Court orders upstate woman to remove Confederate flag or risk custody of multi racial child

[Demovictory9]

ALBANY – Appellate justices in Albany on Thursday ordered a woman in Tompkins County to remove a rock from her driveway that is painted with a Confederate flag or risk a "change of circumstances" in the custody case of her multiracial daughter.

In a unanimous 5-0 ruling, appellate justices allowed the couple to retain joint custody of the child, who was born in 2014 and attends school in the Dryden Central School District, which is east of Ithaca.

But if the Confederate-flag-decorated rock is not removed by June 1, Family Court would be obliged to factor its presence "into any future best interests analysis” regarding the child, stated Justice Stanley Pritzker, who authored the decision by the Appellate Division of state Supreme Court's Third Department, the state's second-highest court.

The mother, identified only as Christie BB, testified at a fact-finding hearing that “she had a rock with a Confederate flag painted on it at her home,” Pritzker said in the ruling.

“In response to questioning, the mother testified that she has never used any racial slurs in front of the child or at all,” the ruling said.


https://www.timesunion.com/news/article/Court-orders-upstate-woman-to-remove-Confederate-16156632.php

[SergeStorms]

1. Why remove the rock?

Couldn't they just paint over the traitor's flag? Paint a big eyeball on it or something. It'll cost someone a lot of money to remove it.

[Progressive Jones]

2. She probably has that option. They likely just want the flag gone. nt

[BGBD]

6. That's really not up to them

And threatening to take her kid away because of it is a clear violation of her 1st amendment rights.

We should all be against this.

[Towlie]

9. Did you know that children have rights too? They're not like pets, which are considered property.

 
?

[msfiddlestix]

10. Free Speech doesn't Protect Hate Speech

Teaching Racism should be considered as abuse. Pornography is considered free speech, except when children are involved. Exposing children to pornography is at the minimum considered as abuse, and certainly cause for child protection, and in the case of adoption or custody to be refused guardianship etc.

My only question is why allow such a long waiting period before required removal. Why isn't the court order immediate removal?

[smirkymonkey]

29. +1000

[apnu]

46. "Free Speech doesn't Protect Hate Speech" exactly right.

There are numerous court rulings, including SCOTUS rulings exempting hate speech from 1A protections.

[Jedi Guy]

127. Could you please cite one of those SCOTUS rulings?

In 2017, in the case of Matal v. Tam, the court unanimously ruled that there is no "hate speech" exception to the First Amendment. Kindly point out a case where SCOTUS ruled otherwise.

[MarineCombatEngineer]

134. ....

"Free Speech doesn't Protect Hate Speech" exactly right.

Exactly wrong.
Please provide links to these "numerous court rulings, including SCOTUS rulings exempting hate speech from 1A protections".

[Jedi Guy]

126. "Free Speech doesn't Protect Hate Speech"

First off, there's no legal definition of "hate speech" in the United States. The Supreme Court has ruled as recently as 2017, in a unanimous verdict, that there is effectively no "hate speech" exception to the rights guaranteed by the First Amendment. So you are incorrect. "Hate speech" is protected speech as long as it doesn't fall foul of the so-called "Brandenburg Test."

[msfiddlestix]

129. ok. I'm wrong. U.S. Citizens are free to hate and teach their children to hate

Ain't that a swell argument in defense of free speech. Boy howdy.

No wonder children in this country grow up to be racists pigs, misogynist, thugs, allowed to spew their hate holding public office, indulge in murdering people of color as police officers, and even become the President of the United States.

No wonder media platforms are allowed to freely spew every manner of support for this kind of culture to proliferate on the public airwaves and other media platforms.

No wonder our Supreme Court Justices continue to bend over backwards to protect the rights of murderous pigs to carry on under the 2nd amendment's right to "bare arms" and on and on.

to hell with decent people in our society, they're on their own with no protections against any of this.

[Jedi Guy]

130. Yes, you are wrong.

In a society where freedom of expression has value and meaning, the answer to bad speech is not banning it, but countering it with good speech. That's how the "marketplace of ideas" functions. As a wise man once said, "When you tear out a man's tongue, you are not proving him a liar; you're only telling the world that you fear what he might say."

[MarineCombatEngineer]

132. Thank you Jedi Guy!!!!!

To paraphrase, I may not like what someone says, but I will defend their right to say it.

[Jedi Guy]

143. Thank you as well for fighting the good fight in this thread and others. I enjoy your posts.

It's legit disheartening to see so many people around here willing to dump free speech in the ditch in order to muzzle speech they dislike. Once upon a time, the quote you paraphrased was one of the guiding principles of American life. The embrace of tyranny disguised as virtue is very concerning.

[MarineCombatEngineer]

144. +100. nt

[msfiddlestix]

133. I'm glad to know that's working so well. Not through my prism however.

I guess my prism got a bit tarnished over the years. my bad.

[Jedi Guy]

138. Your tarnished prism is no excuse for your embrace of tyranny disguised as virtue.

Freedom of expression is one of the most sacred rights guaranteed to Americans, and it should only be abridged in very, very narrow circumstances. "Because I don't like it" is not a valid circumstance.

[msfiddlestix]

145. Embracing Tyranny? Wow.

Comparing my views as a form of Tyranny I consider as outlandish as well as insulting.

It appears this is a "black and white" issue for you? It isn't for me. it's a lot more complicated but this is why we can't have a rational conversation that could lead to a promotion of decency and a caring society, which would go a long ways towards restoring our democracy.

