Twelve years have passed, but very few Coloradans have forgotten the name of Columbine High School. I spent the days after the April 20, 1999, Columbine school massacre with my brother priests, burying the dead, visiting the families of victims and trying to make sense of the violence to the wider community. On May 4 that year I spoke to a special session of the U.S. Senate Committee on Commerce, Science and Transportation. The Committee’s focus was “marketing violence to children.” Among my comments were these:
The reasonable person understands that what we eat, drink, and breathe will make us healthy or sick. In like manner, what we hear and what we see lifts us up ” or drags us down. It forms us inside. Pornography degrades women. It also coarsens men. I don’t need to prove that because we all know it. It’s common sense . . . The roots of violence in our culture are much more complicated than just bad rock lyrics or brutal screenplays . . . But common sense tells us that the violence of our music, our video games, our films, and our television has to go somewhere, and it goes straight into the hearts of our children to bear fruit in ways we can’t imagine ” until something like [Columbine] happens.
I recalled those words as I read Justice Antonin Scalia’s majority opinion in the U.S. Supreme Court’s June 27 decision, Brown v EMA striking down a California law that banned the sale or rental of violent video games to minors. Scalia, joined by Justices Ginsburg, Kagan, Kennedy, and Sotomayor grants that certain categories of expression”obscenity, incitement, and fighting words”are excluded from First Amendment protection. But because violent video games fall outside these narrow categories, they cannot be banned.
Scalia is a skilled, persuasive thinker. Given the country’s bizarre political climate wherein certain kinds of religious teaching are now attacked as hate speech, Catholics might be grateful to the Court for reaffirming limits on what lawmakers can and cannot ban. But Justice Scalia dismisses the differing views on the Court too quickly. Those views have weight. They deserve attention.
Justice Alito, joined by Chief Justice Roberts, issued a separate Brown opinion. It’s worth reading. Alito agrees with the Court in overturning the California law on the much narrower ground that the law’s definition of violent video games is “impermissibly vague.” But he argues”I think convincingly”that the impact of playing violent video games may be different in kind from “reading a description of violence in a work of literature . . . listening to the radio or watching a movie or a television show.” Video games can simulate, and potentially stimulate, violence in a far more intensely immersive way than traditional media. In the words of former army officer and author of On Killing , David Grossman, the worst of these games are “murder simulators.” Grossman is not alone in his views.
Thus, for Justice Alito, the Court makes a serious mistake in too quickly lumping violent video games under the same protections given Grimm’s Fairy Tales or network TV. In the Alito-Roberts view, the Court should not act prematurely in blocking efforts to deal with what some (in fact, many) people believe to be “a significant and developing social problem.”
My point here is not that video games are bad. My point is that when we too readily stretch an individual’s right to free speech to include a corporation’s right to sell violence to minors, we collude in poisoning our own future”and tragedies like Columbine are the indirect but brutally real proof of what I mean. We also undermine the intent of our nation’s own Founders and Framers. Justice Scalia describes himself as an “originalist” in his constitutional thinking. But in Brown, Justice Clarence Thomas seems far closer to the original intent of the Framers in his dissenting opinion.
Thomas argues that “the practices and beliefs of the [nation’s] 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.” For Thomas, “history clearly shows a founding generation that believed parents to have complete authority over their minor children and expected parents to direct the development of those children . . . 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””or, by extension, to sell them murder simulators.
Thomas also notes that the Court itself has admitted that some legitimate exclusions from First Amendment protection may exist that have not yet been dealt with in the Court’s case law. Parents’ authority over the messaging to their minor children, for Thomas, is just such a First Amendment exception.
In practice, Brown extends and elevates the individual’s right to free expression” or in this case, a corporation’s right to make a healthy profit”at the expense of family sovereignty, the natural rights of parents and the intent of the Constitution’s authors. It doesn’t matter whether California lawmakers were thinking high and noble thoughts about the family or not. For Thomas, they were doing their job in a constitutionally appropriate way. In the end, Justice Thomas’ reasoning is well grounded in historical precedent. His opinion seems far closer to the intent of the founding generation than the views of the Court majority. Coincidentally, it is also much closer to the Christian understanding of natural law and natural rights.
Brown is now a matter of record. But it’s an occasion to remember Aquinas’ principle that good laws help to make us good. All law serves”or should serve”the dual purpose of protecting the dignity of the human person and advancing the common good. Law should support us as we struggle to fulfill our human vocations. A law which respects mothers and fathers trying to make good choices for their family does just that.
Charles J. Chaput, O.F.M. Cap., is the archbishop of Denver.
Brown, Governor of California, et al. v. Entertainment Merchants Association et al. [PDF]
Gregory K. Laughlin, Wrong Today, Perhaps Right Tomorrow
Robert T. Miller, “In Defense of Disgusting Speech”
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