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"Father Shall Not Use Profanity or Racial Epithets in the Boys' Presence or Within Their Earshot":

That's from a Delaware Family Court order that came out in 2002, JJ.W. B. v. K.A. B., 2002 WL 31454072 (Del. Fam. Ct.), but that I just came across. If the father used such words in violation of the court order, he would be subject to criminal prosecution for contempt (though practically speaking it seems likelier that the court would further reduce his visitation time with the children).

For more on this broad issue, check out Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. Rev. 631 (2006). If this order is constitutional, what other orders would be permitted? For instance, say that the father was expressing racist views, or harshly anti-government views. Could a court also bar the expression of such views within the children's presence? (In particular, the father in this case apparently often said "niggers need to burn in hell," and the child apparently "on one occasion ... made the statement to an African American child in the neighborhood." What if the father had said "blacks are intellectually inferior to whites," or "whites are a bunch of racists that are trying to keep us blacks down," and the child repeated this? Or what if the father taught the child this, but successfully taught the child not to repeat it to others?)

Also, these children were nearly 6 and 4½. If you think that's relevant, at what age would a parent regain his constitutional right to express various views — even views that we may think children shouldn't be taught — around his children?

As you might gather, from this post and from the article, these sorts of speech restrictions strike me as extremely troubling. And though I agree that it is indeed against a child's best interests to hear certain kinds of statements, and to learn evil ideologies from his parents, allowing courts to restrict parental speech strikes me as quite dangerous. Nor is this danger hypothetical; for examples of courts holding against parents' based on their atheism, advocacy of homosexual rights, and a variety of other ideologies, see the Introduction and Appendix to my article. I argue in the article that such diminution of parental rights based on parents' speech is generally unconstitutional. But this should be even clearer as to a court order banning certain speech, as in this case.

MarkField (mail):
Would restricting or eliminating the father's visitation rights be better? Or just an indirect way of accomplishing the same problematic result?
7.9.2009 6:22pm
Eugene Volokh (www):
MarkField: I argue in the article that reductions in custody or visitation rights based on a parent's past (and likely future) speech are unconstitutional, too. But the court order in this case just illustrates the constitutional problem even more clearly.
7.9.2009 6:30pm
ShelbyC:

Would restricting or eliminating the father's visitation rights be better? Or just an indirect way of accomplishing the same problematic result?


#2, no? If the court says, I limit your visitation because of speech X, it raises the same issues as saying "I order you not to say X", right?
7.9.2009 6:31pm
ReaderY:
If one has an intact married family the constitutional rights are clear. If one is a single parent they are clear. But if one is in a divorce they aren't. After all, the court could just as easily have given custody to the mother and prohibit any contact between the father and his child. If judges are prevented from developing compromises permitting contact with parents on condition they limit objectionable behavior (and views), they might resort to the deny custody/no-contact remedy more often.

It's not an easy situation.
7.9.2009 6:48pm
ReaderY:
Judges don't have to give reasons for awarding custody. They might as a matter of state law, but not as a matter of constitutional law. Thus, evidence that the judge awarded custody for reasons of speech doesn't have to develop.
7.9.2009 6:50pm
David Schwartz (mail):
Assuming both parents don't oppose this ruling, I don't see a problem. If the judge made it up himself and not on the request of one of the parents, I see no problem.

This may be no different from a case where both parents agree the children should be raised under a single religion but disagree over what religion that should be. What can the court do but chose one over the other? (Preferably by neutral rules and guidelines.)

This is one of those unusual cases where the state is acting as something other than sovereign. It can't be subject to the same rules as it is when it's acting as sovereign.
7.9.2009 6:52pm
ShelbyC:

This is one of those unusual cases where the state is acting as something other than sovereign. It can't be subject to the same rules as it is when it's acting as sovereign.




I don't understand. How is it not acting as soverign when it issues orders that are enforced with jail time?
7.9.2009 7:00pm
Oren:
I have to agree with ReaderY -- there are no solutions here.

Perhaps what needs to happen is that before couples are married, they must sign a binding agreement on the disposition of their shared progeny upon dissolution of their marriage. That is, a prenup in which all the terms are hashed out and agreed in advance.
7.9.2009 7:01pm
ShelbyC:

Thus, evidence that the judge awarded custody for reasons of speech doesn't have to develop.



