There is an interesting First Amendment case brewing in New York after an appellate ruled that a mother identified as Christie could lose custody of her daughter unless she removes a rock with a small confederate flag image on it in the driveway. The child is of mixed races and the court has deemed the display as inimical to the best interests of the child. The family court judge did not make such a determination and the ruling raises a very serious free speech concern over conditioning a right to custody on the curtailment of political speech. As will come as no surprise to regulars on this blog, I view the order as an unconstitutional infringement of the First Amendment.
The custody dispute arose between unmarried parents who had a daughter in 2014. The lower court rejected demands for sole custody of both parents. However, the mother’s home was left as the child’s residence. The father, Isaiah, raised the rock previously but did not make the removal a determinative issue.
The family court decision was reviewed by Judges Stan Pritzker, John Egan Jr., Sharon Aarons, Molly Reynolds Fitzgerald and John Colangelo. They admit that the rock was “not addressed by family court or the attorney for the child, the mother’s testimony at the hearing, as well as an exhibit admitted into evidence.” However, they decided to make the removal of the rock a condition to custody: “Given that the child is of mixed race, it would seem apparent that the presence of the flag is not in the child’s best interests, as the mother must encourage and teach the child to embrace her mixed race identity, rather than thrust her into a world that only makes sense through the tortured lens of cognitive dissonance.”
Notably, the court recognizes the obvious First Amendment implications of its decision but quickly dismisses any such concerns on practical grounds:
“Further, and viewed pragmatically, the presence of the confederate flag is a symbol inflaming the already strained relationship between the parties. As such, while recognizing that the First Amendment protects the mother’s right to display the flag, if it is not removed by June 1, 2021, its continued presence shall constitute a change in circumstances and family court shall factor this into any future best interests analysis.”
The Confederate flag is a divisive symbol to be sure but it is protected speech. It can mean different things to different people. However, a court cannot condition parental custody on a parent curtailing their political speech or removing symbols reflecting their cultural or political viewpoints.
In 2015 in Walker v Sons of Confederate Veterans, the Supreme Court ruled 5-4 that Texas could refuse to allow a specialty the specialty license plates offered to drivers by the state of Texas. However, in an opinion written by Justice Stephen Breyer, the five justices viewed the case as forcing the government to speak:
When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says. Pleasant Grove City v. Summum, 555 U. S. 460, 467–468 (2009). That freedom in part reflects the fact that it is the democratic electoral process that first and foremost provides a check on government speech. See Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 235 (2000). Thus, government statements (and government actions and programs that take the form of speech) do not normally trigger the First Amendment rules designed to protect the marketplace of ideas. See Johanns v. Livestock Marketing Assn., 544 U. S. 550, 559 (2005). Instead, the Free Speech Clause helps produce informed opinions among members of the public, who are then able to influence the choices of a government that, through words and deeds, will reflect its electoral mandate. See Stromberg v. California, 283 U. S. 359, 369 (1931) (observing that “our constitutional system” seeks to maintain “the opportunity for free political discussion to the end that government may be responsive to the will of the people”).
Were the Free Speech Clause interpreted otherwise, government would not work.
It was still a razor thin majority and the dissent still viewed the decision to be unconstitutional. Writing for the dissenting justices, Justice Samuel Alito wrote “the Court’s decision passes off private speech as government speech and, in doing so, establishes a precedent that threatens private speech that government finds displeasing.” The dissent noted:
“This capacious understanding of government speech takes a large and painful bite out of the First Amendment. Specialty plates may seem innocuous. They make motorists happy, and they put money in a State’s coffers. But the precedent this case sets is dangerous. While all license plates unquestionably contain some government speech (e.g., the name of the State and the numbers and/or letters identifying the vehicle), the State of Texas has converted the remaining space on its specialty plates into little mobile billboards on which motorists can display their own messages. And what Texas did here was to reject one of the messages that members of a private group wanted to post on some of these little billboards because the State thought that many of its citizens would find the message offensive. That is blatant viewpoint discrimination. If the State can do this with its little mobile billboards, could it do the same with big, stationary billboards?”
In this case, there is no even plausible claim of government speech. This is pure speech curtailment. Indeed, it is censorship being conducted through the coercive threat of removing a child from a home.
The order in my view should be reversed.
Here is the opinion: In the Matter Of Christie BB