Then he asked the Justice if he liked movies about gladiators.
Can Antonin Scalia read?
The normally dependable Antonin Scalia wrote the majority opinion in one of the worst Supreme Court rulings in this generation or any other. This raises the question as to whether he or the other six misguided justices who joined him have read or understood the First Amendment.I know how he feels. Reading a Fischer column will often raise similar questions about Bryan and the Bible (especially that one about the marine wildlife trainer at Sea World Orlando who was killed by an orca, which Bryan saw as a sign of the "ongoing failure of the West to take counsel on practical matters from the Scripture"). If Western Civilization had been less corrupt and degenerate, the killer whale would merely have swallowed the trainer, and vomited her up after three days and nights.
Scalia said California has no right to prohibit the sale of violent video games to minors that depict "killing, maiming, dismembering or sexually assaulting an image of a human being."
Players in the games that Scalia has ordered stores to sell to children without their parents' permission or knowledge use weapons that included guns aimed point-blank to the head of kneeling, helpless victims, chainsaws, scythes, fillet knives and electric drills, with vivid displays of splatter and severed body parts rolling around on the sidewalk. One game allows players to set unsuspecting bystanders on fire.
Screen capture from a typical violent video game, Left Behind: Eternal Forces.
One game involves chasing victims and shooting a never-ending stream of yellow urine at them.Never-ending? You don't even need to find power-ups, or loot dead opponents for beers? You can just play the whole game in R. Kelly mode?
If there was ever stuff that parents ought to be able to protect their minor children from, this is it. This ruling, which prohibits any kind of parental involvement in the rental or purchase of such games, is a tragic infringement on parental rights. We're way past "Father Knows Best" and into "Nine Tyrants in Robes Know Better but Don't Have a Clue."The Supreme Court didn't tell California parents they can't forbid their kids to play play violent video games. They just said they can't delegate the job of "protect[ing] their minor children" to cashiers at Game Spot.
If these justices had teenage boys, and one of them brought something like this home, it wouldn't be long before they'd be saying, "You know, there ought to be a law." Well, there was, but the Supremes in all their benighted wisdom have disabled it.It depends which one of the Supremes we're talking about. If it was Scalia, I imagine he'd say, "I don't want you playing that in the house," to which the son would reply by flipping off his father. Justice Scalia would then respond with the Vaffanculo, provoking the teenage boy to bite his thumb and grab his crotch, followed by a modified Vulcan salute. Scalia senior would immediately interdict the Evil Eye with the Sign of the Horns, then tug on his ear lobe before quickly transitioning into a spirited display of Jazz Hands. Eventually, their frantic gesticulations would become just a blur of motion, until they resembled two sailors attempting to communicate via semaphore while suffering simultaneous attacks of ergotism.
Then I bet Scalia would collapse to the floor, glazed with sweat, his pants bunched around his ankles after mooning his youngster in a desperate, but masterful coup de grace, and lay there wheezing and wishing that there was a law in California against selling Duke Nukem to minors. If, however, the Supreme in question was Diana Ross, then she'd probably just have her son fired and replaced with Cindy Birdsong.
The First Amendment protects freedom of speech. The operative word here is "speech," Justice Scalia. It protects "speech," not "expression," not "images of decapitated bodies with blood spouting from the neck." This is not a hard concept to understand.In Federalist No. 10, Madison wrote, "The latent causes of faction are thus sown in the nature of man; and we see them everywhere brought into different degrees of activity, according to the different circumstances of civil society. Some men are content with such produce as the land may yield, others seek success in commerce or trade, while a third faction finds it both virtuous and cool to eviscerate zombies." Unsurprisingly, Hamilton was a dick about it.
The First Amendment was intended by the Founders to protect a specific kind of speech, namely political speech. The sole purpose of the First Amendment plank on free speech was to protect robust debate over matters of public policy.Plank? The Bill of Rights is just a party platform now? Or do supporters of Original Intent reject elitist words like "clause" and speak of the Constitution solely in brawny carpentry metaphors? And do I still have a fundamental right to tongue and groove the person I love?
