Free Speech and child custody

Volokh, Eugene VOLOKH at mail.law.ucla.edu
Wed Feb 13 11:16:33 PST 2002


        If the line "is the same line that separates protected speech from
prosecutable aiding, abetting, or incitement," then the permissible speech
protections are very narrow.  Surely merely "filling [someone's] head[] with
ideas of acting violently" is *not* prosecutable aiding or abetting, unless
the ideas are aimed at accomplishing some very particular violent attack at
a particular person (e.g., "I think you should slip some poison in mommy's
coffee").  The established line as to when "filling [someone's] head[] with
ideas of acting violently" becomes punishable is indeed the test for
"prosecutable . . . incitement," Brandenburg v. Ohio -- and it seems clear
that the speech in virtually all cases like this does *not* satisfy the
imminence prong, even if the imminence line is "shift[ed] a bit" (unless the
prong is "shift[ed]" by being entirely eliminated).  Again, you could
imagine a situation where it does, but I've never seen it in any reported
case, and I certainly don't see such a situation in the newspaper accounts.

        So I think that when Jim is suggesting that the state should punish
parents "filling their children's heads with ideas of acting violently," he
is proposing a new and quite a broad exception -- one that could certainly
have been applied to Communists and perhaps even many less radical people as
well as racists.  (Perhaps teaching the specifics of how to commit violence
is different, cf. Scales v. U.S.; Rice v. Paladin Press (4th Cir.) -- that's
the "crime-facilitating speech" issue that the Court has never fully
addressed -- but that is considerably beyond just "filling [someone's]
head[] with ideas of acting violently.")

        Eugene

Jim Maule writes:

> The line, it seems to me, is the same line that separates protected speech
> from prosecutable aiding, abetting, or incitement. Perhaps in application
> the line shifts a bit, as X inciting an adult to act presents more
> "immediacy" than a parent putting violent ideas into the head of a
> 3-year-old who may be less likely to act in the immediate or near future
> (though sadly, we know that within a few years the 3-year-old will be
> quite capable of acting violently).
>
> The application, it seems to me, ought not to depend on whether the
> parents are separated or divorced. If two happily married racists are
> filling their children's heads with ideas of acting violently (and perhaps
> even teaching them the "hows" of violence), does not the state have as
> much obligation to intervene as it would if two people were teaching a
> class in racist violence at a hang-out in the woods? The custody issue
> should be secondary, but unfortunately it is usually primary, because
> often it is the custody dispute that "invites" the government into the
> home to "learn" what is going on behind doors that usually are closed.
>
> If, for example, encouraging someone to evade the draft is a crime (at the
> moment there is no draft to evade, merely a registration requirement,
> right?), then surely the person committing that crime can be ordered to
> stop, whether the listener is the person's child or a group of unrelated
> individuals. Telling someone to lie, well, that's tougher, because not all
> lies are crimes (e.g., "The check is in the mail", "I'll respect you in
> the morning," "I'm from the government and I'm here to help you"), but
> what if a parent encourages a child to commit perjury in the parent's
> upcoming trial for tax evasion? It should be treated whether the parent is
> trying to suborn the child or a friend, and regardless of the parent's
> marital status.
>
>
> 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 09:36PM >>>
>         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. . .
> .
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