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Parent-Child Jihadist Speech:

I have an L.A. Times op-ed this morning about a fascinating parent-child speech case — one that to my knowledge no media outlet has yet discussed (probably because the facts were discussed in an unpublished opinion that likely no-one but the parties and I had read). Here are the opening paragraphs:

Meet Daniel P. and Allison B. and their children, Mujahid Daniel and Mujahid David, ages 13 and 11.... During their marriage, according to court documents, Daniel and Allison followed a "quasi-Muslim philosophy." They also "amassed a large quantity of weapons," and Daniel was imprisoned for illegal weapons possession and for making threats. Allison testified that Daniel abused her and that she went along with his actions only because she was afraid of him. The couple divorced in 1997, when Daniel was in prison.

Daniel, now out on parole, wants to see his children. Allison objects, based on Daniel's "violent felony conviction record ... domestic violence ... extremist views regarding religion, including ... jihad; and the letters written to the children while he was incarcerated, lecturing about religion and reminding the children that their names are Mujahid." ("Mujahid" means a soldier fighting for Islam; "mujahedin" is the plural.)

In December, a New York appellate court held that Daniel should be allowed supervised visitation after his parole expires this summer. But the court also upheld, in the name of "the best interest of the children," the trial court's order that Daniel not discuss with the children "any issues pertaining to his religion." ...

In the rest of the op-ed, I discuss the First Amendment implications of such orders, and point out that similar speech restrictions can arise in a wide range of other cases, involving racist speech, anti-gay speech, pro-gay speech, the teaching of religious intolerance, decisions not to teach religion at all, and more. Last year, I wrote an NYU Law Review article (Parent-Child Speech and Child Custody Speech Restriction) on this general subject.

For those who are interested, I also report the opinions below:

[New York family court decision, Oct. 28, 2005:]

The Petitioner, DANIEL [P.] (hereinafter, “father” or “Petitioner”) having filed a petition, pursuant to Family Court Act, Article 6, for an order, inter alia, granting him “visitation” with the children, MUJAHID DANIEL [P.], born October 30, 1993; and MUJAHID DAVID [P.], born June 1, 1995 (hereinafter “Daniel” and “David” or “the children”); and the Respondent, ALLISON [B.] (hereinafter “mother” or “Respondent”) having opposed such petition; and these matters, having come on before me for a trial, and the Petitioner having appeared via telephone testimony and by his attorney, John Zenir; and the Respondent having appeared in person and by her attorney, Steven A. Meisner, and the Law Guardian, Gail Jacobs, Esq., having appeared on behalf of the children; and the parties having presented witnesses, and exhibits to this Court; and upon all of the prior proceedings and pleadings had herein; and the parties having consented to this matter being heard and determined by Special Referee Dorothy A. Phillips; the petition is decided as follows:

Kovarsky (mail):
wow that's tough.
2.6.2007 10:03am
Eugene Volokh (www):
What's tough? The speech restriction? My view that such speech restrictions should generally be unconstitutional? Tracking down unpublished opinions like this one? Reading my op-ed?
2.6.2007 10:18am
Kovarsky (mail):
eugene,

"that's a tough case."
2.6.2007 10:29am
Kovarsky (mail):
Sorry, I don't know enough about the way the first amendment interacts with childrearing prerogatives/laws to comment insightfully. The 1A is not my cup, so to speak.
2.6.2007 10:32am
Truth Seeker:
Multiple felonies? Stockpiling weapons? Sounds like the guy should not be out on parole. Want to bet that both he and the sons end up dead along with multiple innocent people within a few years? There's got to be a way to keep these time bombs locked up. Maybe Bush's indefinite confinement foor enemy combatants isn't such a bad idea bad.
2.6.2007 10:43am
John (mail):
A good example of how the Constitution is not a suicide pact. Or shouldn't be.
2.6.2007 10:47am
Steve:
I never know which of the commentors to take "seriously."
2.6.2007 10:57am
New World Dan (www):
Parenting is a cooperative exercise. It doesn't work to have 2 parents teaching the children 2 very different sets of values. I more or less agree with Professor Volokh that such speach restrictions are or should be unconstitutional. On the other hand, as the mother is the primary custodian, the alternative is likely that the father would simply be denied access to the children. This is what family courts generally do, try to reach a compromise agreement of some sort.
2.6.2007 11:30am
Jake (Guest):
At some point there has to be a limit to the First Amendment protection here. Otherwise the court couldn't restrict any behavior--any forbidden commentary could always be prefaced with "God commands" (or, if necessary, "my entire faith revolves around the idea that...") in order to get it past a ban.

