Free Speech

N.Y. Court Pressuring Mother to Remove Rock with Small Painted Confederate Flag

"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."

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From Christie BB. v. Isaiah CC., No. 527802, decided today by a New York intermediate appellate court (Judge Stan Pritzker, joined by Judges John Egan Jr., Sharon Aarons, Molly Reynolds Fitzgerald & John Colangelo):

[The parties] are the unmarried parents of a mixed race daughter (born in 2014). When the child was approximately three months old, the father acknowledged paternity. Pursuant to a July 2017 order, the parties stipulated that they would share joint legal and physical custody of the child, with the child alternating weeks with each parent. The mother commenced the first proceeding seeking to modify the prior order by, among other things, awarding her primary placement of the child, with alternating weekend parenting time to the father. The father answered and filed a counter petition seeking to modify the prior order by awarding him sole custody of the child….

We agree with Family Court that the testimony revealed that "little has changed" since the prior order was entered. Thus, only a minor modification of the prior order was needed in the form of providing, among other things, that the mother's home shall be the child's primary residence for the purpose of where the child attends school. Although testimony revealed that the mother had relocated multiple times, the court found, and the record supports, that the mother currently has stable housing. Additionally, although the mother has moved around, testimony established that the father was planning to move as well.

Furthermore, although the factor of fidelity to prior orders weighs in favor of the father, as the mother failed to attend a required parenting class, this is only one factor. Family Court clearly appreciated and addressed this concern, as evidenced by the fact that the court explicitly ordered that the mother contact the administrator of a parenting class program within one week of the issuance of the order.

Moreover, although communication between the parents is not ideal, it is not so poor as to render a joint custodial arrangement unworkable. In this regard, both parties have the goal of getting back to a place where they work well together. There may come a point in the future where joint custody proves entirely unworkable, but, at this stage, we defer to Family Court's determination that the parties' relationship "is not so acrimonious as to render the award unworkable." It is also noted that this decision to maintain joint custody was supported by the attorney for the child. According due deference to Family Court's credibility determinations and the evidence presented at the hearing, we find that it was in the child's best interests to continue the joint custody arrangement….

Finally, although 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, reveal that she has a small confederate flag painted on a rock near her driveway. 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. 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.

I think such restrictions on parents' political or religious speech—including courts factoring the parents' speech into a best-interests-of-the-child analysis—generally violate the First Amendment; see my Parent-Child Speech and Child Custody Speech Restrictions. And of course there's nothing constitutionally special about Confederate flags: If courts can pressure parents to stop displaying such symbols, they can pressure parents to likewise stop conveying any other political messages that the court conjectures will be indirectly harmful to the child or inflaming to the other parent.

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  1. “its continued presence shall constitute a change in circumstances”

    Do they even hear themselves?

    1. Shouldn’t the best interest of the child require evidence? Show the factual harm to the child.

      The Democrat Party was the Confederacy. They managed to turn awful human beings, slavers, losers, traitors into symbols of resistance to their Commie collaboration, freedom from big government, and free speech. The Democrats made themselves into the Taliban, tearing down historic statues.

      1. “Shouldn’t the best interest of the child require evidence? Show the factual harm to the child. ”

        The best interest of the child is to not be harmed.

        1. “Credible risk”, “imminent danger” — stuff like that.

          Not that a clueless leftist could ever figure out that was what he meant….

          1. “Not that a clueless leftist could ever figure out that was what he meant”

            So you’re not helpful in this situation, then? How unusual.

  2. You seem quite deaf to the effect a mother’s embrace of slavery has on a mixed race child.

    Ok I’ll say it …
    What if it were a swastika and the father was Jewish?

    1. Not to confuse you with the facts, but Delaware, Maryland, Kentucky, Missouri, and West Virginia were slave states that fought *against* the Confederacy.

        1. If the mother were a Democrat, the child would be harmed far more, ruined. It life would be over.

          1. Glad to use the “mute user” feature, which seems to have been designed especially for you. Hope you’re flattered. Bye!!