Well, then we already have to trust that the judge isn't acting for improper reasons, like the size of the mom's knockers. So if we make it clear that speech is an improper reason, that doesn't change anything, correct?
7.9.2009 7:07pm
Jim Miller (mail) (www):
You may like this story from my childhood: (It was told me by a kindly old teacher.)

A man came in to the school to complain about the language that his kid was using. And the man began his complaint by saying something like this: "Where in the blankety-blank is my kid learning all those dirty words." And went on for some time in that vein.
7.9.2009 7:09pm
Eugene Volokh (www):
ReaderY: The Supreme Court's Palmore v. Sidoti decision makes clear that awarding custody based on improper reasons -- there, a parent's interracial romantic relationship -- is unconstitutional. And that's true even though a court has no federal constitutional obligation to give any reasons at all.

The same is of course true in lots of other situations. A government employer has no federal constitutional obligation to explain the reasons for firing an employee, but if the reasons are based on the employee's race, sex, religion, or speech, then the action may be unconstitutional under the Equal Protection Clause or the First Amendment. And that's true even when the government is acting as employer; a fortiori, it would be so when the government is acting as sovereign, either modifying parental rights in a judicial proceeding or (even more clearly) issuing orders not to speak.

David Schwartz: As I argue in my article, orders restricting the visiting parent from teaching a religion that differs from the custodial parent's are generally unconstitutional -- and on that, many (though not all) courts agree. The constitutional proper rule should be to let both parents teach their own religious views during the time they have with the child.

Moreover, that's so even though in such cases the speech-restrictive orders are pursuant to "neutral rules" (chiefly that the custodial parent is entitled to teach her or his religion, and the visiting parent is barred from teaching his or her religion). In this case, it's clear that there was no "neutral rule"; the court was enjoining racist epithets but not epithets condemning racists. Even if one argues in favor of such a restriction (for instance, on the grounds that the First Amendment should allow viewpoint-based restrictions when they are in the best interests of the child), I think one needs to acknowledge that the restriction is hardly "neutral."
7.9.2009 7:09pm
whit:
i've said it before. i'll say it again. the war on domestic violence (which God knows has affected custody hearings, etc.) has resulted in some of the worst restrictions on basic liberties ESPECIALLY in instances where there has been little to no due process, and process that falls far short of the requirements of criminal court.

i have yet to see many cases in the war on drugs where people were restricted in what words they could use around their children, for pete's sake, which is an issue both of parental rights, and free speech rights
7.9.2009 7:30pm
Roger Schlafly (www):
I am appalled that some here (ReaderY, David Schwartz, Oren) would argue that married parents and single parents have free speech rights, but divorced parents with joint custody have no such rights.

There is no good cause for any judge to tell a parent what opinions he can express to his own kids. Period. Unless the parent is objectively causing some serious harm to the kids, the court should butt out.
7.9.2009 7:39pm
Oren:

I am appalled that some here (ReaderY, David Schwartz, Oren) would argue that married parents and single parents have free speech rights, but divorced parents with joint custody have no such rights.

I said no such thing.
7.9.2009 7:47pm
Splunge:
I'm astonished that Professor Volt thinks divorced fathers have constitutional rights. Is this one of those theoretical arguments about Utopia or whether God can make a rock so heavy he can't lift it?
7.9.2009 7:49pm
ShelbyC:

I'm astonished that Professor Volt thinks divorced fathers have constitutional rights.


In CT divorced fathers can be forced to pay their adult children's college tuition. Not so for not-divorced fathers, of course.
7.9.2009 7:57pm
skibum3157 (mail):
I generally agree that this sort of restriction is generally unconstitutional. However, I wonder if, under certain circumstances, it might be appropriate. For instance, if the court found that the child is suffering from actual psychological harm as a result of the speech.
7.9.2009 8:15pm
Laura(southernxyl) (mail) (www):
Suppose that Mom knows the child has said this to black kids and is worried that he will say this to the wrong person and get beat up. Please do not pretend that this is not a reasonable apprehension. Suppose that she has begged and pleaded with Dad to stop the language and he won't stop. What's she supposed to do?

And why can't Dad act like a grownup without making a judge tell him to?