I mean, if the father belonged to the Church of Jesus Christ of the Latter Day Saints and Killing Hobos, is the court limited to enjoining direct hobo-killing advocacy only, or can it limit talk of his hobo-killing religion altogether?
2.6.2007 11:31am
Steve:
I mean, if the father belonged to the Church of Jesus Christ of the Latter Day Saints and Killing Hobos, is the court limited to enjoining direct hobo-killing advocacy only, or can it limit talk of his hobo-killing religion altogether?

This goes to the issue discussed in the frivolous prisoner lawsuit a couple posts down. However, the issue in this case isn't freedom of religion, it's freedom of speech.

I think the conceptual way to look at these cases is that the custodial parent has the general right to dictate the child's upbringing, and that where the non-custodial parent's free speech poses an actual threat to the custodial parent's interests, the court is entitled to enforce the custodial parent's wishes. This would eliminate cases where it's both parents having their free speech rights restricted, as with the Wiccan case.
2.6.2007 11:37am
Mike BUSL07 (mail):
It seems like the court wanted to split the baby a bit by letting the father see his kids, but not letting him talk about what he finds important; bad decision, IMO. The guy either deserves to see his kids - with unabridged speech rights - or he doesn't deserve to see them at all.

/I know absolutely nothing about family law.
2.6.2007 11:52am
Roy Haddad (mail):
"A good example of how the Constitution is not a suicide pact. Or shouldn't be."

The Republic is not going to fall just because we let this father and others like him indoctrinate their children.
2.6.2007 12:08pm
Thorley Winston (mail) (www):
In December, a New York appellate court held that Daniel should be allowed supervised visitation after his parole expires this summer. But the court also upheld, in the name of "the best interest of the children," the trial court's order that Daniel not discuss with the children "any issues pertaining to his religion."


I think the problem here is that if the guy was really such a threat, then (a) why would the court grant him parole instead of making him serve out his full sentence and (b) why allow any visitation of his children? Once the court make the determination that he should be freed and allowed supervised visits with his children, it's a little hard IMO to then justify placing a limit on what topics he can talk with them about.
2.6.2007 12:40pm
VanMorganJr. (mail):
The Republic is not going to fall just because we let this father and others like him indoctrinate their children.

Probably true. But in a little less inflamatory language, it is also probably true that the husband will, given the opportunity, resume his physical abuse of the wife and pass along his violent propensities to the two sons, who are likely to become "mujahadin" in more than name only. This sounds like a horrible family law decision made worse by the attempt to ameliorate it through the very probably unconstitutional (and almost certainly uninforceable) speech restriction.
2.6.2007 12:43pm
Steve:
The guy either deserves to see his kids - with unabridged speech rights - or he doesn't deserve to see them at all.

