The Supreme Court’s Remarkable Argument Over Children’s And Young Adult Fiction

Much of the attention to the Supreme Court’s 7-2 decision today striking down California’s ban on violent video games will focus on the affirmation that video games are an equivalent art form to literature, the Court’s dismissal of the studies that purport to show links between video games and violence, the free speech implications of the case, or speculation over just what Justice Alito’s “considerable independent research to identify video games in which ‘the violence is astounding'” consisted of. But what I’m most struck by is watching Justice Scalia, who wrote the majority opinion, and Justice Thomas, who wrote one of two dissents, square off over the history of children’s and young adult literature and the rights of minors.

Thomas draws a draconian line in the sand, saying that children have no right to read or access any material or speech without obtaining their parents’ approval first: “The historical evidence shows that the founding generation believed parents had absolute authority over their minor children and expected parents to use that authority to direct the proper development of their children. It would be absurd to suggest that such a society understood ‘the freedom of speech’ to include a right to speak to minors (or a corresponding right of minors to access speech) without going through the minors’ parents.”

And it’s a delight to see Scalia utterly dismantle his total disregard for the rights of minors in a footnote, saying:

Justice Thomas ignores the holding of Erznoznik, and denies that persons under 18 have any constitutional right to speak or be spoken to without their parents’ consent. He cites no case, state or federal, supporting this view, and to our knowledge there is none. […] It does not follow that the state has the power to prevent children from hearing or saying anything without their parents’ prior consent. The
latter would mean, for example, that it could be made criminal to admit persons under 18 to a political rally without their parents’ prior written consent — even a political rally in support of laws against corporal punishment of children, or laws in favor of greater rights for minors. […] In the absence of any precedent for state control, uninvited by the parents, over a child’s speech and religion (Justice Thomas cites none), and in the absence of any justification for such control that would satisfy strict scrutiny, those laws must be unconstitutional.

But where the clashing decisions get really interesting is in Thomas and Scalia’s alternate histories of children’s and young adults’ literature and culture. Thomas takes the same position as the scolds who said this newfangled thing called the novel would rot women’s brains, and sides with contemporary worrywarts like Meghan Cox Gurdon who recently and infamously complained about the “darkness” of young adult literature in the pages of the Wall Street Journal, using American literary history and moral anxiety to argue that contemporary parents’ ought to protect their children from the undue influence of everything from Grimm’s Fairy Tales to talking animals as providers of wisdom. I’ll summarize the whole thing because it’s just too astonishing to ignore:

In the Puritan tradition common in the New England Colonies, fathers ruled families with absolute authority…Part of the father’s absolute power was the right and duty “to fill his children’s minds with knowledge and…make them apply their knowledge in right action.”…Accordingly, parents were 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.”…This conception of parental authority was reflected in laws at that time. In the Massachusetts Colony, for example, it was unlawful for tavern keepers (or anyone
else) to entertain children without their parents’ consent.

In the decades leading up to and following the Revolution, attitudes towards children changed…Children came to be seen less as innately sinful and more as blank slates requiring careful and deliberate development. But the same overarching principles remained. Parents continued to have both the right and duty to ensure the proper development of their children. They exercised significant authority over their children, including control over the books that children read…“Vice always spreads by being published,” Noah Webster observed.

Prominent children’s authors harshly criticized fairy tales and the use of anthropomorphic animals. See, e.g., S. Goodrich, 2 Recollections of a Lifetime 320, n.* (1856) (describing fairy tales as “calculated to familiarize the mind with things shocking and monstrous; to cultivate a taste for tales of bloodshed and violence; to teach the young to use coarse language, and cherish vulgar ideas; . . . and to fill [the youthful mind] with the horrors of a debased and debauched fancy”); 1 id., at 167 (recalling that children’s books were “full of nonsense” and “lies”); Cardell, p. xiv (“The fancy of converting inferior animals into ‘teachers of children,’ has been carried to ridiculous extravagance”); see also MacDonald 83, 103 (noting that fables and works of fantasy were not popular in America in the 1700’s).

Scalia counters with a history of moral panic over the things children and young adults consume, pointing out that every time, we’ve been embarrassed to look back at what we’ve regulated:

Certainly the books we give children to read — or read to them when they are younger — contain no shortage of gore. Grimm’s Fairy Tales, for example, are grim indeed. As her just deserts for trying to poison Snow White, the wicked queen is made to dance in red hot slippers “till she fell dead on the floor, a sad example of envy and jealousy.”[…] Cinderella’s evil stepsisters have their eyes pecked out by doves. […] And Hansel and Gretel (children!) kill their captor by baking her in an oven.

High-school reading lists are full of similar fare. Homer’s Odysseus blinds Polyphemus the Cyclops bygrinding out his eye with a heated stake…(“Even so did we seize the fiery-pointed brand and whirled it round in his eye, and the blood flowed about the heated bar. And the breath of the flame singed his eyelids and brows all about, as the ball of the eye burnt away, and the roots thereof crackled in the flame”). In the Inferno, Dante and Virgil watch corrupt politicians struggle to stay submerged beneath a lake of boiling pitch, lest they be
skewered by devils above the surface. […] And Golding’s Lord of the Flies recounts how a schoolboy called Piggy is savagely murdered by other children while marooned on an island.

This is not to say that minors’ consumption of violent entertainment has never encountered resistance. In the 1800’s, dime novels depicting crime and “penny dreadfuls” (named for their price and content) were blamed in some quarters for juvenile delinquency. […] When motion pictures came along, they became the villains instead. “The days when the police looked upon dime novels as the most dangerous of textbooks in the school for crime are drawing to a close. […] They say that the moving picture machine…tends even more than did the dime novel to turn the thoughts of the easily influenced to paths which sometimes lead to prison.” […] For a time, our Court did permit broad censorship of movies because of their capacity to be “used for evil,”…but we eventually reversed course…Radio dramas were next, and then came comic books. […] Many in the late 1940’s and early 1950’s blamed comic books for fostering a “preoccupation with violence and horror” among the young, leading to a rising juvenile crime rate. […] But efforts to convince Congress to restrict comic books failed…And, of course, after comic books came television and music lyrics.

Read together, these arguments form sort of a rough continuum. Thomas’s nostalgia for Puritan parenthood is a remarkably honest statement of the cultural world many conservatives seem to wish they lived in. And Scalia’s deft history explains why cultural censors can’t turn back the clock — and perhaps why they don’t really want to. Children can’t be protected from darkness, disappointment and pain by keeping them away from culture that contains those themes. But they can figure out how to move through a world in which those things are inevitable with the help of art and literature.