IANAL, thank God.
7.9.2009 8:27pm
skibum3157 (mail):
Laura,
I think it is a reasonable apprehension, but that's not enough to justify this sort of prior restraint. For example, lets say the Father is an pro life and the child lives in a very liberal community. Certainly the kid could repeat the "wrong thing" (e.g. calling someone a "baby killer" or something of that nature) and get himself jumped. Without making a value judgment regarding the speech itself, there's really no way to distinguish the two situations.
7.9.2009 8:38pm
hospis (mail):
Lauds to a prudent and conscious judge. Blogger detects his prejudice by describing the offender's "niggers need to burn in hell," as "...evil IDEOLOGIES..." or "atheism, advocacy of homosexual rights, and a variety of other IDEOLOGIES": the offender's ejaculation isn't an ideology but instead an insult and "fighting words", and inculcating a child with race hatred isn't "advocacy". In a various and disparate populace, Free Speech is an instrument for resolving tribal conflicts and not for inciting vulgar mobs to tribal violence. Pursuant is the Opinion of another prudent and conscious judge:

"[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances. There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."

In defending the offender's "niggers need to burn in hell," Blogger estimates it to be either of social value or a step to truth; in contrast, the judge estimated the offender's "benefit" in insulting Africans to have been "outweighed by the social interest in order and morality."
7.9.2009 8:42pm
Laura(southernxyl) (mail) (www):
"Without making a value judgment regarding the speech itself, there's really no way to distinguish the two situations."

Sure. Why can't we make a value judgment?

Like this: "in contrast, the judge estimated the offender's 'benefit' in insulting Africans to have been 'outweighed by the social interest in order and morality.'"

I mean, we're not robots, we can think these things through. Right?
7.9.2009 8:59pm
http://volokh.com/?exclude=davidb :
Family law court: judges dealing with bad situations, enforcing bad laws, and often doing it quite badly.
7.9.2009 9:07pm
Roger Schlafly (www):
Laura, how would your proposed law read? No parent shall even express an opinion to his child which is contrary to social norms. No parent shall even express an opinion to his child if it encourages the child to say something that might be antagonistic to his classmates. Constitutional free speech rights shall be terminated on divorce. How far do you go? Don't you think that there might be some good reasons why we don't have laws like this on the books?
7.9.2009 9:20pm
MCM (mail):
Laura, how would your proposed law read? No parent shall even express an opinion to his child which is contrary to social norms. No parent shall even express an opinion to his child if it encourages the child to say something that might be antagonistic to his classmates. Constitutional free speech rights shall be terminated on divorce. How far do you go? Don't you think that there might be some good reasons why we don't have laws like this on the books?


Objections like this quite miss the point that once you are in family law court, you are far beyond the pale of "normal" law; you have entered the twilight zone.

Just think about the fundamental issue. Parents divorce: who is going to do a better job raising the child?

Right there, you have already thrown away everything that every other area of law is based on. You are asking who is better at raising a child. The entire history of Anglo-Saxon jurisprudence will avail you nothing. There's simply no way to make any of it fit the issue at hand.
7.9.2009 9:42pm
David Schwartz (mail):
David Schwartz: As I argue in my article, orders restricting the visiting parent from teaching a religion that differs from the custodial parent's are generally unconstitutional -- and on that, many (though not all) courts agree. The constitutional proper rule should be to let both parents teach their own religious views during the time they have with the child.
Why should the constitution be telling parents how to raise their children? Parents have every right to control the religious upbringings of their children. Prohibiting courts from enforcing these provisions deprives the custodial parent of this right.

Unless the judge makes up these rulings himself or they are against the wishes of *both* parents, this is just an example of the prevailing parent exercising *their* right to control the upbringing of their children.

You can't cut the baby in half. At least one of the parents will have to lose some set of the rights they would otherwise have to control the upbringing of the child that the other parents' similar rights are in force.

Excluding religion or speech from this zone diminishes parental rights rather than expands it. The parental choice to exclude a child from exposure to religion is no more or less worthy of state respect than the choice to include.
7.9.2009 10:01pm
David Schwartz (mail):
Moreover, that's so even though in such cases the speech-restrictive orders are pursuant to "neutral rules" (chiefly that the custodial parent is entitled to teach her or his religion, and the visiting parent is barred from teaching his or her religion). In this case, it's clear that there was no "neutral rule"; the court was enjoining racist epithets but not epithets condemning racists. Even if one argues in favor of such a restriction (for instance, on the grounds that the First Amendment should allow viewpoint-based restrictions when they are in the best interests of the child), I think one needs to acknowledge that the restriction is hardly "neutral."
I don't see any rational reason this framework should apply to decisions to allow one parent control of the child's upbringing over the other. This state is not acting in its normal capacity as sovereign here. The state is simply resolving the incompatible requests of the two parents in favor of one and against the other.

