthal
    Chapman University School of Law

  7. C says:

    I don’t think I make my point very well. Maybe I’ll do better this time.

    An originalist as I understand it adheres to an interpretive philosophy that seeks to apply the constitution pursuant to its original meaning or intent.

    A non-originalist, at the risk of oversimplifying, would apply the constitution pursuant to an evolving understanding as the applicable provision’s meaning or intent.

    So why would an originalist adhere the mid-19th Century non-originalist’s interpretation of the First Amendment when applying that amendment through the 14th Amendment? Would not the originalist seeking to be consistent with originalism say that the First Amendment would mean the same thing in 1868, pursuant to the amendment’s original meaning or intent, as it meant in 1791?

  8. Josh Blackman says:

    Ah, I think I get what you are trying to say.

    Originalists should be consistent, and say that rights do not evolve over time; that the meaning of free speech was frozen in Amber in 1868 and nothing, not even popular conceptions, should change that. Is that right?

    If so, that would be correct, but for the 14th amendment, which effectively froze a new set of understanding of rights based on understandings in 1868. Popular constitutionalism, leading up to the 14th amendment, actually effected a change in constitutional law.

  9. C says:

    Not exactly; I’ll keep trying to get this right.

    What I am suggesting is that originalist interpretation sees the First Amendment as defined by its original meaning or intent whether you are talking about 1868 or 2011. In other words, the First Amendment cannot have a different meaning in 1868 than it did in 1791 because according to originalism, the original meaning of the First Amendment controls in 1868, when the Fourteenth Amendment was adopted.

    From another angle, I see no reason why an originalist would countenance an evolving First Amendment from 1791 to 1868 than he would a First Amendment that evolves from 1868 onward. The meaning of free speech was frozen in Amber in 1868 for all purposes.

  10. Josh Blackman says:

    According to originalism, the original meaning of the First Amendment controls in 1868, when the Fourteenth Amendment was adopted.

    OK. Now I (hope at least I) get it. I don’t know if the first part of that section is correct. I don’t know that the original meaning controls. In fact, I would argue it does not control. Under my view of incorporation (a misnomer), a set of rights were protected by the 14th Amendment (and really, the Privileges or Immunities Clause) that were both–in the words of Amar–“more and less” than the Bill of Rights. So we aren’t talking about the first amendment as drafted in 1791. We are talking about an understanding of the right of free speech understood in 1868.

  11. C says:

    I just looked over at your blog and see that in the comments to this post there, Leal makes the point I am trying to make here ((s)he made it better). I guess I should have looked over there first.

    You ask there if it is true that in 1868, the 1st Amendment had the same original, public meaning as when it was enacted. My answer to that would be, “Yes, it is true – to an originalist.”

    Can you describe further the difference between the “first amendment as drafted” and the “right of free speech.” Is there a source for the right of free speech beyond the First Amendment?

    Finally, if the First Amendment was “living” and “evolving” from 1791 until 1868 (the only way I can account for a different understanding between the two dates), why did the passage of the 14th Amendment require (a) that the interpretation of the First Amendment applied directly revert then from that 1868 meaning to the 1791 public meaning by virtue of the Fourteenth Amendment being adopted, and (b) why did the passage of the 14th Amendment suddenly “[freeze] in Amber” the previously living First Amendment?