Beverly Hills Police Harass Black People

I have never been to prison. My understanding is that some (many?) of the nation's worst large state men's prison systems are or were until very recently informally racially segregated. 

Each large racial group has or had its own showers, recreation and exercise areas, phone banks, cafeteria sections, bathrooms, television rooms, and so on.

A man of one racial group couldn't just walk thru a different group's area without escort and permission because otherwise he might then be assaulted and set off racial brawls or riots. 
Personal interactions between different races are discouraged and/or kept to strictly business. Violations could be punished with stabbings, beatings, or other unpleasantries. There is or was a strong feeling of "This is ours, that is yours. Stay out of ours!" I don't know if my local penal system has this practice and have no intention upon ever finding out. But there is some grim brutal honesty to this system. Everyone knows just where he stands. That's prison law.

But that's not supposed to be the law outside of prison. Legally speaking there aren't supposed to be "White" areas in which Blacks can't visit for pain of official harassment or worse. But we know that there are. 

Oakland: Rental Criminal Background Checks Now Illegal!

It is my belief and often state or federal law that it's wrong to mistreat someone for an immutable characteristic. Refusing to hire or rent to someone because of race or religion is wrong. 

Assuming a young woman woman will become pregnant and declining to hire or promote her is wrong. And so on. 

Now unfortunately there are loopholes in and ways around all of those restrictions.  A racist can't legally place a "No N*****s!!!"  clause in her company's hiring policy but no one can force her to mentor Black employees with the same vigor that she does for others. Still, laws that prevent mistreatment for race, religion, ethnicity are good things. It's trickier when we make laws to prevent differential treatment for actual individual past wrong doing. The city of Oakland has banned most background check usage by landlords.

Oakland became the first city in California to ban criminal background checks in most housing applications for private and other rental units under a measure adopted by the City Council on Tuesday. The council unanimously passed a “fair chance housing” ordinance that bars landlords from conducting criminal background checks on prospective tenants. 

The ordinance in Oakland is the first to include rental units outside subsidized affordable and nonprofit housing. The measure, supporters say, could prevent homelessness and bring down the recidivism rate. 

“There is only one place in America that any one of us is guaranteed a roof over our heads and that is in prison,” said John Jones III, campaign director for Alameda County Fair Chance to Housing Coalition. “All of us seek to have safe shelter. That should not be a matter of privilege.”

Applicants who believe they were discriminated against due to their criminal background can file a complaint with the city or a lawsuit. The city can issue penalties of up to $1,000 per violation.
If a private action is filed, a court could award damages.

LINK 

Pepperoni Pizza and Jelly Beans Lawsuits

I was raised with the injunction never to tolerate disrespect in small things or large. I was taught to get what you pay for. I was taught never to think that someone is doing me a favor by taking my money. I learned that if I ordered X to make sure I got X, not Y.

I would have a bigger problem with my parents than anyone else if I meekly accepted shoddy treatment or crappy goods from a business. And I wasn't the only one. Just recently I watched as an elderly irate profane gentleman explained to a clerk at the local grocery story that they had sold him a rotten onion. And even though he had to make a 10 mile round trip he wasn't going to let anyone sell him a rotten f***** onion, by God. 

I appreciate a customer who stands up for himself or herself. However the proper resolution is usually for the store or business to apologize, refund your money, or provide the good or service you initially purchased, occasionally at a discounted price or for free. I'm not sure that the customer needs to file a $100 million lawsuit.

A Muslim man is suing Little Caesars for $100 million after he says he was served and then accidentally ate pepperoni made with pork, a food prohibited by Islamic law. The complaint says Mohamad Bazzi of Dearborn ordered halal pizza twice from the shop on Schaefer in Dearborn. The boxes were labeled "halal," but the pies inside were topped with regular pepperoni. 

Santa Monica PTA and Equality

I thought that this story coming out of Santa Monica was interesting because it obliquely and not so obliquely touches on a lot of the fault lines of modern life-race, class, gender, citizenship status. It also reminded me, as many social programs are likely to do, of Kurt Vonnegut's dystopic satire Harrison Bergeron, in which equality is not only the law of the land but is affirmatively guaranteed and vigorously enforced by action of the government. In this story equality of outcome, not equal opportunity, is what is mandated. So no one is allowed to have more or less of anything than anyone else. Smarter people have electrodes placed in their brain to disrupt their thinking. Attractive people must wear prosthetics to make themselves less good looking. Strong people must have weights attached so that they can't take "unfair" advantage of their strength. And the Handicapper-in-General is licensed to arrest or execute anyone who tries to use their natural talents.

