California writes itself a censorship blank check

The First Amendment of our Constitution – Congress shall make no law…abridging the freedom of speech – could not be any clearer. 

But we have about half of a professional class – lawyers – and about half of the political class – Leftists – attempting to muddy the crystal clear waters of this Constitutional restriction on government.

The government censors have spent the last 220 years searching for any conceivable way around this universal restraint on their power.  When total censorship cannot be achieved, the censors go for it piecemeal. And they do so in part by demonizing the speech they wish to silence. 

They say, for instance, that it’s “hate speech” – defined as anything the government censors deem as “hateful.” 

They say it’s “a threat to our democracy” – which opens the door to a million and one campaign finance “reform” laws. 

They say “it’s only fair” – which leads to the likes of the mis-named “Fairness” Doctrine and “Net Neutrality.” 

And they say it’s “for the children.” 

Which brings us to a ridiculous 2005 California law amorphously restricting “violent” video games – which has spent the last half decade being pummeled as unconstitutional in all sorts of courts.  Both the federal Northern District Court of California and the Ninth Circuit Court of Appeals – the latter unanimously – have rejected the law.   

In fact, similar laws have been reviewed by two other federal Courts of Appeal and six federal district courts – and all of those laws were struck down by all of those courts, all on First Amendment grounds.

Undaunted, the censorious Arnold Schwarzenegger – California’s Governor – and Jerry Brown – California’s Attorney General and Democrat nominee to succeed Schwarzenegger – have appealed the two negative decisions against their writ of censorship – I mean law – to the Supreme Court.

And their law really is horrible – the state was unable in either court to identify a single video game that they believed would be covered by it. 

In other words, what they have done is written themselves a censorship blank check – “We’ll pass this law now, and decide what speech it censors later.” It’s like an open-ended Commerce Clause for abrogating the First Amendment.

The Ninth Circuit was scathing in its rebuke.

At oral argument, the State confirmed that it is asking us to boldly go where no court has gone before. We decline….The evidence presented by the State does not support the Legislature's purported interest…. [T]here remain less restrictive means of forwarding the State's purported interests, such as the improved ESRB rating system, enhanced educational campaigns and parental controls.

In other words, there are private sector ways to handle this “purported interest” – get the government the heck out of it. But the government censors refuse to take utter refusal for an answer, so they are dragging their (hopefully) dead letter to the Supreme Court. 

It doesn’t matter how the government censors define speech for their censorship purposes. They can call it “hate” speech, “unfair” speech, “offensive” speech or whatever else – it’s still speech. And ALL speech is speech, so NONE of it can be censored. 

Here’s hoping the Supreme Court agrees, with us and with their many, many robed brethren.        

Seton Motley is President of Less Government and Editor in Chief of StopNetRegulation.org.

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