Parent-Child Speech and Child Custody Speech Restrictions:

My post on the jihadist father case led to various responses about what the right result should be, and more broadly about what the right First Amendment rule should be. Let me ask you folks this: Keep in mind the following (real) cases -- for citations and more details, see my NYU Law Review article on the subject -- and think about what First Amendment rule you would advocate, not just for the jihadist case but for those cases as well. Would it be "judges may impose whatever speech restrictions they think are in the best interests of the child, and allocate custody in whatever way they think best serves the interest of the child" (pretty much the current family law rule)? Would it be something else?

I'm not just asking which conceptual lines can be drawn; I'm asking which rule you think is likely to operate in our legal system, in which judges will often have different views from you, and will often apply fuzzy rules in ways differently than you would. (Of course, some judges will evade even clear rules, but let's assume that rules have at least some power to constrain judges in some cases.)

Here is the test suite:

  1. A parent is denied custody based partly on his “not regularly attend[ing] church and present[ing] no evidence demonstrating any willingness or capacity to attend to religion with [his children],” or having a “lack of religious observation.” Another parent is given custody but only on condition that he “will agree to present a plan to the Court of how [he] is going to commence providing some sort of spiritual opportunity for the [children] to learn about God while in [his] custody.” A court orders a mother to take her child to church each week, reasoning that “it is certainly to the best interests of [the child] to receive regular and systematic spiritual training.” Another court does the same, partly on the grounds that weekly church attendance, rather than just the once-every-two-weeks attendance that the child would have had if he went only with the other parent, provides superior “moral instruction.”

  2. Parents have custody rights limited or denied based on racist speech.

  3. ... based on advocacy of Communism (during the 1930s and 1950s).

  4. ... based on advocacy of polygamy (we're back to today, as we are on all the examples that don't have dates labeled).

  5. ... based on their defense of the propriety of homosexuality.

  6. ... based on their advocacy of (or inadequate condemnation of) nonmarital sex.

  7. ... based on their teaching of fundamentalism.

  8. ... based on their teaching of “non-mainstream” religions.

  9. ... based on their teaching of religious intolerance.

  10. ... based on their exposing their children to R-rated movies.

  11. ... based on their allowing their children unfiltered Internet access.

  12. ... based on their exposing their children to photos of men in women’s clothing.

  13. ... based on their exposing their children to music with vulgar sexual content.

  14. Parents are ordered not to say bad things about the other parent generally.

  15. When the other parent is homosexual, a parent is ordered to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic."

  16. When the parents are of different religions, a parent is ordered not to say that people who don't share the speaker's religion are damned to hell.

  17. When the other parent is a racist, a parent is ordered to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered harshly condemning of racists" (this is the one pure hypothetical in the whole list).

  18. When the parents are of different religions, a court orders “that each party will impress upon the children the need for religious tolerance and not permit any third party to attempt to teach them otherwise."

It's a long list, so don't feel obligated to discuss in detail each item -- but think about which rule you think would reach the right results not just in one case but in the whole range of cases.