When the jury is done deliberating, it will return a verdict.  In advance of the trial, the verdict seems like a foregone conclusion because everyone was saying so.  Now, smart money is still on conviction, but the odds have weakened.

And so what?  When the jury reaches a verdict, we will have an answer.  Casey Anthony will have an answer.  And the case will be appealed, but it won’t have the same sizzle despite the wealth of faux science allowed into evidence to fill the wealth of evidentiary gaps.  In Florida, where my very own altacacca parents await their destiny, I hear everyone is obsessed with the trial. 

My people, not generally inclined toward the murder of their own child (though the thought may have entered their mind once or twice), tell me she didn’t do it, and that Anthony’s parents are liars.  As for Anthony, she’s just another psycho narcissistic kid, but not a murderer.

All of which amounts to nothing.  Like O.J. before her, Casey Anthony’s trial is another demonstration of why cameras in the courtroom, trials as reality TV show, lawyers as free and easy pundits, demean the legal system and render every person who follows the case worse for it.

While I wrote about the case, it was only to address the “smell” evidence and to ridicule the daily television airing of what passes in  Nancy Grace’s head as thought.  My post about the lawyers paying flacks to get them twelve seconds of air time wasn’t about the case, but about  lawyers delving ever lower to be media whores.

One of the ethical obligations to which lawyers swear fealty is to educate the public on the workings of the law.  We pretend that cases like this do something toward that end.  They don’t.  They do just the opposite, as we feed into every prejudice about people and the system, and reinforce every stupid notion about a system that lends itself to simple analysis of anger, hatred, rank speculation.  Bad analogies abound, but the public doesn’t realize it.  Serious evidentiary questions are rampant, but they learn nothing about reliability and confrontation.

And while the jury is out, lawyers will pontificate about what it all means.  Some will pronounce that she will be convicted because she is evil.  Others, maybe one or two, will explain why she will be acquitted.  The most dangerous will spout about why this case matters, capitalizing on public fascination with sordid crimes for their own purposes.

This is a case about a dead child, a terrible thing.  It’s a case about horribly sad people who will forever be remembered as faces on television that everyone and no one knows.  And it is a case that could have been used to educate the public about how the legal system works, and should work, in this country, but didn’t.

And the season finale will end with a verdict, which is the only thing that actually matters at this stage of the proceeding.  The verdict will not take into account Nancy Grace’s persistent insane rants, or Danny Abrams’ ramblings about things he’s never done himself.  The hundreds of lawyers who have been auditioning for a spot as Phil Rizzuto are already forgotten, and will never get a refund on their promotional fees.

And the many member of the public will believe, once again, that it knows something about the legal system because they watched or read about the trial, when the truth is that they learned nothing more than how entertaining a scandalous case can be when it becomes daily fodder.

Why we, lawyers, do this is sadly obvious, because it offers us an opportunity to grab the spotlight for a few minutes.  What this does to our profession doesn’t seem to matter a whit when there’s a chance for self-aggrandizement to be had.

The Casey Anthony trial was ugly in every conceivable way, except for the face of the defendant.  If she had been ugly, the case would never have made it on prime time.  And when the verdict is announced, people will be depressed as they are when a favorite drama ends its run.  That’s what the criminal justice system has become, and we’ve been a laboring oar in reducing it to a worthless public spectacle.

No matter what the verdict, no one is better for having followed or participated in this show.

Update: Not guilty.  How then will the pseudo-punditry possibly explain the inexplicable failure of essentially every lawyer who tried to handicap the case?  A massive failure, an angry citizenry and all the stupider for the exercise.  Never have so many lawyers looked so pathologically stupid.  And to each one who went on TV to pretend they had a clue, it’s well deserved.

How grand would life be if you could enjoy the perks, the glory, the importance and power of being a big shot executive with a major multinational, but got to stay home and play with the kids rather than work?  I know, me too.  So too the six women suing Bayer for sex discrimination.

While there are plenty of other causes of action that suggest they have some very real gripes. this, via the  Evil HR Lady by way of Walter Olson at Overlawyered, is not their strongest point:

The few women who have advanced beyond the director level and into the highest echelon of management have achieved this rank by sacrificing their personal lives and abandoning work-life balance.  Female Vice President of Global Health Economics and Outcomes Research Kathleen Gondek is unmarried with no children, female Senior Director Susan Herster has no children and female Vice Presidents Shannon Campbell and Leslie North have others who serve as primary care-givers to their children.

