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Another Quote from a Child Custody Case,

D.J.T. v. L.S., 2001 WL 492492 (Del. Fam. Ct.):

This Court also has concern regarding Father's decision-making in allowing [son] to watch certain R-rated movies. While Gladiator may not be such a poor decision, clearly a movie that has sexual content would be. Mother testified that [son] was allowed to see the movie American Pie which has sexual content.

The son was 14 at the time of the court decision; I suppose he might have been a year or maybe even two younger at the time of the movie watching, but the court's discussion suggests to me that it's talking about the son roughly at the age he is at the time of the hearing, rather than when he was many years younger.

As I've suggested before, it seems to me that courts ought not make such child custody decisions based on the parents' exercise of their First Amendment rights, which include letting their children watch or read various materials. Perhaps the rule might be different as to hard-core pornography, but American Pie, whatever its merits or demerits, surely doesn't qualify as that. Likewise, there is much more of an argument for considering even speech (or exposure to First-Amendment-protected materials) when there's serious evidence that the speech is likely to cause imminent harm to the child. But again, that's a very hard case to make about American Pie.

In any case, I've written much more about this before, but I just thought I'd pass along this one extra data point.

Steve:
Is it really the First Amendment that protects your right to let your children read something? Meyer v. Nebraska would suggest that it's more of a substantive due process right.
8.11.2009 2:20pm
Kevin R (mail):
Well, willingly watching American Pie strikes me as pretty poor decision-making too.
8.11.2009 2:26pm
Roger Ford (mail):
Even setting aside the first amendment question, I'm kind of horrified that the court thinks violence is okay but sex is bad.
8.11.2009 2:26pm
Joseph Slater (mail):
First, I have to admit that the reference to Gladiator made me think of the line in the old "Airplane!" film, "Joey, do you like movies about gladiators?"

More substantively, "R" means the ratings folks have decided it's OK, at least in many circumstances, for minors to view the movie when accompanied by a parent. Those circumstances seem likely to include a relatively older minor (as here, 14) watching a movie that gets its R rating from juvenile titilation sex stuff -- stuff that is pretty darn common on mainstream cable TV shows and far surpassed on many free internet sites (or so I hear).

I hope this is a throw-in, make-weight sort of argument and that the court didn't rely on it as a significant factor (I say, demonstrating that I didn't actually read the case).
8.11.2009 2:30pm
Oren:
After watching This Film is Not Yet Rated, I have absolutely zero confidence in the accuracy of the MPAA rating system.

You might as well cite astrological signs, as far as I'm concerned.
8.11.2009 2:45pm
Anderson (mail):
For the sake of discussion, is there a film so raunchy that a custody decision might take it into account in this context?

Porn? The Dreamers? Anything?
8.11.2009 2:47pm
Jon Rowe (mail) (www):
I'm glad my parents never got divorced. They let me see R rated movies in the theaters like Caddyshack, Beverly Hills Cop, Fast Times At Ridgemont High and Stripes when I was in the single single digits. (I was born in 1973). The fun part was, growing up, watching the movies over again on HBO and VHS where as I matured, I slowly got more of the "jokes" I didn't originally understand.
8.11.2009 2:50pm
Jon Rowe (mail) (www):
Let me note that I have very FOND memories of those movies from childhood and it didn't stop me from going on and living a productive successful life, getting three graduate degrees (one of which is a law degree) becoming a college professor.
8.11.2009 2:52pm
A Law Dawg:
the speech is likely to cause imminent harm to the child. But again, that's a very hard case to make about American Pie.


Later American Pie sequels, however, are conclusive evidence.
8.11.2009 2:54pm
Anderson (mail):
getting three graduate degrees (one of which is a law degree) becoming a college professor

Scarred you for life, in other words.
8.11.2009 2:55pm
u. saldin (mail):
What utter bullshit. Extreme violence is fine but gosh forbid he hears blowjob jokes or sees a boob!
8.11.2009 2:57pm
Rusty Shackleford (www):
Seeing a man get his face smashed in by a mace is a normal rite of passage for a teenage boy.

But he should not see an exposed female breast until his wedding night, or he'll be scarred for life.
8.11.2009 3:06pm
Sean O'Hara (mail) (www):
The court is really begging the question here. Why is a film like Gladiator okay but American Pie beyond the pale?
8.11.2009 3:14pm
Gregory Conen (mail):
@Rusty: Probably true, in some historical societies. Of course, the wedding night could happen at 14 or so...
8.11.2009 3:18pm
MCM (mail):
While Gladiator may not be such a poor decision, clearly a movie that has sexual content would be. Mother testified that [son] was allowed to see the movie American Pie which has sexual content.


Ah, prudishness. It's as American as apple pie... err... hmm.
8.11.2009 3:19pm
John (mail):
The First Amendment allows much that is not in a child's best interests, including pornography, depictions of cruelty and violence, etc. Thus, there is nothing inherently wrong with the notion that something protected by the First Amendment may be taken into account in a custody battle. The issue is not whether the suspect conduct implicates the First Amendment, but whether it is in the child's best interest.
8.11.2009 3:21pm
Anderson (mail):
In some societies, smashing a guy's face in with a mace is a condition precedent to sexual initiation.
8.11.2009 3:21pm
Joseph Slater (mail):
For the sake of discussion, is there a film so raunchy that a custody decision might take it into account in this context?

Porn? The Dreamers? Anything?


By "in this context" do you mean "for a normal 14 year old"? Because it's easy to think of films that are wildly inappropriate for kids in the single-digit ages.

But it would be hard for me to think of an R-rated movie that, if shown once to a normal 14 year old, would be so wildly inappropriate as to weigh heavily in a custody decision. There are certainly R-rated movies with creepy, violent, and/or highly-sexualized themes that I personally wouldn't recommend for an average 14 year old, but I don't think I would deny custody over it.

Maybe if it was a 14 year-old with special sensitivities ("I know you were molested as a child, but I think the best way to get you over that is to watch a film graphically depicting child molestation, so let's go!").

Of course if it really was porn -- an X-rated film -- then I guess we have the judgement of society that nobody under 18 should see this stuff, period. I imagine in some cases the parent would actually be breaking the law showing that stuff to a minor. Which is arguably a difference in kind as well as in degree.
8.11.2009 3:23pm
Virginian:
Call me old-fashioned (you won't be the first), but I don't think a 12 or 13 year old should be watching either of those movies.
8.11.2009 3:28pm
Ex-Fed (mail) (www):
I wouldn't show my kids either one. But finding nudity and sex jokes to be damaging and decapitations and buckets of gore to be benign strikes me as quite odd.
8.11.2009 3:31pm
Anderson (mail):
if shown once to a normal 14 year old

Interesting. What about a steady, say daily (well, nightly) diet of sex/language/violence R movies?

I find that parenting has made me more prudish; I was annoyed that Watchmen included that godawful sex scene, for instance, and wouldn't let my 13YO go see it.

(Tho admittedly this betokens parental politics in part; I will be surprised if he hasn't already seen the DVD at some friend's house.)
8.11.2009 3:31pm
A.:
What crock. The hoary judge is far out of touch with the realities of a modern fourteen-year-old's life. The internet exists, and kids know how to use it better than almost anyone. The kid probably downloads whatever movies he wants, watches porn, and gets blow jobs from his girlfriends. It's cute that Grandpa, J., doesn't approve, but to allow denial and a hidebound puritanism to enter into a legal decision is horribly silly.
8.11.2009 3:38pm
LarryA (mail) (www):
@Rusty: Probably true, in some historical societies. Of course, the wedding night could happen at 14 or so...
Of course such societies tended to be agrarian, so there was explicit sex-talk around the dinner table. As in, "Son, if you don't take the cow to see the neighbor's bull tomorrow we're going to run out of milk." As for audiovisuals, kind of hard to miss if your family lives in a tent, or other one-room dwelling.

True sexual privacy didn't come along until the 1950s, with the invention of air conditioning and widespread ownership of automobiles.
The issue is not whether the suspect conduct implicates the First Amendment, but whether it is in the child's best interest.
Witnessing or being subject to a successful violation of civil rights is not in a child's best interest.
8.11.2009 3:39pm
vinnie (mail):
No rancher stands a chance then. Most ranches not only have animals performing sex LIVE but actual carnage.
8.11.2009 3:42pm
Anderson (mail):
Then there's this rating advisory from the NYT on G.I. Joe: The Rise of Cobra:

"G.I. Joe: The Rise of Cobra" is rated PG-13 (Parents strongly cautioned). Numerous and completely unscientific studies have shown that a steady diet of idiotic entertainment can be harmful to your health.

