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
This is a close shave for me. I certainly understand the rationale, but am troubled. I can see how this may not be in the best interest of the child, but the Confederate flag mean different things to different people. Did anyone ask Mom what it means to her? I am not arguing against the dad because I understand he is not happy. I personally am not sure how to go with this one. If the mother truly loves the flag or it represents something other than what most think, it becomes very hard.
I place this along with Religious choices or political choices. If one parent does not like the other parents choice, do they get to stop that choice? I like the standard or what is best for the child, but if one parent becomes a Republican and the other a Democrat, can that matter? If this child in question is doing well and well raised, does the flag matter other than dad hates it? If one parent wants to raise the child a vegan and the other feeds the child meat, what then?
Ultimately, I can only hope both are being honest and not playing games with the other with their child as the football.
If New York City seceded from the Union, Upstate New York would let them hoist whatever flag they wanted (hammer and sickle? ISIS? BLM?) as long as they didn’t come back.
That’s white rural upstate NY. Urbanized upstate NY would be quite a different story. A dynamic that all those in the succesionist school thoroughly don’t understand wherever they’re thinking it would answer their white people plans and dreams. Texas in particular.
EB
If this dimwitted woman doesn’t understand what the Confederate flag stands for and why it doesn’t belong at the place of residence of her mixed-race child, she probably shouldn’t have custody of the child at all. The same is true of those ardent Trumpster disciples who have mixed-race children (any mix of races). They are simply too ignorant of history and the symbolism of the Confederate flag to parent mixed-race children.
These dumasses think that they are somehow celebrating some history or heritage by embracing Trump and the Confederate flag, but their values are misplaced. The south lost the Civil War. Their flag stood for the perceived right to enslave persons of the black race and willingness to destroy the United States to keep black people enslaved. Lincoln said, in his Gettysburg speech that the nation and the values our ancestors fought and died for were being tested. There is nothing worthy about the Confederate Flag or what it stands for. Anyone who doesn’t understand these things has no business with a mixed-race child in their home. The issue isn’t freedom of speech, but appreciation for the value of the child and his/her heritage.
While your opinion is lovely it is irrelevant as well as none of your business. Unless you are prepared to deny parental rights based upon support of Marxist principles, e.g., BLM? Or how about if a parent happens to be a black nationalist, or even black supremacist? There is a mind your own business aspect to folks’ political or religious beliefs you ought to honor.
You are one of the ones who doesn’t get it. Marxism has nothing to do with the fundamental worth of a person of color, unlike support for the dead Confederacy, which was all about the flawed belief that white people had some right to enslave black people because they are inferior. There is no BLM organization per se, just a sentiment.
Natacha, you are somehow telling us that the leaders of BLM have not declared them selves Marxist while purchasing millions of dollars worth of real estate. Their sentiment has collected millions of dollars. How does a sentiment have a bank account? To use your word, BLM must be just a sentiment of our imagination. Sooner it later the ridiculousness of your arguments comes to fruition.
I see you took your bigotry and racism pills this morning.
Can you cite the Constitution on the prohibition of belief, opinion, thought, discernment, discrimination, genusism, speciesism, racism, etc.
May we think only as you command?
May we think at all, Your Highness, nay, General Secretary?
You can believe anything you want, and mostly can say anything you want, but when the custody and best interests of a young child are at issue, if you support a system founded on the principle that the child was born inferior because of her race, you should not be allowed to raise the child.
Please define racism.
Throw in racism cause u bigots have nothing of substance.
Dems are the home the kkk, white supermists, Jim crow etc n have kept blacks shackled in modern day cotton fields used thier elite black uncle Tom’s 2 justify thier racism.
Why are blacks in thier current plight when they voted dems 4 decades.
So now Natacha doesn’t think that a white Republican and a black Republican should be allowed to be married because they would be a danger to their mixed raced offspring. She states that every Republican is a racist and therefore should not be allowed to procreate. Their are people in China subject to forced sterilization by a regime that has put her plan into action. Very rich that such a bigot would call others a bigot. Are there any here on the left who will voice their disdain for her despicable comment?
First of all, I said nothing of the sort. What I said was that if someone displays racist symbols of a failed belief system founded on the fundamental inferiority of a certain race of people, that person has no business parenting a child of the race s/he believes is inferior. The Confederate Flag is not about politics, nostalgia, heritage or anything other than human slavery.
Secondly, the meaning of the word “Republican” has sadly undergone an ugly metamorphosis since the orange loser came on the scene. While I may respectfully disagree with their politics, I respect old-school Republicans, like Mitt Romney, Liz Cheney and John McCain. America desperately needs more of them. Pathetic syncophants and Big Lie supporters like Josh Hawley, Gaetz and that homely Q-Anon bottle blondie are not old-school Republicans. They are disciples of the Cult of Trump, only because he leads a group of disciples like yourself who ignore lies, failure, incompetence, racism, misogyny and xenophobia in order to hitch their wagons to his star (which is burning out, by the way). They attach themselves to his coattails, hoping people won’t notice that they stand for nothing worthwhile, including and especially the truth. The Republican Party continues to lose support among the American people, so it resorts to voter suppression, gerrymandering and lying about Trump losing the election to stay in power.