Can you imagine the sadness at the loss of work-life balance by these women in the “highest echelon of management?”  How sad. How wrong. They shouldn’t be there are all if they haven’t figured out that anyone elevated to that position is required to sacrifice their personal lives to perform the heavy burdens that come with the heavy paycheck.

Not worth it for you?  That’s cool. Don’t do it.  And don’t get the title, or the car, or the paycheck. But you can’t have it all. No man can. No woman can. No one can. And don’t whine about the choice you made, to go for the career at the price of a family life. 

We all make a choice about the relationship of our work and our non-working life.  And we all pay a price, on one side or the other for our choices.  All of us.  It’s different for women?  Absolutely, but blame nature, not management.

We all want it all.  Who wouldn’t?  But rational people understand that life involves trade-offs.  We can’t be in two places at the same time. We can’t do a day’s work while enjoying a day off.  Not even the magic of the internet can allow us to avoid the strictures of physics, even though there are plenty of people who pretend that’s untrue. 

It would affect a man’s career as well.  It’s just that fewer men are the primary caregivers for their children.

Work-life balance is not a guarantee.  Attacking other women who have made different life choices than you have, and therefore have different consequences, is a cheap shot and an attempt to say, “We’re better mothers/women than you are.”

Really?  Do we need that.

It makes sense that people–male and female–who choose to “abandon work-life balance” in the company’s favor should be rewarded by the company.  If you’re not willing to do that, don’t expect the reward.  Why should you?

But the key is that this isn’t a gender issue, but a human issue.  Whether it’s being in court on trial when junior has a baseball game or Missy has her dance recital, it’s the same for men as women.  We make choices.  Smart people plan as best they can to do as much as reasonably possible, but something will always have to give. 

The women of Bayer enjoy powerful corporate positions.  So they have nannies to raise their children? They decide not to have children at all?  That’s life.  That’s the life they’ve chosen.  Enough pretending that we don’t have to suffer for our decisions, or that it doesn’t affect everyone. Every person lives with the consequences of his or her choices.  We make the best of it, but that’s the best we can do.

There is no entitlement to be able to hold an important position and enjoy the life of Sally Homemaker.  By confusing gender discrimination with reality, the Bayer Six don’t help their cause or their credibility.  Or their gender.

Finding the perfect pair is hard to do, and with the vast resources available on the internet, many hope to meet that person who “completes” them through digital magic.  And, if one is truly fortunate, at the right price. 

Some entrepreneurial types have come up with peculiar ideas of matching lawyers with clients, from the putative bidding for the bottom wars of Shpoonkle to the hot bed law office concept of LawyerUp.  A number of lawyers use a free method, Craigs List, to advertise their wares, while others enjoy the online but low cost option of the PennySaver, particularly Wall Street lawyer types.

What’s unusual, however, is for someone to use a method like Craigs List to seek the perfect lawyer to stand by his side in court.  After all, if the claim has merit, lawyers will flock to a litigant for a piece of the vast wealth coming down the road.  If no lawyer wants to be anywhere near the client, there’s a message to be heard.

Via George Wallace at Declarations and Exclusions, just such an offering was made on Craigs List.

Attorney of Record in NY (Trial Lawyer…MUST READ BELOW)

In your reply, please acknowledge the points listed below. ($200 a month plus $150 per Court Appearance.)

1) This is a Defamation case that was filed only a couple of months ago; it is brand new.  If the case survives the motions to dismiss, I assume it will be 2 or 3 years before it is over. There are many, many defendants and once they learn who the lawyer is who I will hire as the Attorney of Record, they will almost certainly engage in character assassination of that person and attempt to ruin that lawyer’s reputation on the Internet.  I do not know for a fact that this will happen, but I believe that it is a possibility.

2) The lawyer should be EXTREMELY aggressive in the Court room. It is helpful if you have experience in Defamation. Obviously, trial lawyers who intimately know the CPLR will be the strongest candidates.

3) Please, no resumes.  Just briefly tell me about your experience.