Why insist on the polar extremes? Presumably the guy would prefer to see his kids with his free speech rights restricted than to not see them at all.
2.6.2007 12:47pm
Mike BUSL07 (mail):
Steve, the reason I insist on the polar extremes is that I do not believe the constitution allows for a compromise here - there is no exception to the 1st amendment that I know of that covers indoctrinating your kids with bullshit. If he is allowed to see his children at all, he cannot, I don't think be told that he cannot speak of his religion. If he is safe enough to see them, he is safe enough to talk to them about what he wants.
2.6.2007 1:05pm
Hattio (mail):
I thought generally these sorts of restrictions were upheld because they were in the best interests of the children. I seem to remember a case in law school where the father of children who had been raised Jewish was not allowed to take them to the church he had converted to, an evangelical church that taught that Jews were going to hell. I think the actual ruling was that he could take them to church as long as they weren't allowed to hear anything regarding Jews going to hell. That obviously invokes the freedom of religion more directly than this case does, and doesn't deal as directly with freedom of speech (unless the father was also forbidden from espousing his views). But it seems that was upheld on the best interests of the children. Maybe it's a bit different when the children have already self-identified as Jewish.
2.6.2007 1:14pm
Thorley Winston (mail) (www):
Steve, the reason I insist on the polar extremes is that I do not believe the constitution allows for a compromise here - there is no exception to the 1st amendment that I know of that covers indoctrinating your kids with bullshit.


No but then again the First Amendment really only says "Congress shall make no law." We could simply read it with the original intent in which case (a) the First Amendment doesn't apply to the judicial or executive branches and/or (b) doesn't apply to the States since the Fourteenth Amendment which supposedly incorporates it is at best ambiguous on this point.
2.6.2007 1:21pm
Bored Lawyer:
1. I do not believe the First Amendment applies in this context. Someone mentioned that a court can bar parental messages which undermine the educational philosophy of the custodial parent.

There are many cases where 1st Am. rights are restricted in such situations. For example, divorced parents practice different religions. The non-custodial parent (usually the father) has often been barred from discussing religion with his children because it undermines the education by the custodial parent.

2. It appears that the custodial parent's right to control how his/her child is educated is paramount to the speaker's 1st Am. rights.

Certainly, no one has suggested that parents in general may not censor what their children watch on TV or review on the internet. A speaker has a First Amendment right to speak, not to have an audience. Children, who are to some extent subordinated to their parents and whose care is entrusted to the parents, can be excluded from the speaker's audience by the parent. And in extreme cases this parental choice could be enforced by the State or the courts.

3. A divorce situation is admittedly more complex, but the same basic analysis applies. The Court in this situation is enforcing the custodial parent's ability to educate her child -- which apparently does not include a life of jihad.

4. As a general matter, I am dubious about the notion that the 1st Amendment can trump the ability of parents and, in extremis, the State, to protect children.

Suppose a public school decides to teach a unit about the politics of the day, maybe in connection with an upcoming election. It invites the major candidates to address the student body. Is it also required, under the 1st Amendment, to let every nutcase address the students -- i.e. every KKK member, every Nazi, every Communist -- who wishes to have five minutes to try to influence the kiddies? I rather think not. The school, acting in loco parentis has the right, within broad parameters, to determine what is harmful speech to impressionable youngsters and what isn't, even if the speech is, in an adult context, protected by the 1st Amendment.
2.6.2007 1:27pm
Richard Aubrey (mail):
It would be safer to address this as a speech issue.

To address it as a freedom of religion issue would be pretty close to explicitly endorsing the view that Islam is a religion of violent conquest and the slaughter of innocents.


"He should be able to say whatever he likes. Religion? What religion? Who said anything about religion?"
2.6.2007 1:51pm
PersonFromPorlock:
Worshippers of Moloch were required to sacrifice their firstborn to the god by offering it up to be burned alive. I don't think we'd have a lot of trouble with banning that particular practice, genuinely religious though it was.

Now, if the father is preaching jihad to his children so that they grow up eager to die for his religion, isn't that pretty much the same thing? He is 'offering them up' just as surely as if he handed them to Moloch's priests.
2.6.2007 2:00pm
Truth Seeker:
Roy Haddad:
"A good example of how the Constitution is not a suicide pact. Or shouldn't be."

The Republic is not going to fall just because we let this father and others like him indoctrinate their children.