Broadly speaking, Vonnegut was a man of the left. But the Harrison Bergeron story, which today reads as if it were written by a right wing libertarian, remains a prophetic piece of sci-fi. So this story out of California was intriguing.

SANTA MONICA, Calif. — Of all the inequalities between rich and poor public schools, one of the more glaring divides is PTA fund-raising, which in schools with well-heeled parents can generate hundreds of thousands of dollars a year or more. Several years ago, the Santa Monica-Malibu school board came up with a solution: Pool most donations from across the district and distribute them equally to all the schools. 

This has paid big benefits to the needier schools in this wealthy district, like the Edison Language Academy in Santa Monica, where half the children qualify for free or reduced-price lunch. The campus is decorated with psychedelic paintings of civil rights icons such as Cesar Chavez and the Rev. Dr. Martin Luther King Jr., the work of the school’s art teacher, Martha Ramirez Oropeza, whose salary is paid by the pooled contributions. That money has also funded the school’s choral program, teacher aides, a science lab and a telescope. 

It's On Us and Yes Means Yes: Bad Ideas or Overdue Requirements?

The Obama Administration recently launched a public relations campaign to combat sexual assault. The campaign was titled "It's on us". You can check out the video here. I do indeed feel a special obligation to look out for some women. This group would include all related women, particularly younger ones, some really good women friends or close co-workers, and any woman with whom there is, was, or might be an intimate connection. For those women I will risk confrontation and physical danger. I was raised to believe that it's my job to protect such women or offer advice, even if occasionally they eschew such assistance. So that is indeed on me. I wouldn't like it were I ever in a situation where I could have helped a woman and chose otherwise from fear or sloth. But strange women, women who I don't know from Eve, are not my primary concern. This is 2014. Many women proclaim that they are independent and can look after their own affairs. I don't think that they need or want a stranger monitoring their alcohol consumption and clothing choices, or deciding on his own that their planned sexual rendezvous with that dangerous looking biker is too risky and must be halted. It's one thing to see a woman being physically assaulted and callously refuse to assist her. I'm almost 100% certain that I would run to her assistance. There's no ambiguity about what's happening when someone is screaming for help or getting throttled or beaten. But the PSA is discussing preemptive bystander intervention. That's a horse of an entirely different color. That means someone would be overriding the woman's judgment with his own. That might not be such a good thing. It also means women can't be trusted to make their own decisions. I disagree with that.

Police officers make errors. They don't get it wrong all or even most of the time but they do make plenty of mistakes. They arrest people for non-existent crimes, wrongly accuse women of being prostitutes, harass people walking down the street, shoot people's dogs from pure spite, make drug raids on the wrong address, shoot people armed only with wallets, and make other errors that result in people being insulted, arrested, tased, imprisoned, beaten, shot or even killed. And these are the experts! If they make mistakes why wouldn't untrained men make even more mistakes. Police are paid to serve and protect. They often enjoy legal protection for that. But if I preemptively intervene in a couple's private affairs because I think something looks wrong, I could be making a horrible mistake for no gain. Such action contradicts my worldview that, generally speaking, grown people handle their own business. So is it really on me to watch out for people who I don't know? No it's not. Sorry. My Superman suit is at the cleaners. If you, like the woman in the debunked Hofstra "rape" case, happen to think it's a good idea to have simultaneous sex with three or four men in a bathroom , I won't stop you. You're grown. I avoid interfering with grown people's romantic and/or sexual decision making. There's a crude word for this that rhymes with dock locking. And it is an excellent way to get your lights punched out. I can't read minds. I can't distinguish between the couple fondling each other because they're drunk and will shortly have sex that one of them may later describe as rape and the couple fondling each other because they've reunited after a three month business trip and are happily anticipating numerous Kama Sutra approved activities. I don't find anything malicious about the PSA. It amuses me that it calls for patriarchal protection when "patriarchal" is considered a dirty word. I think this PSA is well meaning, if misguided in today's world.