Manolah Dargis can moonlight as an expert witness in child-custody cases!

(The lead pic with the review is great; it's like the cast is glaring offscreen at the screenwriters, letting them know how the actors feel about reciting this crap.)
8.11.2009 3:45pm
Mike McDougal:
Violence good. Sex bad.
8.11.2009 3:46pm
AndyM (mail):

The court is really begging the question here. Why is a film like Gladiator okay but American Pie beyond the pale?

Because American Pie was vapid trash and Gladiator was a good movie? If you're going to show the kid something involving sex, at least go rent "A Clockwork Orange", which has some redeeming features.

More seriously, because the US has a strange sexual hang-up, but doesn't mind violence. This appears to be because the portion of the country that cares enough about "moral issues" to vote based on them is very pro-gun, but also very religiously anti-sex. The anti-gun and pro-sex portion of the country don't care enough about those issues to push back on them, with the result that portrayals of violence in entertainment are fine, and portrayals of sex are not; this attitude is reversed in many other parts of the world where religion is weaker but memories of devistating combat are fresher.
8.11.2009 3:47pm
Mike McDougal:

The court is really begging the question here. Why is a film like Gladiator okay but American Pie beyond the pale?

Do you think the court even realized what it was doing?
8.11.2009 3:47pm
PersonFromPorlock:
Adolescent boys and sex. I'm obscurely reminded of a Heinlein line: "Eighteen, when a girl is husband high and a boy ought to be sealed in a barrel and fed through the bung hole."
8.11.2009 3:52pm
Anderson (mail):
Because American Pie was vapid trash and Gladiator was a good movie?

I don't see how teaching your child that, thanks to Russell Crowe, the Roman Empire didn't decline and fall after all, counts as a good movie. Hell, if I were the chancellor, I would've ruled against the dad on THAT basis.
8.11.2009 3:53pm
Oren:

I find that parenting has made me more prudish; I was annoyed that Watchmen included that godawful sex scene, for instance, and wouldn't let my 13YO go see it.

You don't think the whole excusing-the-murder-of-millions part was significantly worse than awkward sex?
8.11.2009 4:00pm
MCM (mail):
You don't think the whole excusing-the-murder-of-millions part was significantly worse than awkward sex?


It was a REALLY bad sex scene. I remember cringing and face-to-palm a few times.
8.11.2009 4:04pm
rick.felt:
Violence good. Sex bad.

Just thinking out loud here, but... isn't that (for better or for worse) an accurate summary of the law? The Supreme Court says that sexual content that violates community standards can be restricted, but there's no equivalent prohibition on violent content that violates community standards. There's no "obscenity" for violence.

So if the current law is:

Intense violence = always okay for adults
Graphic sex = not always okay for adults

...doesn't it stand to reason that:

Moderate violence = always okay for minors
Moderate sex = not always okay for minors?

This family law judge didn't create a legal regime in which sex and violence are treated differently. If the Supreme Court says implicitly that sex is worse than violence, is it unreasonable for this judge to agree?
8.11.2009 4:09pm
A Law Dawg:
It was a REALLY bad sex scene. I remember cringing and face-to-palm a few times.


No such thing exists to the 13 YO male.
8.11.2009 4:10pm
Anderson (mail):
You don't think the whole excusing-the-murder-of-millions part was significantly worse than awkward sex?

Well, that was something you could kinda discuss afterwards. Besides ...

It was a REALLY bad sex scene.
8.11.2009 4:11pm
A Law Dawg:
Why is a film like Gladiator okay but American Pie beyond the pale?


Because humans are far more prone to have sex than stab somebody in the chest with a gladius.
8.11.2009 4:11pm
Connie:
I raised a fuss last year because the public school history teacher (world history) wanted to show both The Gladiator and 300 to the freshman class. I know some 14 year old boys can't learn anything unless it's in pictures, but come on, is this any way to teach history?!
8.11.2009 4:12pm
A Law Dawg:
I raised a fuss last year because the public school history teacher (world history) wanted to show both The Gladiator and 300 to the freshman class.


I showed a portion of Gladiator to my students. The opening battle is great.
8.11.2009 4:14pm
A Law Dawg:
The second ambush in Last of the Mohicans as well.
8.11.2009 4:15pm
BABH:
I thought the awkward Watchmen sex scene was one of the best I've ever seen. It's supposed to be awkward, just like real sex can sometimes be.

In the curious trivia department, American Pie II was written by David Steinberg, a former law clerk for Jerry Smith on the 5th Circuit. Other notable Smith clerks include the Conspiracy's own Todd Zywicki and Ilya Somin.
8.11.2009 4:39pm
ShelbyC:

The court is really begging the question here. Why is a film like Gladiator okay but American Pie beyond the pale?


Maybe the mom was unhappy that she couldn't leave a pie out to cool anymore?
8.11.2009 4:43pm
einhverfr (mail) (www):
Connie:

I raised a fuss last year because the public school history teacher (world history) wanted to show both The Gladiator and 300 to the freshman class. I know some 14 year old boys can't learn anything unless it's in pictures, but come on, is this any way to teach history?!


First, I really don't see a reason why this is particularly problematic. I don't think one gets a sense of the sort of the violence involved from an average HS history book. I suppose we could make them read Herodotus's Histories, but this is more reading than most HS freshmen do in a year across all subjects.

Would you object if HS Freshmen were asked to read Grettir's Saga, or Egil's Saga for a unit on the Vikings?

BTW, Thermopylae is IMO way overrated as a battle anyway. 300 Spartans fought to the death for no reason other than to bring fame to Sparta. It didn't really delay Xerxes long, and the only reason the Persians were defeated later was because of the sound defeat of their navy at Salamis. Herodotus notes that this made the Persians afraid of being trapped on the Greek side of the Bosporus and so over half of their army (including Xerxes) retreated rather than fight at the Isthmus of Corinth. Some later historians suggest that this was more of an issue with cut supply lines, but given that half the army remained suggests that Herdotus's account may be quite close to the truth.

We need a good, violent movie about Salamis. That would be certainly appropriate for coverage of such a war. In covering WWII, I think it would be good to have a movie on the battle which soundly defeated Japan for all strategic purposes too (Leythe Gulf. which cut Japan off from petroleum resources and put the Japanese navy and most of the air force out of the fight). Interestingly, Salamis and Leythe Gulf are both candidates for the largest naval battles in history.
8.11.2009 4:49pm
JPG:
Would Gladiator be about 21st century wrestlers fighting each others to death on a ring, it would be a different case. Surely, there are violent scenes in the movie, but they also have to be understood in their context as they take place in different and more violent times. No matter how historically (in)accurate, it is less likely to mold one's contemporary behaviour, let alone an easily influenced child than a modern scenario.

This being said, I strongly disagree with the Court on this one. American Pie doesn't strike me as particularly harmful to children's morality, but that may just be my European leanings kicking in...
8.11.2009 4:55pm
Bob from Ohio (mail):
"First Amendment rights" to watch American Pie.

I think I hear Madison weeping.
8.11.2009 4:57pm
John Burgess (mail) (www):
PersonFromPorlock: I've long seen the 'fed through a bunghole' line attributed to Mark Twain. I think Heinlein was loosely paraphrasing.

Connie: I'm not perturbed by using those films to teach history, so long as they don't comprise the entire lesson. They're certainly attention-grabbers, something that many/most history classes lack. They're also good launching pads for discussion of what history we know of the events portrayed.

I know I certainly started learning about history through films that were less than academically accurate: "The Alamo", "Tale of Two Cities", "The Naked Jungle", among many others. Getting a young mind interested in something is the start to developing careers in myriad fields, not to mention developing general knowledge.
8.11.2009 5:06pm
Roger Schlafly (www):
Yes, choice of movies is a pretty lousy basis for a child custody decision. But then so are all the other reasons that the courts use to divide parents.
8.11.2009 5:14pm
ShelbyC:

...sealed in a barrel and fed through the bung hole


In case clarification is in order, the bung hole is the hole in the side of a barrel.
8.11.2009 5:16pm
Anderson (mail):
In covering WWII, I think it would be good to have a movie on the battle which soundly defeated Japan for all strategic purposes too (Leythe Gulf. which cut Japan off from petroleum resources and put the Japanese navy and most of the air force out of the fight)

Leyte Gulf would only make a good movie because Halsey was an idiot and made the battle more interesting.