We have been on the road to absolute tyranny and authoritarianism in this past five years, underscored with vile hatred, ignorance and promotion of violence against people of vulnerable communities openly promoted.

Are you comforted witnessing what we've all lived through the past several years?



eta: By comforted, I meant does it give you comfort knowing that "free speech" has been preserved in all it's forms despite the promotion of hate speech has significantly ruled the day?

[Jedi Guy]

151. Yes, tyranny. Muzzling other people because you don't like their views is tyranny, full stop.

And it's not complicated at all. The First Amendment is very clear, as is the interpretation of it through SCOTUS and other court cases. Those cases have defined the narrow exceptions to freedom of speech, and "hate speech" is not one of those. Your wish to ban "hate speech" is nothing more than "I don't like it, ban it" dressed up with trappings of virtue.

And yes, it does comfort me knowing that free speech has been preserved. It's a cornerstone of American life and arguably the most important of the rights enumerated in the Bill of Rights. And I'll absolutely push back against those who try to undermine it, no matter which side of the aisle they're standing on.

[tonedevil]

152. It isn't a factor in this custody battle. /nt

[Jedi Guy]

154. I'm not talking about this custody battle.

I'm talking about the erroneous idea that "hate speech" isn't protected by the First Amendment. It is.

Insofar as this particular case is concerned, it seems to me that most parents would ditch the rock in the interests of gaining/keeping custody of their kid.

[msfiddlestix]

153. Already then.. Duly Noted.

You don't get me, but I got you..

[Jedi Guy]

155. On the contrary, I think I get you just fine.

Whatever became of "I disagree with what you say, but I will defend to the death your right to say it"? I guess such notions are quaint anachronisms these days.

[msfiddlestix]

165. Not even close.

I see the right to free speech similarly to the way I see the 2nd Amendment as well as the other part of the 1st Amendment.

There are limits to my right to free speech when it violates the safety of others. Likewise, Freedom of Religion doesn't mean Freedom to Impose Religion and their edits on me in the Public Fora. 2nd Amendment's right to bear arms doesn't mean the right to own and carry Weapons of War.

There are limitations, lines that shouldn't be considered ok to cross.

When my right to anything I want to say is essentially promoting hate, and by implication promoting violence is a line we should never embrace IF we want to live in a cohesive, democratic governed (small d) society.

I do. I do not want to hear Preachers on my tv fomenting lies and hate against any of our American communities, because it clearly promotes, embraces, and endorses violence against targeted groups. The same with Political Office holders, the Military and so on.

Any lesson drawn from the last administration, (which we are still dealing with the wreckage) should be the loud resounding bell of much needed reform through our laws, as well as socially.


I am not a fan of "thought policing" or identity politics, never have been. That has it's own form of tyranny. But that doesn't mean reforms are not desperately needed, and we need to give a hard look with regard to the old tropes of "free speech" as well as other aspects of the First Amendment.

The last Administration lives in my head still to this day, because his followers are hell bent in keeping Trumpism alive and well for the present time and enduring future. THAT has clearly led to a most fascists, authoritarian form of TYRANNY we've ever lived through and we're still recovering from this very moment.

If you didn't/don't feel the insurrectionists are domestic terrorists, then we are miles and miles apart from understanding each other.

[Jedi Guy]

176. Speech that promotes violence is already proscribed and not protected by the First Amendment.

So, for instance, if some jackwagon stood on a soapbox on the street corner and expounded on the 101 reasons he hates black people, that's protected speech and he's within his rights to do so. Note that others are also within their rights to push back against his speech with their own speech, provided that's as far as it goes. They cannot physically assault him, as recently happened when a Dunkin Donuts employee punched and inadvertently killed an old man who used racial slurs while arguing with him.

Now, if he starts expounding on the reasons people should hurt or kill black people, and his speech falls foul of the Brandenburg test, that's not protected speech. The test there is basically, "Is this speech directed to inciting or producing imminent lawless action, and is it likely to incite or produce such action?" There's some gray area there, but it's generally pretty clear, I'd say. In that circumstance, he'd be on the hook for criminal charges.

So you're drawing a line and saying that all "hate speech" promotes violence, which is not necessarily the case. The First Amendment functions just fine as is, and we really don't need to start proscribing speech just because you or someone else doesn't like it, or it hurts their feelings.

Your remark about the insurrectionists has nothing to do with what we're discussing, as I'm not arguing they were in the right. If they'd rallied outside the Capitol and that's it, well... that's their right. Freedom of expression doesn't allow them to run wild in the Capitol complex while assaulting police officers, and neither I nor any reasonable person would assert that it does. I'm really not sure where you pulled that from.

[MarineCombatEngineer]

131. So what's your solution?

A govt. entity to determine and ban what is hate speech?
Would you want a future repuke admin to have that kind of power?
You know damn good and well that they would declare anything they don't like as hate speech.

Nope, the 1A is just fine as it is, the answer to hate speech is counter speech and I would oppose any attempt to ban hate speech.

[msfiddlestix]

135. Good on you. I hope that works out for our future.

I have grand daughters growing up and going to school dealing with hate "speech". it sure would be good to know all they need to do is counter that with "good" speech. And never become victims from the violence that the hate speech promotes.

[MarineCombatEngineer]

137. It's worked out great so far for me in my 74 years of being on planet Earth.

So, again I ask, what is your solution?

[StarfishSaver]

136. The First Amendment is not applicable to child custody cases

The best interests of the child - not a parent's First Amendment rights - is the deciding factor.

