6 Ways the US Supreme Court Has Trashed and Rewritten Our Constitution
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Fifty years later, during another unnecessary war (as almost all wars are—despite the pageantry and rhetoric), the Supreme Court at least tempered Holmes’ imperious judgment in the case of Brandenburg v. Ohio, limiting “banned speech” to the incitation of “imminent lawless action.” Of course, a lot of damage had been done in the meantime. Free speech had been suppressed, and generations had come and gone censoring themselves and others.
3. Plessy v. Ferguson
Another time the Supreme Court actually followed Spike Lee’s general advice to “do the right thing” was in 1954 with “Brown v. Board of Education.” Once again, the Justices were actually correcting the myopic vision of their predecessors’ decision in the 1896 case of Plessy v. Ferguson, with its “separate but equal” gobbledygook about schools for folks with white skin and for other folks with black. In my childhood, I remember driving through the South with my parents, seeing numerous billboards with the injunction, “Impeach Earl Warren!” Warren’s infamously “liberal” court had had the effrontery to unanimously aver that “separate educational facilities are inherently unequal.” Even as an 8-year old I could see the logic in that! But now, I wonder: how many 8-year olds had gone to school for nearly 60 years and never even knew they were being educated and indoctrinated in a system that would not recognize their essential equality? And what did “freedom of speech” mean in those segregated schools where teachers and administrators were enjoined to follow the Supreme Court sanctioned script? How many ardent voices were stifled and lost because the script was rotten… and “the law of the land”?
4. Violent Video Games
Let’s move on to the past couple of years.
Writing for The New York Times on June 28, 2011, critic Seth Schiesel cheered: "It is now the law of the United States that video games are art. It is now the law of the United States that video games are a creative, intellectual, emotional form of expression and engagement, as fundamentally human as any other."
In the case of “Brown v. Entertainment Merchants Association,” June, 2011, writing for the five justices in the majority, Antonin Scalia cogitated:
“Like the protected books, plays and movies that preceded them, video games communicate ideas—and even social messages—through many familiar literary devices (such as characters, dialogue, plot and music) and through features distinctive to the medium (such as the player’s interaction with the virtual world. That suffices to confer First Amendment protection.”
Here’s another example of our First Amendment being whacked… and stretched to fit the model first postulated by Marshall’s court back in 1819; i.e., that corporations are entitled—yes, that word, “entitlement”—entitled to the same protections as “persons” under the First Amendment. And that means, entitled to make as much money from susceptible kids as is humanly—or corporately—possible.
Whether “Grand Theft Auto” should be placed in the same category as “The Outline of History” (books), “Hamlet” (plays) or “Casablanca” (movies) is a fine point Justice Scalia seems unwilling to consider. (Porn violence, shouldn’t it more properly be placed with “Debbie Does Dallas”?)
Here’s another example of a SCOTUS decision which one hopes a much more rational, real, live people-serving Court will overturn (sooner rather than later). I’ll use Schiesel’s words from his pro-decision article to make some counterpoints. (And, not to poison the well too much, let’s recall that Mr. Schiesel works for one of the largest and most powerful news corporations in the world!). Thus,
“Monday’s decision invalidated a California law intended to regulate the sale of violent video games to children. As someone who plays hundreds of hours of violent video games every year, I certainly recognize that many are extremely inappropriate for children. It would be unconscionable to allow a young child to sit through, much less control, the gory scenes in some games, just as it would be to let them watch an R-rated “torture porn” film.