Though if people were watching what they thought was a fictional account, and saw Kurita withdraw, they'd boo and hiss at such a ridiculous turn of the plot, obviously put in to save the heroes from certain death.
8.11.2009 5:18pm
A Law Dawg:
Leyte Gulf would only make a good movie because Halsey was an idiot and made the battle more interesting.



Everything I needed to know about Leyte Gulf I learned from Red October.

"You conclusions were all wrong, Ryan. Halsey acted foolishly."
8.11.2009 5:23pm
Bob Goodman (mail) (www):
Why is a film like Gladiator okay but American Pie beyond the pale?

Because humans are far more prone to have sex than stab somebody in the chest with a gladius.

Hey, seems people here have figured out the unstated rationale that's out there; I thought I was the only one. Portrayals of sex activity are treated as something like an attractive nuisance, while violence is understood as inherently revolting and hence its portrayal is considered not as much a threat to society or to the young.

Gladiator's the scariest movie I've ever seen.
8.11.2009 5:24pm
Oren:

Yes, choice of movies is a pretty lousy basis for a child custody decision. But then so are all the other reasons that the courts use to divide parents.

The parents were already irreconcilably divided -- the court here just has to flip a coin.
8.11.2009 5:25pm
Whadonna More:

Because humans are far more prone to have sex than stab somebody in the chest with a gladius.

Not to muddle the issue with facts, but Gladiator includes sex (some incest and threatened pedo-incest, at that).
8.11.2009 5:40pm
Bob White (mail):
Just remember, horrific, deplorable violence is ok so long as you don't say any naughty words!

In my history class freshman year of high school, we watched The 300 Spartans, which is significantly more accurate and better than 300.
8.11.2009 5:49pm
SuperSkeptic (mail):
The First Amendment allows much that is not in a child's best interests, including pornography, depictions of cruelty and violence, etc. Thus, there is nothing inherently wrong with the notion that something protected by the First Amendment may be taken into account in a custody battle. The issue is not whether the suspect conduct implicates the First Amendment, but whether it is in the child's best interest.

Maybe you're right, but it does put the parent who exercises his/her rights at more of a disadvantage in family court, should the two ever separate. No surprise there, but almost certainly not the kind of result we (should) want.

rick.felt:
Violence good. Sex bad.

Just thinking out loud here, but... isn't that (for better or for worse) an accurate summary of the law? The Supreme Court says that sexual content that violates community standards can be restricted, but there's no equivalent prohibition on violent content that violates community standards. There's no "obscenity" for violence.


Very interesting observation.

Confirms my belief that our First Amendment jurisprudence is way out of wack: subjecting minority rights that are fundamental to "community standards" is also, almost certainly not the kind of result we (should) want.
8.11.2009 5:53pm
Dilan Esper (mail) (www):
Something strange must have happened to that judge at band camp.
8.11.2009 6:01pm
Kirk Lazarus:
Joseph Slater:

Of course if it really was porn -- an X-rated film -- then I guess we have the judgement of society that nobody under 18 should see this stuff, period. I imagine in some cases the parent would actually be breaking the law showing that stuff to a minor. Which is arguably a difference in kind as well as in degree.


I assume you're referring to film of people actually having sex. Why shouldn't minors have factual information about sex?
8.11.2009 6:03pm
zuch (mail) (www):
My parents told me to go see "The Graduate" when I was 14.... Guess that's how I ended up so twisted I'm a leftist. ;-)

Cheers,
8.11.2009 6:11pm
Roger Schlafly (www):
The obvious solution is for the mom to choose the movies when the boy is with her, and the dad to choose when the boy is with him. As long as the boy spends time with both parents, there is no likelihood that the boy will suffer any more than all the other kids who watch these movies.
8.11.2009 6:18pm
SFH:
Has the kid expressed a new interest in musical instruments?
8.11.2009 6:26pm
Anatid:
I remember when American Pie came out. My parents wouldn't let me see it (gasp, a young person on VC!) because it was too graphic. That movie, and hundreds of others. The social "damage" bestowed upon me by my classmates for being culturally clueless stayed with me far longer than any sex scene in a movie would have.

And yes, I'd discovered the internet by then, and no, there weren't any parental controls. My parents didn't even bother to warn me about porn, or giving out personal information in chatrooms. A great many why-oh-why-am-I-looking-at-this moments later, I learned to avoid obscenity online on my own.
8.11.2009 6:30pm
ShelbyC:
And Dilan wins the thread :-).
8.11.2009 6:40pm
FWB (mail):
The anointed always know what's best for the REST of us.

And it's just "reasonable"

And it's for the good of the chilluns

People can't mamange their own lives. They surely can't manage someone else's.


Tiocfaidh ar la!
8.11.2009 7:07pm
Patent Lawyer (mail):
I went with a group of fellow math nerds to see South Park when I was 15, as a weekend activity at thoroughly quirky math camp (the same one, incidentally, as our esteemed blog host attended about a decade and a half earlier). The damage was so great that I ended up becoming a lawyer. What's Prof. Volokh's excuse? :)
8.11.2009 7:08pm
MarkField (mail):

I think I hear Madison weeping.


I guarantee you the 18th C was lousy with junk novels, many of them with less social value than American Pie, and some pretty terrible plays too. Madison would surely have seen all of them as protected under the First Amendment.
8.11.2009 7:22pm
Joseph Slater (mail):
I wrote: Of course if it really was porn -- an X-rated film -- then I guess we have the judgement of society that nobody under 18 should see this stuff, period. I imagine in some cases the parent would actually be breaking the law showing that stuff to a minor. Which is arguably a difference in kind as well as in degree.

Kirk Lazarus replied:

I assume you're referring to film of people actually having sex. Why shouldn't minors have factual information about sex?

You misunderstand me. I was merely stating that as a legal matter -- the way the law is as opposed to the way the law should be -- a court could distinguish an X-rated porno film from an R-rated teenage sexually-themed film. That's because -- like it or not -- the law currently bars minors from certain pornographic materials under pretty much all circumstances, whereas it allows access to R-rated movies with an adult.

Compare it to alcohol. I personally am in favor of a legal drinking age of 18 rather than 21, but I would understand how a court could treat giving booze to 18-year olds differently than giving booze to 21 year olds.

If you were to ask my personal opinion, I have no problem giving minors age-appropriate factual information about sex. I'm not sure porno movies are about conveying factual information about much of anything, and more importantly, I would certainly distinguish between showing such a movie to a 7-year old and a 17-year old. But again, the part of my post you quoted wasn't about my personal opinion of what the law should be.
8.11.2009 7:44pm
einhverfr (mail) (www):
As for my comments about Grettis/Grettir's Saga and Egil's Saga....

Grettir is portrayed as a HORRIBLE kid. He skins alive his father's horse and watches it die just to get out of chores. He grows up to be a proud, somewhat dominating, and generally good-hearted man who is condemned to outlawry for a crime he didnt commit due to political opposition. He is then forced to live an exceptionally violent life as a hunted man before he is finally killed by witchcraft. Grettis Saga is generally considered to be the last of the great Islandic sagas.

Egil likewise is a pretty horrible kid. He commits his first killing at the age of 7. Well, he and his friend are playing rough with his father and his father accidently kills his friend. So a few days later, he puts an ax in the back of his father's friend during dinner. He also does things like throw tantrums and set ships out to sea (unattended) when they won't take him on viking expeditions, and the like. His saga includes horse sacrifice (part of cursing duels between him and the family of the King of Norway), extremely graphic violence, and more. Like Grettir, Egil is portrayed as a fairly good-hearted but quite violent man in his adult years. Egil's Saga is considered to be the second best saga (after Njal's Saga) in literary quality.

However let's add other old literature to this. How about the Tain Bo Cualgny and other stories relating ot the life of CuChulainn. Let's see. He is portrayed as a very strong and dangerous kid and a bit of a bully. He apprentices himself to Scathach who teaches him how to fight, and he eventually overcomes her and "gains the friendship of her thighs" (some scholars suggest this was not far removed from rape but is portrayed in a positive light in this legend). He eventually has to fight and kill his best friend and foster-brother Ferdia and even his son (Connla) in the name of honor. The legend is full of extreme violence of a sort not even close to what is shown in movies or television today. The overall legend also has elements of hierogamy (Cathbad telling Nessa that if she has sex with him, their child will be great, and in fact the child is the greatest king in Ulster's history) and many other sexual themes that might be frowned on today.

