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Another Troubling Restriction on Parent-Child Speech:

McCorvey v. McCorvey, 2005 WL 2863915 (La. Ct. App. Nov. 2), upholds the contempt citation of a divorced father. The family court judge had ordered the parent not to use any racial slurs in the presence of the child; here's the judge's rationale:

There was testimony elicited . . . that there were certain statements made . . . regarding racial and ethnic matters with the child of tender age . . . . There were allegations that the child was being restricted in the manner in which the child was being raised . . . contrary to racial equality, which was of concern to me . . . Some concerns by the mother . . . that the child was not to be exposed to any diversity whatsoever . . . . [EV: In context, this seems to mean that the mother disapproved of the father's racism.] I wanted to make sure the child had full exposure to all cultures, all races . . . . That was a deep concern of mine . . . . I wanted the child to have a good, wholesome upbringing so that the child would be exposed to society as society is, not in some tunnel vision type approach . . . .

The father later used a racial slur against the child's stepfather, and was held in contempt for this (as well as for some racial comments about one of the child's dolls). Setting aside the procedural question whether the court's order could be challenged collaterally in a contempt hearing — as opposed to on appeal — it seems to me that the order is unconstitutionally broad and viewpoint-based. Even if it were constitutional to bar the father from saying anything derogatory about the child's stepfather, I don't think a court may enter an order that (1) goes far beyond protecting the child's relationship with his new family, and that (2) focuses only on statements that express a racist ideology.

I agree, by the way, that teaching a child racist ideology (or various other kinds of ideologies) is against the child's best interests, which is the standard legal test in child custody cases. It just seems to me that the First Amendment limits the extent to which the government may restrict parent-child speech even when the government is trying to serve the child's best interest. (I discuss this in much more detail in my forthcoming Parent-Child Speech and Child Custody Speech Restrictions, 80 N.Y.U. L. Rev. (forthcoming 2006).)

Justin (mail):
I actually don't know whether I agree that such an order necessarily violates the First Amendment, at LEAST as the order is based on a condition of visitation rights/parental rights. Children are *not* able to pick amongst and discern between "good" and "bad" ideas, and thus the basic principle of the first amendment...the "marketplace of ideas", doesn't work. Furthermore, children who are told politically violent theories (ie we should kill all the n*****s) may be persuaded to action despite being unaccountable for their actions. It also begs the question of where do you draw the line from "I hate n*****s" to "go and kill a n*****", johnny, and perhaps that line, wherever its drawn, should have some flexibility.

I'm not entirely sure I agree with all this, but let's call it Devil's Advocate for now.
12.14.2005 5:47pm
Nicole Black (mail) (www):
I'm also on the fence as to whether the order violates the first amendment. I'm not entirely familiar with the particular issues involved as it relates to parents and children in the context of custodial issues.

That being said, I've known judges that impose the strangest (and most likely unconstitutional and illegal) conditions upon criminal sentences, especially in town courts. And in many cases, especially where the judge is a bit "out there" and the charge is minor, the lawyers don't bother objecting, or object, but the condition is imposed nonetheless and an appeal is never pursued, for any number of reasons.

One of the strangest that comes to mind occurred when I was a PD and the judge stated that a condition of a woman's one year conditional discharge was that she "avoid sleeping in the same bed" as her boyfriend, the complainant. (She had private counsel and had plead guilty to a violation--not a crime in NY--after her boyfriend had brought charges accusing her of slapping him, if I recall correctly). I don't believe that her attorney objected, in large part because the judge was a bit loony, and I suppose he didn't expect that it would actually be an enforceable/proveable violation.

This sort of thing happens all the time, surprisingly enough.
12.14.2005 6:26pm
anonymous22:
Eugene-- How do you define "teaching...racist ideology"? It seems incredibly broad to me. Almost anything can be considered racist (see: Zionism is racism, etc.)
12.14.2005 6:32pm
Anderson (mail) (www):
Interesting. If I teach my child that the correct answer to all math problems is "pi," or that the sun revolves around the earth (on Ptolemaic, not biblical, grounds---I don't want to go to the Free Exercise Clause) ... am I acting in the child's best interest? Does the 1st Am. trump that?