        2. Nor, perhaps, is where Roger Taney was from.

          I’ll bet you neither know that nor who he was…

          1. In 1990, in Seattle, I ran into some of his descendents.

        3. Not relevant because it doesn’t fit the narrative.

      1. “Not to confuse you with the facts, but Delaware, Maryland, Kentucky, Missouri, and West Virginia were slave states that fought *against* the Confederacy.”

        West Virginia didn’t become a state until after the formation of the Confederacy. West Virginia consists of parts of Virginia that didn’t want to secede from the Union, so they seceded from Virginia, instead.

        Now provide some analysis that establishes that the existence of slave states that stayed in the Union says anything about the formation of the confederacy to preserve the institution of slavery.

    2. “What if it were a swastika and the father was Jewish?”

      What if the mom were Hindu?

      1. I’d tell that mom, “I totally get that this symbol is innocuous to you. But EVERY FUCKING PERSON who passes by the house will assume that you are a Nazi supporter. Unfair? Perhaps. But that will *absolutely* be the reaction. Please pick any one of the thousand other symbols from your religion to advertise your house to the public. Stick this other symbol in your back yard or your side yard, or inside your house. This is not legal advice. It’s “You are in America so maybe act as though you are in America” advice.

        [Note: I totally agree with Eugene’s legal analysis. I’m just pointing out my own response to your hypo. On my first trip through India, I came across a new hostel in Jaisalmer called the Swastika Inn. It seems to me that, if you’re gonna have a business aimed at Indians, then that’s fine. If you’re gonna try and get Americans, Brits, *Israelis*, Kiwis, etc to stay at your place…then it’s an odd choice to deliberately pick for a name.]

        1. You seem quite deaf to the effect a mother’s embrace of slavery has on a mixed race child.

          1. “You seem quite deaf to the effect a mother’s embrace of slavery has on a mixed race child.” I have absolutely no knowledge of the mother’s “embrace of slavery”, and neither do you.

            1. Proudly displaying the Confederate Flag is an embrace of slavery. It certainly is to every mixed-race person I know.

              1. I think that’s called aggressive ignorance.

                1. Pretty sure that’s a better description of trying to pretend that the Confederacy was something other than a treasonous conspiracy against the United States for the purposes of continuing to enslave a race of people. And that’s the sort of ignorance that doesn’t seem promising for capacity to raise a child.

                  1. “Pretty sure that’s a better description of trying to pretend that the Confederacy was something other than a treasonous conspiracy against the United States for the purposes of continuing to enslave a race of people.”

                    The Confederacy certainly was that, but that doesn’t change the fact that many people display the confederate flag for reasons other than embrace of slavery.

                    You are certainly entitled to believe that people shouldn’t display it, but you don’t get to make up your own facts.

                    1. That might have been true decades ago (“The Dukes of Hazzard”), but not any more.

                    2. “but you don’t get to make up your own facts.”

                      This is the guy defending those displaying Confederate flags on the grounds that they really don’t think it has anything to do with slavery/white supremacy. The lack of awareness, wow.

                    3. “This is the guy defending those displaying Confederate flags on the grounds that they really don’t think it has anything to do with slavery/white supremacy.”

                      Again, pointing out the obvious fact that displaying the Confederate flag doesn’t necessarily indicate embrace of slavery.

                      Why don’t you guys try making your points without obvious factual distortions, and we can see if you have any points worth making.

                    4. The Confederacy certainly was that, but that doesn’t change the fact that many people display the confederate flag for reasons other than embrace of slavery.

                      That’s not a fact at all. That’s a lie racists use to hide their racism and bigotry.

                    5. “That’s not a fact at all. That’s a lie racists use to hide their racism and bigotry.”

                      Interesting religion you have there.

                    6. Disingenuous racists are my favorite culture war casualties . . . And the Volokh Conspiracy’s favorite readers.

                    7. “The Confederacy certainly was that, but that doesn’t change the fact that many people display the confederate flag for reasons other than embrace of slavery. ”

                      Er, many people CLAIM to display the Confederate Battle Flag for reasons other than racism. Wink-wink.

                    8. Do you think they’re lying, James? If so, can you prove it?

                      You do not seem to believe in the 1st Amendment.