Is there anything that makes movies special? Is it much of a jump to go from "You can't show him American Pie" to "You can't let him read books we disapprove of?" Is there any reason why letting a kid read any of the above works makes a parent less fit? Any reason a high school shouldn't be allowed to have kids read any of the above works?
8.11.2009 7:51pm
Kirk Lazarus:

You misunderstand me. I was merely stating that as a legal matter -- the way the law is as opposed to the way the law should be -- a court could distinguish an X-rated porno film from an R-rated teenage sexually-themed film. That's because -- like it or not -- the law currently bars minors from certain pornographic materials under pretty much all circumstances, whereas it allows access to R-rated movies with an adult.


Sorry, I wasn't trying to claim that you were stating an opinion about policy rather than law, I was using your post as an excuse to introduce a tangent about policy.


If you were to ask my personal opinion, I have no problem giving minors age-appropriate factual information about sex. I'm not sure porno movies are about conveying factual information about much of anything, and more importantly, I would certainly distinguish between showing such a movie to a 7-year old and a 17-year old. But again, the part of my post you quoted wasn't about my personal opinion of what the law should be.


Isn't any movie that explicitly depicts sexual intercourse porno, as far as the distinctions the law makes?
8.11.2009 7:52pm
einhverfr (mail) (www):
Joseph Slater:

Compare it to alcohol. I personally am in favor of a legal drinking age of 18 rather than 21, but I would understand how a court could treat giving booze to 18-year olds differently than giving booze to 21 year olds.


Are you sure about your legal standard? In my state a parent can give his kid alcohol in the home (or even in someone else's home) with no legal problems. And a 15-year-old living at home with both parents could legally brew and consume 200 gallons of beer a year in the home without breaking any laws, federal or state. Fun exceptions to drinking age laws.....

I wouldn't be surprised if many or most states had similar parental exceptions to laws such as furnishing alcohol to a minor or furnishing pornography to a minor.
8.11.2009 7:58pm
einhverfr (mail) (www):

Isn't any movie that explicitly depicts sexual intercourse porno, as far as the distinctions the law makes?


For that matter there are a number of art movies that qualify on the above ("Nine Songs," and "Romance" come to mind).

Also checking RCW (for Washington State) it seems that a minor who is accompanied by a parent is allowed to purchase pornography......
8.11.2009 8:06pm
SuperSkeptic (mail):
@ einhverfr

He apprentices himself to Scathach who teaches him how to fight, and he eventually overcomes her and "gains the friendship of her thighs" (some scholars suggest this was not far removed from rape but is portrayed in a positive light in this legend).

Let's not forget that the cattle-raids were also kidnapping free-for-all's too, where women were regularly kidnapped and bartered as well. (although lot's of times, they were taken and simply married). Thank you for reminding me of the youthful exploits of Cuchulain.

Erin go Braugh!
8.11.2009 8:28pm
DivorceAttyinTX (mail):
I think it is impossible to take much out of that small snippet, because it lacks context.

If the court is upholding, for example, a decision by the trial court to award custody to mother in this case, and is outlining the litany of reasons which the trial court did or could use in finding that it is in the best interest of the child that mom be awarded custody, then that snippet certainly isn't unreasonable.

If, on the other hand, it was to justify suspending dad's visitation, that's another.

Family law courts trample First Amendment rights all the time, in terms of issuing injunctions against discussing the litigation with the children, making derogatory comments about the other party or the other party's family in front of the children, allowing individuals with whom a party is having a romantic relationship around the children, etc.

These sorts of things are generally viewed as in the nature of shouting "Fire!" in a crowded building.

But in any case, without more context, it is impossible to say whether the court really overstepped its bounds here. When making a custody determination, for example, the best interest of the child trumps...and while certain decisions by a parent may be consistent with the exercise of the parent's First Amendment rights, those decisions can also be used as a basis to deny custody or limit visitation.
8.11.2009 8:58pm
Fub:
einhverfr wrote at 8.11.2009 7:51pm:
Is there any reason why letting a kid read any of the above works makes a parent less fit? Any reason a high school shouldn't be allowed to have kids read any of the above works?
If the kids were reading the sagas in Islenska or Old Norse, very few including the courts would likely have the first clue what the kids were reading.
8.11.2009 9:07pm
Jon Rowe (mail) (www):

I remember when American Pie came out.


I was in my early 20s when it came out. And I thought, this is funny as shit; but it's not as good as Fast Times At Ridgemont High, Caddyshack, etc.
8.11.2009 9:16pm
einhverfr (mail) (www):

If the kids were reading the sagas in Islenska or Old Norse, very few including the courts would likely have the first clue what the kids were reading.


Which gets back to my question about whether an obscene text, translated into Old Norse, can violate contemporary community standards for the purpose of obscenity law.
8.11.2009 9:25pm
einhverfr (mail) (www):
DivorceAttyInTX:

If the court is upholding, for example, a decision by the trial court to award custody to mother in this case, and is outlining the litany of reasons which the trial court did or could use in finding that it is in the best interest of the child that mom be awarded custody, then that snippet certainly isn't unreasonable.


After carefully thinking about the issue of citing international laws and norms in opinions regarding, say, the interpretation of the 8th Amendment, I have concluded that this is improper, not for the usual reasons cited but because it is distracting from the legal reasoning and analysis at hand (these things are usually cited to give further support for a position decided on other grounds). We would be better off if the courts didn't grasp for additional support just because it seemed convenient to do so.

Of course I think the same goes here. I think courts SHOULD be careful about what is included in littanies of reasons once again because it is distracting. Such distractions are particularly damaging in emotionally charged cases such as we see in divorces. The court should stick with clearly relevant criteria and should adopt minimalist approaches. Other approaches stoke continued court fights and encourage additional retaliation in court.

Which I suppose is lucrative for you but not very helpful to couples going through it.....
8.11.2009 9:31pm
DivorceAttyinTX (mail):
I think courts SHOULD be careful about what is included in littanies of reasons once again because it is distracting. Such distractions are particularly damaging in emotionally charged cases such as we see in divorces. The court should stick with clearly relevant criteria and should adopt minimalist approaches. Other approaches stoke continued court fights and encourage additional retaliation in court.


Except that the direction the trial court is given in making a determination on parent/child issues is always "best interest of the child," and (at least in Texas) appellate courts give trial courts a great deal of latitude in determining what factors into a best interest determination.

What is a "minimalist approach" in deciding whether the best interest of the child is served by living with mom or dad?
8.11.2009 9:43pm
ShelbyC:

When making a custody determination, for example, the best interest of the child trumps...and while certain decisions by a parent may be consistent with the exercise of the parent's First Amendment rights, those decisions can also be used as a basis to deny custody or limit visitation.


Which, of course, illustrates some of the myriad of problems with the "best interest of the child" standard. I sure don't think it's in the best interest of any child to be brought up with constant exposure to incorrect policical views. And even if they don't express them in front of the child, the child is probably better off with the parent that's smart enough to hold the correct ones in the first place.
8.11.2009 9:55pm
einhverfr (mail) (www):

What is a "minimalist approach" in deciding whether the best interest of the child is served by living with mom or dad?


Minimalist would be to focus on clearly established criteria, such as questions of necessary support, loving environment, etc. and then add a negative value for exercise of Constitutional rights.

A minimalist approach would also look exclusively at past rather than forecasted patterns.

Otherwise you run into problems involving differentiating proper exercise of Constitutional rghts. Suppose you have a couple divorcing and they have a 10 year old kid. Both parents work full time, have solid and similar incomes, and seem to love the kids. However, they have different views. The mother is a fairly typical professional woman, and the father is:
1) A member of the Anton LeVey's Church of Satan
2) Admits to having used marijuana 15 years prior (before the child was born)
3) Is a strong proponent of drug legalization.
4) Admits to discussing why he thinks drugs should be legalized to the kid.