[MarineCombatEngineer]

139. From the research I did yesterday,

you are correct.

[StarfishSaver]

141. ...

[Jedi Guy]

142. I wasn't weighing in on this particular child custody case.

I was correcting the erroneous idea that "hate speech" is not free speech. It is.

Insofar as this case is concerned, it seems peculiar to me that this woman is unwilling to jettison a painted rock in the interests of gaining/keeping custody of her child. It's an odd parent that prizes a painted rock over a kid.

[Progressive Jones]

13. Normal Americans don't want shit like that displayed in their neighborhood. No right is absolute. nt

[obamanut2012]

14. So, her child has no rights?

[StarfishSaver]

15. If the child were Jewish and they had a swastika painted on the front door, would you think

that was ok for the child or that the court should have no say in whether they should keep the child in that environment?

Hate speech is not a First Amendment right.

[H2O Man]

22. Best response.

[BGBD]

24. What if she was black

And has a BLM flag in a deep red state and they threatened her then?

We don't just protect speech of things you like.

[StarfishSaver]

27. A BLM flag is not hate soeech

no matter how much racist right wingers says it is.

Yes, I see exactly how that works. I'm surprised you've adopted that trope and are repeating it here.

[BGBD]

35. You, or the state, don't get to decide what is or isn't hate speech, that's the whole point.

The Supreme Court has made this clear over and over again, as recently as Matal V. Tam. They have ruled in the recent past that burning crosses is protected speech. Do you think a confederate flag painted on a little rock is going to change their minds?

Speech an any type is generally protected as long as it doesn't meet clear and present danger standards.

The first amendment is meant to protect unpopular speech, nobody needs to protect popular speech.

[StarfishSaver]

38. You really need to stop lecturing me about the Constitution

You obviously have only a shallow understanding of it, notwithstanding your propensity to throw around buzzwords and names of cases you obviously haven't read much less are able to analyze.

[AnyFunctioningAdult]

39. Exactly

It is frustrating sometimes to hear people arguing that things that personally offend them should be banned. If the government gained that power, I think we all know what would happen the next time Republicans regained power.

[BGBD]

42. Lots of us don't have to wait for republicans

to take control because we already live in states where they have it.

[MarineCombatEngineer]

92. This is exactly what the 4th Circuit Court of Appeals just ruled on.

https://abcnews.go.com/US/wireStory/appeals-court-overturns-conviction-racial-slur-case-77633857.

I think this ruling is going to have an impact on this case.

[StarfishSaver]

104. This ruling will have absolutely no impact on this case for more than one reason

https://www.democraticunderground.com/?com=view_post&forum=1002&pid=15422784

[MarineCombatEngineer]

105. We'll see. nt

[StarfishSaver]

107. LOL

Yes, you will.

[MarineCombatEngineer]

109. If I'm wrong then I'm wrong,

and I'll admit I'm wrong, but as I said, we'll see.

[StarfishSaver]

110. You're just wrong

It's not even a close call, as any attorney on this board will tell you.

But, as I said, you'll see.

[MarineCombatEngineer]

113. As I said,

we'll see.

[uponit7771]

94. This is false, the state ... DOES ... get to decided what hate speech is and does it when there's

... violence against any minority in America.

Reality counts

[MarineCombatEngineer]

96. Maybe you better read this 4th Circuit Court of Appeals ruling.

https://abcnews.go.com/US/wireStory/appeals-court-overturns-conviction-racial-slur-case-77633857.

[uponit7771]

97. ... I did and in the face of violence against a minority the state **CAN** deem speech ...

... hate.

IE hate crime laws, why are we talking about this issue?!

Must be semantics

[MarineCombatEngineer]

98. Imminent threat of violence,

of which there was none according to the court and I suspect this ruling is going to have an impact on this case.

[BGBD]

112. This has been decided for decades

The government doesn't define "hate speech" like other countries do. The only restrictions that are recognized are when speech goes to calling for someone to act, and even then the threshold is very high. The speaker has to be shown to both be directly calling for a violation of the law, there is a high likelihood of that happening because of the speech, and there is an imminent danger.

Hate speech isn't excepted from the constitution. The idea of freedom of speech is the foundation of liberalism and it's shocking to see this many people who claim to be liberal that want free speech to be restricted.

Couldn't we argue that the Union Jack can be just as inflammatory to a person as the confederate flag? Are we going to tell people they can't have one painted on a rock?

[StarfishSaver]

106. You really need to stop citing this case

The Fourth Circuit ruling on whether someone can be convicted in criminal court for using a racial slur has absolutely no bearing on whether a family court in the state of New York can decide it's in the best interest of a black child not to live in a home displaying the Confederate flag.

This case has absolutely no meaning or impact on the case we're discussing.

[MarineCombatEngineer]

114. You really need to stop telling me what to do,

and as I said earlier, we'll see.

[StarfishSaver]

115. Not trying to tell you what to do. Just trying to educate you about law you seem not to understand

But if you want to continue spouting baseless nonsense based on a lack of knowledge about the subject matter without any interest in actually learning anything, that's on you.

[MarineCombatEngineer]

116. Fair enough,

and as I said, if I'm wrong and the nothing happens, then I will personally admit that I was wrong.

Won't be the first time, nor will it be the last.

Have a great day.

[StarfishSaver]

117. You have a good day, too

[MarineCombatEngineer]

119. Upon further research, it would seem that I'm wrong about this,

so, being a man of my word, I publicly admit that I was wrong and I apologize for the mis-information.

