Apropos my "no jihadist speech to your children" post below, I thought I'd post the Introduction to a law review article I wrote last year on the subject more broadly -- an article that deals with atheist, racist, pro-gay, anti-gay, pro-polygamy, religiously intolerant, profane, R-rated speech as well. It starts out with, of all people, Percy Shelley.
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Percy Bysshe Shelley was a poet and a cad. He married his wife, Harriet Westbrooke, when she was 16, but left her for Mary Wollstonecraft Godwin three years later. When Shelley left Harriet, their daughter was a year old, and Harriet was pregnant with their son.
Two years later, Harriet drowned herself. When Shelley decided to raise the children himself, Harriet's parents refused to turn them over, and Shelley went to court. Though fathers had nearly absolute rights under then-existing English law, Shelley became one of the first fathers in English history to lose custody of his children.
Percy Shelley was also an avowed atheist -- and the Court of Chancery mostly relied on his views, not on his infidelity or unreliability, in denying him custody. Shelley shouldn't be put in charge of the children's education, the Lord Chancellor reasoned: Shelley endorsed atheism and sexual freedom, and would teach his children the same values. Twenty years later, Justice Joseph Story likewise wrote that a father could lose his rights for "atheistical or irreligious principles."
Shelley's case may look like something out of another time and place. That time and place, it turns out, is 2005 Michigan, where a modern Shelley might be denied custody based partly on his "not regularly attend[ing] church and present[ing] no evidence demonstrating any willingness or capacity to attend to religion with [his children]," or having a "lack of religious observation." It's 1992 South Dakota, where Shelley might have been given custody but only on condition that he "will agree to present a plan to the Court of how [he] is going to commence providing some sort of spiritual opportunity for the [children] to learn about God while in [his] custody." It's 2005 Arkansas, 2002 Georgia, 2005 Louisiana, 2004 Minnesota, 2005 Mississippi, 1992 New York, 2005 North Carolina, 1996 Pennsylvania, 2004 South Carolina, 1997 Tennessee, 2000 Texas, and, going back to the 1970s and 1980s, Alabama, Connecticut, the District of Columbia, Iowa, Montana, and Nebraska. In 2000, the Mississippi Supreme Court ordered a mother to take her child to church each week, reasoning that "it is certainly to the best interests of [the child] to receive regular and systematic spiritual training"; in 1996, the Arkansas Supreme Court did the same, partly on the grounds that weekly church attendance, rather than just the once-every-two-weeks attendance that the child would have had if he went only with the other parent, provides superior "moral instruction."
Likewise, through the past decades, parents have had their rights limited or denied based partly on their racist speech, advocacy of Communism, Nazi sympathies, advocacy of pacifism and disrespect for the flag, advocacy of polygamy, defense of the propriety of homosexuality, defense of adultery, advocacy of (or inadequate condemnation of) nonmarital sex, teaching of fundamentalism, teaching of "non-mainstream" religions, teaching of religious intolerance, and attendance with their children at churches that recognize same-sex marriage. The Pennsylvania Supreme Court is now reviewing the polygamy advocacy case, framing the question as, "To what extent can the courts limit parents from advocating religious beliefs that, if acted upon, would constitute criminal conduct?" -- a question that could equally apply to parents' teaching their children the propriety of refusing to fight in unjust wars, the propriety of civil disobedience, and the like.
All this is done under the rubric of the "best interests of the child" standard, the normal rule applied in custody disputes between two parents, and this standard leaves family court judges ample room to consider a parent's ideology. For instance, in a country where half the public thinks that it's necessary "to believe in God in order to be moral and have good values," has an unfavorable view of "[a]theists, that is, people who don't believe in God," and wouldn't vote for a political candidate who didn't believe in God even if he had been nominated by their own party, it makes sense that some judges would think that it's against the child's best interests for a parent to raise the child without religion.
Courts have also ordered parents to reveal their homosexuality to their children, or to conceal it. They have ordered parents not to swear in front of their children, and to install Internet filters. They have also considered, as a factor in the custody decision, parents' swearing; exposing their children to R-rated movies, a gun-themed magazine, unfiltered Internet access, photos of men in women's clothing, music with vulgar sexual content, and pornography; and viewing pornography and keeping it in a place where the children might access it. Likewise, Texas law leaves custody decisions to juries, and lets jurors consider a parent's religious "beliefs, teachings, or practices" as part of the best interests inquiry, if the jurors conclude that those "beliefs, teachings, or practices [are] illegal, immoral, or . . . harmful to the child." "[W]hat is immoral or harmful" is to be "left to the jury to apply community standards," and may include "gambling, playing a lottery, drinking to excess, homosexual conduct, or abortion." Constitutionally protected speech, if seen as an "illegal, immoral, or . . . harmful" "belief" or "teaching," could therefore also be considered, just as constitutionally protected abortions might be. Many judges and juries are doubtless reluctant to use the best interests standard this way, especially where religious or political teaching is involved. But others may be quite willing.
In a second category of cases, courts restrict custody or visitation based partly on one parent's having said bad things about the other parent, or order a parent not to say such things. Sometimes, the parent's speech might seem like simple badmouthing, perhaps even constitutionally unprotected slander. But the restrictions can also limit a parent's expressing broader viewpoints that also expressly or implicitly condemn the other parent. One parent, for instance, was ordered to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic," because the other parent was homosexual. Parents have had their rights reduced based, in part, on their having told their children that the other parent was destined for damnation, or otherwise criticizing the other parent's religion. A court could likewise restrict a father's teaching his children that women must be subservient to men, since such speech might undermine the mother's authority.
