Divorced father held in contempt for using racial slurs
aroundachild
Gene Summerlin
Gene at osolaw.com
Wed Dec 14 21:43:55 PST 2005
Eugene,
I'm not sure that we disagree. You raise a quite valid point when you
say that "None of this disposes of the *First Amendment* question, which
is whether the speech is protected from governmental restriction,
whether or not it violates some state law substantive rule. Nor does
the legislature's enacting a substantive standard authorize courts to
decide which viewpoints are constitutionally protected and which are
unprotected." However, I think from a practical standpoint courts
routinely fail to address these First Amendment implications and do
decide which viewpoints are protected and which are unprotected based
upon societal norms. When courts decide in our favor, we hurrah their
decisions, and when courts decide against us, we scream about activist
judges. Yet, the fundamental problem is how does the First Amendment's
protection on speech relate to other legal rules which require courts to
make value (read morality) judgments that many people in our society
will disagree with.
So, if State X passes a statute which states that a child should be
placed with the parent who will raise the child in a manner which is in
the child's best interests, and Parent B espouses views which are
generally rejected by a majority of society (whether they be racist or
off the radar religious, or some other thing), what is a court to do?
Seriously, how can we not use a parent's speech to try and determine how
the parent will act with respect to the child and how can we determine a
child's best interests without making a value judgment about what is
"best"?
I'm not being sarcastic here, I think you are smarter than I am and I
want to know your opinions on this question. Can First Amendment
protections extend so far that one can't be "judged" by the content of
their communications? It is one thing to say that you can say whatever
you want, it is quite another thing to say that you won't suffer any
repercussions from the content of your communications, right?
Gene Summerlin
Ogborn, Summerlin & Ogborn, P.C.
210 Windsor Place
330 South Tenth Street
Lincoln, NE 68508
(402) 434-8040
(402) 434-8044 (facsimile)
(402) 730-5344 (mobile)
gene at osolaw.com
www.osolaw.com
-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, December 14, 2005 11:17 PM
To: conlawprof at lists.ucla.edu
Subject: RE: Divorced father held in contempt for using racial slurs
aroundachild
I agree that the substantive family law question is "what is in
the best interests of the child?" But the substantive legal question in
Hustler v. Falwell was "did Hustler recklessly, knowingly, or
intentionally inflict severe emotional distress on Falwell through
outrageous conduct?" The substantive legal question in NYT v. Sullivan
was "was there a false statement made that injured Sullivan's
reputation?"
None of this disposes of the *First Amendment* question, which
is whether the speech is protected from governmental restriction,
whether or not it violates some state law substantive rule. Nor does
the legislature's enacting a substantive standard authorize courts to
decide which viewpoints are constitutionally protected and which are
unprotected.
Again, let's consider the preference-for-religious-parents
cases. Say that a court is sincerely convinced that a religious
upbringing is in the child's best interests. May it therefore enjoin a
parent's advocacy of atheism, or favor the religious parent over the
atheistic one?
Eugene
Gene Summerlin writes:
> [F]rom a parental rights
> standpoint, the legal touchstone is what is in the best interests of
> the child. The focus is pointedly directed on how the parents speech
> (or actions for that
> matter) will affect the child. Certainly, it is not unreasonable for
> a judge to determine that a parent's racist speech will adversely
> affect the child's best interests, and, all other things being equal,
> it would be better for the child to be with a parent who did not
> express racist sentiments, than to be with a parent who did express
> racist sentiments. This obviously requires a value judgment on the
> part of the court that racism is a normative bad, and non-racism is a
> normative good. Of course, this may be precisely the point that
> Eugene is getting at: is it appropriate for a court to make these
> kinds of value judgments - recognizing that the First Amendment
> specifically protects a parent's racist views and speech. My only
> answer to this question would be that when the legislative branch of
> government parlays a "child's best interests" as the legal rule which
> governs custody, courts are necessarily required to make these kinds
> of value judgments because they are asked to state what interest is
> best.
>
>
> Gene Summerlin
> Ogborn, Summerlin & Ogborn, P.C.
> 210 Windsor Place
> 330 South Tenth Street
> Lincoln, NE 68508
> (402) 434-8040
> (402) 434-8044 (facsimile)
> (402) 730-5344 (mobile)
> gene at osolaw.com
> www.osolaw.com
>
>
>
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Bob Sheridan
> Sent: Wednesday, December 14, 2005 10:13 PM
> To: Volokh, Eugene
> Cc: conlawprof at lists.ucla.edu
> Subject: Re: Divorced father held in contempt for using racial slurs
> around a child
>
>
>
> Volokh, Eugene wrote:
>
> > I still don't see the connection between conditions of
> probation,
> >imposed after a person has been convicted of a crime, and speech
> >restrictions imposed on innocent parents.
> >
> >
> ***
>
> The alleged connection is that in both situations, government power is
> exerted to require an individual to relinquish a constitutional right.