I'm not sure I could say that the "yes means yes" law is well meaning. California recently made a change in the law by passing the so-called "yes means yes" bill. This only applies to college students who are studying at institutions that receive state funding. All non-savages want to reduce the incidence of rape but I just don't see how this law helps with that goal. All I can see coming from this law is unintentional comedy and further degradation of the innocent until proven guilty standard. The very best that could happen is that nothing changes. All we have is a reframed version of the current conundrum in such cases. There are no witnesses other than the accused and the accuser. The accuser says she was raped. The accused claims the accuser agreed to consensual sex. At trial everyone else has to weigh the evidence, such as there is, and decide if the accused was proven guilty beyond a reasonable doubt. Reasonable doubt means that the prosecution has the larger burden of proof. In other words a woman's word alone is not enough to convict a man of rape in a criminal court of law. Nor should it be. There has to be something else. Feminists have never really liked the presumption of innocence as applied to rape accusations and have been chipping away at it for quite some time in the criminal justice system and in the court of public opinion. "Yes means yes" is a way to do that in the college justice system. The Obama Administration has already informed colleges that under Title IX legislation, colleges are to use a weaker "preponderance of evidence" standard when adjudicating rape accusations, something that received serious pushback and criticism from Harvard professors across the political spectrum.

The main problem with "yes means yes" legislation is that such legislation does not at all comport with the reality of how people really initiate or have sex. Although it might be amusing to imagine that everyone sounds like this when engaged intimately, the reality is that they don't. The "yes means yes" law virtually makes this reaction a requirement for every discrete sexual action. So if a man and woman are fooling around on their living room couch the man might ask the woman if she wants to go upstairs. Now both adults know damn well that this question is shorthand for "Would you like to get naked and combine body parts in interesting ways for the better part of two hours?". However under this law if the man did not get explicit permission for each separate action of inserting tab a into slot b, a woman disappointed with his performance, disappointed with her performance or annoyed for any number of other reasons, could come back at a later date and correctly claim that she was raped. A defender of the law might claim that well, better safe than sorry. That's always true when it comes to sex in a lot of different ways. But it's also true that the steps which a man would have to take to avoid liability under this law also happen to be steps which would destroy many women's erotic interest in that man.

More than once I saw disappointment in the eyes of women when I didn’t fulfill the leadership role they wanted me to perform in the bedroom. I realized that women don’t just desire men, they desire men’s desire―and often they don’t want to have to ask for it. I also realized that I was in many ways ashamed of my own sexual desire as a man, and that this was not healthy. 

At this point I was experiencing some cognitive dissonance with my upbringing, but in time learned to take an assertive lead unless I got a “no” or otherwise thought I was about to cross a boundary as indicated by body language.One night I ended up back in a girl’s room after a first date (those do happen in college). She had invited me in and was clearly attracted to me. We were kissing on her bed, outer layers of clothing removed, but when my hands wandered downward she said, “No, wait.” I waited. She began kissing me again, passionately, so again I moved to remove her underwear. “Stop,” she said, “this is too fast.” I stopped.“That’s fine,” I said. I kissed her again and left soon after, looking forward to seeing her again. 

But my text messages received only cold, vaguely angry replies, and then silence. I was rather confused. Only many weeks later did I find out the truth from one of her close friends: “She really wanted you, but you didn’t make it happen. She was pretty upset that you didn’t really want her.”“Why didn’t she just say so then, why did she say we were moving too fast?”“Of course she said that, you dumbass. She didn’t want you to think she was a slut.”

The man was correct to stop. The risks of not doing so were too great. No means no. But a law that presumes that men and women behave exactly the same in or out of the bedroom and that most women still don't expect men to be the ones to "make it happen" is a law that will be abused. The bedroom is not necessarily a place where there is constant talking, negotiating and begging going on. It's not always "Mother may I" unless you happen to be Norman Bates. Some people like other people to take charge. Some people like to take charge. This doesn't indicate lack of consent any more than a man taking the lead in a dance indicates lack of consent. Rape is a horrible crime. It is second only to murder in how despicable it is. Rape means lack of consent. That means someone does something to you without asking OR you are unable to consent OR you tell them no and they proceed anyway. Rape should not mean that you and someone are having sex, one of you tells the other one to move to the left and a week later one of you is in front of a college kangaroo court because after all there was no explicit permission granted for that "move to the left" order.

Now you would think that civil libertarians would be the ones leading the charge against this law. Well some are. But as I've always said we are all hypocrites in some way or the other. There are some people on the right who are big defenders of the Bill of Rights, except when it comes to black people being harassed or searched without warrant by the police. At that point they will talk about black criminals, say that there's an emergency and claim that the police are justified in unconstitutional activities against the black population. They will demagogue on the issue by claiming that if you're against stop-n-frisk you must be for "black crime".

