More on Thomas and Violent Video Games
Mike Rappaport
I agree with Mike Ramsey that Justice Thomas's dissent is not terribly persuasive in Brown v. Entertainment Merchants Association. But I have a different reason for my opinion. Justice Thomas does spend some time describing the legal regime at the time as to parental control over children (but not as to speech to children). But little about that regime convinces me that people at the time very likely would have held that freedom of speech would not have extended to speech to minor children. Justice Thomas even admits that the current legal regime as to minor children is similar to the one at the time of the Framers. But that is a very damning admission, since it is not inconceivable that today people would want to extend limited rights to speak to minor children.
That said, I don't think it is obvious what the right answer in this case is as an original matter. There is little evidence one way or the other about the content of freedom of speech at the time. I could certainly imagine that there would have been rules at the time that prohibited adults to speak about sexual matters to minor children, although there is no evidence offered one way or the other.
Our understanding of the history concerning freedom of speech is relatively limited. I think this is because the Court has not been very interested in the original meaning about this particular area. Hopefully, additional work in this area will provide some insight.
