Free Speech and child custody
David M Wagner
daviwag at REGENT.EDU
Tue Feb 12 22:19:42 PST 2002
Re: Free Speech and child custodyAside from the distinction between
advocating crimes and advocating bad ideas, maybe it's also useful to
distinguish between what we used to call "intact" families, and families
that have submitted themselves to judicial oversight through a decision
(even if by only one of the parties) to seek a divorce. We are shocked that
family court judges should dictate what parents can say to their children --
but this is hardly the only thing judges do in divorce cases that would be
shocking if done to families in which no one is seeking a divorce. No, I'm
not saying that as soon as the divorce ball gets rolling, all constitutional
bets are off -- only that a divorce, especially one in which children are
involved, inherently invites judicial supervision of otherwise protected
areas. Of course a parent's speech to his children is covered by the First
Amendment -- and other aspects of parenting are covered by the Meyer-Pierce
doctrine. But divorce leads to an implicit partial waiver of Meyer-Pierce
rights (e.g. the judge may have a say in the child's schooling, if not by
choosing the school herself, then by choosing which parent will make that
decision); how surprised can we really be if judges act as if First
Amendment rights have been partially waived as well?
David M. Wagner
Regent University School of Law
1000 Regent University Drive
Virginia Beach, VA 23464
From: Discussion list for con law professors
[mailto:CONLAWPROF at listserv.ucla.edu]On Behalf Of Volokh, Eugene
Sent: Tuesday, February 12, 2002 9:36 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Re: Free Speech and child custody
I'm wondering just how far this approach would go, though. Say
the father does indeed "affirmative[ly] comment" on people who commit
crimes": "Those eco-terrorists are actually defenders of the Earth;
sometimes you have to bomb the evil multinationals, that's just the way it
is." "Violent proletarian revolution is ultimately the only answer, and
it's foolish bourgeois morality to insist on peaceful means." "That person
who testified against his family and friends is a filthy Judas; if the
Establishment pigs tried to make me do that, I'd lie through my teeth, and
you kids should, too." "The only decent teenagers these days are those who
are trying their best to evade the draft." Is that enough to terminate his
visitation rights? Can the court order him not to say such things while the
kids are visiting?
Of course, perhaps Jim's proposal is meant to be limited to a much
narrower range of speech -- but just what would the limiting principle be?
Jim Maule writes:
I wasn't suggesting that any of the particular items described in the
article were crimes (and if any were, the law making them so might be
suspect), but simply pointing out that the first step would be to determine
if he was in fact teaching, encouraging, suggesting, demonstrating,
abetting, etc, criminal behavior, by the children, or by others as examples
for the children. The story doesn't go that far, but other accounts I've
read of this issue have alleged that some children in these situations are
in fact being "taught crimes" through affirmative commentary by the parent
in reaction to crimes committed by others.
Professor of Law, Villanova University School of Law
Villanova PA 19085
maule at law.villanova.edu
President, TaxJEM Inc (computer assisted tax law instruction)
Publisher, JEMBook Publishing Co. (www.jembook.com)
Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com)
Maule Family Archivist & Genealogist (www.maulefamily.com)
>>> VOLOKH at MAIL.LAW.UCLA.EDU 02/12/02 06:15PM >>>
Hmm -- what exactly is meant here by "teaching a child crimes"?
didn't see any evidence that Beam was, for instance, teaching his
how to *commit* crimes. Nor did I even see any evidence that he was
teaching them the *propriety* of committing crimes. (Incidentally,
the government bar parents, whether divorced or still married, from
children the propriety of committing crimes, at least in certain
circumstances? For instance, if you teach one's children that sometimes
it's proper to commit trespass in order to protest an unjust law, or
may at some hypothetical point be permissible to perjure yourself in
to save a loved one from prosecution, or that it may even be proper
sometimes to illegally kill someone -- for instance, to take revenge for
death of a loved one -- can the government enjoin this, or take away
custody from you because of this?)
It seems that Beam was indeed teaching them to be racists, but
all "racist-based behavior," of course, is criminal. It's true that
may lead some (though certainly not all) racists to commit crimes, but
Communism may lead some (though certainly not all) Communists to commit
crimes; for that matter, I suppose that teaching kids either that there
no God or that denomination X is the only true path to salvation might
lead some (though certainly not all) such children to grow up to commit
So I wonder whether the "teaching a child crimes" test is really
> -----Original Message-----
> From: James Maule [SMTP:maule at LAW.VILLANOVA.EDU]
> Sent: Tuesday, February 12, 2002 3:06 PM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Free speech and child custody
> It seems that preventing teaching a child crimes (racist-based
> yelling fire in a theater) is easier to reconcile with the First
> that would be preventing teaching a child "about religion" (there is
> God, denomination X is the only true path to salvation).
