The Trouble With Children

The bad news is that the Supreme Court held that children are now subject to the death penalty.  The good news is that it’s only virtual.  The bad news is that they’re still children, which is what makes the decision in Brown (having replaced Schwarzenegger) v. Entertainment Merchants Association.

Never having had my hands on the joystick of Mortal Kombat, the extent of horrific violence that enraptures young minds is beyond my knowledge.  But my personal expert in such matters tells me it’s no big deal.  From my gut, it seems reasonable that allowing impressionable minds to grow desensitized to violence can’t be good. 

But my gut is a lousy measure of anything, particularly an entire category to speech.  There are a number of niches of expression that don’t sit well with me, so I don’t watch or listen to them.  That doesn’t mean that you can’t, or shouldn’t. To each his own.

Kids, however, aren’t just short grown ups, but developing minds and hearts. That’s why parents can screw them up so easily, and why they shouldn’t be treated like adults in the legal system when the do something bone-headed.  Children do childish things.  We measure their conduct as children, recognizing that they make mistakes, sometimes mistakes that cause others significant harm, in the process of maturing.

And therein lies the problem with the 7-2 decision.  As a strong free speech advocate, disinclined to agree that the government should wipe away entire categories of communication that are otherwise permissible because some legislators’ nose tells them they smell bad is the sort of destructive overbreadth that emasculates the First Amendment.

Yet I frequently argue that the law must treat children differently than adults.  Kids must not be subject to the death penalty, or life without possibility of parole. Kids should not be tried and punished as grownups.  I’ve railed against the manufactured claim that kids turn into a marauding pack violent predators, as in wilding.  And I agree that the sexual molestation of children by adults is one of the sickest, most horrific crimes around, deserving of a special place in Hell.

Squaring up these conflicts isn’t any easier than raising children.  How can I strongly contend that the police should not be permitted to interrogate children without their parents knowledge and presence (and hopefully the presence of mind to refuse to allow questioning and have a lawyer close at hand), and yet attribute sufficient sophistication to children to allow them unfettered access to violent communication?

The issue came to mind when reading this commentary by Ken at Popehat :

Take Justice Thomas’ dissent. Thomas appeals to the original intent of the Framers to resolve the dispute, saying that California’s law passes muster because the men who drafted the Bill of Rights never intended for the First Amendment to apply to an entire category of speech: talking to other people’s kids:

In my view, the “practices and beliefs held by the Founders” reveal another category of excluded speech: speech to minor children bypassing their parents.


This rather breathtaking conclusion demonstrates that the “conservative” and “liberal” political labels are often a poor fit for constitutional analysis.


That this was within the “Founders'” beliefs is another facile effort to blame the dead guys.  But then, the notion that children deserve special protection from police who would bypass parents is one that I’ve long advocated.  Children are impressionable and easily manipulated.  It’s not that adults aren’t, but they can’t use the excuse that they’re just kids.  So can we have categorical protections, on the one hand, but not categorical limitations on the other? Do we bypass parents or not?

It may well be that playing violent video games doesn’t do any of the things that the California Lege thinks it does.  It may be that the vast majority of 12-year-olds know that it’s just a game, and that in real life, we don’t torture, rape, kill others.  Perhaps a few children who are already at risk for bad ideas will come away troubled, but that is neither a reason to categorically deny an entire class of communication to an entire group of people.  There will always be a few for whom things work out badly, differently, and they aren’t the measure for the rest of society.  Even a society of children.

This schism in our vision of children troubles me, as there doesn’t seem to be a good basis to distinguish why they deserve special consideration, recognizing that they lack the sensibilities that come with maturity, while freeing them from the constraints that their immaturity seems to demand.

There is no argument that the outcome of Brown v. EMA is proper.  Videogames, along with books, movies, songs, the ideas, are part of our cultural expression.  Parents can make the decision whether their children should play them, but it’s not for government to shield our kids from ideas it deems inappropriate.  It’s also not for government to take advantage of our children when it serves its purposes.

How can we justify these conflicting positions?

8 thoughts on “The Trouble With Children

  1. ExPat ExLawyer

    I think your final paragraph gets the point correctly. It’s not as if most kids outside of Beverly Hills have their own resources and the independence to make the questionable purchases. It’s the parents. So the prohibition is really one aimed at adults.

    I think SCOTUS has shown a tremedously consistent pro-1A record. The alternative is the slippery slope that we know can get more slippery than a dangerous to kids slip and slide.

    Yes, kids are different. But your other examples involve things done by adults or by the state being forced on them. This is not the case here. SCOTUS should be applauded for taking such a consistently strong stand on the First Amendment in a wide variety of settings.

  2. mglickman

    I might be viewing this in too simplistic a light, but I’m comfortable extending special protections to children to protect them from things that the parents or guardians have no control over.

    That the police must treat children differently, that we have special laws targeting crimes against children; these are right because what is a parent to do? The police have the child in custody, or the crime has been committed.
    When dealing with things like the sale of possibly offensive material to minors, it treads too closely to the government dictating our parenting.

    J. Alito suggested that they leave the decision to those who are more familiar with the implications of the technology – referring to the legislature. What they should do, and have done, is leave the decision to those who are more familiar with the possible effect on their children – the parents.

  3. SHG

    Since the CA law allowed for parents to purchase the games for their children if they decided they were appropriate, I’m not sure your distinction holds. One of Scalia’s points was that it’s either bad enough to require remedy, or not bad enough to allow restriction, but it can’t be both.

    As for Alito, wake me up when the Lege has expertise about much of anything. That’s pure cop out, deferring to the legislature under the cockamamie notion that there’s something other than politics at play.  They’re supposed to be political, and the courts are supposed to keep them under control.

  4. mglickman

    I’d still argue that whether I will allow my child to buy the game, as opposed to having to purchase it for him, falls under parental control.

    I’m not looking for the legislature to bestow on me the right to parent my child the way I want to.

    The statutory protection for children should come into play when the parent has nothing to do with the siutation in question.

  5. SHG

    I was unclear. I agree with you completely, that I would prefer to retain the authority as parent than cede it to the state.  My issue is the rational extension to other areas involving children, not the specific problem at hand.  Your distinction may be the right one, but that remains my question.

  6. Ken

    I don’t disagree that kids might merit extra protection — from state actors. I’m less enthused about giving the state power to “protect” them from non-state actors.

  7. SHG

    The question is how do we differentiate the attributes about children that compel their special treatment on the one side, but don’t compel it on the other?

  8. Patrick

    How do we differentiate the attributes about speech that compel its special protection from government (i. e. yelling about the orbital mind control lasers in front of the courthouse), but don’t compel its special protection anywhere else (yelling about the orbital mind control lasers in Fred’s Hardware Store)?

    This was a constitutional question, not a public policy question as much as Breyer tried to make it one with his ridiculous list of one hundred fifty-five studies.

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