[malaise]

55. THIS

the truth

[uponit7771]

93. BLM was formed for slavery? You understand how insulting this post is? tia

[MarineCombatEngineer]

99. I read that post several times and nowhere

was that said by the poster.

[StarfishSaver]

108. Some folks here are revealing a lot more about their attitudes on race than they realize

[Jedi Guy]

128. "Hate speech is not a First Amendment right."

SCOTUS disagrees with you, in a unanimous ruling from 2017 in the case of Matal v. Tam. Hate speech is protected speech under the First Amendment.

[RegularJam]

44. We should not all be against this.

Additionally, where did they threaten to take away her child, as you claim?

Lastly, where is the "clear violation of her 1st amendment rights," as you claim?

[RobinA]

48. The Rock

is speech. The court is the government. I'm not allowed to keep my child if somebody doesn't like my speech? Whoa!

[RegularJam]

49. Seems like you just completely made up your own reality.

The "whoa" on the end is a nice touch.

You didn't answer the questions.

[BGBD]

52. What's made up?

They are telling her she has to remove a painted rock from her property or they are going to reconsider her parental rights while her ex-husband is suing for full custody.

What was written is a very good summary of what's going on.

[tonedevil]

56. The Confederate flag...

is a symbol of white people building a country to ensure they could enslave black people. A white mother displaying any sort of Confederate symbols is not fit to raise black children and they should not be subjected to that. What you say and do is most definitely taken into account during child custody determination.

[BGBD]

60. Again, not up to you

The Supreme Court has made it clear

https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/06/19/supreme-court-unanimously-reaffirms-there-is-no-hate-speech-exception-to-the-first-amendment/

A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government's benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

- Justice Kennedy

It's a foolish argument to make that she's unfit as a mother if the rock is there, but removing it would change that. The court is clearly trying to regulate her speech with the threat of removing her custody of the children.

If I live in a red state and have a custody hearing, could the court tell me I have to remove a rainbow painted rock in my yard because they think supporting gay rights would be harmful to the child?

[tonedevil]

67. You think in child custody determination...

the court can't use what the parents say or do when they are making the decision?

[RegularJam]

63. "I'm not allowed to keep my child if somebody doesn't like my speech? Whoa!"

Completely made up.

But you know that.

[BGBD]

65. That's exactly what's going on

[RegularJam]

68. Then point me to them taking her child. The rock is still there, from what we know.

Truly made up.

Also, point me to where they said they will take the child if the rock stays.

Another point that didn't happen.

Freedom of speech is also not absolute. Might want to remove that aspect from your jargon.

[BGBD]

69. OK

But if the Confederate-flag-decorated rock is not removed by June 1, Family Court would be obliged to factor its presence "into any future best interests analysis” regarding the child, stated Justice Stanley Pritzker, who authored the decision by the Appellate Division of state Supreme Court's Third Department, the state's second-highest court.

If that's not a clear threat to take her kids if the rock is there, then I don't know what is. It would also the be the only basis for the change. If they can rule at this moment that she should have joint custody, with the rock present, and then rule on the next challenge that she doesn't....then that's clearly them saying her speech will affect her parental rights.

The court is ruling that she's worthy of having joint custody of these kids, so what would change 3 weeks from now if the rock isn't gone? She would still be the exact same parent.

[RegularJam]

70. Always a good start to any argument.

"If that's not a clear threat to take her kids if the rock is there, then I don't know what is."

I'm kidding, of course.

Here is another statement by you that is not based in fact.

"It would also the be the only basis for the change."

It's followed up by another statement not based in fact.

"If they can rule at this moment that she should have joint custody, with the rock present, and then rule on the next challenge that she doesn't....then that's clearly them saying her speech will affect her parental rights."

You seem to have a fundamental misunderstanding of how these things work.

"The court is ruling that she's worthy of having joint custody of these kids, so what would change 3 weeks from now if the rock isn't gone? She would still be the exact same parent."

I think you should ask yourself why you are throwing out hyperbole, not based in fact, as you try to make an argument.

[StarfishSaver]

72. It's always amusing to watch non-lawyers with no training in legal or constitutional interpretation

trying to lecture others about the proper application of the Constitution - complete with out of context quotes from Supreme Court decisions they obviously haven't even read. It's like watching someone argue with a mechanic, assuming they're an expert on all things automotive because they own a car.

[RegularJam]

75. All based off of very limited information from a new article....

As if it's the only pertinent details.

[StarfishSaver]

78. But the jump to defend the right to display the Confederate flag is very telling

even going so far as to suggest that "BLM symbols" are similarly-situated hate speech ...

Folks don't always realize what they were dealing here.

[RegularJam]

79. +1

TY

[tonedevil]

71. Why do you think...

the court can't take into account this public display of the symbol of black enslavement when they are determining the custody of half black children? What elements do you think the court should consider?

[treestar]

76. It is only going to be a factor

Many factors are considered in child's best interests, for example, a typical state statute:

a) The Court shall determine the legal custody and residential arrangements for a child in accordance with the best interests of the child. In determining the best interests of the child, the Court shall consider all relevant factors including:

(1) The wishes of the child’s parent or parents as to his or her custody and residential arrangements;

(2) The wishes of the child as to his or her custodian or custodians and residential arrangements;

(3) The interaction and interrelationship of the child with his or her parents, grandparents, siblings, persons cohabiting in the relationship of husband and wife with a parent of the child, any other residents of the household or persons who may significantly affect the child’s best interests;

(4) The child’s adjustment to his or her home, school and community;

(5) The mental and physical health of all individuals involved;

(6) Past and present compliance by both parents with their rights and responsibilities to their child under §?701 of this title;

(7) Evidence of domestic violence as provided for in Chapter 7A of this title; and

(8) The criminal history of any party or any other resident of the household including whether the criminal history contains pleas of guilty or no contest or a conviction of a criminal offense.