Suppose the court reasons:
1) Use of drugs is detrimental to the development of the child.
2) The father clearly is not concerned about social norms (being involved in LeVey's organization), and admits to past drug use.
3) The father is clearly supportive of future drug use.
4) THerefore the father is not the best parent to keep the kid out of drugs, and has no counterbalancing advantage, so the kid goes with the mother.

Is it within the bounds of what we can expect in a free society to have custody on the basis that one parent's ideas and communications regarding public policy are dangerous to the well-being of the child? Is it legitimate to throw in unorthodox religious affiliation for scare purposes? Certainly the decision SEEMS to be in the child's best interest, but is the court to be in a position of telling folks that political involvement could be a basis for being denied custody?
8.11.2009 9:57pm
ShelbyC:

I was in my early 20s when it came out. And I thought, this is funny as shit; but it's not as good as Fast Times At Ridgemont High, Caddyshack, etc.


I remember as a young teenager watching Porky's with my folks, and watching them try to figure out if it was OK to laugh at some of the stuff in front of me. :-).
8.11.2009 10:00pm
DivorceAttyinTX (mail):
Minimalist would be to focus on clearly established criteria, such as questions of necessary support, loving environment, etc. and then add a negative value for exercise of Constitutional rights.


"Necessary support" -- does that mean the person who is the higher wage earner gets a leg up? Wouldn't "necessary support" be more appropriately addressed in the child support portion of the decision?

And as for "loving environment," that's a pretty squishy, grey definition that can mean just about anything. And I can tell you that situations where one parent provides a "loving environment" and the other doesn't, you generally don't have a contested trial, because it isn't going to get that far in the process.

As for "etc.", that's pretty meaningless. And that's the problem with saying you want to take a "minimalist" approach...appeals courts have pretty consistently given trial courts an open-ended ability to make determinations on child custody because such cases are so fact-dependent. Your "minimal approach" seems to be designed to tie the trial court to a few basic factors to plug into an equation and then rule accordingly.


A minimalist approach would also look exclusively at past rather than forecasted patterns.


How does that make sense? If there is a strong reason to believe that a parent is going to act differently going forward than they have in the past, why isn't that relevant?

Obviously, what has happened in the past carries a lot of weight in determining what is going to be in the child's best interest going forward...but is there a specific example of "forecasted patterns" you are concerned with?


Otherwise you run into problems involving differentiating proper exercise of Constitutional rghts. Suppose you have a couple divorcing and they have a 10 year old kid. Both parents work full time, have solid and similar incomes, and seem to love the kids. However, they have different views. The mother is a fairly typical professional woman, and the father is:
1) A member of the Anton LeVey's Church of Satan
2) Admits to having used marijuana 15 years prior (before the child was born)
3) Is a strong proponent of drug legalization.
4) Admits to discussing why he thinks drugs should be legalized to the kid.

Suppose the court reasons:
1) Use of drugs is detrimental to the development of the child.
2) The father clearly is not concerned about social norms (being involved in LeVey's organization), and admits to past drug use.
3) The father is clearly supportive of future drug use.
4) THerefore the father is not the best parent to keep the kid out of drugs, and has no counterbalancing advantage, so the kid goes with the mother.

Is it within the bounds of what we can expect in a free society to have custody on the basis that one parent's ideas and communications regarding public policy are dangerous to the well-being of the child? Is it legitimate to throw in unorthodox religious affiliation for scare purposes? Certainly the decision SEEMS to be in the child's best interest, but is the court to be in a position of telling folks that political involvement could be a basis for being denied custody?


Your concern seems to be grounded in the idea that the court shouldn't take into account legal or Constitutionally protected speech or thought when making a custody determination. I don't understand why not, though. I guess you could make a Slippery Slope argument -- today lose custody because of Church of Satan affiliation, tomorrow lose custody because you are Catholic instead of Protestant -- but I don't see a practical problem with what you are complaining about.

There are certain legal and Constitutionally protected activities that one may engage in that could lead an employer to justifiably decide that it isn't wise to hire you. A court could come to a similar decision in regards to child custody.

As an aside, in Texas, you are entitled to a trial by jury if you request it on the issue of child custody, and that decision is binding on the trial court -- no JNOV. Would having a jury decide this, rather than a judge, make a difference to you?
8.11.2009 10:14pm
Doug Sundseth (mail):
A Law Dawg: "I showed a portion of Gladiator to my students. The opening battle is great."

Wherein we learn either that German barbarians spoke Zulu or that 19th century Zulus spoke proto-German.

For those confused by that comment, the chanting at the start of Gladiator is from the soundtrack of Zulu. FWIW, I think there's little doubt that Zulu was the better movie in almost every way, even without the stirring rendition of Men of Harlech.
8.11.2009 10:35pm
Roger Schlafly (www):
So what if the kid once got arrested for drinking beer, and one parent is a Christian who approves of alcohol, and the other parent is a Christian who disapproves? Would the court favor the parent who is more likely to take a religious hard line against alcohol?

Nearly all unequal child custody decisions involve prejudiced and unjustifiable reasoning, whether it is detailed in the opinion or not. Omitting some of the reasoning in the opinion is no solution.
8.11.2009 10:36pm
Porkchop:
Doug Sundseth


A Law Dawg: "I showed a portion of Gladiator to my students. The opening battle is great."

Wherein we learn either that German barbarians spoke Zulu or that 19th century Zulus spoke proto-German.

For those confused by that comment, the chanting at the start of Gladiator is from the soundtrack of Zulu. FWIW, I think there's little doubt that Zulu was the better movie in almost every way, even without the stirring rendition of Men of Harlech.


Zulu = best war movie ever.
8.11.2009 11:24pm
Badness (mail):
Jumping Jehosephats, the child saw a popular motion picture! And the child's father permitted, nay condoned, the outrageous act!

"'Tes terrible!'
'Tes flying in the face of Nature!'"
8.11.2009 11:24pm
11-B/2O.B4:

The anti-gun and pro-sex portion of the country don't care enough about those issues to push back on them



Fun fact: a bizarre survey I read said that the top demographics for highest sexual activity through middle age were......wait for it......gun owners and jazz fans. So I'm just here with my Louis &Ella records and my 7mm-08 waiting for good things to happen.

On a more pertinent note, this is what family court has devolved into? I realize that this is a legal blog, but as an outsider to the legal world....this is one of a million reasons why the average joe rates lawyers somewhere between pedophiles and lepers on the grand scale of human achievement. Absolutely ridiculous.
8.11.2009 11:50pm
einhverfr (mail) (www):
DivorceAttorneyInTX:

Your concern seems to be grounded in the idea that the court shouldn't take into account legal or Constitutionally protected speech or thought when making a custody determination. I don't understand why not, though. I guess you could make a Slippery Slope argument -- today lose custody because of Church of Satan affiliation, tomorrow lose custody because you are Catholic instead of Protestant -- but I don't see a practical problem with what you are complaining about.


Ok. So let's take a close look at the ramifications then.

Suppose, as you suggest is proper, a court can take parents' political positions on controversial subjects such as drug legalization into account when determining what custodial arrangements are in the child's best interest.

Do you think at all this creates a chilling effect, that parents might be less inclined to support some controversial causes because it might be more likely to be used against them if their marriage ends up being dissolved?

Wouldn't this work against the very premise of the first amendment, that all citizens should be free to advocate political positions on issues according to their sincere appraisal of the needs of society? To what extent should the court be worried about a chilling effect on free speech?

The same thing goes for church involvement. To my knowledge the Church of Satan doesn't accept members under 18 (I am not member, but I have friends who are), and I think think that taking that into account UNLESS there is a specific and articulable concern relating to the child's involvement in such practices (NOT the parent's) that it should be irrelevant.

My concern here is that taking ideological matters into consideration in custody cases undermines the First Amendment.

For example, I am a member of an organization called the Rune Gild. We do not accept members under 18, and we do have some cross membership with groups like the Church of Satan, the IOT, and the Temple of Set. We are an initiatory organization based on Norse myth and living the Norse myths. Hence we are well outside the mainstream of American religious belief and practice.

If I thought for a moment that a court in my state would use such membership against me if my marriage ended in divorce, I would have to think about my involvement in the organization. If I thought a court would use against me my advocacy that Norse Pagan groups should revive the practice of animal sacrifice, if my marriage ended in divorce, I would be less likely to make such advocacy.