You can easily set up situations where either choice appears to infringe on the rights of one parent or the other to control the upbringing. For example, suppose both parents agree that it is better for the child to only be exposed to one religion but one wants Islam and the other wants Mormon. What should the court do? Betray the wishes of both parents?

So long as the court is neutrally arbiting the preferences of one parent against the incompatible preferences of the other, there is no issue. That is what the court must do.
7.9.2009 10:04pm
Roger Schlafly (www):
For example, suppose both parents agree that it is better for the child to only be exposed to one religion but one wants Islam and the other wants Mormon. What should the court do?
Sometimes it is best for the court to do nothing. No court can neutrally decide between Islam and Mormonism.

If both parents really agree that the court should do something, then they can hire a private arbiter. They can do that without asking the court to violate the Constitution. Cases usually end up in court because one party wants to force his/her preference on the other party, and the other party doesn't even want to be in court.
7.9.2009 10:38pm
Laura(southernxyl) (mail) (www):
Roger, all I know is that it looks like some folks want the rules to be set up in such a way that a computer could generate the output of the court system. You can't possibly predict every single thing a human being could do and make up rules that result in an appropriate outcome in every possible situation. That is why we have human beings who are judges.

When I was growing up and attending a Southern Baptist church, we learned the word "bibliolatry". In context, that meant worshipping the Bible itself instead of God, whom the Bible was about. I think the word could apply to us when we elevate the Constitution above every other consideration. We make it all right for a woman to hound a little girl to suicide, or for another woman to have to listen to offensive crap all day long in the workplace, in the name of freedom of speech. I think that when we throw out common sense in our rigidity about these things, we've left the path.
7.9.2009 11:08pm
David M. Nieporent (www):
Sure. Why can't we make a value judgment?
"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein."
7.9.2009 11:21pm
David Schwartz (mail):
If both parents really agree that the court should do something, then they can hire a private arbiter. They can do that without asking the court to violate the Constitution. Cases usually end up in court because one party wants to force his/her preference on the other party, and the other party doesn't even want to be in court.
The problem is simply that there is no adequate substitute. For similar cases where you can turn around and say "the courts should stay out", they can stay out and nobody's rights are violated. Here they can't.

If I'm hired to translate a work some consider holy into another language and I write dirty limericks instead, you can say the court should stay out of it. They can just not hire me again, or let me keep my advance but withhold subsequent payments. If I sue them for non-payment, you can pretty safely say that we should have negotiated some third-party arbiter up front.

But here, the prevailing parent's fundamental right to raise their child as *they* see fit is at stake. And if a court can't protect that right, then you have an equally serious, if not more serious, Constitutional rights violation on the other side.

In a custody battle, each party wants something that they cannot both have. And there are fundamental speech and religious liberty rights on both sides. This is a case where the government has no choice but to pick sides, because that's all there is. The government is not acting in its capacity as sovereign here.

A right not to have your child exposed to something you don't want them exposed to is just as fundamental as a right to expose your child to something.
7.9.2009 11:22pm
dirc:
Laura said:

...it looks like some folks want the rules to be set up in such a way that a computer could generate the output of the court system.

I was under the impression that one of the advantages of the rule of law is predictability of outcomes.

The more I read this blog, the more the legal system looks like kritocracy to me.
7.9.2009 11:26pm
whit:

We make it all right for a woman to hound a little girl to suicide


no we don't. we may make determinations as to whether or not she committed a CRIME. and/or whether a law is unconstitutional, etc.

it's a basic principle of rule of law that not all good laws are unconstitutional, nor are all constitutional laws promoting the good.

and that sometimes people can do mean things and suffer no penalty. the law is a blunt instrument.

if i saw lori drew committed no crime, it doesn't follow that it's "all right" what she did.

conversely, if i say johnny violated the law by possessing marijuana, it doesn't follow that i think it's "all right" that the state can punish him for it. it merely means said law exists, and is constitutional.
7.9.2009 11:31pm
whit:
edit: should be "not all potentially good laws are going to be CONSTITUTIONAL"
7.9.2009 11:33pm
11-B/2O.B4:

In CT divorced fathers can be forced to pay their adult children's college tuition. Not so for not-divorced fathers, of course.