(b) The Court shall not presume that a parent, because of his or her sex, is better qualified than the other parent to act as a joint or sole legal custodian for a child or as the child’s primary residential parent, nor shall it consider conduct of a proposed sole or joint custodian or primary residential parent that does not affect his or her relationship with the child.

59 Del. Laws, c. 569, § ?4; 67 Del. Laws, c. 236, §§ ?2, 3; 69 Del. Laws, c. 309, § ?3; 70 Del. Laws, c. 186, § ?1; 74 Del. Laws,

So probably 4 or 5 could be implicated.

[BGBD]

81. That's true

the problem I have is that they have already ruled that she deserves joint custody, and unanimously ruled at that. Then, add that they could change their mind if the rock is still there in a month.

I think #5 is more about problems with mental of physical health that could cause a parent not to be able to care for the child. I don't see that as a factor here.

#4, possibly. But it hasn't been reported that there was any problem in any of those areas. In any case, it's not an issue that a court should arbitrarily decide. Parents who want full custody are always going to say the other is doing something to harm them here. The court should leave that determination to independent professionals, like a child psychiatrist or school officials, to say if the child is adjusting well or not.

After reading more article on it, apparently it's a new residence and the rock may have just been there when they moved in. She may be happy to remove it. I don't want it to be there either, but I'm very worried about the precedent it sets when I know lost of places in this country are controlled by people who would take that kind of power and use it in ways we don't like at all.

[RobinA]

61. Sorry

I'm only aware of the one First Amendment, so if in your reality there is more than one, I do apologize. In the one I know about there are two elements. Well, it has a lot of elements, but we are talking about speech here, so there are two elements. Speech and the government. Actually, the Constitution says "Congress shall make no law...," so if I were an originalist I would probably say it only applies to Congress, but it has been interpreted to mean "government" for a lot of years now, so I'm sticking with that. So, government - the court that decided that it was OK to threaten custody because of speech on a rock, is punishing speech here. It's not allowed to do that. This is a clear violation of the first Amendment.

[RegularJam]

66. I'm confident that you are aware freedom of speech has more than two elements.

No matter how many times you incorrectly repeat that is only has two.

"I'm not allowed to keep my child if somebody doesn't like my speech? Whoa!"

That's a great line. Kind of funny.

[Demsrule86]

146. Yeah and it is not about free speech either...people don't understand what free speech means.

There are consequences to speech but the government won't arrest her. If she admires the confederacy then the kid belongs elsewhere.

[RegularJam]

149. Thank you for this. The conversation left me shaking my head.

It's simply being used as a metric entered into a larger analysis. What else would these people like removed from child welfare analysis?

[BGBD]

156. That's not what the 1st amendment says.

It doesn't just protect you from arrest, it protects you from government action entierly.

"We won't arrest you, but we'll take your kid away." Isn't what shall not be abridged means. That's just a path to tyranny. There are a million ways to that idea to be used for ends I don't think you would like.

[tonedevil]

159. It is a child custody hearing...

things that aren't necessarily criminal are used to decide where the child will live and with whom.

[BGBD]

163. There are still limits

On what can be considered.

[StarfishSaver]

160. The First Amendment is not a primary consideration in child custody cases

The paramount consideration is the best interests of the child, which almost always outweighs any right a parent has to free speech. If that speech is considered to be harmful to the child, custody can be reduced, altered or revoked.

This is not a First Amendment issue and all of the discussion in this thread about it is completely beside the point.

Even if the First Amendment were implicated, that would not be enough, by itself, to prohibit a court from taking a child away based on a parent's speech. That's because, as several people here have noted, no constitutional right is absolute. The state has the power to infringe on someone's constitutional right if there is a "compelling state interests" justifying them doing so. In a child custody case, doing what is best for a child is clearly a compelling interest. If a court deems it is in the best interest of a child not to be raised by a parent who expresses certain views, that would overcome a First Amendment challenge.

This may seem complicated to a non-lawyer but this is black letter law.

[BGBD]

169. Custody cases

Are not immune from constitutional scrutiny.

[StarfishSaver]

171. Whatever

Nothing like being lectured about the law by someone who obviously knows nothing about it ...who also seems not to understand the meaning of "primary consideration" and surely hasn't a clue about how a court considers strict scrutiny, compelling state interests, and best interests of a child play in child custody cases.

[Kingofalldems]

57. I was verbally abused by family members.

Is that free speech?

[RobinA]

62. Yes

except for certain instances. For example, if you can argue that they threatened or attempted to terrorize you.

[StarfishSaver]

74. That certainly could be grounds for removing a child from a home

Especially in a custody case.

If you seem to be confusing whether or not the state can charge someone with a crime based on their speech with whether other decisions about other people's rights and protections can be made based on that speech.

[Lancero]

64. When the child is multi-racial, and the speech is racist?

Do you think it's healthy for someone of minority heritage to grow up hearing about how 'part' of them is worthless?

As for the courts 'taking' the child, well... Thats pretty much the definition of a custody trial, no? To determine what parent would be able to provide a safer environment for the child to grow up in, should the parents be unable to come to a agreement themselves.

