An interesting First Amendment case is brewing in New York after an appellate court ruled that a mother identified as Christie could lose custody of her daughter if she does not remove a stone with a small Confederate flag image in the driveway. The child is of mixed race and the court found the portrayal to be detrimental to the best interests of the child. The judge of the family court failed to make such a decision, and the ruling raises very serious concerns about freedom of speech regarding the conditioning of custody on the restriction of political speech. Since it will come as no surprise to regulars on this blog, I consider the order to be an unconstitutional violation of the First Amendment.
The custody battle arose between unmarried parents who had a daughter in 2014. The lower court rejected requests for sole custody of both parents. However, the mother’s house was abandoned as the child’s residence. The father, Isaiah, raised the stone beforehand, but did not make the removal a determining issue.
The family court’s decision was reviewed by Judges Stan Pritzker, John Egan Jr., Sharon Aarons, Molly Reynolds Fitzgerald, and John Colangelo. They admit that the stone “was not approached by the family court or the child’s lawyer, the mother’s testimony at the hearing and an exhibit admitted as evidence”. However, they decided to make the removal of the rock a condition of custody: “Given that the child is a mixed race, it seems obvious that the presence of the flag is not in the best interests of the child as the mother must encourage and teach the child to adopt his mixed race identity rather than being into a world to bump into that only makes sense through the tortured lens of cognitive dissonance. “
In particular, the court recognizes the obvious implications of its decision on the first change, but is quick to reject such concerns on practical grounds:
“Furthermore, the presence of the Confederate flag is, pragmatically, a symbol that ignites the already strained relationship between the parties. While it is recognized that the first amendment protects the mother’s right to fly the flag, her continued presence constitutes a change in circumstances if she is not removed by June 1, 2021, and the family court needs to do so in any future analysis of best interest. ”
The Confederate flag, while a symbol of division, is a protected language. It can mean different things to different people. However, a court cannot determine parental custody if a parent restricts their political speech or removes symbols that reflect their cultural or political views.
In 2015 in Walker versus Sons of Confederate Veterans, The Supreme Court ruled 5-4 that Texas could refuse to allow a specialty to use the specialty plates offered to drivers by the state of Texas. However, in a statement from Judge Stephen Breyer, the five judges saw the case as a compulsion to force the government to speak:
When the government speaks, the freedom of speech clause does not prevent it from determining the content of what it says. Pleasant Grove City v Summum, 555 US 460, 467-468 (2009). This freedom partly reflects the fact that it is the democratic electoral process that primarily provides scrutiny over government speech. See Council of Regents of the Univ. of Wis. System v Southworth, 529, US 217, 235 (2000). Therefore, government statements (and government actions and programs in the form of speeches) typically do not trigger the First Amendment rules, which are designed to protect the marketplace for ideas. See Johanns v. Livestock Marketing Assn., 544, US 550, 559 (2005). Instead, the freedom of speech clause helps generate informed opinions among members of the public who are then able to influence the decisions of a government that, through words and actions, will reflect its electoral mandate. See Stromberg v. California, 283, US 359, 369 (1931) (noting that “our constitutional system” seeks to “maintain the possibility of free political discussion until the end until the government responds to the will of the people”).
If the freedom of speech were interpreted differently, the government would not work.
It was still a razor-thin majority, and the dissent still considered the decision unconstitutional. Judge Samuel Alito wrote for the dissenting judges: “The court’s decision removes the private speech as a government speech, setting a precedent that threatens private speech that the government finds uncomfortable.” The dissent noted:
“This comprehensive understanding of the government speech takes a big and painful bite out of the First Amendment. Special plates may seem harmless. They make motorists happy and put money into the state coffers. But the precedent this case sets is dangerous. While all license plates undoubtedly include a government speech (e.g., the name of the state and the numbers and / or letters that identify the vehicle), the state of Texas has turned the remaining space on its specialty plates into small mobile billboards that motorists drive on can display their own messages. And what Texas was doing here was rejecting any of the messages that members of a private group wanted to post on some of those little billboards because the state believed that many of its citizens would find the message offensive. That is an obvious view of discrimination. If the state can do this with its small mobile billboards, could it do the same with large, stationary billboards? “
In this case, there is not even a plausible entitlement to a government speech. This is purely a language restriction. Indeed, it is censorship carried out through the coercive threat of removing a child from a home.
The order should be reversed in my opinion.
Here’s the opinion: On the Christie BB case