It was never intended to provide cover for pornography, obscenity, vulgarity, or violent imagery. The Founders would roll over in their parchment to see what Scalia has done here to their beloved Bill of Rights.The Founders would also be surprised to find that they were buried in parchment rather than coffins, and that their ideas were in peril of being reinterpreted in light of two centuries of practical experience, while they themselves were in danger of being baked like new potatoes with 1 head of garlic, 3 tablespoons of flat-leaf parsley, and 1 sprig of thyme.
The fact that the Supreme Court even took this case at all is a sign of how used we have become to judicial tyranny. A right-thinking Court would have said, "Get this case out of this courtroom. We have no right even to weigh in on this case. This is for the people of California to decide, and your elected representatives have decided. If you don't like this law, then don't come to us, get yourselves some different elected representatives. End of story."The Founders intended that when offered a case with serious and potentially far-reaching Constitutional implications, the Justices of the Supreme Court would leap unanimously onto the bench, hoisting their black robes to their knees and screaming, "Eek!" and "Kill it!"
The Left Behind thing just fucking made my day. Thank you.
R. Kelly mode? Why, in my day we played 8-bit videogames in Chuck Berry mode, and that was good enough for us. Whippersnappers!
I saw that recipe in the NYT. It looks pretty good; maybe I'll get some new potatoes at the farmers' market today.
Meanwhile, what Constitution is Fischer reading?
capture: missen, as in Fischer's brain is missen in action.
Ah, since the First Amendment only covers "speech" and not "expression", clearly the Gubmint has a right to prohibit the Lost Graves Brother from writing his drivel, as writing is an expression, not literal speech.
"But what about the freedom of the press??" you might ask. Well, the Founders obviously meant that to apply solely to words printed via an actual press, and thus the first amendment doesn't cover the Internet. Unless you are using one of those old steam-powered Linotype web browsers.
Bryan Fischer writes: The normally dependable Antonin Scalia wrote the majority opinion in one of the worst Supreme Court rulings in this generation or any other.
Except of course, each of the precedent decisions which Scalia cites in his ruling, I presume.
Bryan Fischer may be heartened to learn that it wasn't as lopsided a judgment as he he thinks-- The majority opinion actually constituted the judgment of five of nine. Alito, joined by Roberts, thinks such law might fly if more narrowly constrained in concurrence.
Comedy Relief Supreme Clarence Thomas came through again, basing his dissenting opinion on a belief that the first amendment simply doesn't apply to those under the age of eighteen. Man, this guy is a fucking riot.
As Scalia succintly notes in response in his opinion:
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.
[muted trumpet: wah wah wah]
Not sure I'm getting the ramifications of the ruling. What does it mean for, say, movie ratings?
This is the same person who thinks blasphemy should be illegal. Ordinarily I'm tempted to dismiss such a person as insane, but Bryan Fischer is too much of an asshole for me to even care if he's mentally ill or not.
I wonder how he feels about letting kids be exposed to all the sex and violence in the Bible. No, actually, I don't wonder about that at all.
If they had only been buried face down on a copy of the Bill of Rights with a small reading lamp by their side as Michele Bachmann's great-great-great grand-pappy had suggested, they wouldn't have had to "roll over in their parchment to see what Scalia has done here" now would they.
This, I believe, is the only correct way to interpret that metaphor.
Okay, look. Kinda torn, really. I'm prepared to accept that certain people are more susceptible to emotional damage from certain types of expression that are protected by the First Amendment. Children, for example. We keep them away from cigarette ads to the extent feasible, we keep them away from porno mags where we can. Violence? It is certainly no less harmful emotionally, and in a lot of cases more so, than sexual content. So I'm prepared to make a case that this one was decided wrongly, and I think everyone knows me well enough to know that I tend to resent the Parenting Fatigue that means the world needs to be childproofed because parents can't spend all their time parenting so the rest of us need to make sure there's no trouble for kids to get into while Mom's napping or Dad's watching football.