Offhand, I would say that where the speech is without redeeming qualities and is definitely not in the child's best interest, then the 1st Am. may not reach that. Free speech is a powerful interest but not an absolute one (hence libel laws, etc.).
12.14.2005 6:36pm
Q.:
The actual opinion shows a very complex set of relationships and judges struggling to find a way to make things work in the face of one very angry father. Opinion.
12.14.2005 6:45pm
Q.:
In follow-up: I think this is a problem with some legal scholarship. This case really doesn't "abstract" well to be able to discuss first amendment issues. You can use it as a tool to get to other issues in some hypothetical case (or some other case) but generally cases are complex, relationships are unique, and looking at this single incident does not get very far when scholarship is grounded in both reality and practicality.

I can understand it as an interesting issue, however. I don't mean to denegrate the possiblities.
12.14.2005 6:47pm
Daniel Chapman (mail):
What about due process right to control the upbringing of one's children? Not that I approve of the racial slurs, but unless someone has moved to terminate parental rights, this seems intrusive

Divorce isn't the termination of a marriage... it's just the addition of the State as a third party to the arrangement.
12.14.2005 6:51pm
PersonFromPorlock:
It just seems to me that the First Amendment limits the extent to which the government may restrict...

You're overlooking the Zeroth Amendment, which reads in its entirety "When convenient;"
12.14.2005 6:59pm
Anderson (mail) (www):
You're overlooking the Zeroth Amendment, which reads in its entirety "When convenient;"
Damn, that explains so much! Why did I not hear about this in law school?

(Probably because I mentally added those 2 words to the rules about class attendance.)
12.14.2005 7:20pm
Fishbane (mail):
It strikes me that conditional grants of... call them entitlements (such as the state granted entitlement to raise a child in the face of opposition from the other parent, or an entitlement to drive in the face of shown past poor judgement) are a hugely subject to scope creep, or a slippery slope, if you want. What initially looks reasonable (parent A is a screwup alcoholic, but tries, parent B is a complete mess: judge tells parent A to not drink) turns into things like speech restrictions over time, and as Daniel above noted, the involvement of the state into matters that were previously an issue between two people. (I'm leaving aside any specifics of family law - I really know nothing about that.)

I don't understand why most people of any political stripe should oppose this sort of reach into family lives - conservatives, who want to practice family life as they understand it, (libertarians: QED,) liberals, who have a lot to lose if "proper home behaviour in the presence of children" becomes something for the state to decide.
12.14.2005 9:07pm
Fishbane (mail):
Doh.

I don't understand why most people of any political stripe would not oppose
12.14.2005 9:09pm
Wintermute (www):
Bizarre case. This link worked better for me.

Had there not been the use of the word as part of an insult to the new stepfather, we still have the hip-hop issues. I'm not going to lose any First Amendment sleep over this judgment.
12.14.2005 10:35pm
Roger Schlafly (www):
I agree, by the way, that teaching a child racist ideology (or various other kinds of ideologies) is against the child's best interests
I question this. There isn't much empirical evidence that teaching any one ideology is any better for the child's interest that any other ideology. For a judge to issue an order like this, he should (at a minimum) identify some interest of the child and to cite some objective evidence that his order will advance that interest. He doesn't do anything of the kind. He instead he relies on his own prejudices. The judge said:
His words, his body language, his facial expressions, his tone of voice, etc., suggests that without any doubt whatsoever the defendant is overly aggressive and combative.
There is really no sound linkage between the order and any identifiable interest of the child.
12.15.2005 1:52am
anony (mail):
This is frightening and truly disturbing. Does that mean that a judge can adjudicate when one parent is a lefty progressive and the other a strict fundamentalist?