[StarfishSaver]

80. I'm a grown woman, and the sight of Confederate flag provokes a visceral reaction of fear in me

When I'm on the road and see a vehicle displaying a Confederate flag, I get out of their way quick. I can't imagine how I'd feel if a neighbor had that on display, But I do know I'd be scared to death of them and would stay as far away from them as possible.

And as I said, I'm a grown ass woman. Imagine how the child would feel being exposed to that.

[ProfessorGAC]

83. It Viscerally Strikes Me, Too

And, I'm white. My reaction is anger & disgust, though.
I understand why your feelings includes fear!

[RobinA]

47. Yikes

that's a horrible ruling. Frightening, in fact. That's gotta be overturned by a higher court.

[whistler162]

3. She can move it to the house on 38A

in Cayuga County that has the Confederate flag flying below the American flag.

[marie999]

4. This needs to be investigated. How is the child doing.

If they take the child away, will Republicans want to take children away from their parents if one is a Democrat and the other a Republican? What about a Christian parent and a Jewish parent. What if one parent wants the child to be a vegan and the other doesn't. What if parents tell the child that the election was stolen and Trump was still the real president. Unless the child is being mistreated I am against this.

[StarfishSaver]

51. If this child were half Jewish, descended from Holocaust survivors and this were a swastika

would you think it was ok and the child wasn't being harmed in any way?

[uponit7771]

95. +1, looks like people don't want to address this question straight forward

[StarfishSaver]

140. True

They are also arguing about an irrelevant issue. The First Amendment is not a serious consideration in child custody cases. The best interests of the child is the deciding factor and if behavior by a parent is determined to be not in the child's best interest, custody can be altered or revoked, even if that behavior is protected by the First Amendment.

[BGBD]

5. It's protected speech

There's no way they would be able to affect her custodial rights because of it and that ruling stand in a challenge.

[msfiddlestix]

11. Not when children are exposed to hate speech

The confederate flag is considered as a symbol of hate.

Raising bi-racial children, that would be considered as a form a abuse, therefore custodial rights refused, I should think.

[MarineCombatEngineer]

19. Really?

Cite the exception to the 1A that bans hate speech when children are exposed.

[StarfishSaver]

30. This is where you seem to be confused:

a person has a First Amendment right to express themselves pretty much however they choose. But that right is not unlimited.

A parent also has certain rights to have custody of their children, but that right is not unlimited.

Children have a right to live in environments that are safe for them and not harmful to their physical or emotional well-being.

And when those rights conflict, the best interest of the child always prevails.

A person has a right to free speech but if, in exercising that right to free speech, they are harming the emotional health of the child, a court or other government entity will intervene.

A person has a right to hold Klan rallies and burn crosses in their backyard to their hearts content. But if they do it in full view of their Black child, their First Amendment rights will be subordinated to the interest in getting that child away from them.

A person's right to say the N word is protected by the Constitution. But if a foster parent regularly called their Black foster child "the little nigger," that child would probably be removed post haste - and the judge would surely laugh in their face if they tried to claim their First Amendment rights had been violated.

A Confederate flag may not be a big deal to you, but it is a symbol of hate targeted at people of color and the state has every right to question whether a person displaying it should have their ability to keep a Black child in their midst questioned.

[BGBD]

33. Nothing you are saying applies to this case

The simple presence of the flag on the property in no way makes them unsafe and no one have made the claim that they are not safe with the mother. Otherwise, removing the flag wouldn't also remove that situation.

And I can guarantee that there are parents who call their kids that exact word, and nothing is done to remove them. Considering when I've seen it first hand, it's been a black man calling him black son that, then I certainly hope you don't think that's justifiable reason to remove the son from him.

[StarfishSaver]

36. You're good

at obfuscation, distraction and red herring tossing. You even got a "Black people say it all the time, so it's no big deal" in there.

Nicely done.

But I see right through it and won't jump into your rabbit holes. We both know exactly what you're doing.

[Hassin Bin Sober]

53. If a black man "calling his son that" put himself in a position he is standing in front of...

... a judge with his fitness as a parent being weighed by the court, it would be very likely those utterances could be factored in the decision.

You seem to not be able to grasp a few concepts.

1. Children are not property

2. There is another parent making the claim the asshole parent is, well, an asshole. Excuse my lack of legalese but there are two parents available so the court has options.

3. Since the two parents couldn’t work things out on their own they involved the court. The court gets to do a “best interest analysis” — this is not new.

4. Reasonable people know what that flag is about.

[LeftInTX]

54. Agree 100%

[BGBD]

58. In the United States

you are free to be an asshole without fear of the state.

And I grasp these concepts just fine. The issue isn't my understanding, it's your apparent belief that something offensive to you should be banned.

[Hassin Bin Sober]

59. Lol. No one is "banning" anything.

[obamanut2012]

168. So, what if someone calls their daughter gender slurs?

Bitch, cword, slut, etc. Is THAT okay? It must be to you, because it's protected speech according to you.

[BGBD]

173. That happens a million times a day

And very few of those people will lose custody of their daughter over it.

Besides, there have been no accusations of physical or emotional abuse in this case.

[tonedevil]

174. If you are in custody litigation...

and the other parent demonstrates you are abusive physically or psychologically it can be taken into account and used as the reason to restrict visitation. If there isn't any custody dispute unless you are horribly egregious there will likely be no consequence. Since custody is more a contractual thing as opposed to a criminal thing the courts can and do look at lots of things to make the determination. It is extremely rare for a parent to lose custody as a result of a custody hearing, but the amount of time and the conditions of visitation can and frequently are limited for a lot of reasons.

