The Offendables: Thomas, Breyer Team Up with Schwarzenegger

One has millions of dollars invested in as many as 60 diverse assets, the other has a modest retirement account among only 6 assets.
One does not need social science to tell him how to interpret the Constitution, the other writes opinions that appear to be social science journals.

So what do Clarence Thomas and Stephen Breyer have in common?
Over the summer, the classic Hollywood ‘odd couple’ agreed to disagree (with the rest of the Court) when they both dissented in Brown vs. Entertainment Merchants Association ( Schwarzenegger v. Entertainment Merchants).  The Supreme Court affirmed a ruling that a California statute criminalizing the sale of violent video games to minors violated the First Amendment.
During oral argument, Justice Breyer compared a state’s (allegedly unconstitutional) prohibition on the sale to minors of violent video games with a state’s (constitutional) prohibition on the sale of pictures of nude women to children. EMA’s attorney argued that, unlike sexuality, “violence has been a feature of works that we create for children and encouraged them to watch throughout the history of this country.”

LULZ back in the day

Channeling the Elle-Woods-y naivete that has been the jurisprudential rage over the last decade, Justice Breyer replied, “You mean love is not something that people have tried to encourage children to understand and know about? I mean, what’s the difference between sex and violence?

Justice Scalia explained (131 S. Ct. 2729 at 2735 or here at page 6) that, unlike sexual material, “[violent material] is not obscene” and so a prohibition on its sale to minors would be unconstitutional, unlike “the statute regulating obscenity-for-minors that we upheld in Ginsberg v. New York (1968). That case approved a prohibition on the sale to minors of sexual material that would be obscene from the perspective of a child.”
Justices Breyer and Thomas draw from Ginsberg the principle that parents ”are entitled to the support of laws designed to aid discharge of [their] responsibility [to maintain their children's well-being].” (at 639). Chief Justice Roberts admitted at oral argument that we “do not have a tradition in this country of telling children they should watch people actively hitting schoolgirls over the head with a shovel so they’ll beg with mercy, being merciless and decapitating them, shooting people in the leg so they fall down.”
So…why is it possible to ‘know it when you see it’ when it comes to sexually prurient entertainment, but impossible to know deviant violent entertainment?
In his dissent, Justice Breyer pleads with his readers not to confuse Ginsberg with another First Amendment case from the 60′s, Ginzburg.  But it’s a free country, Justice Breyer!

Ginzburg is an illustration of how our attitudes on obscenity change over time. Ralph Ginzburg was convicted of violating a federal law prohibiting the distribution of obscene materials through the mail, and he served 8 months of a 5 year prison sentence. Mr. Ginzburg sent smutty stories and pictures to consumers through post offices in towns like Blue Ball, PAIntercourse, PA, and Middlesex, NJ. The attorney arguing on behalf of the United States admitted that Ginzburg’s newsletters of love were “unique.” (beginning at 33:40).Before even a decade had passed since his conviction, a Time magazie article remarked that Ginzburg’s materials “appear[ed] tame” and would be unlikely to incur either “the law’s wrath or the public’s attention.” Were Ginzburg’s mailings obsceneindecent, or in bad taste?  Or was Ginzburg a “terrible decision,” as one ASU Professor reportedly said?

Pornographic or not, they were intended for adults.

Won't somebody think of the CHILDREN?

Justices Thomas and Breyer did! But with the support of the other seven Justices, it was nearly a flawless victory for the video game industry.

Maybe, 10 years from now, we’ll look back and laugh at the thought of preventing children from playing games where they beat innocent girls over a head with a shovel…