4) While I will be responsible for most of the drafting, I will have legal and procedural questions that I could need you to answer.  You will also need to proof read our documents.

5) You must become an expert in my case.  You must know all of the defendants, all of their arguments, etc.  Thank you.

As enticing as this offer might seem at first blush, it reflects a problem.  Could it be possible that the reason that the litigant who found it necessary to solicit a lawyer blind on the internet can’t find a lawyer otherwise?  Lawyers are a dime a dozen, taking on dubious causes all the time if there is even the slightest hint of making a buck somewhere down the road.  Why, then, does the person who has carefully crafted his requirements for his lawyer found it necessary to go to the virtual street and solicit for anyone, anyone at all, willing to take him on?

What if the ad-placer went from lawyer to lawyer, knowing a few who could be asked to fill the shoes he feels are so vital to his cause, and was told that despite their hunger and desperation, their willingness to take on pretty much any case that held any potential to make a buck, they would not take his?  This would seem to be as clear a message that his cause was not just, not right, a horrible loser. 

And so, the individual so needy for counsel offered to pay, and still they turned him down flat.  No reliance on promises of future wealth, but cash on demand, and still no takes?  The message became clearer. 

Yet the person who wrote this add persists.

Another match made in heaven, David Dunning met Justin Kruger at Cornell University.  Together, they developed the Dunning-Kruger Effect.

The Dunning–Kruger effect is a cognitive bias in which unskilled people make poor decisions and reach erroneous conclusions, but their incompetence denies them the metacognitive ability to appreciate their mistakes. The unskilled therefore suffer from illusory superiority, rating their ability as above average, much higher than it actually is.

Kruger and Dunning proposed that, for a given skill, incompetent people will:

1. tend to overestimate their own level of skill;


2. fail to recognize genuine skill in others;


3. fail to recognize the extremity of their inadequacy;


4. recognize and acknowledge their own previous lack of skill, if they can be trained to substantially improve.

It appears that the person who posted the advertisement for a lawyer on Craigs List may suffer from these problems, incapable of learning the lessons taught by a match gone right in trying to find a match destined to go wrong.

When lawyers bid on the opportunity to represent someone, itself an ugly concept but one that at least supports the notion that someone wants the job, or believes that the case has merit,  This may be a message that the client is cheap, or cares little about the quality of his representation, but at least the fact that lawyers desire the work is encouraging.

On the flip side, when no one wants the job, a relatively normal, reasonable person, with intelligence slightly above that of a brick, would recognize a problem.  Not so the person suffering from the Dunning-Kruger Effect, whose belief in his own virtue and brilliance so clouds his mind that he is incapable of learning any lesson from rejection.

I suspect that whoever place this Craigs List advertisement for counsel suffers from such a malignancy.  I can only hope it’s not terminal, as it seems clear that he will not find love on the internet.

One of the fundamental flaws of the victims rights advocates is that they anoint the victim first and worry about whether there was a crime later, if at all.  After all, victims deserve our sympathy and, more importantly, must be protected from the harsh scrutiny that comes with a legal system that tests their claims before hanging the bad guy.

And then there’s Dominique Strauss-Kahn, vilified for his sexual assault against a hotel maid and, due to his prominence and French accent, released only under the most arduous bail conditions.  But for his extreme wealth, he wouldn’t have been freed at all.  Then again, but for his high-profile, no one would have looked twice at his case.

When it first broke, the story had an odor, as it seemed to change from minute to minute, and his conduct that day didn’t match the allegations.  It appears that the parties will be back in court today to clean up the mess.  From the New York Times :

The sexual assault case against Dominique Strauss-Kahn is on the verge of collapse as investigators have uncovered major holes in the credibility of the housekeeper who charged that he attacked her in his Manhattan hotel suite in May, according to two well-placed law enforcement officials.

Although forensic tests found unambiguous evidence of a sexual encounter between Mr. Strauss-Kahn, a French politician, and the woman, prosecutors now do not believe much of what the accuser has told them about the circumstances or about herself.

Since her initial allegation on May 14, the accuser has repeatedly lied, one of the law enforcement officials said.

Notice the language?  No longer is the maid the victim, but now the “accuser.”  Jim Dwyer’s article turns a corner that few want to admit exists, that there is no victim, but only an accuser, until a case is tried and a defendant convicted. 

