Can an order prohibiting a father from saying certain things really be seen as not implicating the First Amendment?

[J. Noble]

It's not a wholly satisfactory answer, and the First Amendment is 
certainly implicated, but I think there is some warrant for treating 
a parent's speech to a child differently, and it's recognized in the 
allowance of restrictions on speech deemed harmful to minors, as well 
as restrictions on unavoidable speech, e.g. billboards. There's also 
some rationale in allowing the government to regulate speech when the 
channel of communication is a legally enforced privilege, whether 
broadcast rights or visitation rights. The father remains free to 
express his views to others, but they can walk away, while his 
daughter is listening by order of the court.

John Noble

At 9:56 PM -0800 12/14/05, Volokh, Eugene wrote:
>	Yvette asks me to "elaborate on your argument that the First
>Amendment is implicated at all."  Well, a court has issued an order
>prohibiting the father from saying certain things to the child.  The
>father has been held in contempt for violating the order.  The order is
>content-based, viewpoint-based, and covers speech that doesn't fall
>within any exception.  My analysis is treating a court order that
>restricts speech as, well, a speech restriction.  How could that be
>"simply confusing the issue"?
>
>	It's true that the father remains free to express the views to
>others.  But he wants to speak to his daughter.  You can call this
>"indoctrinat[ing]," a somewhat pejorative term for a form of speech.
>You can call it "direct[ing] the upbringing of the child," because it is
>that, too.  Yet it is still surely speech -- one person conveying his
>views to another person.  "Parenting" isn't an antonym of "speech"; the
>same statement can be both speech and parenting (and for that matter
>religious exercise, though that isn't in play here).  Such a statement
>that's both parenting and speech can be protected under both
>constitutional rights (just as, inside or outside the parenting context,
>speech that's also religious can be protected under both the Free Speech
>Clause and the Free Exercise Clause).  There's no need to choose one or
>the other.
>
>	By way of analogy, say that a court ordered the father not to
>say anti-government things to his child.  (There were in fact cases in
>the 1930s, 1940, and 1950s that deprived a parent of custody for
>teaching the child Communist views, Nazi views, or disrespect for the
>flag.)  Would we really suggest that bringing in the First Amendment is
>simply confusing the issue here?  Or if a father were ordered not to
>advocate atheism, would we say that there's no Establishment Clause
>issue or Free Speech Clause issue, because this is a parenting case, not
>a speech case or a religion case?
>
>	Yvette points to examples of parent-child speech that we may
>want to restrict; and perhaps it should be restricted -- but because we
>conclude that it fits within a Free Speech Clause exception (or perhaps
>a new one that needs to be created for such occasions), not because the
>First Amendment is somehow not implicated.
>
>	Finally, Yvette points to the classroom, where the school may
>restrict the teacher's speech because "Speech is just the means by which
>the education is conducted."  Well, not quite, it seems to me.  First,
>surely "education" isn't an antonym of "speech," either; if, for
>instance, the government decided to ban private schools from teaching
>certain views, we'd see that as a speech restriction to which the First
>Amendment applies, and not as some "education restriction" to which the
>First Amendment is irrelevant.  Second, the reason that schools have the
>right to restrict the teacher's in-class speech (and I think they do
>have such a plenary right, though some circuits disagree) is that the
>teacher *is speaking on behalf of the school*; the teacher's speech
>while teaching is government speech.  Surely we wouldn't say the same
>about parents, in intact families or in split ones.
>
>	Eugene
>
>
>Yvette Barksdale writes:
>
>>  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?
>> 
>>  yb
>> 
>>
>>  ________________________________
>>
>>  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.
>>
>>          Eugene
>>
>>  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
>>  > recently....)
>>  s
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