Eugene Volokh, a professor at UCLA School of Law, a prolific writer, and in a former life a law clerk to Justice Sandra Day O'Connor, will publish this month a significant piece of legal scholarship, Parent-Child Speech Restricitons. I am please to have his permission to link to the draft.
Queries: Should courts be permitted to restrict exposure of children to movies of a certain rating; to comments that homosexuality is a sin, that racists are bad people, that contradict the other parent's religious teachings, or that are profane; to gun-themed magazines; to pictures of "drag queens;" to unfiltered internet access; or to music with vulgar sexual content? May courts restrict a parent from teaching children values that may differ from the other parent's on such issues as abortion or gambling? Is it a constituitonal vioaltion to prohibit a parent from telling a child that the other parent is not biologically related?
After an extensive review of speech that may be constitutionally enjoined and an analysis of the subjectivity of the "best interest of the child" standard, he offers tentative proposals for the development of this area of law. He believes the "best interest of the child above all" standard conflicts in some cases with First Amendment, Equal Protection Clause and Free Execercise Clause rights of parents. It is his opinion that it is probably constitutional to have even a per se ban on custody where a parent has seriously abused a child, at least when only one of the parents is the abuser. He also believes it is constitutional to consider most of a parent's non-speech behavior under a best interest analysis. He notes that a parent's interracial relationship may not be constitutionally considered. He offers thought provoking proposals on the constitutional restrictions of a parent's speech regarding ideological teachings, religious teachings that are inconsistent with the other parent's, and ideological and non-ideological speech that hurts the relationship with the other parent. A recurrent note is of restrictions on speech to children from "split" families when a court lacks to the power to do so in intact families.
His New York University Law Review article will be helpful to family law practitioners litigating such matters and to appellate practitioners. James G. Dwyer, a professor at the College of William and Mary published a book last month, "The Relationship Rights of Children," which frames the issues from a different perspective, but which Prof. Volokh addresses in his article.
We see these issues on a frequent basis. My guess is that these two publications will fuel discussion and development in the law, and that we will see related "point-counterpoint" at national family law CLE. We will likely see debate in the blawgosphere, too.
On Derby Day Ben Cowgill on Legal Ethics wrote about and linked to a posting in Prof. Volokh's blog, The VolokhConspiracy, in which he references more recent court citings to blogs than to law review journals.
Just as only the foolhardy would draft a trust as part of an estate tax saving provision of a divorce settlement without consulting an estate attorney, we should think about involving attorneys who specialize in constitutional law as we take these issues up. The constitution is about to meet head-on with family law in a big way.