Well not to be outdone in contempt for the underlying values of our legal system, Ezra Klein, while openly admitting that "yes means yes" is a bad law and that innocents will be harmed, still says that he supports it because the rape crisis on college campuses justifies extreme actions.

If the Yes Means Yes law is taken even remotely seriously it will settle like a cold winter on college campuses, throwing everyday sexual practice into doubt and creating a haze of fear and confusion over what counts as consent. This is the case against it, and also the case for it. Because for one in five women to report an attempted or completed sexual assault means that everyday sexual practices on college campuses need to be upended, and men need to feel a cold spike of fear when they begin a sexual encounter.

Colleges have settled into an equilibrium where too little counts as sexual assault, where the ambiguity of consent gives rapists loopholes in which to hide, and forces women to spend their lives afraid. The Yes Means Yes laws creates an equilibrium where too much counts as sexual assault. Bad as it is, that's a necessary change.

Da Kommissar! That should be the law's primary purpose. These evil men need to feel fear when they start having sex. They should know that the state is watching them. There are no innocents in Klein's world when it comes to rape. There are only guilty people who haven't been caught yet. And if well a few eggs get broken while making an omelet, well we can't build our Brave New World without a few sacrifices along the way. Anyone who disagrees is obviously pro-rape and need not be taken seriously. Klein shows shocking disregard for one of the basic foundations of the Anglo-American legal system, the Blackstone Ratio. Obviously Klein would reverse that ratio. In his ideal world it's better that ten innocents suffer than one rapist go free. And if this "yes means yes" law makes those college men live in fear, so much the better. Again, for those of us who are not in college, do not live in California or have sons going to college in California, this may not seem like too much of a big deal. But make no mistake, this law will eventually spread beyond California and beyond the college judicial system. And that would indeed be a big deal because even more men would be convicted of crimes which they did not commit. This "yes means yes" law is simply alien to our stated values of law. It's also important to point out that over the past twenty years there has been a large decrease in the numbers and rate of sexual assault against women and girls. The idea that there is some sort of epidemic of rape is just not accurate. The way to reduce rape is to harshly punish convicted rapists and teach men and women that drunkenness is not a necessary precursor for sex. You don't reduce rape by claiming that almost every man is a rapist and making men prove their innocence. 

I thought we wanted the state out of people's bedrooms? Unless you want men bringing a public notary and video camera into the bedroom or avoiding college women altogether, this "yes means yes" law may have some unpleasant unintended consequences. Everyone is against rape. But there must be a better way to combat it than this.

What do you think?

Revenge Porn Outlawed

Let's say that you're happily married or otherwise paired up. Or let's say that you're not but all the same you've found someone with whom you like to pretend you're married on a regular basis. Well over time and this time can be a relatively short period for some people you will probably relax around this person. That is, after all, the very definition of intimacy. This man or woman will know things about you that no one else does. Pillow talk can be quite revealing. During this relationship you and this person might even exchange notes, pictures, letters and e-mails that are really for your eyes only sort of stuff. Some people share more than others but if you're human and have been in a relationship no matter how brief or fleeting, your partner has some information about you which is not available to the general public. Few people stay together forever. Ideally if a break up occurs it's a mutually agreed upon thing where two people decide that they can't or shouldn't live or sleep together any more and respectfully and calmly part ways. Right. Unfortunately many breakups aren't mutual. And they certainly aren't respectful or calm. Insults may be hurled, tears may be shed, threats may be uttered and decades long feuds may develop over who paid for (and thus owns) mutually enjoyed items. 

Something else that may occur during or after a breakup is that one or both parties to the breakup may decide to share with the world (or at least their former lover's/spouse's circle of friends) the kind of information I detailed above. This is most definitely NOT a morally good thing to do but the urge to hurt someone the way that you think they hurt you, ESPECIALLY if you were the dumpee and not the dumper, could be overwhelming. I think this is wrong but emotions can overwhelm morality when it comes to affairs of the heart. If a man suddenly gets a text message from his wife that she's dumping him, doesn't ever want to talk to or see him again and oh by the way she's been playing house with her co-worker for the past two years, you might understand why this fellow might start venting some negative emotions about said woman. Of course this is not gender specific. Each gender is equally capable of being emotionally swept away by tidal wave feelings of hostility and revenge that could arise from imagined or real mistreatment. 