[StarfishSaver]

175. Exactly

[Takket]

34. Is that true? I'm not aware of any law that says Confederate flags are hate speech

[StarfishSaver]

43. No law states that any particular acts, symbols, or words are hate speech

Last edited Mon May 10, 2021, 03:51 PM - Edit history (1)

It's determined by the circumstances.

But something doesn't have to constitute hate speech in order for it to be considered harmful to a child. Certain things that fall fully within constitutionally protected speech or behavior can, under certain circumstances, be deemed harmful to a child and, this it be determined that the behavior be stopped or the child be removed from it.

People have the general Constitutional right to associate with whomever they wish, but if someone is regularly associating with a pedophile in their home in the presence of their children, that can be considered harmful to the child and They can be ordered to stop associating with that person, and if they refuse, the child can be removed if the association continues.

Not only are Constitutional rights not absolute, they are often balanced against other rights and in many cases those other rights outweigh the Constitutional right. That's almost always the case when it comes to child custody cases in which the best interests of the child - even it's not an enumerated Constitutional right - overcome a person's right under the Constitution.

[msfiddlestix]

86. Thank you for helping to articulate what I failed miserably to accomplish.

[StarfishSaver]

88. No problem

But you actually explained it really well! I just elaborated.

[Withywindle]

118. That's the issue exactly, well said!

I'm not a lawyer, but First Amendment isn't the only issue to consider here.

Of course she has 1A rights to display whatever symbol she wants - no one's talking about sending her to jail for it, or even forbidding her to do so.

It IS in the purview of a family court to consider whether someone who openly displays a racist hate symbol is the best person to be raising a mixed-race child. I think the answer to that is pretty obviously NO.

Freedom of speech doesn't mean freedom from all consequences of that speech. We have news stories here about people getting fired for racist speech all the time, and we usually cheer that here. I don't think anyone would think it was unfair if a spouse left another spouse because they started getting hella racist (especially if the leaving spouse was a person of color). Why do we think it's somehow an injustice to think maybe someone like that isn't entitled to custody of a vulnerable child, especially one of a group targeted by the hate symbol?

[StarfishSaver]

120. Perfectly stated!

[Withywindle]

121. Aw, thanks!

I love your posts!

The thing about the 1A absolutism in this thread is that it ignores all the things that are legal but still might make someone a dangerously shitty parent. Drinking alcohol isn't illegal. Hell, being drunk 24/7 isn't illegal as long as you don't drive. But courts strip custody from alcoholic parents all the time, as they should. You can dig your own grave however you like, but you can't bury your child with you.

It's not illegal to be racist, sure, but it's definitely dangerous to kids and I sure hope this kid is rescued from her. No child should have to grow up at the mercy of a parent who hates a big part of who they are.

[treestar]

77. Wouldn't that include parents still married?

Where both of them agree?

[StarfishSaver]

89. Good question. The answer is "not necessarily ... but it depends"

If it were really egregious, yes.

But this is a different situation. The parents are challenging custody and the court has the obligation to step in and determine which living situation would be in the be in the best interest of the child. So factors that may not be sufficient to justify a court to step in when parents are married and in agreement will be weighed when trying to decide which parent should have custody.

[StarfishSaver]

18. Whether speech is protected is determined by the circimstances

A person has every right to curse a blue streak or read pornography if they want. But if they have a foster child in the house and curse at them and watch pornography from morning to night, that child would probably be removed.

Time, place and manner all matter.

[BGBD]

26. Last I checked

Confederate flags aren't considered pornographic. They also aren't against the law to have or display.

[StarfishSaver]

28. Oh, please

Just stop. Read the room. I don't think you realize how you're coming across.

[BGBD]

31. I don't care about "the room"

I care about the 1st amendment though.

[StarfishSaver]

32. You may care about the First Amendment, but you don't seem to understand it

[BGBD]

37. It's not me

that thinks speech is only protected if I agree with it.

[StarfishSaver]

41. Whatever

[Hassin Bin Sober]

100. Supporting NAMBLA is also protected speech. You gonna turn a kid over to a NAMBLA supporter?

[MarineCombatEngineer]

101. Wow!!!

That's a hell of a reach.

[Hassin Bin Sober]

102. You'll have to do better than that.

[MarineCombatEngineer]

103. So voicing support for the 1A is supporting NAMBLA?

And what do you think of this ruling yesterday?

https://abcnews.go.com/US/wireStory/appeals-court-overturns-conviction-racial-slur-case-77633857.

Think it will have any impact on this case?

[Hassin Bin Sober]

111. You know this is a child custody case? Yes?

Please stick to the subject at hand.

Explain, in best terms you can, how a person who uses their 1st Amendment right to support NAMBLA should be awarded custody of a child over a non-NAMBLA-supporting parent.

[BGBD]

158. What about parents who

Says drugs should be legalized? Should the court take away their rights too?

What about women who support abortion rights. Maybe a court should just rule they can't have their kids either.

[StarfishSaver]

167. If a court determines that exposing the child to those comments is harmful to them

it surely would consider taking away or limiting custody, notwithstanding the oarents's First Amendment rights.

It all depends on the facts of the individual case.

[Hassin Bin Sober]

172. Maybe.

It depends.

How’s that?

[Demsrule86]

147. Not true...they can't arrest her but they can factor it into a custody hearing.

[BGBD]

150. And another court

Could rule that they can't consider it.

Opening that door just means you are giving a judge power to decide custody on anything they want.