At the outset, the prosecution was thrilled to tell the media that its case was compelling, overwhelming.  They nailed a big fish, and they were only too happy to let everyone know.  But then they investigated.  That’s how cases are worked, bust first, smear second, investigate if and when you get a chance. 

Much of the discussion about DSK centered on whether he would plea or go to trial, as a tactical matter.  Few considered the possibility that there was no crime.  After all, the prosecution said there was and they would never lie.  And no one, but no one, questioned whether the victim of a terrible sex attack might not have been a victim at all, but just an accuser. A false accuser.

Given DSK’s prominence, resources and lawyers, the prosecution knew that it faced a fight.  The post arrest investigation wasn’t meant to ascertain whether the crime truly occurred, or whether their witness was really a victim, but to nail down the evidence and make sure they beat DSK into submission. 

As it turned out, the investigation meant to assure a win turned out the other way, showing their victim to be a liar.  Had it been someone substantially less prominent, there would have been minimal investigation, if any at all.  They just would have put the maid on a pedestal and presented her in court as a paragon of virtue.  And that’s what the jury would have seen.

The defense, from the start, said they would destroy the maid’s credibility, and they were fortunate to have the wherewithal to mount an investigation of their own to do so.  Whether they had the good is unknown, and likely will never be known.  But the reality is that few defendants have the ability of a DSK to do the legwork to show that the victim is just an accuser.

So few defendants will enjoy the benefit of DSK’s wealth and prominence, and few will have the prosecution do the legwork necessary to show that their victim is a liar, whether the defense has the capacity to do so or not.  And the sympathetic victim won’t be outed as the false accuser, the liar.  The jury will believe the victim because victims never lie, and they must be protected from our harsh scrutiny.

So you thought the tide was turning when you voted for “change?”  When medical marijuana was legalized? When Barney Frank and Ron Paul introduced a bill to decriminalize pot?  Not so fast.

Deputy Attorney General James Cole has  issued a Memo to clarify that the new boss is the same as the old boss.

Over the last several months some of you have requested the Department’s assistance in responding to inquiries from State and local governments seeking guidance about the Department’s position on enforcement of the Controlled Substances Act (CSA) in jurisdictions that have under consideration, or have implemented, legislation that would sanction and regulate the commercial cultivation and distribution of marijuana purportedly for medical use. Some of these jurisdictions have considered approving the cultivation of large quantities of marijuana, or broadening the regulation and taxation of the substance. You may have seen letters responding to these inquiries by several United States Attorneys. Those letters are entirely consistent with the October 2009 memorandum issued by Deputy Attorney General David Ogden to federal prosecutors in States that have enacted laws authorizing the medical use of marijuana (the “Ogden Memo”).

The Department of Justice is committed to the enforcement of the Controlled Substances Act in all States. Congress has determined that marijuana is a dangerous drug and that the illegal distribution and sale of marijuana is a serious crime that provides a significant source of revenue to large scale criminal enterprises, gangs, and cartels. The Ogden Memorandum provides guidance to you in deploying your resources to enforce the CSA as part of the exercise of the broad discretion you are given to address federal criminal matters within your districts.

The War on Drugs just turned 40, but it’s still alive and kicking.  And drug are still as evil as ever, as far as the DOJ is concerned. 

Ironically, marijuana is a schedule I drug, meaning that is has no medicinal purpose and is highly subject to abuse.  Cole’s Memo, asserting that “Congress has determined that marijuana is a dangerous drug” just ignores the medical part, which is a little hard to reconcile with the whole point of medical marijuana.  The subtext is pot is evil, just as it was the day Reefer Madness made its debut.

Over the years, arguments about the evils and virtues of pot have gone in circles, and not until states began recognizing that it’s not just an alternative high, but an herb with legitimate medicinal purposes, did the rhetoric break free of the old arguments. 

The Obama/Holder DOJ had it within its power to lower the volume, if not give medical marijuana a free pass in the exercise of discretion and allocation of scarce resources.  Instead, it came out with this memo, letter prosecutors, states and the rest of us know that they are still gunning for pot as did their predecessors.

