A Radical Dissent by Justice Clarence Thomas Offers a Reproach to Merrick Garland

To those stunned by Attorney General Merrick Garland’s plan to use the USA Patriot Act* against parents protesting school curriculums, we commend the dissent by Justice Clarence Thomas in a case called Brown v. Entertainment Merchants. It will reassure you that you are not alone. There is at least one justice who comprehends the constitutional standing of parents in respect of their own children.Brown v. Entertainment Merchants was decided by the Supreme Court in 2011. The court cashiered an attempt by California to prohibit the direct sale of violent video games to minors. The court reckoned the law was afoul of the First Amendment’s freedom of speech clause. Justice Thomas’ opinion is one of those dissents that, in the long haul, could well prove to be more important than the majority opinion.That’s because Justice Thomas’s dissent is one of the most radical statements in the Himalayas of our Supreme Court jurisprudence on the constitutional prerogatives of parents. Parents are the very group in respect of whom Attorney General Garland has set the Justice Department athwart. He did so after the National School Boards Association sent a letter to President Biden likening parents protesting at what is taught in schools to domestic terrorists.Brown v. Entertainment Merchants arose after California passed a law banning the sale of violent video games to persons under the age of 18. California was promptly sued by, in Entertainment Mercahnts, a trade association. They were opposed by the governor, Edmund Brown, and the state attorney general, one — remember this — Kamala Harris. At the Supreme Court, the state of California lost.The majority opinion was written by The Great Scalia, as the justice is known in these columns. The opinion noted that the high bench had already rejected attempts by states to “shoehorn” violence into an unprotected category of obscenity. More broadly, the majority of justices reckoned that the California law “does not comport with the First Amendment,” which prohibits laws abriding the freedom of speech.Joining Justice Scalia in the majority were Chief Justice Roberts, and Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Alito wrote a separate concurrence. So it turned out that the only justices to side with Governor Edmund Brown and Attorney General Kamala Harris — both Democrats — were Justice Breyer and, in Clarence Thomas, the most right-wing member of the high court.Justice Breyer concluded that the law did comport with the First Amendment. Justice Thomas, though, came in from deep right field. “The founding generation,” he wrote, “would not have considered it an abridgment of ‘the freedom of speech’ to support parental authority by restricting speech that bypasses minors’ parents.” He referenced, among others, the Puritan settlers and their view of the authority of the parents.Parents were, Justice Thomas wrote, “not to let their children read ‘vain Books, profane Ballads, and filthy Songs’ or ‘fond and amorous Romances, … fabulous Histories of Giants, the bombast Achievements of Knight Errantry, and the like.’” After going through history over the centuries, Justice Thomas summed up with words that, we’d like to think, protesting parents might find encouraging.“‘The freedom of speech,’ as originally understood, does not include a right to speak to minors without going through the minors’ parents or guardians,” Justice Thomas concluded. It would no doubt be an error to make too much of those words. Justice Thomas was, after all, alone in his dissent. However, it would not be an error, in our view, for America’s beleaguered parents to take heart from what Justice Thomas wrote.For sometimes it takes time for the law to catch up with our great dissenters. The idea that our school authorities can start cramming leftwing ideologies into their minor students without having to address the concerns of — and seek a mandate from — parents is an affront to the deepest strains of the American tradition. And the go-to sage is now the most senior figure, in terms of time in grade, on our nation’s highest court.________* USA Patriot Act is short for: The Uniting and Strengthening America by Providing Appropriate Tools to Restrict, Intercept and Obstruct Terrorism Act.

A Radical Dissent by Justice Clarence Thomas Offers a Reproach to Merrick Garland

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