Unless they indroctinate them that their purpose in life is to detonate dirty nuclear bombs in New York, Washinton, L.A., etc. Come on people we're not playing leftist kumbaya games here. These people with all their hearts and all their energies, Want. Us. Dead.
(Or wearing burkhas, stoning gays, etc.)
2.6.2007 2:02pm
AppSocRes (mail):
I'm not a lawyer, but I've run across many probation and parole cases where the courts or correctional systems have severely limited the 1st Amendment rights of convicts with regard to speech and association. Why shouldn't the same legal principles apply in civil law where the consequences are less severe?
2.6.2007 2:06pm
Bored Lawyer:

To address it as a freedom of religion issue would be pretty close to explicitly endorsing the view that Islam is a religion of violent conquest and the slaughter of innocents.


Not really. It would be endorsing the view that THIS PARTICULAR PERSON'S VERSION of Islam is "a religion of violent conquest and the slaughter of innocents."

According to the article, the father's "quasi-Muslim philosophy" led him to "amass[] a large quantity of weapons," and ended in his conviction for illegal weapons possession and for making threats.

When one demonstrates by both word and deed that one's "religious philosophy" leads one to a life of violence and criminality, then one should not complain that the Court's do not want that "religious philosophy" imparted to children, including your own.
2.6.2007 2:12pm
Eugene Volokh (www):
AppSocRes: It turns out that he won't even get visitation rights until he's off postrelease supervision (since until then he can't travel out of state to New York, where his kids are). So this is a restriction imposed on someone who is now a free citizen like the rest of us; and the courts applied the same "best interests of the child" standard that is applied to the speech of all divorcing parents.
2.6.2007 2:23pm
A.C.:
Anyone else find it disturbing that someone who appears to be a home-grown gun nut, the sort of loopy survivalist this country has been breeding for a long time now, is pretending to be a Muslim? It was bad enough when they were inventing free-standing cults.
2.6.2007 2:24pm
K Bennight (mail):
Family law is not my area. I have handled only a few divorces and none in recent years. But, putting aside joint managing conservators, Texas divides the parents between managing conservators and possessory conservators.

The possessory conservator gets visitation, but primary control is allocated to the managing cnservator. As best I recall, one aspect of that control is to determine the religious upbringing of the children. Whether or not other states use the same terminology, they must deal with the same issues.

The court's order appears to be a de facto allocation of control of religious upbringing to one spouse. As such, it seems a regrettable but necessary incident of child custody determinations in divorce proceedings.
2.6.2007 2:48pm
Adeez (mail):
"These people with all their hearts and all their energies, Want. Us. Dead.
(Or wearing burkhas, stoning gays, etc.)"

Truthseeker, if I may: what percentage of the U.S. population do you speculate "these people" comprise?
2.6.2007 2:53pm
PatHMV (mail) (www):
I join those who don't see anything wrong about this result. This is not an instance where the government has inserted itself into parent-child communications on its own desire. Child Services did not show up one day to demand that papa stop preaching jihad to the boys.

Here, the courts are involved only because two adults, each beginning with an equal right to raise their children as they see fit, could not agree on how to exercise those rights. The courts have no choice but to ultimately pick sides in such a dispute. That is precisely why we have courts to begin with, to provide us a with an equitable means of resolving those disputes that we can't resolve amongst ourselves.

The court had little choice in this dispute but to award primary custody to one parent or the other. Because papa was in jail, the mother was the obvious and only real choice. Papa's criminal background makes him poorly suited to have primary custody even were he not currently in jail.

Once that primary custody decision is reached, the court's limitations on visitation are really not the government imposing its will, but the government simply assisting the custodial parent to assert her right to control the upbringing of her children. The decision being furthered is the parent's, not the courts. The mother could allow the father visitation of any sort if she wanted to; the court is involved primarily to enforce her decision, and to perhaps temper it out of concern for the residual rights of the father, should the mother be too harsh. If a church files suit to evict a squatter who has set up residence in the church hall, the government has not established a religion by enforcing the church's property rights.