None of this has anything to do with China, either, and you don’t even understand what their 1 child per family policy was based on. It was because the birth rate in China was so high and resources were so limited that if the population, which was already suffering periodic famine, wasn’t brought under control, China was a risk for being taken over and enslaved by other countries. I think their policy is wrong and immoral, and they are a very misogynistic country, too. The babies offered for adoption are almost all females, because females are considered less worthy than males, and because males are required to support their parents in their old age. In some areas of China, there are few to no females for marriage, so they’ve resorted to kidnapping Korean women and girls.
The Confederate Flag represented a sovereign foreign nation which had constitutionally seceded from the United States of America.
Did I get it right?
I did, didn’t I, Your Majesty, nay, General Secretary?
You don’t care for the law much, do you?
Did you know that the Naturalization Act of 1802, in full force and effect in 1863, required Lincoln to immediately deport, as illegal aliens, the slaves he unconstitutionally confiscated?
You don’t care for the law much, do you?
The Confederate Flag represented a group of states that placed enslavement of Africans kidnapped from their home country above the Union and all it stood for. At Gettysburg, Lincoln said: “fourscore and seven years ago our forefathers brought to this continent a new nation, conceived in liberty and dedicated to the proposition that all men are created equal. Now we are engaged in a great civil war, testing whether this nation or any other nation so conceived and so dedicated can long endure.” The Confederacy was based on a fundamental belief that white people are sufficiently superior to black people so as to entitle them to enslave black people, beat them, physically and sexually abuse them and sell them like cattle, plus a willingness to die for this perceived “right”. It also was based on the fact that the south was mostly rural and that agriculture of the time required mostly manual labor. Paying for farm hands would cut into profits, so there wouldn’t be the massive plantations with palatial homes and furnishings. So, economics was involved, too. With the Emancipation Proclamation, the slaves became U.S. citizens. Since slavery started in the 1600’s, many of the slaves of Lincoln’s time had been born here, so they were citizens anyway. Some were the children of their masters, too. Their ancestors didn’t come here via their own free will, either.
You don’t care much for facts or human rights, do you?
Free people in America and around the world have the freedom of advocacy, boycotts, divestiture, etc., and other social and economic means to shape their nations and abolish slavery.
You are the direct and mortal enemy of the Constitution, you are the direct and mortal enemy of freedom and you are the direct and mortal enemy of America.
Below is the law on immigration upon the unconstitutional issuance of the unconstitutional emancipation proclamation, which caused the status of slaves to change from “property” to “illegal alien.”
“Crazy Abe” had no power to issue a proclamation in the absence of rebellion, understanding that America was in a condition of irrefutably constitutional secession by the CSA.
If you want to argue the existence of slavery, and reparations, contact the African tribal leaders who sold Africans to Arab slave traders and started slavery by British planters in the British colonies.
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You are incoherent in terms of the law and fundamental law.
You are not arguing law.
You are arguing your hysteria and incoherence as a wannabe despot and dictator.
The United States of NUTCHACHA
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Naturalization Acts of 1790, 1795, 1798 and 1802 (four iterations, just to be clear on original intent, by the Americans who established America).
United States Congress, “An act to establish an uniform Rule of Naturalization,” March 26, 1790
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof
Nat, your TDS is showing again. The subject matter of this entry by Turley on his blog has ABSOLUTELY NOTHING to do with Trump. You and your comrades really need some help. I guess I should be grateful that you didn’t bring up the well beaten dead horse of January 6th.
So you have no problem with governmental interference in this manner? Have you any idea what child protective services across the country allow to happen in terms of sexual and physical abuse? I guess next we’ll see children of mixed race parents or black children adopted by white parents taken away from their parents because of whatever garbage reasons you put forward. Let’s see. What will be next? Taking children away from Christian parents? Taking children away from Conservative parents — which has been suggested by that former attorney for NPR. Where does it end? And, to paraphrase warspite2 says below, why not take children away from violent black nationalists and supremacists? Again, where does it end?
This case is an erroneous, fraudulent and insidious conflation of opinion and harm, with the court engaging in the illicit usurpation of power, for which it must be held responsible, rather than declaring the case void, as its sworn duty is to support the “manifest tenor” of the Constitution, and not to legislate, “interpret” legislation or modify legislation – simply to assure that actions comport with law and fundamental law.
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“If my aunt had b—s, she’d be my uncle.”
– Anonymous
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She doesn’t and she isn’t.
The 1st Amendment freedom of speech is not qualified by the Constitution and is, therefore, absolute.
America is a nation of laws, not a nation of malevolent accusations and fanciful hypotheses.
No court has any authority to legislate, “interpret” legislation, or to modify legislation or the “manifest tenor” thereof.
The freedom of speech shall not be abridged.
It may be a crime to speak a false claim of authority or to falsely endanger through speech.
It may be actionable to defame through speech.
No evidence of a crime has been presented in this case and no suit has been filed.
The freedom of speech shall not be abridged.