But still, we know that some people are vulnerable to certain types of expression. And, yeah, I think telling fifteen year olds they have to have their parents buy a video game is not an unreasonable barrier to free expression. If we keep you out of an R-rated movie without your parent's presence, why is this any different? God knows enough kids get into R-rated movies anyway, and I know at least two moms who bought "Wifey" for their teenage daughters back when we were all in junior high on the grounds that it was "that nice Judy Blume". So even active parenting won't solve the problem, but it's not like it's a Civilization On The Edge problem.
Now, Brian could ask why I think girls should be allowed to get abortions without parental permission but should have to have their parents' permission to buy Grand Theft Whatever's Not Nailed Down. It seems like the sort of gotcha question Brian would ask if he knew me. And my answer is: The child whose parents are total fuckups and won't let them play Mortal Kombat Dodgeball is not going to have his or her life destroyed by the inability to virtually hurl a rubber ball through an opponent's skull. However, the girl whose stepfather got her knocked up in the first place? Yeah, there are consequences behind parental refusal, there, that will still be fucking up her life when she's legally an adult.
Anyway, so, now it's my turn to ask straw-Brian a question of my own. So I was wondering, hey, what did Brian think about some of those other instances in which emotionally vulnerable minds were exposed to messages which led them to unbalanced acts? Well, you probably won't be surprised to learn that while children can be forced into violent acts by too many hours of Thumb Wrestle Satan Naked, apparently when someone shoots an elected official who has been literally targeted by campaign rhetoric, it's, just, you know, crazy people, what can you do, amirite?
You might be surprised to learn, actually, that his real reaction to that was to make the point that putting crosshairs on an actual fucking officeholder was *exactly the same thing* as supporting the Second Amendment (which I gather Brian likes better than the first anyway)and therefore Ms Giffords basically shot herself. I mention this not because it seems in any way coherently illustrative of his point, but because I'm fucking insane and I can't even bring that level of crazy without some part of my brain saying "Hold up, maybe you want to think that through before you say it out loud where people can hear it and everything".
Anyway, whatever. Happy Canada Day, and do I know other people here with birthdays and anniversaries on July 1-ish? I think I do. (It's my and my partner's anniversary. Don't fucking ask me how many years because I have no damned clue. Holy fuck, I wasn't this addled when I quit drinking, and I'd spent years drunk. This goes on much longer and I'm gonna get severely violent and I don;t think you can really blame Cooties, Zoo Tycoon, and Devil Bunny Needs A Ham for it but I'm sure someone will try.)
I've been watching Wingnutia since I saw my first Impeach Earl Warren billboard at age nine, and I gotta say that of all the shit these types have spewed over the years, from Commies fluoridating our drinking water to integrationists as the real racists, from Quemoy and Matsu to the hemispheric threat that was Grenada, from the Yellow Peril to the Red Menace to the Brown Bogeyman, their utter lack of comprehension of the Constitution, legal precedent, and the foundations of English law takes the cake, every time.
Hugs and kisses for Bîøgraphy. And Happy Anniversary, D. Many happy returns you don't keep track of.
As always, D. Sidhe is my hero, bringin' the nuanced analysis yeah.
Jim Donahue writes: Not sure I'm getting the ramifications of the ruling. What does it mean for, say, movie ratings?
Nothing. MPAA ratings have no legal standing. The MPAA is not a government agency and submission of completed films to them for a rating is voluntary, as is adherence to those ratings by theaters.
Although the court went along with state censorship of motion pictures for a while in the early to mid 20th century, it reversed course in later decisions.
There aren't any published specific standards or guidelines for the MPAA's decisions on a film, incidentally, which has led to a cottage industry of companies who purport to help a filmmaker achieve a certain rating by helping him to tailor his film.
