Free Speech and child custody
Volokh, Eugene
VOLOKH at mail.law.ucla.edu
Wed Feb 13 11:20:47 PST 2002
I'm not sure how one can avoid the Free Speech Clause issue in such
cases. The government is either enjoining speech (whether religious speech,
Communist speech, racist speech, or whatever else), or it's taking away
someone's parental rights -- whether constitutionally secured or not --
based on speech. Sounds like a pretty core free speech claim to me, though
of course one can also raise a parental rights claim here and, in some
cases, a religious freedom / Establishment Clause claim.
Teaching children in government custody in an orphanage, of course,
is quite a different story. The government can certainly decide what *it*
through *its employees and agents* says to kids in its custody, just like it
can control what's taught in government-run schools. This might even apply
as to foster care, which might be said to enlist the foster parents as the
government agents; cf. Rust v. Sullivan. But it seems to me quite a clear
distinction -- under basic, traditional Free Speech Clause law -- between
the government controlling what its agents say while being paid by the
government to do a certain job, and the government controlling what parents
(divorced or not) say to their own children.
Eugene
> -----Original Message-----
> From: Randall Bezanson [SMTP:randy-bezanson at UIOWA.EDU]
> Sent: Wednesday, February 13, 2002 9:20 AM
> To: CONLAWPROF at listserv.ucla.edu
> Subject: Re: Free Speech and child custody
>
> Could the government place restrictions on what attitudes and values are
> taught children in government custody -- say, in an orphanage? (Honesty,
> tolerance, nonviolence, love and not hate?) If so, how about government
> placing such constraints on private persons providing foster homes for
> children removed from their families? If these are not free speech
> moments, then how does one distinguish the custody situation? Is speech
> the right way to approach the question, or might a better approach be one
> based also (or instead) on a different substantive right, such as privacy
> and autonomy -- the right to control the upbringing of one's children free
> of unnecessary state interference?
>
> Randy Bezanson
> Univ. of Iowa
>
> At 06:36 PM 2/12/02 -0800, you wrote:
> >>>>
>
>
>
> 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>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>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>htt
> p://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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