Such a legal consequence seems in stark contrast to the ideals of the first amendment. I think that ideological elements of parental beliefs should be entitled to a level of Constitutional protection even when a marriage ends which should exclude it from this sort of analysis. In my past hypothetical, I think the only question should be whether the parent's past actions (drug use prior to the birth of the child) are severe enough to warrant a decision on that basis. I don't think that the exposure of children to the marketplace of ideas though is a valid criteria for the court to get into.
8.12.2009 1:44am
einhverfr (mail) (www):
I guess, my point is when advocacy and religious affiliation might be used by a court in custody decisions, doesn't it invite parents to have to decide whether their political and religious ideas are really more important than time with their kids? Isn't that a real blow against the First Amendment?
8.12.2009 1:51am
Anatid:
DivorceAttyinTX:

And as for "loving environment," that's a pretty squishy, grey definition that can mean just about anything. And I can tell you that situations where one parent provides a "loving environment" and the other doesn't, you generally don't have a contested trial, because it isn't going to get that far in the process.


Actually, no. Developmental psychology has a pretty good grasp on what parenting practices will have positive or adverse impacts on the child - and it's often not the "nice" or "concerned" parents whose kids turn out best. By conducting an observation and/or conducting an interview, and then coding for a set of known behaviors, an observer could fairly rigorously detect whether or not the parent (and by proxy, the child) falls into a positive category, a not-so-great category, or an actively negative category.

The research has been rigorous for a few decades now, and family courts (or even child protective services) have never bothered to use any of the data for the benefit of children. Largely because of the massive outrage it would produce from the "Don't tell me how to raise my child" segment of the population.
8.12.2009 2:09am
Kirk Lazarus:
Some psychology research I've read indicates that super-high achieving men are often influenced by "psychic scars" left by their father. Should courts take this on board and be awarding more custody of boys to psychologically injurious fathers?
8.12.2009 4:26am
David Schwartz (mail):
These sorts of things are generally viewed as in the nature of shouting "Fire!" in a crowded building.
Sorry to have to bring this up again, but it is perfectly lawful to shout "fire" in a crowded building if there is in fact a fire. Analogizing restrictions on objectively and demonstrably false speech with restrictions on true or controversial speech is as ridiculous as analogizing arguments to bullets.

That said, I see no first amendment issue providing the other parent expressed this concern as well. In this case, the court simply has to decide between two equal first amendment rights -- one parent who wishes to expose their child and one parent who doesn't. Essentially, the court has a defense of necessity to the claim that it is breaching someone's first amendment rights.
8.12.2009 4:34am
David Schwartz (mail):
If I thought for a moment that a court in my state would use such membership against me if my marriage ended in divorce, I would have to think about my involvement in the organization. If I thought a court would use against me my advocacy that Norse Pagan groups should revive the practice of animal sacrifice, if my marriage ended in divorce, I would be less likely to make such advocacy.
Right, but I don't think this offends the first amendment. If this leads your former wife to think you shouldn't be around the kids, why shouldn't she get to exercise her first amendment right not to have you expose her kids to it?

The point is that the court is arbitrating competing rights that are on equal footings. If your wife can demonstrate that your membership can have objective consequences on your kids and she wishes to avoid those consequences, why is your right superior to hers?

The First amendment doesn't protect you from suffering consequences for your speech. Here it is not the State that imposes those consequences but your spouse.

(I would totally agree with you if you had a case where both parents agreed it shouldn't be a factor but the court took it into account anyway.)

The court has no choice but to balance your first amendment right to expose against your spouse's first amendment right to shield. Exposure should not always win.
8.12.2009 5:49am
Joseph Slater (mail):
Kirk Lazarus:

Thanks for the clarification. In terms of what, exactly, makes a film a "porno" film, meaning what sexually-themed material the First Amendment does not protect and thus, relevent here, allows governments to make it illegal for minors to possess/watch, I'm not 100% sure and I'm pretty sure the courts aren't either. I'm sure you've heard of "community standards," "I know it when I see it," etc. Graphic, explicit depictions of the sex act probably get you an "X" rating, although maybe if there are cut-away edits or even fast-motion (see "A Clockwork Orange") that can preserve an "R." Full-frontal nudity of women doesn't necessarily mean "X" rating; but full-frontal of men with an erection typically does.

In any case, I'm not sure porno does a good job of giving factual information about sex to kids, but again, how inappropriate I think it would be (and how much I think it should matter in a custody dispute) would depend on the age/maturity/other characteristics of the kid, and, I suppose, the type of porno.

einhverfr:

You are right that in a number of places, it is legal to serve your own, minor children alcohol, although it is illegal to serve other minor children the same thing. I was just trying to make an analogy: "courts could reasonably take into account a parent actually breaking a law, even if I'm not a fan of that law." You're right, the parent in my hypo wouldn't always be breaking the law, but I think the point was made -- and is moot, given Kirk's response.
8.12.2009 9:33am
keysew (mail):
I haven't seen anyone else mention it but I was always under the impression that when you saw a sex act in a movie, it was, well, really an actual sex act. When you see violence in a movie its not a real act (with the exception of a snuff film which would receive not just an X rating but a prison term).
8.12.2009 9:55am
CJColucci:
Zulu = best war movie ever

I always thought it was a classic "buddy" picture.
8.12.2009 10:55am
Bob from Ohio (mail):

I guarantee you the 18th C was lousy with junk novels, many of them with less social value than American Pie, and some pretty terrible plays too. Madison would surely have seen all of them as protected under the First Amendment.


The expense of books in the 18th century meant no mass market. I do not think it so clear that Madison cared about anything but political (defined broadly) speech.
8.12.2009 11:06am
BABH:
keysew: You have just identified one of the major differences between porn movies and regular movies. In regular movies, the actors are acting. In porn, they are actually having sex.

"Shortbus" is a very rare exception.
8.12.2009 11:43am
ShelbyC:

The point is that the court is arbitrating competing rights that are on equal footings. If your wife can demonstrate that your membership can have objective consequences on your kids and she wishes to avoid those consequences, why is your right superior to hers?

The First amendment doesn't protect you from suffering consequences for your speech. Here it is not the State that imposes those consequences but your spouse.


My spouse is going to put me in jail if I don't follow the court's orders?

And neither right should be superior. That's the point of the problem. You have the court deciding whose exercise of the 1A results in a "better" outcome, and using the power of the state to effect that outcome. And the problem is the "best interest of the child" standard. Courts shouldn't be deciding what's "best" for the child, parents should be.
8.12.2009 11:48am
einhverfr (mail) (www):
David Schwatz:

Right, but I don't think this offends the first amendment. If this leads your former wife to think you shouldn't be around the kids, why shouldn't she get to exercise her first amendment right not to have you expose her kids to it?

The point is that the court is arbitrating competing rights that are on equal footings. If your wife can demonstrate that your membership can have objective consequences on your kids and she wishes to avoid those consequences, why is your right superior to hers?

The First amendment doesn't protect you from suffering consequences for your speech. Here it is not the State that imposes those consequences but your spouse.


The same argument would hold that no speech is protected regarding Title VII sexual or racial harassment lawsuits. After all, it isn't the government who is imposing this but private citizens. In reality courts DO take into account the fact that such actions have the potential for chilling effects on speech.

In this case, though, it isn't the SPOUSE acting against the speech, but the law taking it into account when imposing legal settlements to legal issues. It would be one thing for the court to tell one parent not to discuss thoughts about animal sacrifice, drug legalization, and the like around particularly young kids. We can argue over the particulars, and argue whether or not such is appropriate in a specific case. Most likely we agree that some speech is inappropriate and even damaging around sufficiently young kids.

However, it is a very different thing to apply LEGAL consequences against someone for advocacy on a specific issue. It isn't just the spouse acting. The judge has a role to play as well.

The problem here is that no single policy exists on its own. A parent who fights for custody and loses ends up paying a disproportionate share of child support AND having reduced time with his/her kids. While I think child support is important, the issue makes it all the more important that we don't use THE LAW to punish folk on ideological and advocacy grounds.
8.12.2009 12:42pm
DennisN (mail):
ShelbyC:

My spouse is going to put me in jail if I don't follow the court's orders?


No, but the judge may. More likely he will revise the custody / visitation terms in your spouse's favor.

And neither right should be superior. ... Courts shouldn't be deciding what's "best" for the child, parents should be.