You can read more about the mysterious MPAA ratings here and I especially call your attention to the paragraph in which an attempt is made to guess how many fucks make an R.
D Sidhe writes: If we keep you out of an R-rated movie without your parent's presence, why is this any different?
See above comment.
Also, as Scalia points out in his opinion, there's three broad categories of expression not currently protected by the first amendment-- obscenity, inciting, and fighting words-- and he is reluctant to add yet another category, which is to say depiction of violence, interactive or not.
I personally find violence of the type described to be disgusting, God knows, but as Tony says, that's my call, not the gummint's.
His opinion is worth reading, by the way, to get a sense of what the justification is, and as a bonus includes a nifty and sort of fun refresher on the many, many historical attempts which have failed, from the penny dreadful and dime novels of the nineteenth century through drive-in movies to saturday morning cartoons. It's always something corrupting American yoot!
And by all means happy Canada Day, for which I have only two words:
Fair enough, Chris. I assumed there was *a* reason, and that actually is probably even a good reason. But it still doesn't help with porno, and maybe my problem there is that I tend to consider depictions of violence a kind of obscenity in ways I don't consider sex to be. I'm sure there are good legal reasons that we shouldn't, as a country, but I personally can't help it.
I do understand a reluctance to create massive new areas of non-protected speech, but after Citizens United you might forgive me for believing this particular Supreme Court wouldn't know obscenity if it but them on the butt as long as it didn't swear or show any skin while doing so.
I'd like to see us, as a country, stop confusing manners for morality. I don't think it's ever going to happen, but it'd be nice.
Anyway, I'd probably still personally want to argue that this is the wrong call, but that's from a lay standpoint which is another way of saying I'm sure I'm legally wrong. I can be persuaded on that point, of course. But I'm pretty sure I'm morally right and that's gonna be harder to shake me from. Especially when the depictions of violence involve misogyny, I can't help thinking an entirely sexually based definition of obscenity is like pretending some huge wrinkled thing isn't actually right out in the open in the room.
And Brian? Is still an asshole whose views do not earn him respect even when I agree with him, which I don't in this case, we'll call it political convergent evolution maybe.
Also, I keep misspelling his name though I know better, considering I did manage to search for the asshole's other views on responsible expression. I have no excuse, sorry. And sorry to the perfectly nice Brians *ahem* above *ahem* I'm probably tweaking every time I do it. Ugh.
A lot of games retailers enforce the ESRB ratings the same way theaters enforce the MPAA ratings. That was used by the District Court as part of their decision -- the existence of voluntary restrictions that are widely followed tends to severely weaken the case for government intervention.
The biggest problem with the California law was probably the mandatory labeling. It's legal to prohibit minors from obtaining sexually obscene material, but there isn't a labeling regime (which is to say a censorship board).
Of course, I'd much rather get rid of the obscenity exception to the First Amendment. I live in a state without such an exception, and last I checked we hadn't all turned into degenerate rutting beasts.
D Sidhe writes: But it still doesn't help with porno, and maybe my problem there is that I tend to consider depictions of violence a kind of obscenity in ways I don't consider sex to be.
Yeppers, some of it is pornography for sadists; indeed, Stephen Breyer asked in his dissent how it was possible to protect this and not supposedly obscene expression.
And although California attempted to make that claim, the actual wording of the law was very broad, and proscribed stuff familiar to any reader of Grimm's Fairy Tales-- which is why California or another state may well try again.
And D, and you too djur, may see real movement on the "obscenity" exception as the Supremes consider the constitutionality of the FCC ban of certain "indecent" words and images on TV in their next term.
The court has changed a bit in the intervening years, so this oughta be interesting.
And Happy Anniversary, D.
I do understand a reluctance to create massive new areas of non-protected speech, but after Citizens United...
Yeah, I'm not in agreement with the whole "money is expression" argument either. After all, if money is speech, then bribery is merely persuasive speech.