That any and all speech shall not be abridged is the “manifest tenor” of the Constitution, and any and all abridgement of speech must be declared void by the judicial branch.
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“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
– Alexander Hamilton
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1st Amendment
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The bedrock principle underlying all family law matters where children are involved is the best interests of the child. Period. Freedom of speech isn’t the issue here–displaying any symbol of the South, like the Confederate Flag, shows lack of respect for the child’s heritage.
Although not directly related to free speech, the arbitrary and unfair nature of these family courts is astounding. These courts are definitely not interested in the well being of the child.
According to you. The decision is about the appellate court, and the decision should be reversed because there was no error of law or procedure on the part of the family court, apart from the First Amendment issue. There are a fair few people who find images of Che Guevara equally disturbing, but, like the “Stars and Bars”, display of those images is protected speech.
Put a clock on the flat ground in the front yard. Put a rock with a Nazi symbol go the right of the clock and a commie flag on a rock to the left. Play the song: Rock Around The Clock.
Put a huge smelly hog turd on top of a rock with the Brit flag
Let’s ask the people from West Virginia. What worse: Brit Flag or Confederate Flag?
The real problem is the lack of true historical knowledge. Although Northern historians attempt to dismiss it, the facts are that thousand of blacks served the Confederacy in various respects, including serving as combat soldiers. At the beginning of the war, there were black regiments in the Confederate army. Union army dispatches confirm this. They take the later ruling by the Confederate government not to put slaves in uniform as a basis for ignoring that there were black Confederates. They ignore that thousands of slave owenrs were, in fac, themselves black. Nathan Bedford Forrest’s escort company included black soldiers and he took black soldiers back to Memphis with him to work as freemen on his lands. These historians like to make the war about freeing the slaves instead of preserving the Union because it gives them a sense of satisfaction that their ancestors were part of an army that invaded the South in order to advance the aims of the Republican Party as it existed in the 1860s and afterwards. By the way, Forrest’s grandson was the first US Army general to die in combat in World War II.
Did not New Hampshire have a case over their “Live Free or Die” moniker?
Judge: “It’s either the Rock or Bye-Bye Baby.”
So confusing
A man can be a woman, why can’t a rock be a symbol of unity?
Good point.
Years back in this country you would see a Jewish lawyer defend a Nazi or a kkk member. The Jewish lawyer had no use for these characters, but this lawyer knew what our constitution was all about.
Maybe that guy should have thought a little more carefully before doing the deed with a lady who decorates her yard with the Confederate flag.
An over step on a couple levels, certainly. I am however endlessly fascinated by your insistance on not grasping first ammendment nuance though, Jon.
EB
The same people that will support taking the child from the mother, see the way too prolific Anonymous, will argue against Turley when he defends professors fired for saying such benign things as “all lives matter”.
To all the Anonymous type of contrarians, would you be so sanguine if a court took a child away from a parent with a “Black Lives Matter” flag? How about Mon walking around in a Che sweatshirt? How about a pro-life cap? And last but not least, how long is it until the left takes a child from a [arent with a MAGA hat on?
English translation please.
I agree. It is a blatant attack by the govt on free speech and with the horrific threat of kidnapping a citizens child and holding them hostage unless they surrender their rights to free speech and exchange of ideas. Problem is, it just keeps happening.
If the father had a BLM sticker on his car, would any court dare intervene? There are many things people may find offensive but the government has little to no business trying to set the value by which children are raised.
What next? Religion being determined to be the opiate of the people and children being removed from devout parents in favor of atheistic ones?
I have to laugh every time I drive through the Carolinas and pass those twenty foot confederate flags along the highway. You know, that flag was very popular in the 70s, amongst even those of us in the North, who viewed it largely as a “rebel” symbol. It was very popular with denim-clad counterculture nationwide. Free speech, I’m going to exercise it here – the rebel flag was very popular symbolically until so-called “black” people – northern black folks, at that – came along and said, “Oh no, you shouldn’t do that, that’s a symbol (and mind, you, just a symbol, not even an expression”) of the former slave-owning Confederacy, and it should be outlawed in America ” Can you imagine? Without freedom of thought and opinion expressed, without freedom of expression, they would not even have the right to say something like that, let alone impose their will on others. And mind you, this is a subculture in America that has allowed itself to be entirely decimated by drugs and alcohol, and essentially, immorality – and they want to impose their will on us?. After an estimated 800 year march towards freedom? We ourselves would have to be insane to keep kowtowing to such inanity for the sake of those so thoroughly committed to what can only be described as evolutionary apoptosis. .
Rocks are made to be thrown. Someone throw a rock with the First Amendment scribbled on it. Thru the judge’s window.
Lefties love to impose their views on others.
Human nature but it has gone far beyond (bad) human nature and is being injected into law.
Tyranny of the majority is still tyranny.
Reading the comments on yesterday’s post, I want to remind Conservatives that wrestling with a pig is a waste of time.
You get dirty and the pig has fun.
There are a lot of trolls out there who spend their days obsessively refreshing their browsers every few minutes waiting to comment on others’ posts.
They aren’t there to debate, but to give importance to their sad little lives.
MonuColo-Amen to that.
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