                    9. “Do you think they’re lying, James?”

                      Of course not. wink-wink

                      “You do not seem to believe in the 1st Amendment.”

                      You do not seem to know what you’re talking about. Have you met Special Ed? You guys seem like you’d get along great.

              2. And every person that I know who makes an issue of the Confederate flag is an ideologically-blinded moron.

                So there….

                1. And every person that I know who makes an issue of the Confederate flag is an ideologically-blinded moron.

                  Every person who defends the Confederate flag is a moron or a bigot, including you and any neo-Confederate friends you have.

                  What is wrong with criticizing the Confederacy?

                  1. I guess thay includes the ACLU in the 1970s, eh?

                    God damn how freedom has fallen in favor of political outrage theater.

                    I now suspect the ACLU defended Nazi marchers then for no reason other than it offended the conservatives who wanted to ban Nazis, and not out of deep principles.

                    1. The ACLU didn’t defend the Confederate flag, they defended the right of people to display it versus government action. They defended lots of things against government action that they felt were loathesome and should be spoken against.

                    2. I’ll fight for someone’s right to fly the flag. Both because I don’t like the government telling people what they can say and because I like that immature, almost certainly racist, backwoods hicks can openly advertise these traits to others.

                      And for good measure, while you’re at it, make sure to install a gun rack and a pair of truck nuts.

                    3. The ACLU defended the right of people to act like morons or bigots. They didn’t defend the Confederate flag.

                    4. “I’ll fight for someone’s right to fly the flag.”

                      Meh, flying the flag (any flag) is a choice. And other people are free to take note of what choices they see you making, and use the evidence of the choices you make to make decisions that may involve you. Now, before the state can do that, they owe you a hearing wherein you can explain why it’s not how it looks, because due process.

                2. “And every person that I know who makes an issue of the Confederate flag is an ideologically-blinded moron.”

                  With you, ideological blindness starts at home.

                  1. Look up what people said when Bush 41 made an issue about burning the US Flag. Better, read the SCOTUS decision on it…

                    1. “Look up what people said when Bush 41 made an issue about burning the US Flag. ”

                      Did they say “That Ed fellow knows what he’s talking about”?

                      No, they did not.

                    2. I take it you didn’t look up peoples’ reactions to Bush’s support of an Amendment to burn the flag, hmm?

              3. And the “Red Salute” which is on every “woke” front lawn in my area (BLM) certainly is an embrace of the deaths of 100M from communism..but then again communism has always gotten a pass form the woke left…NYT has it in their blood (well they did until Stalin…oh let’s not go there).

                1. I’m thinking the father has one of those on his…

                  1. “I’m thinking”

                    Another gross distortion of reality from Special Ed.

        2. I take it you are not aware of Israelis’ love of travelling in India, nor their general lack of interest in US wokeness, or the fact that unlike American “progressives”, they understand the concept of ‘context’ – a swastika in India means something different than one displayed at a neno-Nazi rally.

          Case in point – This particular inn is ranked very favorably on the Israeli trip advisor site (4/5), with the complaints focused on the weak Wifi and less that charming host, and nary a word about swastikas.

          https://www.tripadvisor.co.il/Hotel_Review-g297667-d1015623-Reviews-Hotel_Swastika_Jaisalmer-Jaisalmer_Jaisalmer_District_Rajasthan.html

          1. So, what message exactly do you suppose the mother was trying to convey with her rock?

            1. Are people on the left this ignorant? The answer is this: it’s a symbol of the south. Nothing more.

              1. Alas. IF ONLY there were some kind of symbol of the South that could convey history and shared cultural awareness that was NOT inextricably tied to treason and racial oppression.

                1. Alas. If ONLY there were some kind of symbol that could convey a shared appreciation of the 8th & 14th Amendments that was NOT inextricably tied to both rioting and Marxism….

                  …. Burn, Loot, Murder….

                  1. ” If ONLY there were some kind of symbol that could convey a shared appreciation of the 8th & 14th Amendments”

                    If ONLY.

