Pro Logica

October 17, 2011

Freedom of Speech? Brown v. Entertainment Industries Assn.

The Supreme Court’s (SCOTUS’) ruling in this case is the culmination of a claim made by Entertainment Industries Assn. that a specific California law is unconstitutional because obeying it abridges a video game vendor’s protected free speech.  The law, itself, is only paraphrased in the ruling and I have not spent the effort to read the original wording of the law but the ruling only addresses the case in terms of its paraphrasing.  According to the ruling, the law bans a vendor in California from selling a video game–one which portrays violence as a socially accepted activity in situations where violence is not a socially acceptable activity–to a minor (someone under eighteen years old) without permission from that minor’s parent(s) or guardian(s).  The plaintiff in this case is a legal entity of the State of California–‘Entertainment Industries Association’–and the defendant, while nominally ‘Brown’, is actually the sovereign State of California.  Five justices agreed with the plaintiff (the majority opinion), two justices disagreed with the plaintiff but found the law to be too vague to enforce (a good equity ruling) and two justices agreed with the defendant. Whatever the actual wording of the California law was, the plaintiff’s claim was that the law, by violating their member’s freedom of speech, was unconstitutional and the majority opinion confirmed that claim.

At first, I thought that the majority opinion was ridiculous since it equated one side of a two party contract to an act of protected free speech, i.e., speech not subjected to abridgment by law.  I still do think that that decision is ridiculous and it exposes those five justices as having a lack of both, common sense and wisdom; they are, therefore, unqualified to be justices of SCOTUS.  Article I of the Constitution specifically enjoins Congress from interfering in contract obligations and, sovereign States have the sole power to define those citizens of the State who are eligible to sign contracts.  However, after spending some time reading the relevant sections of the Constitution, Wikipedia, some ‘freedom of speech’ rulings by SCOTUS and some historical documents, I have come to the conclusion that the worst aspect of this ruling is that it exists.  The Constitution flatly denies jurisdiction of this case to the Judicial Branch.

The ‘sins’ of SCOTUS in this case amount to:

  • As mentioned above, treating a sovereign State’s right to determine the eligible signers of contracts as an abridgment of free speech.  The only person having HIS freedom of speech abridged is the minor who is barred from signing a contract allowing HIM to legally purchase a product having certain characteristics unless those responsible for that minor give HIM explicit permission, but there are many prohibitions on minors entering legal contracts.
  • Effectively changing the Constitution (Amendment I) to read, “the sovereign States shall make no law abridging the freedom of speech” instead of “Congress shall make no law abridging the freedom of speech.
  • Effectively changing the Constitution (Article III and the Eleventh Amendment) to allow State defined corporate entities as legal parties to cases heard by SCOTUS–Article III and the Eleventh Amendment are very specific on who these parties may be.  Congress certainly may enact a law which could extend the definition of a person so as to allow such corporate entities, but I believe no such law exists.
  • Assuming jurisdiction over a case which concerns a difference of opinion between a citizen of a sovereign State and HIS State–specifically  banned by the Eleventh Amendment.
  • Ignoring Section 5 of the Fourteenth Amendment–Section 5 states that Congress, not the Judicial Branch, has the authority to implement the amendment.
  • Misusing the principle of judicial precedent.  More than likely, “Feiner v. New York” was the first case in which SCOTUS decided to hear a claim of abridgment of freedom of speech.  Even though the Eleventh Amendment excluded the case from SCOTUS jurisdiction, SCOTUS argued that the Fourteenth Amendment gave it jurisdiction.  The basic problem with the Fourteenth Amendment is that without Congressional laws defining its actual application any state law can be deemed unconstitutional.  This only mocks the term ‘sovereign State’ and could essentially eliminate all State governments contrary to the Constitution which enjoins the Federal government to guarantee a republic government for each State.  Use of the Fourteenth Amendment in this manner has effectively rescinded the Eleventh Amendment.  Sighting an illegal ruling does not justify a continuing illegal jurisdiction.

As I have recently reviewed many of SCOTUS’ rulings, I find that a majority of them seem to commit as least one type of these ‘sins’.

In spite of my conclusions, I do think that a citizen’s freedom of speech is essential for all republican governments and prior to the civil war it was the State’s obligation to define when abridgment to freedom of speech applied.  The Thirteenth Amendment, outlawing Slavery in the U.S. and all sovereign States required something like the first section of the Fourteenth Amendment but it also stated unequivocally that the U.S. Congress was the branch specifically authorized to spell out the amendment’s details.  While the Fourteenth Amendment talks about the privileges and immunities of the citizens and their equal protection of the laws it specifically enjoins Congress to define these properties.  Our country does not have a problem with its constitution but with a power hungry Judicial Branch and an exceptionally weak Legislative Branch which refuses to chastise and/or expel judges from the Judicial Branch when they act unconstitutionally.

With these unconstitutional acts by SCOTUS, I have often wondered why states have not asserted their sovereignty and just ignore those SCOTUS rulings which are not constitutional.  The only risk is that POTUS might agree with SCOTUS and withhold much needed funds graciously granted by the Federal government.  Pity, pity, pity!

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