That's ok, in Michigan, a man can be required to pay child support for the illegitimate offspring of his ex-wife and the man she ran off with, even if her cheating was what triggered divorce proceedings. In one case, the mother subsequently disappeared and the ex-husband was court-ordered to pay the child support directly to the BIOLOGICAL FATHER. Family court is legalese for "men, bend over and grab your ankles".
7.10.2009 12:11am
hospis (mail):
Blogger and commentators describe falsely the offender's speech. In reproving the judge, Blogger defines "neutral rules" with religion as an example:

"Moreover, that's so even though in such cases the speech-restrictive orders are pursuant to "neutral rules" (chiefly that the custodial parent is entitled to teach her or his religion, and the visiting parent is barred from teaching his or her religion)."

Blogger then defines the offender's speech consentaneously with "neutral rules":

"In this case, it's clear that there was no "neutral rule"; the court was enjoining racist epithets but not epithets condemning racists."

So Blogger estimates offender's speech to be similar to teaching religion. What religion is honored by the offender's speech, "niggers need to burn in hell,"?

Commentator Nieporent cites:

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein."

What politics, nationalism, religion, or faith is honored by "niggers need to burn in hell,"?

Blogger and commentators need to discern between sentence and insult, dispute and inciting to violence, and reason and animal passion. Rational humans construct civilized society, and democracy requires a rational citizenry; animals don't vote.
7.10.2009 12:15am
Roger Schlafly (www):
[Schwartz] A right not to have your child exposed to something you don't want them exposed to is just as fundamental as a right to expose your child to something.
We are talking about the views of the other parent. Are you claiming that one parent has a fundamental right to not have a child exposed to the views of the other parent? Says who? I have never even heard anyone express such an extreme opinion, and no law or court has ever said that it was a fundamental right.
This is a case where the government has no choice but to pick sides, because that's all there is.
No. As the above Robert Jackson quote shows, no judge can choose a religion for a child.

I don't know why you would say that the govt has no choice. It can certainly do nothing. What's going to happen? One parent is going to disapprove of some comments being made by the other parent? Big deal. That probably happens in 90% of all families, whether the parents are married or divorced.
7.10.2009 12:17am
http://volokh.com/?exclude=davidb :

Family court is legalese for "men, bend over and grab your ankles".

I'm not sure I'd go quite that far. Much of the institutional bias of the family law courts flows against the party who makes the bulk of the money for the household. Often, but certainly not always, that's the husband/father.

With that said, if you collected all the really horribly unjust results in family law courts -- and it sounds like that's a hobby of yours -- I think you would indeed find that men are more often victimized than women.

I'm not really sure why that is. It may be that family law court proceedings (which I think of as "character assassination followed by checkwriting") favor women because our society more readily sees women as virtuous victims in these tawdry dramas. It may also be that a steady diet of deadbeat dads, who richly deserve punishment, slowly infuriates courts and makes them a bit misanthropic.
7.10.2009 12:29am
Kazinski:
Why don't we just go ahead and recognize that children are property of the state and that parents are just the default guardians in absence of state action?

Well that is except for the father's obligation to pay child support, and college tuition.
7.10.2009 1:28am
Ricardo (mail):
That's ok, in Michigan, a man can be required to pay child support for the illegitimate offspring of his ex-wife and the man she ran off with, even if her cheating was what triggered divorce proceedings.

In Pennsylvania, also. There is a prosaic reason for this, though: the laws governing divorce and child support were written before paternity tests existed. It was much easier to presume that any child born to a married woman was fathered by the woman's husband and to demand child support from him in the event of a divorce.

Now, however, this presumption is obsolete and should be replaced with a presumption that can be rebutted through paternity tests. But I don't think these kinds of cases arise because of some man-hating bias on the part of lawmakers or family court judges.
7.10.2009 2:41am
David Schwartz (mail):
We are talking about the views of the other parent. Are you claiming that one parent has a fundamental right to not have a child exposed to the views of the other parent? Says who? I have never even heard anyone express such an extreme opinion, and no law or court has ever said that it was a fundamental right.
It doesn't matter whose views they are. The right to decide that you don't want your child exposed to certain views is fundamental. If the rights of the two parents conflict, the courts will have to choose sides. But the right not to expose your child to things is as fundamental as the right to expose your child to things.