              2. Are people on the left this ignorant? The answer is this: it’s a symbol of the south. Nothing more.

                Sure, Jan! And people who do the Nazi salute are just stretching their arms. Only a fucking moron would think this sort of nonsense is believable or you think that whoever you are talking to is a fucking rube.

                NO ONE is buying the nostalgia bullshit.

                It not mere a “symbol of the south”. It is a symbol of a specific part of the south’s history — the history of them willing to kill their fellow country and split this country apart for the right to enslave other humans.

                There are thousands of symbols of the south that don’t celebrate that specific shameful part of our nations history. When one chooses that particular symbol the message isn’t I love the south…the message is : I love the pro-slavery seditious south and wish we could go back to those times.

                But you know this….you’re just a disingenuous literal slaver who doesn’t have the courage to say so in mixed company.

                1. And “Burn, Loot, Murder” is not a mere symbol advocating the 8th & 14th Amendments….

                  1. It means whatever you want it to mean, seeing as how you just made it up.

                2. “There are thousands of symbols of the south that don’t celebrate that specific shameful part of our nations history”

                  There are two ways of viewing said history — (a) what they were fighting for, and that (b) they fought — for anything — against such overwhelming odds and with no chance for victory.

                  Maybe they thought that Maryland would join them — and but for Lincoln’s quite extra-constitutional actions, it would have — and then that the British would come to their aid once they had captured Washington DC (which would have been inevitable once they had Maryland).

                  1. “Maybe they thought that Maryland would join them — and but for Lincoln’s quite extra-constitutional actions, it would have — and then that the British would come to their aid once they had captured Washington DC (which would have been inevitable once they had Maryland).”

                    England had outlawed slavery in all the colonies it still controlled, long before the States started fighting over it. The Confederates thought that England would cave to them to secure a supply of cotton to feed the textile mills in Industrial England. Turns out they just started planting cotton in the colonies they had left. In other words, waiting for the English to join the War on their side was waiting for something that just Wasn’t Going To Happen. Hint: There’s a reason they call it the “Lost Cause”.

                  2. “(b) they fought — for anything — against such overwhelming odds and with no chance for victory.”

                    You want to celebrate people who, in your view, killed a huge number of people for nothing? Wonder why that isn’t a majority view?

              3. Are people on the left this ignorant? The answer is this: it’s a symbol of the south. Nothing more.

                Weird how the South is a large geographic area that has existed for centuries, and yet the symbol they just happened to choose represented just 4 years of those centuries, 4 years that were defined by fighting for slavery.

                1. ” it’s a symbol of the south. Nothing more.”

                  As it happens, I currently live in the South, and the Confederate Battle flag in no way represents me.

                  After the Civil War was lost, racists adopted the Confederate Battle flag as a symbol of their racism. The Confederacy is gone but the racists are not.

            2. She clearly was a Hindu who loved the Confederate battle flag because Shiva told her too.

              This is the internet today.

              1. What are the odds that James Pollock believes that?

            3. I don’t know, and neither do you, and neither does the court.
              It could be, as captcrisis seems to think , that she’s a white supremacist who wants to express her longing for slavery, but somehow also chose a black partner to father her child. I find that rather unlikely.
              It could be that she ‘s a history buff and wants to express a desire to remember the South, and the flag is a part of that, or maybe she just finds the graphic design pleasing. I find these unlikely a well .
              I think the most likely explanation is that she wants to to “stick it to liberals” who get all offended by the sight of the flag.

              But let’s assume the worst – she’s a racist who hates blacks. What of it? I that grounds for taking her kid away? What’s next, finding out that there’s an family of white racists, and sending Child protection services agents to take away their kids? How about parents who want their kids to be skeptical of vaccines?

              It used to be that in this country, one was free to think bad thoughts, believe in bad ideas and say mean things. That’s when we had freedom of speech and other civil liberties

              1. I don’t know, and neither do you, and neither does the court.

                Nor does or should the court care in this instance.

