Free speech and child custody/gay parents

[Volokh, Eugene]

        Frank raises an excellent point, though one that cuts both ways.  On
the one hand, the Court has held that *some* speech (at least by nonparents)
can be restricted in order to shield children; cf. Ginsberg v. New York;
Sable Communications v. FCC.  On the other hand, it seems to me that the
speaker's interest in communicating his views is if anything especially
strong when he is communicating them to those whom he has a felt duty
(recognized by law and by social custom, and quite likely connected to
biological human nature) to educate.

        Moreover, the concerns about the government using speech
restrictions as a means to suppress disfavored ideas are also particularly
strong here:  The power to restrict what ideas children can be taught, by
threat of criminal punishment, by injunction, or by threat of having them
removed from the parent, is a very dangerous power for the government to
have.  And the notion that the government may restrict the expression of
certain ideas in order to protect children would in principle apply not just
in child custody cases, but also to restrictions aimed at intact families,
at private schools, and even at religious movements.

        So while I sympathize with the protect-the-children argument, I
guess I find it quite troublesome.  On the other hand, if others have
particular formulations of that argument that we can analyze in more detail,
I'd love to hear them.

Consider, by the way, In re Black, 3 Utah 2d 315, 283 P.2d 887 (1955), in
which polygamous parents had their children taken away from them -- largely
on the grounds that the parents' polygamy taught the children to become
polygamous themselves -- and had them given back only on condition that the
parents (1) stop being polygamists, (2) do not tell the children that
polygamy is good, and (3) tell them that it (and violation of all other
laws) is bad.  Even assuming advocacy of polygamy is protected, the court
reasoned, such advocacy could still be used to prove the child was
"neglected"; the court's opinion made it clear that it was interested in
having children taught to obey laws, so they don't violate them themselves
later.

Eugene


> -----Original Message-----
> From: Frank Cross [SMTP:crossf at MAIL.UTEXAS.EDU]
> Sent: Wednesday, February 13, 2002 11:48 AM
> To:   CONLAWPROF at listserv.ucla.edu
> Subject:      Re: Free speech and child custody/gay parents
>
> I can't say I'm an expert on any of these issues, but it seems that people
> are overlooking the fact that  children are the targets of the speech.
> While the movie rating system is voluntary, it is clearly in response to
> government pressure.  I'm interested in views on whether the fact that the
> targets are children can justify greater restriction and whether the fact
> that the speaker is the parent might counteract that justification.
>
>
>
> Frank Cross
> Herbert D. Kelleher Centennial Professor of Business Law
> CBA 5.202
> University of Texas at Austin
> Austin, TX 78712
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