I don't know why you would say that the govt has no choice. It can certainly do nothing. What's going to happen? One parent is going to disapprove of some comments being made by the other parent? Big deal. That probably happens in 90% of all families, whether the parents are married or divorced.
In which case, the right of the parent who wishes to stop exposure *always* loses, even if it's clearly against the best interests of the child. I cannot imagine how that could conceivably be a fair outcome.

For example, if one parent wishes to force the child to go to church for 8 hours a day, you would not give the other parent any power to stop it? And the courts couldn't even reduce that parents visitation times because of it? Even if there was objective evidence it was harming the child?

Sorry, I can't buy into that.
7.10.2009 3:13am
Roger Schlafly (www):
If a parent wants to use the courts to prevent the child from learning the opinions of the other parent, then that parent ought to lose. The courts have no business preventing parents from telling children their opinions.

We have child abuse laws to deal with parents who are objectively harming their kids. Those laws apply whether the parents are married or not. If you suspect objective harm, then call CPS. But I cannot see any circumstances that would justify a family court ordering a parent not to tell the child his opinion.

You may think that church for 8 hours a day is bad. Some kids watch TV 8 hours a day. Some work on the farm for 8 hours a day. Some practice for spelling bees 8 hours a day. If you don't approve, then I suggest that you lobby for laws against those things. But it ought not to be the concern of the family court.
7.10.2009 4:10am
David M. Nieporent (www):
Commentator Nieporent cites:

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein."

What politics, nationalism, religion, or faith is honored by "niggers need to burn in hell,"?
Well, white supremacy, presumably.
7.10.2009 8:48am
David M. Nieporent (www):
But the right not to expose your child to things is as fundamental as the right to expose your child to things.
You're not talking about the right not to expose your child to things; you're talking about the right to keep other people from exposing your child to things. That's certainly no right, fundamental or otherwise.
7.10.2009 8:51am
Anderson (mail):
I guess I'm not grasping the outrage here.

If this order is constitutional, what other orders would be permitted?

Slippery slope, fine. But I think a court can reasonably determine that, oh I dunno, "those fucking spics" is speech with sufficiently little value that its bad effects outweigh its values, at least in the particular context of childrearing. Some readers may recall antique eras when profanity around children was a social taboo, even.

It's a bit of a stretch from that to inferring that instilling racist teachings, however obnoxious, would be prohibited by the court, or that it could do so constitutionally.
7.10.2009 9:08am
Anderson (mail):
What politics, nationalism, religion, or faith is honored by "niggers need to burn in hell,"?
Well, white supremacy, presumably.


Right, but the prohibition doesn't forbid instilling white supremacist teachings (whatever those are, Houston Stewart Chamberlain?). It prohibits an extended version of George Carlin's list.
7.10.2009 10:21am
LarryR (mail):
The comments of Laura, Hospis, and others supporting this ruling illustrate the racial exception to the First Amendment: speech will be vigorously protected unless it's anti-Black.

The ruling might also be explained, as MGM observed above, by the nature of family courts. In several important respects family courts and family law aren't like real courts and real law. They are far more arbitrary and the judges seem to be allowed to indulge their caprices with few limits as to what they can do.
7.10.2009 10:56am
Laura(southernxyl) (mail) (www):

The comments of Laura, Hospis, and others supporting this ruling illustrate the racial exception to the First Amendment: speech will be vigorously protected unless it's anti-Black.


Larry, are you assuming that I would not object to the father's telling the kid that white people should burn in hell? If so, what have I ever said, here or anywhere else, that would lead you to believe that?
7.10.2009 11:33am
Smooth, Like a Rhapsody (mail):
hullaballoo

No one is forced either to get divorced or have the issues in a divorce decided by a judge.
Once you do ask a court to intervene, the court will look at the best interests of the child--not how your constitutional rights are impaired by your duty to act in your child's best interest.
To wit:
1. You must take and pass a drug screen every two weeks in order to maintain your visitation--no 4th amendment argument is going to be valid;

2. You must rid your home of firearms (I know, I know: this is red meat on this blog) in order to maintain your visits--no 2nd amendment violation, assuming the child's best interests are served by the restriction;

3. You live in Nevada and are a freelance call girl/guy--no transacting in the house while the children are present--too bad if that impairs your right to earn a living.

4. Don't smoke around the child...don't consume porn around the child...

I am sure that there are many other examples.