Will a parent be unable to teach a child that homosexuality is wrong or that Saddam Hussein is Evil if the other parent wants a more neutral, value-free stance on all things?
12.15.2005 2:36am
James Slusher (mail):
Roger: While out of context I might agree with your statements, i.e. there is probably little empirical evidence that racist ideology is harmful per se, but in this context I would have to say that it is fairly common sense to say that teaching a child a racist ideology whilst having a stepfather of another race is going to be harmful to his well-being.
12.15.2005 5:09am
Phil (mail):
Q seems correct.
IMHO this case has very little to do with government intrusion itno a family. This strikes me as no different than those cases where the non-custodial parent gets hooked up for half of college expenses. If the couple had stayed married they could have booted the kid out at 18 and been free and clear, but having failed as a couple they have in effect added the government as the dispute resolver. Virtually all the reasons I have for caring about government intrusion evaporate once the married couple says, in effect, our judgment is completely unreliable even about the most important things, e.g., picking a spouse. This does not mean the government is never wrong, just that the concerns are no longer about familial privacy, etc. If you wanted familial privacy, you would not be arguing about this stuff in front of a judge.
(N.B. I know several couples who worked out 99% of their issues before going to see the judge and have very amicable relationships, particularly regarding decisons about their children. Of course, a judge has little interest in getting involved in those cases.)
I join those who lose no sleep over this case.
12.15.2005 7:09am
tefta (mail):
This is a camel's nose under the tent issue.

Kids are going to hear a lot of bad language and racial slurs while growing up. They'll read a lot of lies in the newspapers and their teachers at school will fill their ears with a lot of PC nonsense.

So, we're best off sticking with what's worked for a couple of hundred years and holding. The first amendment first, last and always.
12.15.2005 9:58am
Public_Defender:
Anyone who thinks this opinion is a threat to the First Amendment should read it first.

The father watched x-rated videos with his daughter, refused to take the kind of cereal she would eat from her mother, took toys away from her that her mother had given her, "force fed" her, refused to buy properly-fitting diapers because he had wrong-sized diapers already, joked about killing her Easter chick and making chicken nuggets with it, etc., etc., etc.

Read the opinion. The man is a jerk on a power-trip, not a father trying to pass on values to his daughter.

One of the key factors in custody disputes is the willingness to foester a relationship with the other spouse. Here, the father was using his racist remarks as an excuse to attack his child's mother and step-father.

I think there would be a similar if an atheist father repeatly went out of his way to cast vulgar insults at his wife's evangelical Christian faith.

Ironically, the father tried to have some of the material from the mother's pleadings struck as "scandalous" (mostly stuff he had said). So he wasn't exactly in a position to complain about the first amendment.

And if the father didn't want the state involved in how he raised his child, he should have done what it took to keep his marriage together.

This case is another example of a basic rule of litigation--if you try to unfairly screw with the system, the system tries to return the favor. The father was so abusive in so many ways that the system was not prepared to cut him a break where it should have considered cutting him a break.

Once again, before criticizing the opinion, read it.
12.15.2005 10:25am
JJV (mail):
I think the appellate judge's name is worth the price of admission. ULYSSES GENE THIBODEAUX. That is a name to reckon with. More troubling than the racial slurs is the vast confusion in this family. It appears, unless I'm wrong, that the mother and father simply swapped spouses with another couple and all became step-parents of each other's children. If everybody watches their tongues the kids are still running around with two strikes against them.
12.15.2005 10:59am
Jack John (mail):
1) goes far beyond protecting the child's relationship with his new family, and that (2) focuses only on statements that express a racist ideology.

It seems that this order passes Eugene's test. It doesn't go beyond protecting the kid, and it focuses on a range of harmful conduct, some of which may express a racist ideology.
12.15.2005 11:28am
Houston Lawyer:
"And if the father didn't want the state involved in how he raised his child, he should have done what it took to keep his marriage together."