While the government may be pulling troops out of far away lands, there seems to be one war that won’t be ending any time soon.  We’re still a long way off from ending the ill-conceived ar on drugs that’s filled our prisons and empties our coffers, but this is a smack in the face to states and Congress, not to mention to those who voted for the current administration in the belief that our President might be just a little more open than the guy before him to the idea that eradicating drugs isn’t worth the price. 

Clearly, Cole thought this was necessary to say, and DOJ thinks that the eradication of marijuana remains one of our core priorities.  How is that “change” working for you?

When the Chief Judge of the 9th Circuit Court of Appeals says the Fourth Amendment is dead, you have to pay attention.  Judge Alex Kozinski, together with his law clerk, Stephanie Grace, have written a Requiem for the Fourth.

When did the Fourth Amendment die, you ask?

Recently, but it’s been sick for a while.

So why haven’t you heard about it?

Because you’re the murderer. We all are. Our weapon of choice? Most recently, the smartphone, which, with our collective blessing, allows law enforcement to monitor our real-time geographic location.

It started with the supermarket loyalty programs. They seemed innocuous enough — you just scribble down your name, number and address in exchange for a plastic card and a discount on Oreos. The problem, at least constitutionally speaking, is that the Fourth Amendment protects only what we reasonably expect to keep private. One facet of this rule, known as the third party doctrine, is that we don’t have reasonable expectations of privacy in things we’ve already revealed to other people or the public.

There’s a sign as you drive down South Virginia Street that proclaims Reno, Nevada special.  No, the police don’t wear hot pants as in Reno 911, a huge disappointment.  There aren’t many people walking on the streets in this place plopped in the middle of nowhere. 

It appears that Reno consists primarily of two things: tired old casinos behind walls that look like they were once built to be flashy, but were left to decay after someone realized that no one was looking.  And there are pawn shops.

The casinos speak for themselves, no clocks to be seen, music blaring, the pretense of excitement surrounding a few people slumping over game tables or putting coins in slots as if there was a rule that they had to eventually come out.  Hope springs eternal. Odd don’t seem to compute to folks in casinos.

The pawn shops seemed interesting, now that I’ve become intimately familiar with the cool things that come into Nevada from watching Pawn Stars.  Apparently, Vegas must get all the really fascinating items, as the shops in Reno had drecht, inconsequential crap that would barely buy someone another roll of the dice.

The only other point of interest was notable atop the taxis, most of which advertised the Mustang Ranch and museum.  We like to go to museums as we travel the nation to fence on the North American Cup circuit, so my son wondered if we should take in this one as well.  I explained what the Mustang Ranch was and told him it was his choice. 

One point of sincere interest is the National Automobile Museum at Harrahs, which is well known as being one of the best car museums in the country.  We will certainly be able to spend some quality time there, and anticipate it to be the height of Reno culture.  Not bad, as culture goes.

One of the strangest tings about manifest destiny is that all the clocks are wrong.  When the body says it’s had enough sleep at 5:00 a.m. New York time, but the clock says it’s 2 in the morning, it’s hard to figure out what to do.  My solution is to finally read  Dan Solove’s ambitious new book, Nothing to Hide, which first debunks the arguments used to trick people into trading off freedom for security, and then goes on to offer Dan’s idea of how, in the internet/terrorist age, we should approach the protection of personal freedom.  A review will be coming soon.

I have no idea what would make Reno the “Biggest Little City,” or a city at all.  It bears none of the indicia of real life with real people living here doing the stuff real people do.  Unless real people sell off their trinkets to gamble and then salve their wounds at the Mustang Ranch.  But that’s not how the real people I know behave.  Then again, maybe I hang out with the wrong sort of people.

About this time every year, my son and I take off to some godforsaken part of the country where the United States Fencing Association has seen fit to hold the Summer National Championships.  This year it’s Reno, Nevada.

Over the next eight days, we will be hiding in a massively large, exceptionally loud, wholly undecorated, notably smelly, room where men and women will be fighting with swords of one type or another.  It smells like . . .  victory. 

Whether he wins, loses or otherwise, I am incredibly proud of my son. That he’s an A11 rated epee fencer is just frosting on the cake.  He works hard. He cares. He strives to achieve. He’s felt glory, but knows the agony of defeat.  He knows nothing worthwhile is accomplished without effort.