And who is to decide when the parents will not come to an accommodation? Should they settle it with pistols on the parade ground at noon? (Admittedly a sometimes tempting solution. ;-) )
8.12.2009 12:43pm
einhverfr (mail) (www):

You are right that in a number of places, it is legal to serve your own, minor children alcohol, although it is illegal to serve other minor children the same thing.


Right. However, if your point is that the courts should take criminal behavior into account, letting one's children watch pornography doesn't rise to this level in many (or perhaps even most) states.

I am not saying the court should limit inquiry to crimes, or that constitutionally protected activities should never be considered.

I just think the "best interests of the child" standard is very little other than an excuse for judicial prejudice when it is not used in a minimalist way.
8.12.2009 12:49pm
einhverfr (mail) (www):
DennisN:

And who is to decide when the parents will not come to an accommodation? Should they settle it with pistols on the parade ground at noon? (Admittedly a sometimes tempting solution. ;-) )


My view is that a judge should act as referee in this case, but that the approach taken should be minimalist and avoid, as much as is possible, taking protected speech into account.
8.12.2009 12:52pm
ShelbyC:

And who is to decide when the parents will not come to an accommodation?


Don't care, flip a coin, whatever. I'm sure smart folks can think of something clever. All I'm saying is that the way not to decide is to have a govt offical decide based on who exercises their 1A right in a "better" way.
8.12.2009 12:54pm
einhverfr (mail) (www):
BTW, I do advocate for the revival of animal sacrifice among Norse pagan groups and expect to publish a paper on investigating the Horse Sacrifice in Norse sources in the next year. The paper will probably be 20-30 pages long. Most of what I do here is somewhat anonymous and the audience is sufficiently small, but the paper will be available for sale and may eventually be published in a book.

The only reason I feel safe doing so though is that international divorces typically provide additional custody protections for the citizen parent as it is generally considered in the child's best interest for them not to be uprooted and moved halfway around the world.
8.12.2009 12:58pm
Joseph Slater (mail):
Right. However, if your point is that the courts should take criminal behavior into account, letting one's children watch pornography doesn't rise to this level in many (or perhaps even most) states.

I am not saying the court should limit inquiry to crimes, or that constitutionally protected activities should never be considered.

I just think the "best interests of the child" standard is very little other than an excuse for judicial prejudice when it is not used in a minimalist way.


First, most states and communities made it illegal for minors to access hard-core pornoraphy. I honestly don't know if there are exceptions for parents showing their own kids pornography as there are (as you pointed out) for parents serving their own kids alcohol. Are you saying that you know that such exceptions exist? If so, that's interesting.

Second, I never practiced or taught family law (I'm in labor and employment law, where people actually get along better!), so I don't have a position on the "best interest of the child" standard, or how courts should or do use it.

Second, I never did family law,
8.12.2009 1:31pm
DennisN (mail):
einhverfr

My view is that a judge should act as referee in this case, but that the approach taken should be minimalist and avoid, as much as is possible, taking protected speech into account.


We have no argument, there. To misquote the Libertarians, the best judicial intervention is the least intervention. I was more addressing the broader question of who should decide when there is no agreement. In many cases, the answer should be, "It doesn't matter, both of you get out of my courtroom and pretend to be adults."


ShelbyC:

I'm sure smart folks can think of something clever.


We have. It's called the courts. But as I said above, I do favor a minimalist approach, particularly with respect to activities that are legal and moderately safe.

A lot more people should be sent out of the courtroom with a bee in their ear.
8.12.2009 1:53pm
LarryR (mail):

Your concern seems to be grounded in the idea that the court shouldn't take into account legal or Constitutionally protected speech or thought when making a custody determination. I don't understand why not, though. I guess you could make a Slippery Slope argument -- today lose custody because of Church of Satan affiliation, tomorrow lose custody because you are Catholic instead of Protestant -- but I don't see a practical problem with what you are complaining about.

There are certain legal and Constitutionally protected activities that one may engage in that could lead an employer to justifiably decide that it isn't wise to hire you. A court could come to a similar decision in regards to child custody.



An employer deciding not to hire someone because of his views is not the same as a judge using the power of the state to remove custody from a parent because of those views.

The best interests of the child test shouldn't trump the First Amendment. I agree with the commenters above who say many times the best interests of the child test is simply a way for the judge to impose his prejudices in a custody case.
8.12.2009 1:57pm
einhverfr (mail) (www):
DennisN:

We have no argument, there. To misquote the Libertarians, the best judicial intervention is the least intervention. I was more addressing the broader question of who should decide when there is no agreement. In many cases, the answer should be, "It doesn't matter, both of you get out of my courtroom and pretend to be adults."


Ummm... I am sorry... I must not have been clear.

The decision should be made on minimalist grounds and the courts should make a real effort to avoid making decisions on the basis of exercise of free speech and association rights. To the extent possible, the court needs to restrict the analysis to the past interaction of the child with his/her parents, and to the extent possible avoid throwing in "he exercised his lawful right to let his child watch R-rated movies."

The court has no business deciding that a parent who is a Lutheran is a better parent than a parent who is a member of the Church of Satan on this basis, and has no basis holding policy opinions of parents against them.

A more restricted basis for decision making means less conscious or unconscious prejudice makes it into the final decision.
8.12.2009 2:19pm
einhverfr (mail) (www):
Joseph Slater:


First, most states and communities made it illegal for minors to access hard-core pornoraphy. I honestly don't know if there are exceptions for parents showing their own kids pornography as there are (as you pointed out) for parents serving their own kids alcohol. Are you saying that you know that such exceptions exist? If so, that's interesting.


Yes, there are. In my state, for example, it is a crime for an individual to misrepresent himself as a child's parent for the purpose of allowing the child to purchase such material.....
8.12.2009 2:21pm
Joseph Slater (mail):
einhvefr:

Thanks for the interesting info.
8.12.2009 2:27pm
ShelbyC:
Dennis N.

We have. It's called the courts....


And it's a good start, but you gotta get a little more clever and stop having them decide based on exercise of Constitutionally protected rights. And you might want to stop having them pretend that they know any better than anyone else what's in the best interests of the child :-).
8.12.2009 2:34pm
einhverfr (mail) (www):
ShelbyC:

And it's a good start, but you gotta get a little more clever and stop having them decide based on exercise of Constitutionally protected rights. And you might want to stop having them pretend that they know any better than anyone else what's in the best interests of the child :-).


I think one of the key issues though is what exactly the best interest of the child standard out to be when it comes to its interaction with Constitutionally protected rights.

Right now it seems like no substantive deference is given to Constitutional concerns. I think that needs to change. I think that, at very least, judges should be required to justify considering protected speech activities and the like beyond merely "I think this is harmful," or that it violates social taboos (letting a 14-year-old watch American Pie for example). In short I think there needs to be a higher evidentiary bar for considering this sort of thing than other things (such as time availability for parenting, etc).
8.12.2009 3:13pm
Flubby:

And it's a good start, but you gotta get a little more clever and stop having them decide based on exercise of Constitutionally protected rights. And you might want to stop having them pretend that they know any better than anyone else what's in the best interests of the child :-).


What do you suggest?
8.12.2009 5:25pm
einhverfr (mail) (www):
After reading more of EV's posts on the subject this seems to be a clever way of getting back to this.

I think EV's test cases are flawed regarding how the issue most likely would be addressed because the driving factor here tends to be state interpretations of common law and Constitutional principles and I am not aware of any Supreme Court guidance on this topic. The current operating rule usually seems to be that a judge can order whatever seems to him or her be in the best interest of the child regarding these restrictions in most cases. I think this is wrong but in the absence of clear Supreme Court guidance as to the impact of 1st Amendment incorporation on this sort of case, any limits happen at the state level.

IANAL so I may be missing something big here. However, the basic issue seems to be that the common law parens patriae power of the state is not very fettered by Constitutional restrictions in these sorts of cases. Where parents agree (married or not), the court generally provides substantial deference to the wishes of the parents. The rationale here is that strong families are in the interest of the state and therefore the court should defer where reasonable to the parents. Where the parents disagree though and the court is called in to pick winners and losers though, this interest does not appear to exist (or at least is not recognized as such-- I believe that it DOES still exist even during divorce proceedings, but more on that below). For this reason courts have historically made all sorts of orders which might be Unconstitutional in other settings.