Would a half native child be removed from a parent who displays an American flag? Are judges going to start deciding that a republican parent deserves custody over a democratic parent? If you stand for this then where and how do you draw a line?


The last point I'll make is that if the mother is a racist then how does removing the rock change that? If she's not, then why does the rock matter?

If the mother is actually harming the child or she isn't in her best interest then show that tangibly, not just by assuming that must be the case based on a painted rock.

[tonedevil]

157. You show a fundamental misunderstanding...

of how child custody law works. No court is going to say a child custody hearing can't examine things the parents have said or done to come to the custody arrangement. The activities and speech of the parents isn't being examined to determine legal guilt or innocence they are deciding the best environment for the child to be raised. It seems pretty reasonable that displaying a Confederate flag in front of the home you are living in could be a factor in considering the fitness of the home.

[StarfishSaver]

161. Armchair attorneys ...

smh

[BGBD]

162. There are 10 statutory

Items that NY courts can consider in custody hearings. Which of those 10 cover painted rock at end of driveway?

I argue that the flag by itself doesn't meet any of them.

[tonedevil]

164. You are expecting in this case...

the judge will be ordered not to take the confederate flag representation in the front yard into account?

[StarfishSaver]

166. You really need to stop

Tossing around these kind of specious arguments doesn't illuminate the conversation but only highlights your lack of knowledge of the law you are trying to tell us about.

[Johnny2X2X]

7. There has to be more to this story

She should not face losing her child because she wants to have a Confederate Flag rock.

[In It to Win It]

8. +1

[WhiskeyGrinder]

12. Agreed. ETA:

Having read the whole article, I'm guessing this is a custody issue in a divorce, and it looks like the mom just moved into this house and isn't necessarily responsible for it, and it's something the dad flagged.

[BGBD]

40. I don't think she just moved in

There is a picture of the rock in the NY Post article. It's small. She could move it whenever she wants.

It was also raised in a previous court hearing and the judge didn't make it an issue.

Regardless, it's protected speech on her own property. This would set the worst possible precedent. There are lots of us who live in red states that don't want courts telling republicans that they can decide what we can or can't say.

[MarineCombatEngineer]

20. +100.

I couldn't agree more.

[LeftInTX]

50. Agree!

From what I'm reading, it sounds like the mom will remove the rock....


But there could be a larger back story. And well, divorce is divorce and this child custody case sounds contentious. I assume the father brought up the rock...The child's attorney states says she moved there recently, but this child custody case has been going on since 2018...And was the rock there in 2018?

I wouldn't quite call this a "click bait" story, but it is a story without alot of background info. If there had been another object involved, such as a physical hazard on the property, this article would not be appearing in the media.

There needs to be a consensus about what is in the child's best interest, this isn't necessarily about free speech. (Although people reading it might interpret it that way)

[Hortensis]

73. Agree.

[StarfishSaver]

84. This is a custody case

Her child is not being taken away from her. The court is deciding which parent should have custody. That's very different.

Quartz make this decision all the time and those decisions often are made based upon the words and behavior of one of the parents. This is not a First Amendment issue.

[GoneOffShore]

16. I'm pretty much a First Amendment absolutist except when it comes to swastikas & the Loser's Flag

Time to ban them as hate speech. Germany did it and they have more freedom of expression than the US does.

[MarineCombatEngineer]

21. Then you're not a 1A absolutist

if you want to ban them as hate speech, the answer to hate speech/symbols is counter speech, not banning things we don't like and I seriously doubt any court in the land would uphold any such ban.

Here's a scenario: Repukes regain control of the Congress and Presidency, now they want to ban what they believe is hate speech/symbols, speech or symbols like the BLM movement, cursing at police officers, etc.

See the problem here?

Germany doesn't have the 1A like we do so that doesn't apply here.

[Hekate]

23. None of the rights enumerated in the Bill of Rights is "absolute"

[MarineCombatEngineer]

90. So do you think this ruling will have a bearing on this case?

https://abcnews.go.com/US/wireStory/appeals-court-overturns-conviction-racial-slur-case-77633857.

[Demsrule86]

148. No apples and oranges.

[StarfishSaver]

25. "Symbols like the BLM movement" are not hate speech

nor are the the equivalent of "cursing at police officers."

Please stop emploiying the false equivalence gaslighting techniques of the right wing.

[GoneOffShore]

82. False equivalence. So no.

[LanternWaste]

85. Swing and a miss. Four times in one post.

A quick primer on logical fallacies may be a good investment of your time.

[StarfishSaver]

87. Are you saying you don't think

the best way to protect the best interest of the Black child who may suffer harm from racist speech and symbols in their homes is for the child to engage in counter speech?

Or is the Black parent supposed to produce counter speech to contradict the white parent's racist language or symbols, thereby leaving the child left to resolve the "Racism bad or ok? You decide" quandary for themselves?

Because, you know, freedom.

[MarineCombatEngineer]

91. Ya know,

when you actually have something of relevance to say, then I'll listen, until then

[ChubbyStar]

123. Not from what I have seen in this thread Trucker Dude

Looks to me like you just have to have the last word, regardless.

[MarineCombatEngineer]

124. And I care what you think because................? nt

[ChubbyStar]

170. You cared enough to reply

Keep Swinging!

[ChubbyStar]

122. Dude is seriously batting below the Mendoza Line

[MarineCombatEngineer]

125. Wow!!!

That is so clever.

[kcr]

45. You are not a 1A absolutist, which IMO is a good thing n/t