                She could have it there for whatever fucking reason she wants, but if the court thinks that will have a disparate impact on her son, the bye bye nostalgia. The child shouldn’t have to be exposed to it, and the father has an equal right to decide what his child should be

                t used to be that in this country, one was free to think bad thoughts, believe in bad ideas and say mean things. That’s when we had freedom of speech and other civil liberties

                She can think all the bad thoughts she wants, but she doesn’t have a right to indoctrinate her child with those thoughts against the father’s will. He has every right to demand that the child is raised in an environment that doesn’t cause psychological harm to his child. And the court has a duty to enforce that as well.

                No one is taking away her right to express herself — but that expression should and will have a bearing on whether her having custody is best for the child.

                If she doesn’t like it than maybe she shouldn’t have put herself in this custody situation to begin with.

                Family court sucks. The traditional rules don’t apply. It isn’t about what’s right or wrong int he traditional sense — it’s about what’s best for the child. And it is obviously best for the child to not be forced to view or celebrate racist imagery in their own home.

                No one is restraining the mom here…she can choose to continue…but then her son will be placed where he won’t be forced to see that crap. That’s actually a much more fair outcome than most family court cases.

                1. What’s next, finding out that there’s a family of white racists, and sending Child Protection Services agents to take away their kids?

                  1. Are you conceding that being raised by racists is not in the best interests of the children?

                    1. It is of course better to not be racist than to be racist, for children as well as for adults.
                      But being a racist is not crime , and we don’t put people away for being racist. We also give parents very wide latitude in how to raise their children, both as matter of societal norms and as a matter of law.
                      I am saying parents have a right to raise their children the way they want as far as ideology, beliefs and lifestyles, and the state has no business interfering with that, even of it disapproves of those lifestyles or ideologies, unless the child is being physically abused.
                      By way of example, I also think it is not in the best interest of the child to drink a lot of soda or other sugary drinks, eat a lot of high carb/high salt snacks and fast food or watch violent TV shows – but I am opposed to the state taking away people’s kids for allowing that.
                      Are you ok with state agents taking away your kids because someone doesn’t like they way you are bringing them up? Based on what you post here, I’d probably disapprove of the indoctrination you are giving your kids, and I’d probably think it’s not in their best interests – can I have the state come and take them way from you because of that? Would it be ok if I convince enough people (or just the Judge) in you local jurisdiction that you are bringing them up “the wrong way”?

                    2. “But being a racist is not crime , and we don’t put people away for being racist. ”

                      Trying to change the subject? Won’t work. This particular court must resolve NOT whether or not it is, or should be, a crime to be racist but whether it is, or is not, in the best interests of this one specific child to be raised by this parent or that one.

                    3. “Are you ok with state agents taking away your kids because someone doesn’t like they way you are bringing them up? Based on what you post here, I’d probably disapprove of the indoctrination you are giving your kids, and I’d probably think it’s not in their best interests – can I have the state come and take them way from you because of that? Would it be ok if I convince enough people (or just the Judge) in you local jurisdiction that you are bringing them up “the wrong way”?”

                      As it happens, I went through an extended custody fight with my ex-wife. I got to see first-hand what a judicial examination of “best interests of the child” really looks like. since I did, and still do, prioritize the best interests of my child, I did not lose custody. My primary offspring unit is 25 years old, a married, college graduate who is currently, with her husband, quite self-sufficient, and a rather strong testimony to the fact that there was nothing wrong with the way I raised her. So you can complain to my local jurisdiction all you want.

              2. I still want to know what the father has on his driveway.

                I’ve seen enough of these parental disputes to strongly suspect that she is reacting to something he has put up.

                1. You mean he might have a US flag?

        3. “It’s “You are in America so maybe act as though you are in America” advice.”

          I don’t think that it is. America, despite having people who think like this in positions of power, is ostensibly a free country where people are supposed to be allowed to post their religious symbols.

          And having people act like they do elsewhere is a great way to educate Americans. If more Indians posted swastikas, perhaps fewer people would assume that Indians were nazis.

          1. For those not paying attention, this clown world has completely shifted 180 degrees on its axis.

            Lefties, who out of one side of their mouths, scream to respect cultures (something with which I agree) then scream, what? You’re in America now, Indian person. Give up part of your culture!