Look, I know cognitive dissonance is practically a feature with wingnuts, but there is something bugging me here.
I thought these guys were all about the Free Market and No Government Interference in Anything but in the most intimate matters, like uterine control and raising the little results, they run to the Courts asking for laws and rulings. Sorry, don't get it.
Of course, I'd much rather get rid of the obscenity exception to the First Amendment. I live in a state without such an exception, and last I checked we hadn't all turned into degenerate rutting beasts. (endquote, because I apparently am fucking up even italics codes right now)
I can get behind that. What's driving me crazy is mostly the weird little create-a-playpen fence we're putting around some things that don't do much damage to people who don't have Other Issues, while totally ignoring things that seem just as harmful because, I dunno, gender roles or something.
I'm one of those fanfic freaks, no surprise. I will probably never forget the conversation I had on a slash-friendly listserv (The listmom was a slasher, you were supposed to label appropriately and let other people use their big adult brains to decide what they wanted to read) which involved a new person explaining as though deeply startled "I just found out what slash was. I thought it was, you know, slasher movies. But it's gay sex? Eew. I wish I didn't know that. I'm just going to keep pretending you guys are writing horror stories, okay?"
I don't have this burned into my brain because it was unusual, quite the opposite. The world is apparently full of people who not only squick more on depictions of consensual gay sex than violence, but who think their squicks should control the definition of morality. The first part, okay, fine. It's fictional violence vs fictional sex, no harm no foul. I'd rather watch Dawn of the Dead than The Birdcage, too. But I'm not going to tell you what you should do with your free time.
But. If we're going to tell kids what they can do with their free time, then maybe we need to be consistent about it.
Hey, Chris. I'm still getting the fucking Wall Street Journal delivered to my door despite the fact that we are not paying for it and did not subscribe. As far as I'm concerned, this is litter, not free speech. And yet? It maybe *is* political speech. It certainly seems like it should be protected speech. I'm sure there's something I'm not getting there, too, seriously.*
I mention this because I suspect I'm explaining myself so shittily as to be utterly incoherent, but, um, various good excuses. I seem to keep getting distracted by subpoints, which I might be arguing in a devil's advocate way. Or, maybe the voices in my head have their own opinions and want to share. So I'm not prepared to rule out "I am totally, totally wrong about what the hell freedom of expression means and why and how we restrict it", and I would like to hope that someone can explain it. Because I think I'm having some cognitive dissonance of my own here, and it can only benefit to sort it out.
But however wrong I am, I'm still pretty sure Bryan's not right, because he has a track record and also, is a hypocritical asshole.
* Plus, my city is in the middle of Let's Second Guess The Courts over a case which may determine, once it is all sorted, whether phone books are free speech when dumped on your doorstep or just litter with ads you didn't ask for. The current court coming down on the side of "What the hell is wrong with an opt-out list?" has made several points explaining the difference between newspapers and phone books, which entirely fail to enlighten me.
I agree I should be reading these rulings myself, but I keep getting lost in the middle of reading Friday Random Ten lists, so I don't think there's a lot of dense PDFs in my future.
D Sidhe writes: I mention this because I suspect I'm explaining myself so shittily as to be utterly incoherent, but, um, various good excuses. I seem to keep getting distracted by subpoints, which I might be arguing in a devil's advocate way.
I put it to the court that such is reasonable and sane, and further that the court can only therefore construe a rigid and absolute certainty of mind in such matters to be, conversely, the abhorrent behavior of a madman. The defense rests.
In short, I think you'd be crazy not to be torn.
D, I am sure that I'm not alone in finding your voice to be among the sanest here (despite your frequent protestions to the contrary!). The law is littered with frequent references to what "a reasonable person" might find appropriate-- or offensive-- but does not pretend to define what "a reasonable person" is, and that's as it should be.
And that's the problem with the Bryan Fischers of this world. They have no evidence and no argument-- and no doubt.
Doubt is good ....I think
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