I won't try to defend this guy, he's obviously a tool, but no-fault divorce is the law in every state. If your spouse wants to divorce you, you will be divorced, regardless of how much effort you have put into saving your marriage. This guy actually sounds like a candidate to have CPS come take custody of his children even if he had remained married. Now, if we could only require licences for procreation.
12.15.2005 11:44am
Ken Arromdee (mail):
From the decision: "Because of the offensive language about to be described, it should be noted at this juncture that the parties involved are of the same race."

and "With regard to racial identity, there was testimony indicating Mr.McCorvey felt his daughter was "too bright" and that she was going to have "to colorup", that he had a preference as to what color she was, that he preferred that she be darker-skinned, instead of light-skinned like her mother."

The doctor says: "The belligerence and then the "N" word. I mean that's about as hard as you can put somebody down,
from one black male to another."

In other words, the father is black, and he used the N-word against a stepfather who is also black.

For a black man to use the word against another black man may show hatred of the other man, but it doesn't show racial prejudice in the sense that most commenters seem to have assumed.
12.15.2005 11:51am
Cynicus Prime (mail) (www):
On the racial speech issue, ignoring the other behavior of this pig-faced bag of rat guts father, this is definitely a First Amendment issue. If the First Amendment has been interpreted to extend to judicial and executive actions, which it has, then the judiciary shall make no judgement abridging the freedom of speech. It is irrelevant that it happens to be speech that isn't acceptable to the majority of civilized society. It is also irrelevant that the speech is directed at a child.
If you want certain speech restricted in certain conditions, you're going to have to pass a constitutional amendment to add "except when someone may be offended" to the First.
12.15.2005 12:05pm
Public_Defender:
If you're confident that the court was wrong, also blame the father and his lawyer. If the father had pursued a narrow appeal on the First Amendment issue, he might have obtained a different result.

It doesn't appear that the father ever raised a First Amendment challenge. So the court was showing judicial restraint by not raising it sua sponte. You could argue that only a judicial activist would raise a non-jurisdictional issue not raised by either party.

The father let his obnoxious personality spill over into his litigation strategy, and he paid the price. Good.
12.15.2005 12:18pm
Sebastianguy99 (mail):
The issue in regards to what has been labeled "racist" by the judge, and some commentors here, is actually describing(inaccurately) an age old tension within the African-American community.

There is, and has always been, tension between different shades of African-Americans. It dates back to the house-field n****r designation where the lighter-skinned got easier assignments and more lienient treatment. It continued after Emancipation when a sizeable portion of lighter-skinned African-Americans were able to "pass" into white society and maintain a better quality of life
(altbeit precarious one).

So what the father expressed was not racist in the manner we commonly think. It was an expression about perceived "authenticity" of identity. The darker the person, the more authentically "Black". It was not one race is better than another based on skin color.

Understanding of the cultural context in which the father's comment arose is a critical component not fully appreciated by the court, or in the analysis of the commentors to this point.

Placed in their proper context, the court would have understood that the child will always be exposed to this tension within her culture. A better remedy then, and one with less First Amendment implications, would have been some type of order that the father expose the child, on a continuing basis,to cultural history and expression that provide a counterbalance to his language as well as promotes a healthier sense of self-esteem for the child. There are any number of resources available from which the court could have crafted a proper remedy.

Sometimes the best of intentions can be made cumbersome by the lack of cultural awareness and sensitivity. This is another example that argues well for the need of diversity throughout the legal profession.
12.15.2005 12:50pm
Visitor Again:
As a poverty lawyer, one of the few family law cases I handled 35-plus years ago was one in which mother tried to take away visitation rights from father, my client, on the ground that father used obscenities (FCC-type) in the presence of child, who then repeated the obscenities after return to mother. Father denied uttering the obscenities in his papers; he said he never would do such a thing.

At the end of mother's case, I moved for judgment for father on the ground that even if mother proved her case, it was not sufficient grounds to take away visitation. The judge, seeing a way out of hearing several hours' more testimony, quickly granted the motion but added a condition that father not use obscenities in the presence of the child. The judge said the condition made no difference in view of father's denial, that father, having stoutly denied using obscenities, was in poor position to insist on his right to do so. I decided not to make a federal case out of it.

