I don’t want to endorse either Justice Thomas’ dissent or Justice Breyer’s dissent in the 7–2 decision finding that a ban on selling violent video games to minors is unconstitutional, but I do want to make the observation that the current rights of Americans under the age of 18 is kind of nonsensical.
A 16-year-old isn’t allowed to buy a pack of cigarettes or order a beer at a bar or join the military or buy a lottery ticket. In New York City, a 16-year-old can’t drive, and having sex with a 21-year-old is a Class E felony. It’s illegal to sell a porn magazine to a 16-year-old. And needless to say a 16-year-old can’t vote, serve on a jury, or otherwise exercise the general functions of citizenship in the American republic. A 16-year-old, in other words, just doesn’t have basic rights. You can discriminate against them in various ways, and they’re deemed appropriate targets for paternalistic concern. But despite all this they have a constitutional right to violent video games? Really? Maybe the right way to read this is that children should have many more rights. Certainly I’m not terrified by the thought of civically engaged teenagers voting, and I’m fairly confident that notwithstanding the legal prohibition, teen boys are in fact looking at porn and society manages to survive. But I think the United States should try to articulate a more coherent theory of what’s going on here than the idea that taking away someone’s violent video games would be a more fundamental abrogation of human rights than taking away his right to vote.