First, why its important, because the generic rights under the 14th amendment at least parental rights are rather vaguely defined and there aren’t any real substantive standards that have to be applied. And those substantive standards are those standards that have to be met before they can infringe your rights. Where First Amendment rights on the other hand have been heavily, heavily litigated all the way up to the Supreme Court many, many times. There is a wealth of case law on First Amendment rights. There are very well-defined substantive guarantees, substantive rules that they have to meet before they can infringe your First Amendment rights. And these family law courts want to avoid that like the plague. Our job, your job is to make it where they cannot avoid that, where they have to confront the First Amendment realities of our parental rights.
So one of the areas where they do this is in your educational rights. They say you have a right to direct the education of your children. Well that word direct is an important word. Now its true you have the right to direct your child’s education. But, what’s really important is you have the right to educate your child directly yourself with your own speech, with your own examples, and correcting your child’s behavior on a day to day minute by minute basis. Why is this important? Because it requires speech for you to teach your child directly and that speech has been protected by the First Amendment in the parental rights context. The court has said parents have a right to educate their children. And the state’s interest in educating the children is secondary to the parents’ rights. This goes way, way back maybe a little over a hundred years. I would have to double check the date on the case, but it goes way back. This is important because when they say you have a right to direct the education, then they can come up with all kinds of arguments to get around it. When you say I have the right to educate my child through my speech every single day .I have the right to observe my child’s behavior in routine daily activities and correct that behavior or reward that behavior as appropriate as an active interactive learning experience that requires routine daily contact with the child. This can’t be done four days out of the month. This can’t be done by Disneyland dads. This requires the parent to be involved in all the minutiae of daily living — brushing your teeth, saying your prayers, all of these things.
And saying your prayers is vitally important because that gets us in the realm of religious freedom that you and your child have. You have the right to get down on your knees, put your hands together and pray with your child every night before bed time as a First Amendment right. Your child has that right to do so with you under your guidance, under your direction, and to learn about the God that you worship the way you worship that God and the way you go about doing all of the tiny little details that are involved in religious practice. And depending on what religion you adhere to there can be many, many well-structured details there. If you’re Jewish or if you’re Catholic, you have very long traditions, thousands of years of tradition, in very minute practices and details about how your religion works and how your adherence to is works on a daily basis, and that has to be communicated to your child. If they deprive you of your time to your child or if they say you only have the right to direct your child’s religious education by sending them to someone else to educate them, they are wrong, right. And they are actively trying to violate your First Amendment rights and more importantly your child’s First Amendment right. Your child has that right to learn from you.
So when they say, and this is important, when they come back and say, “Yes, you have a right to direct your child’s education, but . . .” You need to correct them, say, “Objection your honor, yes, I have a right to direct my child’s education but more importantly I have a right to educate my child directly and my child has a concomitant right to learn from me, and we have a right to do that on a daily interactive basis through all the nuances and minutiae of daily living. And that child has a right to learn from my example, to see how I deal with things on the simplest basis, on the most routine things of daily life. They have a right to watch me. When I get cut off in traffic whether I curse at the person and rant and rave or whether I turn the other cheek. That example is essential, both through our speech and communication education, but also to our religious practice, and who that child is going to be as a religious and spiritual being when they are an adult. When the court takes that time away, the court is directly altering who that child is going to grow up to be. And they are diminishing or restricting the sphere of available knowledge for that child.
That’s another important point, the Supreme Court has said that the government has no business limiting the sphere of available knowledge. When the court picks one parent over the other parent to have more time, they are limiting the sphere of knowledge available to that child and the sphere of knowledge available from the other parent. That’s called censorship, something we’ll get into in another episode, all right; and that is also a First Amendment forbidden thing. Just the very existence, you don’t even have to prove they are doing it, you just have to prove that that capability to censor exist, and it clearly does in family law.
So you want to pay attention to the language. You want to pay attention to the nuance and how they direct everything to Fourteenth amendment principles. And you want to object and say, “No, your Honor, while the Fourteenth amendment applies we are more interested in asserting our First Amendment rights and those First Amendment rights have well established substantive guarantees, and you may not limit the time, place, or manner in which I speak, associate, and worship with my child without meeting of the substantive guarantee for that. You cannot do that based on the content of our Association of our speech or our worship without meeting strict scrutiny, and if you’re going to use best interest to do that you are making viewpoint decisions regarding matters of conscience, which is strictly forbidden to the government. And I object that your determination of my child’s best interest is a viewpoint is viewpoint discrimination based on matters of conscience that is used to support a prior restraint on free speech, specifically the times the places and the manner in which the child and I may speak, associate, and worship.
Those are important things. You heard them in other podcasts, you will hear them again. You need to learn those. You need to repeat those. That needs to be your mantra – time, place and manner restrictions, prior restraint on free speech, prior restraints based on viewpoint, and viewpoint based on matters of conscience; for that is the strongest most protected issues we have in our constitution. They come from the First Amendment, they get the most protection., and they have the most case law around them of any right. And those are the keywords you need to use, and each of those absolutely applies in family law. If you really look at it these courts are attacking our First Amendment rights as families to live together as family, to communicate as families, to have intimate and expressive relationship as families. These courts are saying, “No, your viewpoint doesn’t matter, the state’s viewpoint is all that matters and we’re going to dictate to you what kind of family you have and how you can live that family life; all because you made a marital choice that the state doesn’t like. And that’s just absolutely forbidden. It was allowed a hundred years ago; it’s forbidden today. The Supreme Court has overwhelming case law in every context that clearly shows this is forbidden today and we need to force them to recognize it in the family law context, and say, “You know what, we’ve ruled out all these issues individually in other contexts, and they absolutely and undeniably apply in family law. And you family law courts you need to knock it off and stop violating people’s First Amendment rights, okay. All right, so that’s another podcast very important topic. First Amendment rights and how they try to steer you in the 14th amendment so it’s more fuzzy and more vague and ill-defined, and they can get away with things, don’t let them do it, First Amendment is the way to go.
This is the end of the third episode of Ron B Palmer’s Unauthorized Practice of Legal Analysis —
Episode 3 UPLa 1st amendment versus 14th amendment
DISCLAIMER: Ron is not an attorney, does not practice law, and is not a substitute for an attorney.