Restrictions on parents' teaching their children bad ideas (even outside the divorce context)
schweber at polisci.wisc.edu
Sat Apr 26 14:25:55 PDT 2008
We can make a couple of potentially useful observations, here.
First, there is already an increasingly recognize teaching exception to
Brandenburg. If parents' speech to children is found to reach the level
of instruction in how to engage in illegal activity -- including sex
with adults -- then there is already a plausible place in existing (or
emergin) doctrine for regulation of that expression.
Second, it is *already* the case that we permit regulation of expression
that would otherwise be protected when it is directed to children;
that's why states can make it a crime for me to show sexually explicit
films to my children no matter how vigorously I protest that according
to my philosophy familiarity with sex is a healthy part of growing up
and deeply rooted in our nation's agrarian history (ever watch horses do
it?) So again, there seems to be a place in existing doctrine where
restrictions on parent-child communication of this kind can be contemplated.
Whether these doctrinal exceptions are a good thing is, of course, a
much tougher question. But cases like these should give us some pause
in taking an absolutist position protecting speech in the family,
parental rights generally, or religious practices.
The question is what categories of "harm" we will recognize and the
degree of harm that will justify intervention. Martha Nussbaum talks
about intervening in families to prevent the creation of "distorted
preferences." David Bernstein has pointed out that the same behavior --
"marrying young" -- may mean very different things in different
contexts, which makes the evaluation of "harm" one that has to depend on
the specific facts of a given case and sensitivity to the diversity of
cultural practices (or not -- Marci Hamilton, for one, seems unconvinced.)
Nussbaum's suggestion seems to me going rather far. On the other hand,
we would all agree that "someday, my son, you will be a suicide bomber,
let us discuss the design and operation of your explosive belt and
practice getting through customs" is something else. Right?
Now consider four different possible messages that parents might convey
1) females are created to obey the commands of males and serve them in
all things as servants and sexual objects and must never attempt to
complain, to the police or anyone else
2) girls should marry men chosen by their parents at age 12 and have
babies by 14, and don't tell the authorities about your marriage or
you'll get in trouble
3) girls can't do math, stop enrolling in those classes
4) girls and boys are equal: everyone is an individual, and you can be
anything you want to be if you work hard enough and stay in school.
Does anyone want to argue that all four cases are equally protected or
equally unprotected? I would argue that 1) and 2) are not protected,
because they facilitate conduct that the state has otherwise established
as criminal -- i.e. has deemed to be sufficiently harmful to warrant
intervention in other contexts -- while 3) and 4) are protected as
expressions of differing philosophies of parenting, an area in which the
state has not seen fit to assert its authority generally. (The last
point is a tricky one. I am not assuming that if the state tried to
regulated parenting practices in general that would be constitutional; I
am making the more limited suggestion that given that the state has
*not* done so, there is particular reason to prevent it from regulating
expression in this area. But this is tangential to the discussion.)
Dept. of Poli. Sci.
Volokh, Eugene wrote:
> This is a serious and important issue, I think, but I don't
> think we've had much detailed discussion on this. Say a parent is
> teaching the child the propriety of jihad, or of Communist revolution,
> or of polygamy, or of adolescent sex (with minors or adults), or of
> riding motorcycles, or other potentially dangerous activity. Perhaps
> this might be in the context of a marginal religious group, but perhaps
> it's entirely mainstream, for instance a father conveying to his son,
> explicitly or implicitly, the message that having many sexual conquests,
> from age 14 on, is a sign of manliness, as well as just plain fun -- a
> message that is far from marginal. Should such speech be
> constitutionally unprotected, on the theory that it is advocacy of
> conduct that would qualify as "sexual abuse of children"?
> Let's set aside the special case of divorce, which we've
> discussed a good deal, and assume that this is happening within an
> intact family. May the parents be enjoined from making such statements?
> Punished for them? Have their child removed because they're making such
> Marci Hamilton writes:
> If the issue is physical contact, permitting religious
> (or any other) adults more latitude to have sex with children is
> indefensible, once again if their bodily integrity is valuable. If the
> issue is whether parents can teach children about illegal behavior
> without engaging in it, obviously speech doctrine might permit them more
> latitude depending, but the welfare of children takes more than mere
> protection of bodily integrity. That is why every jurisdiction
> recognizes the crime of endangering the welfare of a minor, and related
> offenses. The compelling interest in child safety and protection trumps
> whatever constitutional right is asserted by the parent in this category
> at least.
> For these reasons--the PA case where the court permitted
> the father to teach his daughter about fundmentalist polygamy (against
> the mother's wishes) and held out the prospect that the girl might be
> taken to one of the compounds was plainly wrongly decided. The First
> Amendment should not be a refuge for those who advocate or act on
> impulses to sexually abuse of children.
> 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 private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
More information about the Conlawprof