These restrictions may seem viewpoint-neutral, on the theory that they evenhandedly protect any parent from speech that may alienate the child from that parent, no matter what ideology the speech expresses. But this is quite unlikely to be true. I don't think, for instance, that courts would or should order a mother to stop teaching her child that racism is wrong, even if the father is racist and the condemnations of racism implicitly place the father in a bad light. If this is so, yet courts do order a mother to stop teaching her child that homosexuality is wrong, when the father is gay, then the courts' action is indeed viewpoint-based: Certain viewpoints may be taught even when they implicitly criticize the other parent, but others may not be.
Some other restrictions in this category have been based on a parent's revealing facts that undermine the child's relationship with the other parent, for instance when a mother accurately told her twelve-year-old daughter that her ex-husband, who had raised the daughter from birth, wasn't the girl's biological father. And some court orders prohibit the parent from telling the children anything about such orders, presumably on the theory that such discussions are likely to remind the children about tension between the parents, or are likely to be accompanied by explicit or implied criticism of the other parent.
In a third category of cases, some courts have restricted a parent's religious speech when such speech was seen as inconsistent with the religious education that the custodial parent was providing. The cases generally rest on the theory -- sometimes pure speculation, sometimes based on some evidence in the record -- that the children will be made confused and unhappy by the contradictory teachings, and be less likely to take their parents' authority seriously. In one case, a court ordered "that each party will impress upon the children the need for religious tolerance and not permit any third party to attempt to teach them otherwise," though it's not clear how such a vague order could be enforced.
Are these speech restrictions constitutional? In Part III, I argue that they generally aren't, except when they're narrowly focused on preventing one parent from undermining the child's relationship with the other; and the observations that lead to this proposal will, I hope, be useful even to readers who don't agree with the proposal itself. Here is a brief summary:
1. As described above, the best interests test leaves courts free to make custody decisions based on parents' speech, and to issue orders restricting their speech. Courts have taken advantage of this freedom and will surely do so again, especially if their right to do so is expressly upheld against constitutional challenge. And this willingness of courts to disfavor a broad range of parental ideologies -- depending on the time and place, atheist or fundamentalist, racist or pro-polygamist, pro-homosexual or anti-homosexual -- should lead us to take a hard look at the doctrine.
2. This broad range of parental speech that courts have restricted under the "best interests of the child" standard should give pause to those who advocate exempting such child custody speech restrictions from constitutional scrutiny. If, for instance, preferences for nonracist parents are constitutionally permissible, on the theory that parents' First Amendment rights don't apply to child custody decisions, then preferences for religious parents -- motivated by judges' sincere beliefs that a religious upbringing is in the child's best interests -- would likewise be rendered constitutional.
3. The First Amendment is implicated not only when courts issue orders restricting parents' speech, but also when courts make custody or visitation decisions because of what parents have said to the child, or are likely to say to the child. And just as the Equal Protection Clause bars child custody decisions that discriminate based on race, so the First Amendment presumptively bars child custody decisions that discriminate based on a parent's constitutionally protected speech. This is why I use the term "child custody speech restrictions" as shorthand for both categories; just as in other fields, "speech restriction" covers not only injunctions against speech but also burdens -- such as taxes or damages awards -- based on the speech.
4. Even when the parents' speech is religious, the Free Speech Clause is probably a more important protection for the speech than the Religion Clauses are, though nearly all the scholarship and most of the litigation has neglected the Free Speech Clause.
5. If parents in intact families have First Amendment rights to speak to their children, without legal prohibitions on speech that is supposedly against the child's "best interests," then parents in split families generally deserve the same rights, except when the speech undermines the child's relationship with the other parent.
6. Parents in intact families should indeed be free to speak to their children -- but not primarily because of their self-expression rights, or their children's interests in hearing the parents' views. Rather, the main reason is that today's child listeners will grow up into the next generation's adult speakers. That next generation is entitled to hear a broad range of ideas, without government interference, and restrictions on ideological parent-child speech are a powerful way for today's majorities or elites to entrench their ideas, and to block their ideological rivals from being heard in the future. The First Amendment is a necessary check on this entrenchment.
7. It may seem appealing to protect speech generally, but to withdraw that protection when the speech imminently threat¬ens psychological harm to the child. But such an approach will likely prove unhelpful: It's hard for courts to reliably predict whether speech will cause harm, to reliably determine whether certain existing harm was indeed caused by speech (as opposed to by the breakup itself, or by the other parent's condemnation of the speech), and to weigh the present upset caused by certain teachings against the teachings' potential long-term benefits.
8. Though this proposal would be a substantial change to modern child custody law's "best interests of the child above all" framework, I think judges can be persuaded to accept it. The Supreme Court has constrained the best interests test under the Equal Protection Clause by barring family courts from considering the parents' interracial relationships even when public hostility to such relationships may affect the child's best interests. Many lower courts have constrained the best interests test under the Free Exercise Clause by barring restrictions on religious teachings (even when the restrictions might be justified using plausible speculation about the child's best interests) unless the teachings threaten imminent harm; the American Law Institute has endorsed this test. There should be room to impose similar constraints in the name of the Free Speech Clause and the Establishment Clause as well.