During this time, my interest in writing wanes, with other things taking precedence.  As much as I enjoy writing, there are things more important and they come first.  More than that, my head isn’t as much into law as it is touches, lunges, parries and ripostes (and the occasional fleche), or the sort done with cold, hard, maraging steel. 

For those of you looking for an opportunity to beat me to death because of how much you despise what I write (or just don’t like me), this would be a wonderful opportunity to take me to task without fear of response.  For those who just think I write too damn much, this would be a chance to catch up.  And for those who don’t care much either way, you aren’t reading this, so it doesn’t matter.

In the interim, I expect to do some posting along the way, but I won’t be following things nearly as closely as I normally do.  Comment moderation will be slow in coming.  So cut me a break and wish my son luck.

Did I mention how proud I am of my son? 

And we’re off to Reno.  Later.

The Supreme Court’s decision in  Turner v. Rogers has launched thousands of words on the lawprof blogs, trying to spin the case into a face off between men and women, wealth and poverty, pro se and representation, all too boring and pointless to make anyone care.  But seeing a post by Norm Reimer on  Concurring Opinions shook me out of complacency.

Many will recognize Norm’s name as the Executive Director of the NACDL, but I remember Norm as the guy down the hall when I first started practicing.  With partner Frank Gould, Norm was a pretty cool lawyer.  As a snot-nosed baby lawyer, I sometimes wandered down the hallway of the 16th floor to ask him a question. He was always happy to help.

Unlike the lawprofs, Norm’s post goes to the heart of the problem in Turner, one that is dismissed by the scholars but can’t be ignored by a trench lawyer. 

From the criminal defense practitioner’s standpoint, the Court’s decision betrays naïve simplicity and a breathtaking disconnect from the real world.   The first of the three reasons cited against the Due Process Clause requiring the State to provide indigents with counsel in civil support contempt proceedings is that the critical issue is likely to be the defendant’s ability to pay.   The Court blithely notes that the question of a defendant’s indigence “is sufficiently straightforward.”  Slip Op. 13. Nothing could be further from reality.

Only in the sanitized world of appellate courts can the hardest issue be dismissed with a wave of the hand. Indigency permeates the problem, whether as the ability to pay support or the ability to pay for a lawyer to defend.  It’s like the millionaire criminal defendant, stripped of use of his assets by forfeiture proceedings, who is subsequently convicted, his criminality justifying his having been deprived of the ability to pay for his defense.  At the back end of the sausage making, it all seems so simple.

Norm notes that whenever, in the opinion, the majority is about to crash into the wall that would require them to reach the only rational conclusion possible, that any person whose liberty interest, a benign phrase that means they’re going to jail, regardless of whether it’s dolled up by calling it civil rather than criminal, the Supremes pull out the 1973 decision of Gagnon v. Scarpelli, which holds that defendants aren’t entitled to counsel in probation revocation hearings.  Precedent, you know.

Gagnon was wrong, and repeating it as precedent applied to another jailing doesn’t make it less wrong.

Turner may implicate a wide variety of scholarly issues, but who cares.  What matters most about the decision, like Gagnon, is that a person goes to jail without having a lawyer to defend him because he’s indigent.  And his failure to prove indigence, because he has no one to tell him anything is proved in court, doesn’t mean that he’s not indigent or that it’s straightforward.  The need for counsel is because of the need to defend; the failure of the defense isn’t proven because the unrepresented defendant doesn’t know how to do so.

And calling the jailing of a person “civil” doesn’t mean they put curtains on the cell windows.  Jailing is jailing, and putting lipstick on its doesn’t make it more civil than criminal, an artificial distinction used to deprive the guy going to jail of the ability to defend himself.

So pontificate all you want about the fascinating collateral issues that will keep scholarly folks busy and launch a thousand law review articles.  Guys like Norm (and even me) see a very different point in Turner, that no person should be sentence to jail without a lawyer to defend him.  And that being too poor to afford counsel is a damn poor reason to jail someone.

Cut to its core, that’s the failure of Turner, as no safeguards (whatever that is supposed to mean) are real when a person is thrust into the legal system, facing jail and left to dangle without a lawyer because he’s poor.  That’s the problem that the Supremes needed to fix, and they didn’t.

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?