> Jim Maule
> Professor of Law, Villanova University School of Law
> Villanova PA 19085
> maule at law.villanova.edu
> President, TaxJEM Inc (computer assisted tax law instruction)
> Publisher, JEMBook Publishing Co. (www.jembook.com)
> Owner/Developer, TaxCruncherPro (www.taxcruncherpro.com)
> Maule Family Archivist & Genealogist (www.maulefamily.com)
> >>> VOLOKH at MAIL.LAW.UCLA.EDU 02/12/02 05:54PM >>>
> I've been planning to write an article on this general issue
> years now -- it's a remarkably under-discussed area -- but somehow
> never get it together, perhaps because I'm really not sure what the
> answer is. In any case, here's the latest incarnation. Cf. Donaldson
> Donaldson, 38 Wash. 2d 748, 231 P.2d 607 (1951) (trial court decree
> "required plaintiff to refrain from educating or training the child to
> become a communist or teaching him a disbelief in the existence of
> further directing plaintiff to teach the child love and respect for
> United States of America."); Ehrenpreis v. Ehrenpreis, 106 N.Y.S.2d
> (1951) (implying that child can be taken away from Communist mother --
> does that mean, that if the charges of the defendant are sustained and
> facts warrant, that this court has no power to put an end to the
> nurturing of a young American or to remove him from the influence and
> surroundings of a communist home and a communist mother?").
> Sunday, February 3, 2002
> Racist seeks more time with kids . . .
> Bill Morlin - Staff writer
> One of the nation's leading racists and anti-government activists goes
> court Monday in Coeur d'Alene in an attempt to win joint custody of
> young daughters.
> Louis R. Beam Jr. -- former Aryan Nations ambassador and Texas Ku Klux
> leader -- says he should be allowed more time with his daughters,
> his racial and political views.
> His former wife is fighting Beam in court, and filed a counterclaim
> says Beam is indoctrinating the girls with racist beliefs. She wants
> court to terminate Beam's contact with the children.
> Beam filed his legal action in Kootenai County, asking an Idaho court
> liberalize a Texas judge's 1997 order ending his 10-year marriage to
> Toohey, his fourth wife.
> They were married shortly before Beam made the FBI's Ten Most Wanted
> Fugitives list on charges of plotting to overthrow the U.S.
> later was acquitted. . . .
> Extremist expert Joe Roy of Klanwatch says Beam is among the three
> prominent racists in the United States. . . .
> Toohey says in court papers that she's afraid of Beam, and moved from
> to Idaho in 1999 because he told her that a race war would break out
> She says Beam warned her that he and his "armed comrades" would come
> "forcibly remove the children" if she didn't leave Texas before Y2K,
> documents say.
> Now, she alleges, her daughters return home from their visits with
> racist ideas he has "planted in their heads."
> He once gave the children KKK "blood cross" necklaces, Toohey says in
> documents. One daughter wanted to wear the necklace to school, not
> understanding its racist symbolism, Toohey says.
> A teacher says in another court document that one of the girls drew
> swastikas at school in Texas, prior to moving to Idaho.
> On another occasion, Toohey claims, Beam told his daughters they
> in a motel swimming pool "because blacks and mud people" had
> the water.
> During a "history lesson" he gave his daughters, Beam told them Hitler
> not a God, just a great man," Toohey contends in the court documents.
> also told his daughters that the United States sent soldiers to Europe
> World War II to "kill young Aryan men for money," the documents say.
> One of her daughters has performed Nazi salutes "as though it is a
> gesture," Toohey claims in court papers.
> Her Coeur d'Alene attorney, Kevin Waite, argues that exposing children
> racist, anti-government beliefs constitutes neglect under Idaho law. .
> At the seditious conspiracy trial in Fort Smith, Ark., Beam acted as
> attorney, while many of his 14 co-defendants, including Butler, hired
> Beam told jurors that federal prosecutors were trying to paint him and
> Butler as "enemies of this government."
> "This is the truth," Beam told the jury. "The federal government is my
> enemy, and by the time this trial is over you will understand that the
> government is your enemy, too."
> All of the defendants, including Beam, were acquitted. Beam walked out
> the courtroom, stood next to a Confederate Army statue and vowed to
> his fight against the government, but said he'd do it underground. . .
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