            The popcorn machines run red with overuse.

            1. Uh, they’re just saying respect for the culture you’re in is kind of important. Or better yet, the social intelligence to see that you’re upsetting most of those around you because of their cultural beliefs. In most other contexts this is called normal, everyday human behavior.

              We are in the ridiculous position in this argument where now flying swatiskas is being not only defended but promoted because of a curious conservative quirk I’ve noticed lately: when arguing with ‘the libs’ instead of arguing the soundness and validity or the argument or the truth of a premise, steadfastly deny every premise, no matter how seemingly common sense, with every pedantic and obtuse argument possible. So we go from ‘hey, displaying the Confederate flag is displaying a empirically, historically and socially pro-slavery/racist symbol’ to ‘well not necessarily, maybe the person just loves Dukes of Hazards and has never heard of the Civil War’ to ‘well, imagine a swatiska then, you can wrap your head around how that’s racist, right’ to ‘not necessarily, maybe the person is Hindu and has never heard of the Holocaust.’

              Good Derp.

              1. “Uh, they’re just saying respect for the culture you’re in is kind of important.”

                Yup. We should respect other cultures, instead of having a bunch of white guys saying, “Sorry Indians, some white dude turned your symbol into a symbol of white nationalism, so we’re just going to insist that you abandon your symbol so that a bunch of other white people don’t assume a bunch of brown people are white supremacists! God forbid white people should bother to educate ourselves about non-western uses of the swastika.”

                1. Funny thing. I was vaccinated in a building called the Hindu Society of North Carolina. Not a swastika anywhere.

                  1. Well if an exhaustive survey like that didn’t find one…

                    1. “Well if an exhaustive survey like that didn’t find one…”

                      Most people get their shot and then spend the 15 minutes’ observation time playing with their cellular self-amusement devices. I don’t carry one of those unless someone is paying me to do so. Between standing in line, waiting for my turn and waiting to be cleared to drive home, I had plenty of time to look around, yes.

                  2. And yet they’re everywhere in pre-1930s buildings, and even in some modern ones, because it’s a basic design pattern that crops up unintentionally.

                    Look at floor tiles, etc.

                    A swastika in and of itself is not offensive. The use it’s put to is.

        4. Although I’m an atheist, I’m Jewish enough that the Nazis would have killed me if they got a chance, and I would have no issue staying in Hindu-owned establishment decorated with swastikas, because I’m not a fucking snowflake.

          -jcr

          1. I can’t consider you a Jew… is that wrong?

      2. Seems like a bit of a non-sequitur—the Nazis appropriated the swastika from a preexisting design (although I’d be skeptical of any uses in the last 80 years or so). Do you think the mother here intended her design to refer to something other than the confederate battle flag?

        1. I’m not sure why the origin matters. Many people feel (as Santa Monica does) that these symbols should be avoided because of how they are perceived.

          But it’s a non-sequitur to say that the person displaying the symbol necessarily believes the think you think the symbol stands for.

          1. Social intelligence, how does it work?

            12′ seems to think that as long as you don’t intend to offend you cannot be said to offend. That’s some straight up Commander Data shit right there.

            1. You know the scene in many movies where there’s an alien or someone who was raised in isolation in a bomb shelter somewhere, and so they’re unfamiliar with normal human mores and norms, and they come across, say, a woman with big breasts for the first time and they say to the woman ‘wow, you have enormous Boobies!’ and the woman is offended and slaps him and we all laugh because we get the faux paux the kid has done but the kid starts to learn his behavior is innappropriate? 12′ is watching going ‘how awful they find his behavior offensive, what’s up with that?’

              *and because this is the internet and, well, modern conservatives, I’ll preempt fifty coy questions by saying what most humans know right away about this: in this interaction there’s a woman whose lived experience is being sexually objectified by people as part of a long lived, persistent set of stereotypes and objectification, and we recognize this objectification is now boorish at best and harmful to girls/women (and men really) at worst, and while the kid’s lack of intent to offend certainly mitigates his overall culpability in the interaction, putting the onus on her to not be offended is to discredit her experiences at the promotion of his ignorance of social norms and perceptions.

