Yesterday’s opinion in Brown v. Entertainment Merchants Association, with Justice Scalia writing for the majority and Justice Thomas in dissent, invalidated on First Amendment grounds California’s restrictions on selling or renting violent video games to minors without a parent’s permission. (SCOTUSblog’s analysis is here). Scalia’s opinion, though it has the snappiest lines, focuses mostly on case law and doesn’t have much to say about original understanding. For those who study originalism, the most interesting part is Thomas’ dissent, which opens with the declaration that “[t]he 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.”
What follows, though, is a bit of a puzzle. We learn a lot about seventeenth and eighteenth century parent-child relationships, including the fact that “[t]he Puritans rejected many customs, such as godparenthood, that they considered inconsistent with the patriarchal structure” of the family, and (six pages and many historical twists and turns later) that Thomas Jefferson wrote letters to his daughter Martha “dictating her daily schedule of music, dancing, drawing, and studying.” From this, Justice Thomas explains, we are supposed to conclude that:
The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood “the freedom of speech” to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors’ parents.
Perhaps so, but Justice Thomas' opinion should raise some questions about originalist methodology. Although wide-ranging (to say the least) in its survey of attitudes about family structure, it contains few facts about the specific question at hand – the eighteenth-century legal regime involving speech to minors. I have doubts whether one can reliably infer specific legal conclusions from general social attitudes; that Jefferson was a controlling father doesn’t say much about Martha’s legal right to talk to others without his permission. Justice Thomas’ conclusion may be correct, but this seems an unpromising way to get there.