Tradition!

If you're like me and you prefer sex over violence, it's a little disorienting to read the U. S. Supreme Court's opinion in Brown v. Entertainment Merchants Association.

Apparently, at least according to the majority opinion written by Justice Antonin Scalia, depictions of violence are protected speech and depictions of obscenity are not.

Why?

Because of historical precedent.

The case, as you may know, was a challenge to a California law restricting the sale of violent videogames to minors.

Wrote Scalia: "California's argument would fare better if there were a longstanding tradition of specially restricting children's access to depictions of violence, but there is none."

So it's too late to create a new tradition now.

Here's another key Scalia line: "... disgust is not a valid basis for restricting expression."

Unless it's some disgusting lovemaking thing.

I blame it on the Founding Fathers. They had no problem shooting British soldiers in public but we have no idea how they did their fathering.

If George Washington, Thomas Jefferson, and Benjamin Franklin had access to Internet porn, would they have scorned it?

If the purpose of constitutional interpretation is to read the minds of those guys, maybe we ought to check to see who they fathered with whom.

That should be some fun research.

REACHING BACK. Scalia, history notwithstanding, doesn't mention the Founding Fathers. But Clarence Thomas, dissenting, sure does.

Reading those fathers' minds is a real art.

Justice Thomas goes about it by reading some other guys' minds. This is from the dissent: "A complete understanding of the founding generation's views on children and the parent-child relationship must ... begin roughly a century earlier, in colonial New England."

I have no idea why he decided to ignore the impact of caveman parenting but I expect to see some cave precedent the next time the court has a hunting-related case.

Anyhow, if you're looking for entertainment, I suggest reading the Thomas dissent. There's a lot of fascinating stuff - including a death penalty for teenagers disobeying their parents.

There's a lot of child psychology from the likes of Noah Webster, John Locke and Jean-Jacques Rousseau. And then we learn that Thomas Jefferson nagged his daughter to dress better - "Above all things and at all times let your clothes be neat, whole, and properly put on."

And you thought all Jefferson did at home was have sex with the servants.

This is followed in the opinions from "parenting books" published in the 1830s. Apparently looking at stuff from the century before and the century after the founding fathers qualifies as looking at the founding fathers.

It averages out.

POSITIVE SPEECH. Speaking of odd First Amendment law, take a look at a California appellate ruling called Kunde v. Seiler in which we learn that California has a law that says political parties can send out a statement with ballot materials - but only if they're nice.

Really. That's what the law says - political parties can send out statements with official sample ballots if, among other things, they do not include words critical of another party.

Hardly seems worth the trouble.

If a politician can't say something not nice, why say it at all?

Oddly, that requirement wasn't being challenged. Fortunately, we have plenty of other outlets for the expression of critical words.

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