            2. “Social intelligence, how does it work?”

              QA, you are literally ranting against the suggestion that people should learn to distinguish Hindus from Nazis.

              1. If you’re confusing Hindus and Nazis, you have some serious challenges already.

                1. That’s what I’m sayin’.

                  1. That’s not what you was sayin’.

                    1. Explain what he was sayin’.

                    2. “Explain what he was sayin’.”

                      Scroll up.

            3. So perhaps we tell the Sikhs to lose the turbans and get a haircut.

              That’s where this all leads to….

              1. I know, right? Don’t those Sikhs know that in our culture (some of us) associate turbans with Islamic fundamentalism? Shouldn’t they be more considerate?

                1. When you find yourself agreeing with Special Ed, that should lead to some careful soul-searching and self-reexamination

            4. “Social intelligence, how does it work?”

              A blog that caters to on-the-spectrum misfits might not be the best place at which to seek an answer to that one.

            5. “12′ seems to think that as long as you don’t intend to offend you cannot be said to offend.”

              I think most of us at this point understand that being offended isn’t like being bruised if struck, an inevitable result of somebody else’s actions, and so all on them.

              Rather, being offended can be a volitional act on the part of the person offended. Rather like somebody throwing themselves to the ground as you walk by them, and claiming to have been assaulted.

              And so claims of offense are losing their impact on sane, reasoning people. We’re starting to apply a ‘reasonable man’ standard to such claims, asking if somebody who wasn’t deliberately looking for a chance to ‘be offended’ would take offense.

              1. “I think most of us at this point understand that being offended isn’t like being bruised if struck, an inevitable result of somebody else’s actions, and so all on them.”

                Who did what to you to make you where, if somebody tells you they’re offended by something you did without meaning to offend anybody (giving you credit here that may not actually be due), instead of apologizing for accidentally giving offense (the way a polite person would), you instead angrily demand “oh, yeah, PROVE that you were offended by (insert your offensive act here)!

                1. “He who takes offense when none is intended is a fool, and he who takes offense when offense is intended is a bigger fool.” – attr. to Confucius

                  1. Is there anything that ISN’T attr. to Kung-fu-tze?

          2. But it’s a non-sequitur to say that the person displaying the symbol necessarily believes the think you think the symbol stands for.

            This is attempted gaslighting. We are not talking about a random geometric symbol, that could be chosen for all sorts of reasons, like the CPAC stage silly controversy from a couple of months ago.

            We are talking about a flag. A flag inherently stands for a geographic entity; that’s the essence of a flag. (Yeah, nitpickers, an organization could have a flag too.) And the confederate flag stands for the confederacy. And the confederacy stands for… well, let’s just go to the source:

            “Its foundations are laid, its cornerstone rests upon the great truth, that the negro is not equal to the white man; that slavery —subordination to the superior race — is his natural condition. This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.”

            1. Well, since there’s odd nitpicking going on here along with the telepathy, the so-called “Confederate flag” is actually the first Banner of the Army of Northern Virginia – it was not every the flag of the Confederacy.

              The flag of the Confederacy, the “Stars and Bars”, was similar to the traditional US flag, but with only three bars (red-white-red) and a circle of stars counting the number of Confederacy states (originally 7, at one point claimed 17).

              But I mean, hey, when talking about the symbolism of something, who cares if it is actually the symbol of that thing?

              1. The actual flag of the Confederacy faded into oblivion because the Confederacy lost. But the Battle flag was adopted by racists after the war and is now more closely associated with them.

                1. Can you provide evidence of your claims?

                  1. You mean BESIDES the hordes of people who misidentify the Confederate Battle Flag as the flag of the Confederacy?

        2. Maybe she was honoring the black soldiers who fought to defend their homes from the yankee invaders.

          -jcr

          1. Awesome, the internet again folks!

          2. The yankee invaders absolutely ravaged New York.

            1. “The yankee invaders absolutely ravaged New York.”

              They actually did….

              Do you have any familiarity with how the NYC Draft Riots were suppressed, and by whom?