As the cost of photography and storage has dropped while the ability to produce your own naughty photographs has increased tenfold, some people (mostly women) have discovered that perhaps sending certain intimate photographs to people (mostly men) that they loved or at least lusted after wasn't a good idea. When the breakup happens some people who find themselves in possession of naughty pics decide to post them to certain internet sites.

SACRAMENTO, California — California Gov. Jerry Brown on Tuesday signed a bill outlawing so-called revenge porn and levying possible jail time for people who post naked photos of their exes after bitter breakups.

Senate Bill 255, which takes effect immediately, makes it a misdemeanor to post identifiable nude pictures of someone else online without permission with the intent to cause emotional distress or humiliation. The penalty is up to six months in jail and a $1,000 fine.

"Until now, there was no tool for law enforcement to protect victims," the bill's author, Sen. Anthony Cannella, said in a statement. "Too many have had their lives upended because of an action of another that they trusted."  Cannella, a Republican, has said revenge porn is a growing problem in the age of social media, when photos and videos that were made privately during a relationship can find their way onto hundreds of websites. Before the criminal law was enacted, California allowed victims to sue their virtual assailants, but that is an expensive and time-consuming option.

LINK
This is crude and crass and really pathetic but I don't think it's really that different than people sharing love letters or telling other people stories which are designed to show their ex in a bad light. It's just part of human nature. People say that all is fair in love and war. I'm not sure that's really the case but I am sure that I don't want to send people to jail or prison because they posted a picture of their ex. It's not ladylike or gentlemanly behavior but is it worth taking away someone's freedom? Not from where I sit. The chance that something like this might happen can be reduced by not creating these sorts of pictures in the first place but this sort of privacy violation can never ever be eliminated. If you've ever been intimate with someone in your life, they know things about you.  And if you break up with someone, s/he may say negative things about you. That's just part of the risk of being a healthy adult. All you can do is try to be intimate with people who have some sense of morality and honor. It's all in the game. I don't think the state needs to be involved here.

QUESTIONS

1) Should this sort of thing (posting pics of your ex) be illegal?

2) If you give a picture/note/e-mail to someone, who owns that item?

3) Is all truly fair in love and war?

4) Are there free speech implications?

Jury Duty: Who Are Your Peers?

What is a peer?

Well according to the dictionary a peer is a person who belongs to the same age group or social group as someone else.  A peer is one that is of equal standing with another or especially one who belongs to the same societal group based on age, grade or status.

You have a constitutional right to a criminal trial by a jury of your peers. I will leave it up to the experts like The Janitor or Old Guru to fully break down exactly what are the exceptions to that rule and what peers mean in a legal setting but for many non-lawyers I think it's safe to say that in that context peers would mean adult US citizens. There are of course some questions about whether or not a criminal defendant is guaranteed to have a jury made up of people who share their immutable characteristics (I don't believe this is the case) or whether the state can deliberately and maliciously exclude people who share such characteristics with the defendant (also I don't think this is, with a few exceptions, the case).

But in today's world of ever increasing globalization and immigration, should peer be restricted to US citizens? And when it comes to such things as elections and jury duty who really gets the last word? The federal government or the states? Well that answer can often depend on which side you're on when it comes to such things as immigration. People who point to federal supremacy when a state like Arizona tries to make life more difficult for illegal immigrants often turn a blind eye when a state like California tries to make life easier for them. And people who scream about the primacy of states rights when Alabama attempts to kick out illegal immigrants wax poetic about federal supremacy when California, Illinois or New York try to do end runs around specific federal programs designed to identify and deport illegal immigrants.

The latest proposal coming out of, you guessed it, California, does not, despite what detractors imply, apply to illegal immigrants, but it does seek to extend rights and duties usually thought only to accrue to citizens to legally resident non-citizens.

LINK

SACRAMENTO — Legal immigrants who are not American citizens would be able to serve on juries in California under a bill that lawmakers sent to Gov. Jerry Brown on Thursday.The measure joins a proposal already on the governor's desk that would also allow legal permanent residents to serve as poll workers in California elections.The bills are among a handful that would expand immigrant rights in California and have sparked rancorous debate in the Legislature.

Immigrants "are part of the fabric of our community," Assemblyman Bob Wieckowski (D-Fremont) said during the floor debate Thursday. "They benefit from the protections of our laws, so it is fair and just that they be asked to share in the obligation to do jury duty."

