Free Speech and child custody
Glenn Reynolds
Reynolds at LIBRA.LAW.UTK.EDU
Wed Feb 13 10:41:06 PST 2002
Should our judgment be affected by the (I think indisputable)
empirical observation that the judges handling these cases are
often bad judges? By bad I mean ignorant of, and frequently in
conscious disregard of, the actual law in many areas? Should we
give them any deference here?
Date sent: Tue, 12 Feb 2002 22:19:42 -0500
Send reply to: Discussion list for con law professors <CONLAWPROF at LISTSERV.UCLA.EDU>
From: David M Wagner <daviwag at REGENT.EDU>
Subject: Re: Free Speech and child custody
To: CONLAWPROF at LISTSERV.UCLA.EDU
> 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
>
>
> David M. Wagner
> Associate Professor
> Regent University School of Law
> 1000 Regent University Drive
> Virginia Beach, VA 23464
> Ph. 757-226-4697
> Fax 757-226-4329
> -----Original Message-----
> 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?
>
> Eugene
>
> 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.
>
> Jim Maule
> Professor of Law, Villanova University School of Law
> Villanova PA 19085
> maule at law.villanova.edu
> http://vls.law.vill.edu/prof/maule
> President, TaxJEM Inc (computer assisted tax law instruction)
> (www.taxjem.com)
> 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"?
> I
> didn't see any evidence that Beam was, for instance, teaching his
> daughters
> how to *commit* crimes. Nor did I even see any evidence that he was
> teaching them the *propriety* of committing crimes. (Incidentally,
> could
> the government bar parents, whether divorced or still married, from
> teaching
> 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
> that it
> may at some hypothetical point be permissible to perjure yourself in
> order
> 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
> the
> death of a loved one -- can the government enjoin this, or take away
> child
> custody from you because of this?)
>
> It seems that Beam was indeed teaching them to be racists, but
> not
> all "racist-based behavior," of course, is criminal. It's true that
> racism
> 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
> is
> no God or that denomination X is the only true path to salvation might
> also
> lead some (though certainly not all) such children to grow up to commit
> crimes.
>
> So I wonder whether the "teaching a child crimes" test is really
> helpful here.
>
> Eugene
>
> > -----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
> behavior,
> > yelling fire in a theater) is easier to reconcile with the First
> Amendment
> > that would be preventing teaching a child "about religion" (there is
> no
> > 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
> > http://vls.law.vill.edu/prof/maule
> > President, TaxJEM Inc (computer assisted tax law instruction)
> > (www.taxjem.com)
> > 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
> for
> > years now -- it's a remarkably under-discussed area -- but somehow
> could
> > never get it together, perhaps because I'm really not sure what the
> right
> > answer is. In any case, here's the latest incarnation. Cf. Donaldson
> v.
> > 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
> God,
> > further directing plaintiff to teach the child love and respect for
> the
> > United States of America."); Ehrenpreis v. Ehrenpreis, 106 N.Y.S.2d
> 568
> > (1951) (implying that child can be taken away from Communist mother --
> > "But
> > does that mean, that if the charges of the defendant are sustained and
> the
> > facts warrant, that this court has no power to put an end to the
> > communistic
> > nurturing of a young American or to remove him from the influence and
> > surroundings of a communist home and a communist mother?").
> >
> >
> >
> > http://www.spokesmanreview.com/news-story.asp?date=020302&ID=s1095810
> >
> > 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
> to
> > court Monday in Coeur d'Alene in an attempt to win joint custody of
> his
> > two
> > young daughters.
> >
> > Louis R. Beam Jr. -- former Aryan Nations ambassador and Texas Ku Klux
> > Klan
> > leader -- says he should be allowed more time with his daughters,
> despite
> > his racial and political views.
> >
> > His former wife is fighting Beam in court, and filed a counterclaim
> that
> > says Beam is indoctrinating the girls with racist beliefs. She wants
> the
> > court to terminate Beam's contact with the children.
> >
> > Beam filed his legal action in Kootenai County, asking an Idaho court
> to
> > liberalize a Texas judge's 1997 order ending his 10-year marriage to
> > Sheila
> > 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.
> government. He
> > later was acquitted. . . .
> >
> > Extremist expert Joe Roy of Klanwatch says Beam is among the three
> most
> > prominent racists in the United States. . . .
> >
> > Toohey says in court papers that she's afraid of Beam, and moved from
> > Texas
> > to Idaho in 1999 because he told her that a race war would break out
> in
> > 2000.
> >
> > She says Beam warned her that he and his "armed comrades" would come
> and
> > "forcibly remove the children" if she didn't leave Texas before Y2K,
> court
> > documents say.
> >
> > Now, she alleges, her daughters return home from their visits with
> Beam
> > with
> > racist ideas he has "planted in their heads."
> >
> > He once gave the children KKK "blood cross" necklaces, Toohey says in
> > court
> > 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
> couldn't
> > go
> > in a motel swimming pool "because blacks and mud people" had
> contaminated
> > the water.
> >
> > During a "history lesson" he gave his daughters, Beam told them Hitler
> > "was
> > not a God, just a great man," Toohey contends in the court documents.
> He
> > also told his daughters that the United States sent soldiers to Europe
> in
> > 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
> normal
> > gesture," Toohey claims in court papers.
> >
> > Her Coeur d'Alene attorney, Kevin Waite, argues that exposing children
> to
> > racist, anti-government beliefs constitutes neglect under Idaho law. .
> . .
> >
> > At the seditious conspiracy trial in Fort Smith, Ark., Beam acted as
> his
> > own
> > attorney, while many of his 14 co-defendants, including Butler, hired
> > lawyers.
> >
> > 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
> of
> > the courtroom, stood next to a Confederate Army statue and vowed to
> > continue
> > his fight against the government, but said he'd do it underground. . .
> .
>
>
Prof. Glenn Harlan Reynolds
College of Law, University of Tennessee
1505 W. Cumberland Ave., Knoxville, TN 37996-1810
Attempt no more good than the people can bear. --Thomas Jefferson
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