As others have noted, the court could have determined that it is not in the child's best interests to have any visitation with his father. That, too, is a sundering of papa's constitutional rights as a parent. But it is a permissible sundering because of the competing rights of the mother. If the court can limit the father's constitutionally-based parental rights to determine his child's upbringing, surely it can limit some of the father's other constitutional rights as necessary to institute its judgment in the custody proceeding.
2.6.2007 3:02pm
Richard Aubrey (mail):
Bored Lawyer: You are responding with your lawyer hat on.

The facts are that if this is a religion issue, the guy's views are taken by the court as a religion--which the guy and the court agree is Islam--and so the court says this is a species of Islam which is not so far out as to be disqualified from being Islam.

You may be interested in parsing and hair-splitting, but the implication is that the court has accepted this as a religion, and accepted that it is Islam. And parsing and hair-splitting do not trump implications. Not mistaken ones, and not valid ones.

As I have just demonstrated, better treat this as a speech issue.
2.6.2007 3:38pm
Ken Arromdee:
Here's a modest proposal.

Get some prominent Muslims and ask them publically if the father's teachings are consistent with Islam. Assuming they say "no", then rule that the father is trying to teach something he just made up and don't allow it.
2.6.2007 3:48pm
Richard Aubrey (mail):
That would certainly put the prominent Muslims in a bind.
2.6.2007 4:02pm
PersonFromPorlock:

Assuming they say "no", then rule that the father is trying to teach something he just made up and don't allow it.

Ah, but then you're making the government the enforcer of 'official' Moslem doctrine, which smacks of 'Establishment'. Besides, who says 'made up' religions are necessarily false? Remember Bokonon! ;^)
2.6.2007 4:16pm
Bored Lawyer:
Richard Aubrey:

The Courts are doing no such thing. A person is entitled to his own religious philosophy regardless of whether it is the most Orthodox interpretation of a classical religion or the most idiosyncratic cult or somewhere in between. Anywhere along the spectrum, the person has Free Exercise rights.

The Court does not have to determine whether this person's "religious philosophy" conforms with "Islam" or not. That question was never put to the Court and, IMHO, it would be improper to answer it.

What the Court can properly determine is that the father's religious philosophy, such as it is, is closely tied to his acts of violence and crime. As such, it can restricts his attempts to impart it to his children.
2.6.2007 4:35pm
Adeez (mail):
These issues remind me of a current trend whereby Christians refuse to dispense contraception or permit gay couples to adopt. Some Christians would have us believe that discriminating against homosexuals is a central tenet of their faith, while others who are equally serious about their Christian faith couldn't care less.

I see the logic in Ken Arromdee's proposal, but think it would open up a huge can of worms. The Free Exercise Clause jurisprudence is not sufficiently developed to address these recurring situations, I'm afraid.
2.6.2007 4:35pm
Just Dropping By (mail):
"Worshippers of Moloch were required to sacrifice their firstborn to the god by offering it up to be burned alive. I don't think we'd have a lot of trouble with banning that particular practice, genuinely religious though it was. Now, if the father is preaching jihad to his children so that they grow up eager to die for his religion, isn't that pretty much the same thing?"

Uh, no, not at all. It's analogous to the way that actually plotting the violent overthrow of the U.S. government (a crime) is different from advocating the general idea of violently overthrowing the U.S. government (protected speech). See Yates v. United States, 354 U.S. 298, 318 (1957) (government cannot criminalize the "advocacy and teaching of forcible overthrow as an abstract principle, divorced from any effort to instigate action to that end.").
2.6.2007 5:01pm
Phillip Carter (mail):
If memory serves, Eugene gave us a similar fact pattern for our Con Law II final exam in Fall '02. So similar, in fact, that I did a doubletake when I read this story. The exam question asked us to write one Supreme Court majority opinion and one dissenting opinion analyzing all the relevant issues raised by this case. I think I came down on the state's side, but I can't remember my reasoning. (Judging by my grade, my reasoning is probably best forgotten anyway.)
2.6.2007 6:24pm
Joshua:
Here's a modest proposal.

Get some prominent Muslims and ask them publically if the father's teachings are consistent with Islam. Assuming they say "no", then rule that the father is trying to teach something he just made up and don't allow it.