Republicans opposed the measure, which passed the Assembly with a bare majority. The Senate approved the bill Monday."I do think there is something called the jury of your peers," countered Assemblyman Rocky Chavez (R-Oceanside). "Peers are people who understand the nuances of America."

He noted that some immigrants come from countries where suspects are guilty until proven innocent and where people are taught to obey authority, not question it.The bill, AB 1401, was authored by the Assembly Judiciary Committee, which seeks a way to expand the pool of eligible jurors in California...

I think you can probably guess what I think of this proposal but just in case you can't I will spell it out. There is an argument that can be made for the elimination of the nation state. There is also an argument that can be made that nationalism is just another form of bigotry and them vs. us thinking. You could argue that separating people or granting them rights based on where they were born on this planet is not really all that different than basing their level of rights on other characteristics over which they have no control such as their race, ethnicity, gender, sexuality, etc. Non-citizens have legally voted in previous elections.

I am wholly unsympathetic to these arguments. The nation state isn't going anywhere anytime soon. Neither are different cultures and different ways of understanding the world or different ideas about how a criminal justice system works.

There is a process by which anyone on this planet can become an American citizen. Depending on which year you're referencing, about a million or so do each year, in which case they can vote, serve on juries and do other things which, usually but not always in the American political system have been reserved to citizens. When you vote or serve on a jury you are exerting influence over a political system you are invested in and for which you have some form of loyalty or hopefully understanding. This isn't perfect of course. There are plenty of stupid or malicious people who vote or serve on juries (how else can you explain the election of Ted Cruz or the acquittal of Casey Anthony) but that is our system. In many respects it's the least bad of all the others.  

My peers are American citizens. I do not wish to be judged by non-citizens. I do not want American elections to have non-citizens participating in them as poll workers or really in any capacity. I know that there are many smart, sober, well-read and intellectually curious permanent non-citizens in this country. I work with several and have no problems saying that some are far more intelligent than I. All the same though this isn't their country unless and until they become a citizen. I don't think it's too much to ask that jury duty and any sort of election work be restricted to US citizens.  

Am I wrong?

Should permanent legal residents be able to serve on juries?

What should be the distinctions between citizens and legal residents?

Supreme Court Approves Violent Video Games, Scalia PWNS Fellow Conservatives

Congratulations to all of you kids out there on your recent legal victory, even though you're probably too busy playing Call of Duty right now to know what the heck I'm talking about.  In case you were wondering, your days of playing shoot 'em up video games have been secured for many years to come by the nation's highest Court in a 5-4 decision, Brown v. Entertainment Merchants Assoc., which held that the First Amendment does not allow the States to ban the sale of violent video games to minors. The Supreme Court, in a majority opinion authored by Justice Antonin Scalia and joined by Justices Kennedy, Ginsburg, Sotomayor and Kagan (a rare combination indeed), ruled that video games (even violent ones) qualify as First Amendment "Free Speech" just like books, movies, plays, cartoons and comic books.  Pursuant to this holding, the Court struck down a California law that sought to make it illegal to sell what it defined as "violent video games" to anybody under the age of 18, irrespective of whether the kid had his or her parents' permission or not.  What was also particularly interesting about this case is that conservative Justice Scalia, in rare form, went IN on his fellow conservative Justices, Clarence Thomas and Samuel Alito, who departed from his opinion on this issue.



SCALIA'S MAJORITY OPINION:
Scalia basically starts off by acknowledging the general rule in First Amendment free speech cases which is this:  government cannot make laws that restrict our freedom of speech.  That's the general rule.  As with most general rules, there are, of course, a few recognized exceptions:  (i) fighting words, (ii) speech that incites people to violence, (iii) defamation or slander and, last but not least, (iv) obscenity.  Now when it comes to obscenity, the Supreme Court is very specific and very cautious as to what constitutes "obscenity," since, after all, one man's obscenity could be argued as another man's art.  Scalia notes that, to date, the Court has "been clear that the obscenity exception to the First Amendment does not cover whatever a legislature finds shocking, but only depictions of sexual conduct."  Majority opinion at 5 (emphasis supplied).  So, by Scalia's view, that distinguishes this statute from a statute that, for example, attempts to make it illegal to sell pornography to minors.  Scalia goes on to say that kids in America have been exposed to violence for centuries, and, as evidence of this fact, he cites to common children's literature such as Grimm's Fairy Tales, Cinderella, Hansel & Gretel, Homer's Odysseus, and Lord of the Flies, which all have violent episodes at some point during their respective stories.  He concludes that California's law against video games does not pass the First Amendment's "strict scrutiny" test for 2 reasons: (i) the law is underinclusive because it was only aimed at violent video games as opposed to being aimed at ALL violent images that effect children such as cartoons, comic books, etc.; and (ii) the law is overinclusive because it would have penalized children who actually received the green light from their parents to play violent video games.

