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http://home.businesswire.com/portal/site/google/index.jsp?ndmViewId=news_view&newsId=20060929005125&newsLang=en http://www.law.ucla.edu September 29, 2006 10:23 AM Eastern Time UCLA Law Expert Available to Discuss LOS ANGELES--(BUSINESS WIRE)--The following
UCLA School of Law professor is available for interviews regarding the
Pennsylvania Supreme Court’s 5-1 decision in Shepp v. Shepp to allow a
father to teach his young daughter about his religious belief in polygamy,
despite his ex-wife's objections. The litigating parents in this case, who are
divorced, have joint custody of their daughter. Eugene Volokh Gary T. Schwartz Professor of Law (310) 206-3926 UCLA Law Professor Eugene Volokh has a forthcoming
article in New York University Law Review entitled, “Parent-Child Speech
and Child Custody Speech Restriction,” which addresses the issues at the
very heart of the Shepp v. Shepp case. Volokh argues that legal restrictions
placed upon parent-child speech are generally unconstitutional, except when
they are narrowly focused on preventing one parent from undermining the child's
relationship with the other. Below is the abstract of Professor
Volokh’s article: The "best interests of the child"
standard — the standard rule applied in custody disputes between two
parents — leaves family court judges ample room to consider a parent's
ideology. Parents have had their rights limited or denied partly based on their
advocacy of racism, homosexuality, adultery, nonmarital sex, Communism, Nazism,
pacifism and disrespect for the flag, fundamentalism, polygamy, or religions
that make it hard for children to "fit in the western way of life in this
society." Courts have also penalized or enjoined
speech that expressly or implicitly criticizes the other parent, even when the
speech has a broader ideological dimension. 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. Others have lost
rights based partly on telling their children that the other parent was damned
to Hell. Courts have also 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 become confused and unhappy by the contradictory
teachings, and be less likely to take their parents' authority seriously. This article argues these restrictions are
generally unconstitutional, except when they're narrowly focused on preventing
one parent from undermining the child's relationship with the other. But the
observations that lead to this rule are likely, I think, to prove more
interesting to readers than the rule itself: (1) The
best interests test lets courts engage in viewpoint-based speech restriction. (2) The
First Amendment is implicated not only when courts issue orders restricting
parents' speech, but also when courts make custody or visitation decisions
based on such speech. (3) Even
when the cases involve religious speech, the Free Speech Clause is probably
more important than the Religion Clauses. (4) If
parents in intact families have First Amendment rights to speak to their
children, without the government restricting the speech under a "best
interests" standard, then parents in broken families generally deserve the
same rights. (5) 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 to protect
parental speech rights is that today's child listeners will grow up into the
next generation's adult speakers. (6) Attempts
to limit restrictions to speech that imminently threatens likely psychological
harm (or even cause actual psychological harm) to children may seem appealing,
but will likely prove unhelpful. * * * * * |
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