I won the case, since father still had his visitation rights, but was I incompetent for failing to press his first amendment rights? No, I didn't lose any sleep over it.

Few courts are going to allow offensive speech in the presence of children, who are sacrosanct in our society. Imagine the headlines that would greet such a court decision. Children hear such speech all the time, inside and outside the home, of course, but the courts aren't going to go along with that in cases where they are charged with doing what is in the best interests of the child. That's the reality.

There is also a lot to be said about the damage that can be caused by one divorced parent dropping little pills of poison about the other parent and partner during visitation or custody-sharing time.
12.15.2005 1:35pm
Roger Schlafly (www):
[James] ... there is probably little empirical evidence that racist ideology is harmful per se, but in this context I would have to say that it is fairly common sense to say that teaching a child a racist ideology whilst having a stepfather of another race is going to be harmful to his well-being.
I doubt it, but the judge says:
Because of the offensive language about to be described, it should be noted at this juncture that the parties involved are of the same race.
So the stepfather is the same race, not a different race.

The court is just applying its own political correctness, to the detriment of the child.
12.15.2005 1:37pm
Roger Schlafly (www):
[Public_Defender] Read the opinion. The man is a jerk on a power-trip, not a father trying to pass on values to his daughter.
You mean that the judge is a jerk on a power-trip?

The complaints are petty and subjective. Take for example the complaint that you cite about the diapers. There could easily be a difference of opinion about the best-fitting diapers. A father should not lose his parental rights because of a routine decision about choosing appropriate diapers. No harm to the kids was demonstrated.

And if the father didn't want the state involved in how he raised his child, he should have done what it took to keep his marriage together.

This is just blaming the victim. The state has no-fault divorce. There might have been nothing in his power to keep the marriage together.
... the system was not prepared to cut him a break where it should have considered cutting him a break. ... The father let his obnoxious personality spill over into his litigation strategy, and he paid the price. Good.
You seem to be admitting that the judge was a bigoted jerk, and you justify punishing the child because the judge took a dislike to the father.
12.15.2005 1:52pm
Roger Schlafly (www):
[Phil] Virtually all the reasons I have for caring about government intrusion evaporate once the married couple says, in effect, our judgment is completely unreliable even about the most important things, e.g., picking a spouse.
This is a very strange opinion. People make mistakes about jobs, houses, cars, etc, and the law does not try to punish them for it. If a man buys a car from GM that turns out to be a lemon, a judge doesn't lecture him on his bad choice and take away his driving privileges.

For 1000s of years, the only workable way of raising kids has been to let the parents make the routine decisions. That is still the case, whether the parents are married or divorced. Barring criminal child neglect or abuse, governmental intervention almost always causes more harm than good.

If you want to punish men for making a poor choice of a wife, then pass a law against it. Do not punish the kids by depriving them of seeing their fathers.
12.15.2005 2:14pm
Public_Defender:
Mr. Schafly,

Youhave an interesting take on the facts. But the reason appellate courts generally defer to trial courts about facts is that the trial judge was in the best position to see the big picture. Yes, the judgments are sometimes subjective, but the appeals court's job is generally to view the facts in in the best light of the non-appealing party. I say this as someone who generally represents the appealing party.

In this case, the father went through several judges on disqualifications. And he's not losing visitation with his kid.

I never said that the judge was a "bigoted jerk." To the contrary, the father could have raised a First Amendment argument, but did not. I don't blame the judge for not raising an argument that the father did not.

Finally, I hope that the father's rights movement can find a better poster child than this guy.
12.15.2005 2:50pm
Roger Schlafly (www):
In this case, the father went through several judges on disqualifications.
You want to hold that against him?
And he's not losing visitation with his kid.
That means that the court found him to be a fit parent. If so, then the judge should not be second guessing his choice of diapers and music.
the father could have raised a First Amendment argument, but did not.
Maybe the father figured that he needed more than that to win his case. The 1A argument was maybe less significant that convincing the court that it is just stupid to try to penalize a man for using some common slang.
12.15.2005 10:32pm
NickM (mail) (www):
I think the First Amendment line should be drawn in a different way; that the father cannot be criminally punished (criminal or civil contempt proceedings, or automatic termination of rights) for speech, but that the First Amendment creates no exception to the "best interests of the child" test for custodial issues that would exempt expressive conduct which harms the child's interests.