> A person convicted of a criminal offense, given the broad range of
> offenses, from littering on up, does not lose all right to claim the
> protection of the Constitution. It's the difficulty that many of us
> have in seeing this that makes the interest in protection all that
> more worthy of protection.
> The oldest verbal game in the book is to disqualify someone's right to
> claim constitutional protection on the basis that s/he has lost the
> moral right to make the claim because s/he fits into some unworthy
> category, from slave to convict.
>
> Surely whites shouldn't be forced to go to public school with blacks,
> should they? What could be more laughable? (1953).
>
> rs
> sfls
>
>
>
> > But in any event, if Bob's argument is simply that restricting
> speech
> >that disparages the other parent (or the other parent's new
> >spouse) is a good idea, I agree, to a point, for complex
> reasons that I
>
> >detail in my article. This case, however, didn't involve an
> order that
>
> >was limited to this -- it involved an order that banned all racist
> >slurs said by the parent in the child's presence (including
> ones that
> >are most certainly not fighting words). Is such an order
> >constitutionally permissible? Or is it unconstitutionally
> overbroad,
> >even if a narrower order could permissibly be applied in this very
> case?
> >
> > Eugene
> >
> >
> >
> >>-----Original Message-----
> >>From: Bob Sheridan [mailto:bobsheridan at earthlink.net]
> >>Sent: Wednesday, December 14, 2005 5:05 PM
> >>To: Volokh, Eugene
> >>Cc: conlawprof at lists.ucla.edu
> >>Subject: Re: Divorced father held in contempt for using racial slurs
> >>around a child
> >>
> >>
> >>
> >>
> >>Volokh, Eugene wrote:
> >>
> >>Wouldn't the answer be "You bet"?
> >>
> >>***
> >>
> >>I don't think so.
> >>
> >>The most common use of the search waiver condition of
> probation is in
> >>any possession of contraband offense, usually for drugs,
> often small
> >>amounts for personal use. The benefit of the waiver is
> primarily to
> >>the prosecution in that it saves the need to have probable cause in
> >>order for a peace officer to search a probationer during the next
> >>encounter.
> >>In California this is known as a Penal Code Section 1035 search
> >>condition and it's good in the day or night, with or
> without probable
> >>cause, of person, place or vehicle, by any peace officer.
> Sometimes
> >>this slops over in practice to involve room-mates, spouses, fellow
> >>passengers in a vehicle, etc.
> >>
> >>Restricting disparaging speech in the context of the
> domestic wars is
> >>positively salutory in helping to remind (and control, one
> hopes) the
> >>parties to be on good speaking behavior to keep the peace, esp. ifo
> >>the kids.
> >>
> >>Given the miniscule thought content of the speech likely to be
> >>restricted, fighting words, essentially, the court order is
> intended
> >>to prevent the sort of additional hostility that is likely
> to produce
> >>a call to the police and the institution of a criminal or contempt
> >>action.
> >>
> >>
> >>Far more interesting is whether courts should be permitted to favor
> >>the more religiously inclined parent in matters of custody and
> >>visitation.
> >>
> >>rs
> >>sfls
> >>
> >>
> >>
> >>>Bob Sheridan writes:
> >>>
> >>>
> >>>
> >>>
> >>>
> >>>>Query: Is it any more troubling to restrict speech in
> the domestic
> >>>>dispute context than it is to force the waiver (on pain of
> >>>>jail) of the
> >>>>right to be free from 4th Amendment search protections in the
> >>>>aftermath of a criminal prosecution and conviction?
> >>>>
> >>>>
> >>>>
> >>>>
> >>> Wouldn't the answer be "You bet"? Splitting up with a
> >>>
> >>>
> >>spouse (or a
> >>
> >>
> >>>nonspouse) may be bad in all sorts of ways, but it seems
> like hardly
> >>>the equivalent of committing a crime. Whatever the rationale for
> >>>allowing extra speech restrictions on probationers, it
> >>>
> >>>
> >>doesn't seem to
> >>
> >>
> >>>me to apply to splitting parents.
> >>>
> >>> Eugene
> >>>_______________________________________________
> >>>To post, send message to Conlawprof at lists.ucla.edu To subscribe,
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> >>>
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> >>>
> >>>
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> >>
> >>
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> >>>
> >>>
> >>that are
> >>
> >>
> >>>posted; people can read the Web archives; and list members
> >>>
> >>>
> >>can (rightly
> >>
> >>
> >>>or wrongly) forward the messages to others.
> >>>
> >>>
> >>>
> >>>
> >>>
> >_______________________________________________
> >To post, send message to Conlawprof at lists.ucla.edu To subscribe,
> >unsubscribe, change options, or get password, see
> >http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >
> >Please note that messages sent to this large list cannot be viewed as
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> >
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> >
> _______________________________________________
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