Free speech, teaching of jihad, parental rights, and children's best interests

[Volokh, Eugene]

	I tried to note this in my NYU L. Rev. article, in fact with a
quote (taken somewhat out of context) from Edmund Burke:

	"Of course, we shouldn't overstate the practical scope of
parental power, especially over older children.  'Despotism itself is
obliged to truck and huckster.  The Sultan gets such obedience as he
can.'   But this legally enforced parental power does exist.  It makes
the parent-child relationship different from the relationship that
speakers usually have with listeners.  And it makes legal intervention
to prevent speech that harms the listeners more appealing."


________________________________

	From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Vance R. Koven
	Sent: Thursday, February 08, 2007 4:27 AM
	To: Law & Religion issues for Law Academics
	Subject: Re: Free speech, teaching of jihad, parental rights,and
children's best interests
	
	
	I have to take issue with one statement in your op-ed, Eugene:
you say, "...children are immature and less able to resist their
parents' ideological excesses." You're probably not far enough along in
your parenting, but trust me, children have remarkable defenses (and
offenses) of their own. 
	
	More seriously, I'm troubled also by the lack of constitutional
restraint exercised by family law judges in these cases. "Best interests
of the child" as a legal standard probably would, on close analysis,
fail all the vagueness tests. Where exposure to unconventional views are
not producing *observable* psychological damage to the children, the
state shouldn't bother --or be allowed--to impose a more conventional
lifestyle on divorced families than it does (which is to say, barely at
all) on intact ones. In fact, the existence of a disagreement between
the parents on philosophical, religious and similar value points (what
about political affiliation?) should do more to insulate children from
undue influence than in, say,  two-jihadist households. 
	
	Vance
	
	
	On 2/7/07, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote: 

		        I ran across a fascinating -- and unpublished
and
		computer-inaccessible -- new parent-child speech
decision; I've posted
		the text at
	
http://volokh.com/archives/archive_2007_02_04-2007_02_10.shtml#117074166
		6, and written it up in an L.A. Times op-ed available at
	
http://www.latimes.com/news/opinion/la-oe-volokh6feb06,0,7797695.story?c
		oll=la-opinion-rightrail, but here are some excerpts
from the trial
		court decision (which was generally upheld on appeal,
except that the
		visitation was changed to supervised visitation,
starting after the
		father finishes his federal probation):
		
		        "The history of the relationship between the
petitioner and
		respondent, and their conduct and beliefs, prior to
their ultimate 
		separation and divorce, may be considered "extreme" or
non-conventional,
		especially in today's, post "9-11" world. The petitioner
has not seen
		his children since 1997, although he has maintained
consistent contact 
		with the children, through cards and letters and speaks
with them
		regularly by telephone.
		
		        "It is uncontroverted that the petitioner is a
repeat felony
		offender, having been convicted of, among other things,
making terrorist 
		threats and weapons possession. In fact, both the
petitioner and
		respondent testified that they amassed a large quantity
of weapons
		during their marriage, which in turn, resulted in the
petitioner's most
		recent felony conviction for weapons possession. The
petitioner was
		incarcerated at the time of the parties' divorce and it
is
		uncontroverted that his incarceration and current
alleged inability to
		travel, is the direct result of his criminal conduct. 
		
		        "During their marriage, both parties followed a
quasi Muslim
		philosophy, including the naming of the two children
born during their
		marriage, Mujahid Daniel and Mujahid David[.] ...
		
		        "The respondent contends that due to the
petitioner's violent 
		felony conviction record, the domestic violence
exhibited during the
		course of their marriage, his extremist views regarding
religion,
		including his belief regarding Jihad; and the letters
written to the
		children while he was incarcerated, lecturing about
religion and 
		reminding the children that their names are MUJAHID,
that visitation
		should be denied....
		
		        "[T]he issue before the Court is what visitation
would be in the
		children's best interest ....  [T]he children shall have
visitation with 
		their father .... The petitioner/father shall not
discuss any issues
		pertaining to his religion or philosophy with respect to
same, during
		any unsupervised visitation time with the children."
		
		        Any thoughts on this? 
		
		        Eugene
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	-- 
	Vance R. Koven
	Boston, MA USA
	vrkoven at world.std.com