The practical effect would be that a court could not create a per se or ex ante ban on certain expressive conduct, but would be required to determine under all the facts of a given case what living situation best served the child's interests.

Nick
12.16.2005 5:29am
Public_Defender:
Multiple disqualifications are a red flag for an overly aggressive litigator. By itself, it proves nothing, but it makes anyone reviewing the case a little more skeptical.

So you think a First Amendment claim may have been weaker than the claims he did make? The problem is that he asked the appellate court to take a different view of the facts than the trial court did, and that's really tough to do.
12.16.2005 6:03am
Paul doson (mail) (www):
I think they need to study the issue more closely before deciding about it.
12.16.2005 7:26am
Roger Schlafly (www):
I have no opinion about the man's lawyering strategy. Maybe he was overly aggressive on some matters, and not aggressive enough in others.

I do criticize the court for taking away some of his parenting rights because he uses terminology that the judge finds distasteful. I think that it was the judge who showed racial prejudice, and the appellate court should have reversed him.

Nick's distinction makes no sense. The judge did issue an order that banned certain expressive conduct, and punished the father for violating that ban by also punishing the child.

If the legislature wants to pass a law banning use of the N-word in front of a minor, the it should do that, not the judge. Except the legislature cannot, because of the 1A and the fact that there is no consensus that such language is harmful.

Nick seems to want the judge to say, "I can't stop you from using the N-word, but if you do, then I am going to take your kids away." That's crazy. We have child neglect and abuse laws that state grounds for removing kids. Using the N-word is not a part of those laws.
12.16.2005 12:20pm
R. Gould-Saltman (mail):
Family law lawyers will need to read no further than "Both parties are practicing attorneys..." (opinion, p. 2) to smell trouble brewin'.

r gould-saltman
12.16.2005 2:04pm
Roger Schlafly (www):
Translation of previous comment: The American family court system depends on intimidating parents into giving up their constitutional rights. It is very disruptive when someone refuses to do that.
12.17.2005 1:55pm
Richard Gould-Saltman (mail):
Nah, more accurate translation:

Lawyers can be notoriously difficult as clients, even more difficult as family law clients, and still more so as custody-litigant clients. (We once had a case between two; both parties got themselves ordered removed from the courtroom, more than once, for their inability to behave themselves with the minimum degree of decorum that the judge expected of any litigants, e.g., one would be on the stand, testifying, other would leap up at counsel table and yell "You're a goddamn liar!")

Even when they've hired counsel, attorney litigants often still have difficulty sitting back, letting the guy they're paying do the job, and resisting the temptation to take over "lawyering" their own cases. The adage about the lawyer who does that is true in spades about lawyers in family law litigation.

Three truths, which they don't really impress upon law students enough, and which need to be impressed upon them later (in the sense that a coin blank is "impressed" by putting a die on it and whacking the hell out of it with a hard heavy hammer-like thing...) are critical in family law litigation:
1. If you're winning, sit down and shut up. If you've tried A, and it appears you're losing, do something OTHER than trying A again.
2. It's not personal.
3. Just 'cause you have a right to do something, doesn't mean that it demonstrates good judgment to do it...

It appears that Mr.McCorvey was unclear on these some of these points...
r. gould-saltman
12.17.2005 3:38pm
dweeb (mail):
Beyond the First Amendment, there's the whole question about the state violating parental rights in the name of ONE OPINION on what's in the child's best interest. There are those who believe religion is harmful to children, for instance.

Second, in a society where parents are free to impact their children's lives for the better, we have to accept the flipside - that they may impact their children's lives for the worse, else you need to seize the children of any parent not found ideal, and you might as well go to the "Brave New World" model of child rearing.
12.19.2005 1:47pm