Along those lines, I wonder if news of this case has reached Osama bin Laden and/or Ayman al-Zawahiri, wherever they may be. This whole case, and what it means for the country, would take a sharp left turn if this guy were to be endorsed by genuine jihadis.
2.6.2007 6:31pm
Richard Aubrey (mail):
Bored Lawyer.

For a number of reasons, it would be better to treat this as a speech issue than have the court declare, by default, that this is a religious issue. Because that would mean this cockamamie crap is a religion, saith the court, by default. If it weren't a religion, this wouldn't be a religious issue, would it?
2.6.2007 7:09pm
Ken Arromdee:
I see the logic in Ken Arromdee's proposal, but think it would open up a huge can of worms.

Well, what makes this a modest proposal in the Swiftian sense is that it doesn't matter whether the prominent Muslims believe that this guy's teachings are Islamic--even if they think so, they'll have to deny it publically (assuming prominent US Muslims, of course--not Bin Laden).

It's not really "let's prevent him from teaching it if it isn't really Islam", but rather "let's prevent him from doing it because it's so widely rejected by society".
2.7.2007 12:58am
kat-missouri (mail) (www):

and the courts applied the same "best interests of the child" standard that is applied to the speech of all divorcing parents


Volokh actually states the real basis for this decision. it is not about "free speech" or "religion". Most states do have language in their laws that set guidelines for interaction of non-custodial parents with their children. For instance, the states of Kansas and Missouri indicate parents should refrain from talking about the other parent in offensive terms because, yes, it undermines the custodial parents ability TO PARENT as well as can be psychologically harmful to the child.

That is what is at issue here. Not free speech, but the ability of the custodial parent (or, as bored lawyer indicated "managing parent") to perform their parenting duty.

And, while it is not a "law", but a guideline, courts have routinely set limits through custodial and family law hearings on the interactions, speech or otherwise, of non-custodial parents in an attempt to meet the much broader expectations of protecting the children from harm.

the real question here is not about freedom of speech or religion, but whether the father's beliefs and usual mode of communicating them are harmful to the children and/or their relationship with the custodial mother.

As one person commented, if the mother is raising the children and the father indicates, whether in the language of religion or something else, that women are inferior, that divorce makes them unworthy or worse, a person with low morals that should be beaten or killed, then his language can be construed as undermining the mother's parenting ability and causing harm to the psychological well being of the children.

Again, it's not about religion or free speech. As another points out, you are free to say what you want, but there is no law that guarantees an audience. The custodial parent's right to raise the children as they see fit, their ability to keep them safe and the over all parent child relationship outweighs the non-custodial parent's "right to speech" and insures that the custodial parent does not have to allow the non-custodial parent this "captive audience".
2.7.2007 2:09pm
Manny Klausner (mail):
If memory serves, Eugene gave us a similar fact pattern for our Con Law II final exam in Fall '02. So similar, in fact, that I did a doubletake when I read this story. The exam question asked us to write one Supreme Court majority opinion and one dissenting opinion analyzing all the relevant issues raised by this case.

I applaud Eugene's insightful analysis of the difficult issue of spousal free speech rights in family law cases, and don't disagree with his conclusions. I'm writing primarily to commend him on formulating such a well-conceived exam question!
2.8.2007 2:37pm
GUEST:

What strikes me is the prematurity or dissonance of worrying too much about the implications of the 1st Amendment in family court, when the liberty aspect of the 14th's due process clause---which in other spheres protects parenting from state interference on the basis of lose `standards' like best interests, which is no more than a term of art for unfettered judicial discretion---is completely unapplied.

The federal court domestic relations abstention in any event renders any consideration of constitutionality in family law, for most purposes, effectively moot.
2.10.2007 12:35pm
twwren:
Your op-ed reads more like a law school exam question; there is no strong point of view. Even your opinion, which cannot be ascertained until the end of the article, is weak: "I think the first amendment should impose some constraint..."
2.10.2007 5:08pm