I recently read Eugene Volokh’s intriguing piece, Parent-Child Speech and Child Custody Speech Restrictions, 81 NYU L. Rev. 631 (2006), in which he argues that many restrictions courts have unhesitatingly imposed on what divorced/separated parents can say to or teach their children, along with many custody awards based on findings that one parent’s beliefs would be better for a child, are simply unconstitutional restrictions on free speech. Volokh is great at identifying laws or rulings that, once understood as implicating First Amendment rights, seem inconsistent with common understandings about the First Amendment.
The article begins with a useful and disturbing survey of custody and speech restrictions based on divorcing parents’ beliefs. One parent will, if allowed to do so, teach her child that his father is doomed to Hell because he’s a homosexual. Another parent will teach his child that her mother is a bad person because she’s an evangelical Christian. Another will take her child to White Power rallies; another will simply badmouth the noncustodial parent. Courts routinely tell parents not to teach their children these things. At the same time, courts routinely hold that a factor in awarding custody is which parent will provide a more thorough religious education for the child. All these things, if done to intact families, would seem government coercion of belief of the highest order. Volokh asks whether it should matter that the family is in conflict.
After all, a large percentage of marriages with children will end. A policy of, for example, routinely awarding custody to the parent with the “best” politics or strongest commitment to Christianity would have extremely profound deterrent effects on divorcing and married-but-nervous parents alike. Moreover, if the state can put its thumb on the scales based on parents’ beliefs, why can’t it sweep in and take custody of kids who’re being taught the wrong things even when the parents aren’t in conflict?
In a section called "The Limits of Harm Analysis -- What's Harmful and What's Beneficial?" Volokh makes a provocative claim: He argues that, though speech by one parent critical of the other may cause psychological damage, we might be mistaken to think of that as a real harm. Perhaps, he suggests, children exposed to conflict will grow up stronger or better-equipped to depend themselves against the slings and arrows of outrageous fortune. When people disagree about when children should learn that certain beliefs are sharply contested, he suggests, we shouldn't presume the temporarily traumatic speech will do more harm than good.
Fighting about harm is a standard move of free speech defenders, who are after all faced with variants of the claim “speech causes harm.” If offense isn’t a harm, if exposure to sexual speech isn’t a harm, etc., then regulation to avoid those things is unjustified. But how do we decide what counts as a harm?
If we look at the long run, as Volokh suggests we do with the effects of speech on children, it may be hard to find any harms at all. (In the long run, we’re all dead.) Is being defrauded harmful in the long run? What if it teaches you to be more skeptical – isn’t that a better condition than your previous innocence? What about losing a hand? Randy Picker recently discussed evidence that victims of serious, painful accidents end up in the long run just about as happy as they were before the accident, and people with disabilities often don’t feel as disadvantaged as nondisabled people think they’d feel in the same situation. And there are overall effects to consider, too: Even if the kid whose parents defame each other to her grows up sad, she might be a better citizen because she’s more realistic, increasing overall utility. If so, how can we say that a speech restriction on parental defamation prevents harm?
Volokh’s skepticism about harm is corrosive of all speech restrictions, because one could ask the same questions in any case. So what if loose lips sink ships? Is it relevant that sunken ships brought the U.S. into World War II, which many people think was a good thing even if the triggering event was horrific? We have to draw an end point and do the best we can at assessing harm, whether our point of view is total social utility or rule utilitarianism or some concept of the inviolable rights of the individual kids involved.
Relatedly, Volokh’s challenges to the theories of harm used in parental custody/speech cases highlight a shift in First Amendment law that has gone largely unremarked: The standard for proving harm that the government must meet has been increasing, slowly but surely, both when the government loses and when it wins. Compare the evidence that child pornography harms children accepted in Osborne v. Ohio versus that rejected as insufficiently specific in Free Speech Coalition v. Ashcroft; compare the baseline assumption that defamation is sufficiently harmful to be banned in at least some cases with the evidence required to (eventually) uphold must-carry requirements for cable. Volokh asks courts imposing parental speech restrictions to prove that the posited harm is real, but in “core” First Amendment areas with the longest history of protection, we’ve long simply accepted that the harm is real and focused our doctrinal attention on sorting the cases in which the harm exists from those in which it doesn’t.
I also think there are serious administrability problems with Volokh’s proposals – something he recognizes, but I’m not convinced by his response that it’s a good idea to act as if the First Amendment puts limits on judges in custody cases. For example, Volokh advocates that courts should be barred from considering parents’ willingness to restrict children’s exposure to R-rated movies, gun-themed magazines, age-inappropriate music, pictures of drag queens, and the like. I find it hard to distinguish this from the question of how involved a parent is in her child’s life. Maybe “involvement” is, in itself, expression protected by the First Amendment, and yet I can’t figure out how this custody system would work without a bunch of other changes. A default to joint custody, unless actual abuse or neglect is proved? If so, the First Amendment really is the new substantive due process.
I think, because I need to think about this, that when I am done with http://www.iMagicLab.com that I might go to work for the ACLU or donate a huge amount of money to Free Speech causes. Until this week when I received a restraining order to limit my speech online, even when the speech non-defamatory or positive in nature, I underestimated the Judicial power to causually restrict our inaliable rights granted by the Constitution in the name of protecting children.
Be careful what you say because if the Judge doesn't agree with your opinions it could cost you your children... Welcome to America in 2007
