Divorced father held in contempt for using racial slursaround a
7barksda at jmls.edu
Wed Dec 14 18:49:52 PST 2005
Perhaps you could elaborate on your argument that the First Amendment is implicated at all. Isn't bringing in the First Amendment simply confusing the issue here? The Court's order does not restrict the father's freedom to have racist views, or to express those racist views to others, if he or she so chooses. The order restricts only the father's ability to indoctrinate the child with those racist views. At that point, isn't the only constitutional interest at stake here the father's interest in being able to direct the upbringing of the child - that is a parental rights interest only, not a free speech issue. There is no other restriction on the father's free speech rights. The father can still be as racist as he or she chooses. I read your III B argument that you referred to in your reply to Bernie's post - which seems to be that the father has a 1st amendment right to speak to the child, as well as to anyone else - but again I think this confuses the issue. The father has a right to speak in general - however at the point at which he speaks to th child it becomes parenting - and at that point - the only interest seems to be parental rights (upbringing), not free speech rights (expression.) Perhaps if there were broader restriction on the parent's interest (for example, the a broad prohibition on bring certain magazines into the home, even if steps were taken to restrict the child's access to them, etc.)
And, although here, your argument extends only to ideological upbringing - the same argument could apply to any speech - so when the father abuses and berates the child through harsh language - does the father's position get more protection because he is using words (speech) as a means of punishment or abuse?
An analogy would be a state school's right to direct the education of students in the classroom. Although the teacher has a first amendment right to have particular views, and express those views, the school certainly has the authority to prohibit the teacher from indoctrinating students with those views. At that point the question is not the teacher's right to have or express the views, the question is the school's right to direct the education of students in the classroom. Speech is just the means by which the education is conducted.
So, how is this different?
From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Wed 12/14/2005 5:27 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Divorced father held in contempt for using racial slursaround a child
As best I can tell, modern lower court cases applying Meyer and
Pierce generally don't apply strict scrutiny, but instead apply some
fuzzy intermediate standard. The Troxel plurality likewise applied an
ill-defined intermediate scrutiny; it definitely wasn't rational basis,
but they didn't frame it as strict scrutiny, either. Nor am I sure that
courts should apply strict scrutiny to all restrictions on parental
actions. But in any event, if parental rights are protected as much as
free speech rights are, this probably wouldn't much affect the
constitutional analysis of restrictions on parent-child speech, since by
hypothesis they'd be subject to roughly equal scrutiny under
Meyer/Pierce and under the Free Speech Clause.
David Wagner writes:
> > 2. The Supreme Court has never held that restrictions
> > on parental rights (the Meyer/Pierce rights) are subject to
> > strict scrutiny. In the Court's most recent decision on the
> > subject, Troxel v.
> > Granville (2000), only one Justice (Thomas) took this view.
> True, but isn't that because Meyer/Pierce were decided under
> the Lochner
> regime in which the rational basis test functioned very much
> the way strict
> scrutiny does today?
> I suppose it depends in part on how you read Prince -- the
> case that rescued
> Meyer/Pierce from the gotterdammerung of 1937. Does the
> "cardinal with us"
> dictum control, or the outcome?
> In Troxel, though only Thomas insisted that strict scrutiny
> be used by name,
> did the plurality confine itself to whether the statute was rationally
> related to a leg st int, and hold that it wasn't? (Haven't reread it
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