The standard of review, at least in my state, is (I am pretty sure) abuse of discretion.
7.10.2009 11:39am
Roger Schlafly (www):
No one is forced either to get divorced or have the issues in a divorce decided by a judge.
Actually millions of parents are forced. We have unilateral (aka no-fault) divorce in nearly every state, in which one spouse can force the other parent to get divorced. Regardless of any marriage issue, one parent can always ask the court to intervene in a child care issue, against the wishes of the other parent.

Yes the court may cite the BIOTCH in ordering the removal of firearms, but no one has even shown that the removal really is in the child's interest.
7.10.2009 12:01pm
Roger Schlafly (www):
Larry, are you assuming that I would not object to the father's telling the kid that white people should burn in hell?
Laura, your position, as I understand it, is that you are against there being some predictable set of laws that parents must obey. Instead you want judges to make value judgments about whether the parent's behavior offends his personal opinions about social interest.

The enforcers of politically correct speech don't care if you say white people go to hell. They care if you say black people go to hell.
7.10.2009 1:35pm
Anderson (mail):
The enforcers of politically correct speech don't care if you say white people go to hell. They care if you say black people go to hell.

Depends on which enforcers, doesn't it? How many hours a week does FoxNews spend on enforcing politically correct speech?
7.10.2009 2:28pm
cbyler (mail):
Would the constitutional aspects of this discussion be any different if the father had said "faggots need to burn in hell"? I don't see how they could be, even though that's just a cruder restating of the official doctrine of several major religions.

What if the kids' stepfather is black (a circumstance that might inspire, or intensify, the father's attitude)? _Now_ does it harm them to hear the father's opinions?
7.10.2009 2:35pm
Dan Hamilton:
I am suprized at the lack of violence toward Family Court judges and lawyers. No where in this society are men messed over more then in Family Court. From being labeled child molesters, dead beats, etc. To being forced to turn over their life savings and future income without being able to do one thing to ensure that they money is actually spent on the children.

In Fort Worth, Tx there was a case. The man had been messed over in Oklahoma. Then his ex took the children to Texas without even telling him then wouldn't let him see them. He went to Texas courts and got shafted again. Later he walked into the court house shot the Judge and lawyers and then walked out. He got clean away. He then wenjt to the local TV station and explained WHY he had done it. Because he was sick and tired of being messed over by Family Court. He was tried. He pleaded guilty. was sentence to death and 18 months later was excuted. Yes, that is right 18 months not 10 years. Because he represented himself and had NEVER had a lawyer. There was no basis for any lawyers to crash his case and use the system to delay the ececution.

Unless Family Court fixes itself there are two things that will happen.
1. Men will delay or stop marrying. Already happening.
2. Fathers will get so flustrated that they will crack and attack the court.

BOTH are bad for society.

Family Court needs to clean up its act.
7.10.2009 2:43pm
Laura(southernxyl) (mail) (www):

Laura, your position, as I understand it, is that you are against there being some predictable set of laws that parents must obey. Instead you want judges to make value judgments about whether the parent's behavior offends his personal opinions about social interest.


Larry, let me help you understand my position a little better.

Of course there must be some predictable set of laws that parents must obey. But you can't predict every single thing that a parent - or any human - might do, and so every now and then you have to give the judge some leeway to use his judgment - hence his being called a "judge" not "law reader" or whatever.

And I don't think the choice is between the law and the judge's personal opinions about social interest, either. The father may argue that there is no law against his using racially inflammatory language in front of his children. Perhaps this is true. The mother may argue that the children are picking this up, against her best efforts to prevent it, and that in addition to her not wanting them to pick up his offensive attitudes, she doesn't want her kids to be in a position to be beaten up by offended black folks. Now it is the judge's turn to consider these positions and come to a decision about them. I don't see the dichotomy you seem to see, between a robot-like interpretation of the law, and any whimsical, inexplicable, eccentric view that that particular judge might have woken up with that morning.


The enforcers of politically correct speech don't care if you say white people go to hell. They care if you say black people go to hell.


I've been reading Solzhenitsyn for a number of years, as well as other authors who describe life in the Soviet Union where political correctness was a matter of life and death. Political correctness is not a concept I would ever support. I do not conflate political correctness with mature, reasonable behavior. Note that I am not saying that the courts have to make people act mature and reasonable. I am saying that refraining from ugly racist language - against black people, white people, or anybody else - is mature and reasonable. When you call this "political correctness" you're destroying the use of that term. If the day comes that calling President Obama "the man with the mustache" in a private letter to a friend gets you sent to the Gulag, then I'll listen to your complaints about political correctness.