This is not limited to first amendment rights, and is not limited to divorce cases. When we look at the DC circuit decision in In Re A.C. regarding forced C-section rulings, and contrast with the Florida District Court's ruling in Pemberton v. Tallahassee Memorial Medical Center (also involving forced C-sections), there are fundamental differences in the interaction between Constitutional fetters and this common law power. Similarly in the recent case of Daniel Hauser, the Minnesota court declined to engage in the sort of analysis the Delaware court mandated in Newmark v. Williams, despite that the fundamental questions were the same questions regarding effects of incorporation of Constitutional rights against this common law power. Short of Supreme Court intervention, every state and appellate court circuit will develop its own tests and lines.

The fundamental problem is that the government has the common law power to intercede on behalf of the children and exercise parental authority. If fettered by Constitutional concerns, such authority appears to become more meaningless quite quickly. I am not sure, however, that this is the case.

So what we see here isn't one line, but rather lots of lines drawn in different places in different jurisdictions. This is an area I would like to see the Supreme Court address. Until such happens, there is no way we can talk about a single line that will work in our system.

If we were to limit ourselves to a single line, it would be that no First Amendment fetters are necessarily binding to custody considerations today.

However, there are some good indications that the court, following past precedent might end up concluding that parens patriae is fundamentally restricted by Constitutional fetters even in questions of child custody where the parents disagree.

Here would be my argument for considering some areas of inquiry in custody cases to be Constitutionally suspect:

First, the general approach to the above common law powers occur because of civil cases in which parents cannot come to an agreement. At first site, the interest in strong families doesn't apply to divorce. After all divorce is the splitting apart of a family.

However, a closer look shows that many of the same considerations, including the welfare of the child, is best served by supporting the same policies as if the parents were married. Extended litigation over custody is not in a child's best interest, and helping ensure mutually accepted and respected arrangements is important both in avoiding endless litigation over custody and hence in providing the maximum deference that is reasonable to both parents. A court then might do better to avoid trying to settle all disagreements but rather focus on those which are minimally essential to the decision at hand.

A second point that EV's other post (linked to above) brings up is where political speech is sometimes used by courts in determining custody cases. This includes (in the past) defence of communism (earlier in 20th century), defence of homosexuality (recent), and so forth. In these cases there is a very real danger that doing so will chilling effect on free speech because it doesn't really apply to parents of minor children in the same way. Courts have almost always considered such chilling effects in questions of civil law just as they have in criminal law. Family law might be slightly different, but where political advocacy is used as a reason to deny custody, it flies in the face of our First Amendment.

There may be a number of cases where the law must get into free speech restrictions. For example, it is reasonable for a court to order parents not to continue their battles through their kids. However, this has to occur within a framework whereby the ideology of each parent is provided substantial deference or even respect. Mere exposure to IDEAS, no matter how far outside the mainstream they are, should never be a criteria of the court in making any decision.

From EV's test suite, many or all cases of items 1-13 might be decided differently in these cases if political speech and ideology was to be given substantial deference.

I think the key issue is that certain criteria for decision-making in these areas should be subjected to higher scrutiny because they are Constitutionally suspect. Other areas (time and ability to help kids with school studies) might be subject to a much lower bar. Criteria should be considered Constitutionally suspect when considering them undermines the legal arguments for the Constitutional rights in the first place. For example, considering religious affiliation of political advocacy would be suspect. On the other hand if Jihadist speech (otherwise protected) were combined with weapons stockpiling, the speech might be relevant (there is a difference between advocating the violent overthrow of the government as an abstract concept and preparing to do so).

Extending Constitutional protections present in tort law and other areas regarding civil lawsuits to custody battles and family law would appear to my mind to be the best way forward. Just as the government is not present in the marital bedroom, I don't think it needs to be actively present as a family member either.
8.12.2009 7:57pm
ShelbyC:
Flubby:

What do you suggest?


Presumptive joint custody, 50/50, unless the parents agree on a different arrangement. Courts should structure that based on geographical considerations, etc. But it shouldn't take into account who it thinks is the better parent.
8.12.2009 8:09pm
einhverfr (mail) (www):
ShelbyC:

What if one parent is abusive towards the kids and this is documented in past actions?

What if one parent is a known abuser of hard drugs or maintains a fundamentally unsafe environment?

My view is that there are considerations here, and that it is heavily disruptive to kids if there are large numbers of moves back and forth, so sometimes these things need to be decided. However, the standard for a court to take away a kid from one parent to put it with the other parent just because the court thinks the child would be better off going to church more often puts the bar way to low and ends up serving nobody well.
8.12.2009 8:17pm
David Schwartz (mail):
Presumptive joint custody, 50/50, unless the parents agree on a different arrangement. Courts should structure that based on geographical considerations, etc. But it shouldn't take into account who it thinks is the better parent.
That will make the parent who favors exposure always win over the parent who favors non-exposure. It also won't work in cases where, for example, both parents agree that the child should only be exposed to one religion but can't agree on which one it should be.

I'm not completely hostile to the argument that that may be better overall than having the judge pick a winner, especially because of the very real risk that judges will wind up enforcing their prejudices. However, I cannot believe the first amendment requires such a policy choice. (Though it does require fixing the cases where the judge obviously indulged his prejudice under a "best interests of the child" guise.)
8.12.2009 8:23pm
ShelbyC:

What if one parent is abusive towards the kids and this is documented in past actions?

What if one parent is a known abuser of hard drugs or maintains a fundamentally unsafe environment?


We should deal with those situations in a divorce/custody situation the same way we do if there is no divorce/custody situation.

I appreciate your position that judges should avoid deciding cases based on exercise of enumerated constitutional rights, but what about the parent's right to liberty in general? Say one parent lets the kid ride small dirtbikes? Lots of folks think that's OK, others don't. Do we really want the judges opinion on things like that interfering with the parent's ability to raise their kids the way they want to?
8.12.2009 8:25pm
einhverfr (mail) (www):
ShelbyC:

I appreciate your position that judges should avoid deciding cases based on exercise of enumerated constitutional rights, but what about the parent's right to liberty in general? Say one parent lets the kid ride small dirtbikes?


I think that would be Constitutionally suspect as well. Now if the parent let the kid ride small dirtbikes unsupervised in particularly dangerous environments, despite past injuries, that might be different.

I think there should be a number of cases where the court should find no cause of action and therefore deny fighting parents relief from the court.
8.12.2009 8:43pm
ReaderY:
The kid has to go to one parent or the other. Any choice will be thought unjust by one side. States are entitled to pick the parent who better conforms to their ideals, as the judge sees them, about how a parent should behave. States can mabe obscenity standards for minors considerably stricter than for adults and a state can prohibit parents from exposing children to obsenity (for minors).

This one is within the states call. If parents don't want the state deciding which parent should raise the child based on the state's ideas of standards and values, they shouldn't get divorced. Presumably their personal happiness is worth the bother.
8.12.2009 11:16pm
ReaderY:
In a divorce a state is entitled to pick between two parents with otherwise equal claims based on its ideas of the child's best interests. One parent will win, one will use, and there's no objective way to determine which is which. There's no guarantee Professor Volokh's more libertarian-oriented values will produce any better result than anyone else's. Here the judge is the judge, Professor Volokh isn't, and if Professor Volokh wants custody decisions to be based on his values and ideas of how to identify a better parent he can run for judge and put up with the hassle.

It's a totally different situation from the case where the state comes in on its own and claims parent(s) are abusing or neglecting the child because it doesn't like their behavior. The standards in the two cases are radically different and should not be confused.
8.12.2009 11:21pm
einhverfr (mail) (www):
ReaderY:
I disagree. The problem right now is that prejudices of the judge play a very large role.

Back to my point about political advocacy. At what point should a judge decide that the political ideology of a parent (for example, strongly advocating legalization of drugs and nonenforcement of existing laws) is an important factor in making the decision?

At what point is it just the judge substituting his own prejudices for any solid analysis?
8.12.2009 11:38pm
Shalom Beck (mail) (www):
"Likewise, there is much more of an argument for considering even speech (or exposure to First-Amendment-protected materials) when there's serious evidence that the speech is likely to cause imminent harm to the child."

But what about imminet harm to the pie?

I win the thread!
8.13.2009 9:58am
einhverfr (mail) (www):
Funny. I wrote my lay observation about cases before reading Prof. Volokh's discussion of Dwyer's thesis on the subject. I guess my thinking isn't so far off the mark after all......
8.13.2009 10:41am

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