ALITO'S CONCURRING OPINION:
Alito concurs with the Court's ultimate decision to strike down California's law, but he doesn't agree with how the Court arrived at its conclusion.  Alito basically takes the position that violent video games are not like anything our kids have ever been exposed to before.  He goes on at length to describe how wrong violent video games are for kids, stating that:

In some of these games, the violence is astounding.  Victims by the dozens are killed with every imaginable implement, including machine guns, shotguns, clubs, hammers, axes, swords, and chainsaws.  Victims are dismembered, decapitated, disemboweled, set on fire, and chopped into little pieces.  They cry out in agony and beg for mercy.  Blood gushes, splatters, and pools.  Severed body parts and gobs of human remains are graphically shown.  In some games, points are awarded based, not only on the number of victims killed, but on the killing technique employed...this experience is different from reading a book, listening to a radio broadcast, or viewing a movie."  Alito concurring opinion at 14-17.

Scalia sharply disagrees with Alito's argument, saying:

Justice Alito recounts all these disgusting video games in order to disgust us - but disgust is not a valid basis for restricting expression.  Majority opinion at 11.  Justice Alito accuses us of pronouncing that playing violent video games "is not different in 'kind'" from reading violent literature.  Well of course it is different in kind...[r]eading Dante is unquestionably more cultured and intellectually edifying than playing Mortal Kombat.  But these cultural and intellectual differences are not constitutional ones.  Majority opinion at 9, n. 4.

THOMAS' DISSENTING OPINION:
Justice Thomas, in a rare departure form his conservative brethren on the bench, completely disagreed with Scalia's analysis. Thomas takes the "Originalist" approach and argues that the "original meaning" of the First Amendment "does not include a right to speak to minors (or a right of minors to access speech) without going through the minors' parents or guardians."  Thomas dissenting opinion at 1.  In other words, kids don't have any free speech rights and neither do video game producers who sell their games to kids because the founding fathers didn't intend to include them in the First Amendment when they wrote it way back in 1791.   Scalia, who is usually joined by Thomas in every opinion that he writes, seems to have had enough of Thomas' so-called Originalism on this issue and comes back hard on Thomas:

Justice Thomas ignores the holding of [Erznoznik v. Jacksonville], 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.  Majority opinion at 7-8, n. 3.

It is one thing for the Justices to disagree from time to time about the precedent used by the other Justices on a particular issue.  It is an entirely different matter altogether for a Justice to say that another Justice has NO precedent for their argument whatsoever.  Folks, this is the equivalent of a Supreme Court Justice turning to another Justice and saying "Dude, you obviously have no idea what the F*#@ you're talking about!!!"

BREYER'S DISSENTING OPINION:
We don't tend to hear too much about Justice Stephen Breyer.  Along with the 3 ladies of the Court, he is usually the fourth member of the progressive voting block on all the hotly contested issues that are divided 5-4 down ideological lines.  But, other than that, he sort of just stays quiet and hangs out in the background, rarely writing an opinion one way or another on a given case.  Breyer argues that the California law actually does pass the First Amendment's "strict scrutiny" test because:

The statute prevents no one from playing a video game, it prevents no adult from buying a video game, and it prevents no child from or adolescent from obtaining a game provided a parent is willing to help.  All it prevents is a child or adolescent from buying, without a parent's assistance, a gruesomely violent video game of a kind that the industry itself tells us it wants to keep out of the hands of those under the age of 17.  Breyer dissenting opinion at 10.

So Breyer, unlike the Majority, doesn't see anything wrong with the law as it is written - a point so basic that Scalia doesn't really bother to launch a counter-attack against Breyer the same way he did against Alito and Thomas.

This case presents many good questions:


1. Who has the best argument of the 4 opinions and why?
2. Is the "Originalist" method of interpretation no longer a valid way to interpret the Constitution?
3. Should we as a society keep violent video games out of the hands of our kids? 
4. Do you believe that violent video games make the people who play them more prone to violence.