The father here is not being sent to prison, or internal exile, or fined, or being prevented from seeing his kids. He is being told not to act like an utter a-hole around them. Is this really such a tragedy? Well, it's a tragedy that he seems to need somebody to tell him to stop acting that way, I'll grant you, but other than that?
7.10.2009 3:22pm
RichW (mail):
Jim Miller:

I actually witnessed a very similar situation when I was in my early 20's. My very small cousin was told to go to bed and as he went off up the stairs, he is muttering to himself, some choice phrases about it not being fair. After that, my aunt with a perfectly straight face said I don't know where he gets that GD, s---ing language from! It was all I could not to burst out laughing though in the car on the way home my parents and I laughed so hard.
7.10.2009 3:40pm
Rr:

I am saying that refraining from ugly racist language - against black people, white people, or anybody else - is mature and reasonable.


Would you consider a judge telling the the parent to refrain from any "ugly discriminatory language" to be reasonable? For example if the father we're to say "homosexuals are an abomination in the eyes of God and they will burn in hell" ? What about a similar statement made about other religions such as Islam? I would argue that people who make such statements are not acting mature and reasonable, but many people will vehemently disagree with me. So where is this line of reason?
7.10.2009 3:46pm
Rr:
Err. replace that "will burn in hell" with "should burn in hell" for effect. But you get the gist of it.
7.10.2009 3:50pm
Roger Schlafly (www):
If I had read that a father in China had been ordered not to express certain opinions to his children, then I would say that only someone who grew up under Communism would accept such nonsense. But my Chinese friends say that this is not even ordered in China.

You may think that such orders are harmless, but they are not. Visit your local family court. Good fathers and mothers are denied access to their own kids every day, based only on the whims and prejudices of some silly judge. Maybe the father said a racial slur, or got drunk, or let the kid out of his sight, or spanked the kid for bad behavior, or whatever. Some judge will say that he has to attend some parenting classes or get a psychological evaluation before seeing his kids again. I've seen parents being given a never-ending sequences of tasks to do before seeing their kids. Some give up.

No, it is not quite the same as being sent to the Gulag. However, I believe that someday it will be recognized that family court in the USA is as immoral and as destructive as the Gulag.
7.10.2009 3:58pm
mariner:
Family court is legalese for "men, bend over and grab your ankles".

For smarter men, family court is legalese for "Don't get married."
7.10.2009 7:00pm
Anatid:
If it makes you feel better, I have an anecdote from California: the husband had been a stay-at-home father and raised their daughter full-time while his wife was an attorney. In the divorce, the courts awarded him custody as well as child support, since he'd been the one raising the child and she'd been the breadwinner.

(Sadly, though, it didn't end well. She retaliated by informing the courts about a medication he had been prescribed after an accident, portraying him as a drug addict, and now he has to fight through that system in order to be able to see his daughter at all.)
7.10.2009 7:01pm
mariner:
Now, however, this presumption is obsolete and should be replaced with a presumption that can be rebutted through paternity tests. But I don't think these kinds of cases arise because of some man-hating bias on the part of lawmakers or family court judges.

That this obsolete presumption continues to control, despite ample evidence of its obvious inequity, IS a result of man-hating family court judges.
7.10.2009 7:08pm
Laura(southernxyl) (mail) (www):

that someday it will be recognized that family court in the USA is as immoral and as destructive as the Gulag.


Damn. You are kidding, right?
7.10.2009 9:16pm
Roger Schlafly (www):
Don't take my word for it. Just visit your local family court, and see the evil for yourself.
7.12.2009 6:37pm
Laura(southernxyl) (mail) (www):
Okay, Roger. And how about you go to the library and check out "The Gulag Archipelago" or "One Day in the Life of Ivan Denisovich" or "The First Circle" so you can see what you are comparing family court to. The people sent to those camps, to hard labor and systematic starvation that they weren't expected to survive, would have given anything to trade places with someone who only had to mail off a check every month for eighteen years. Or who had any kind of chance at seeing their kids at all, ever. I'm not saying that people don't ever get the shaft in family court. I'm saying that your comparison here is absolutely stunning in its un-aptness.
7.12.2009 8:51pm

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