              1. “Do you have any familiarity with how the NYC Draft Riots were suppressed, and by whom?”

                I’m assuming you mean to refer to the in-bred hordes of Maine-folk.

          3. Maybe not just the black soldiers but *everyone* who fights to defend themselves against what they perceive to be a tyrannical government.

            1. ” *everyone* who fights to defend themselves against what they perceive to be a tyrannical government.”

              Does your thesis require any actually tyranny or is it enough that someone is willing to pretend there is?

          4. Maybe she was honoring the black soldiers who fought to defend their homes from the yankee invaders.

            All of the zero such people, yes.

        3. ” Do you think the mother here intended her design to refer to something other than the confederate battle flag?”

          I’m thinking she’s trying to give the middle finger to someone.

          Maybe the child’s father. Maybe the social workers. Maybe the neighbors. Maybe — who knows.

          I’m reminded of the woman who made a middle finger out of Christmas lights one year. She probably thought that she had a reason to do so…

          1. “I’m thinking she’s trying to give the middle finger to someone.”

            Which may turn out to be to not in the best interest of the kids,

      3. You do know that if you change the hypothetical, you change the correct answer, right?

  3. Exactly.

    It’s also quite asinine when one remembers that some 400,000 New York men (mostly White*) fought in the Civil War, with some 54,000 dying from it — yes, that’s more than 10%. And more than half of the men under age 30 fought in the war.

    That’s why I have a very hard time seeing the Confederate flag as racist (per se) in New York (or New England) — the Civil War was so traumatic that until recently (the 1980s), there was no “Southern Maine” — the state was divided into “Eastern” and “Western” and the school athletic competitions still are that way.

    That said, I find this act of judicial censorship to be exceedingly disturbing. What, if any, recourse does she have against this?

    It’s bad enough what the child protective nazis get away with, but these are purported judges who theoretically passed the bar exam…

    * The 31st US Colored Unit was a Black unit mostly from New York.

    1. Not relevant to a mixed race child whose white mother proudly displays an emblem of slavery.

      1. Facts not in evidence.

        1. Look closer at the facts.

          I know, it’s you. But give it a try, just this once.

      2. The confederate flag is not a symbol of slavery. Period.

        1. Yes it is. Period.

        2. The confederate flag is not a symbol of slavery. Period.

          Right, it’s a continuing expression of hostility to northern values, such as anti-slavery.

          What I do not get is why anyone who thought the battle flag was something other than a symbol of something to do with slavery, or white supremacy, or “The South Will Rise Again,” or the Lost Cause, or continuation of Jim Crow, or racist hatred of blacks, would choose to display a symbol so redolent of all of those. What do they think they are saying? Without those meanings the battle flag is just nothing. It’s nonsense. Any other meanings a deranged imagination could dream up for the battle flag would be rolling along far in the rear of the obvious contenders.

          Want a symbol of the South. Display a magnolia.

          Also, I’m getting heartily sick of stuff like this from EV:

          And of course there’s nothing constitutionally special about Confederate flags: If courts can pressure parents to stop displaying such symbols, they can pressure parents to likewise stop conveying any other political messages that the court conjectures will be indirectly harmful to the child or inflaming to the other parent.

          There are but few, “such” symbols. It is not a giant slippery slope. The vile meanings associated with the battle flag are not, “conjecture.”

          Nothing in the law says courts have to buy into EV’s ever-flowing streams of culture-blind analogies. Let’s let courts pressure parents to be sensible about confederate battle flags and swastikas, and then see what happens later. Maybe no court will weigh in on whether a parent has to get rid of a depiction of a pineapple as a symbol of hospitality.

          1. northern values, such as anti-slavery.

            More like, tax collection and trade restriction. Go look up what Lincoln had to say in his first inaugural address. Once you’ve done that, look up what the north did to slaves who tried to escape to the north during the war. Or the fact that Lincoln made multiple offers to the south, even after the war was in progress, to let them keep slavery in perpetuity if they’d surrender and pay the tariffs.

            -jcr

            1. Yes, the rest of the country was prepared to bend over backward to accommodate the south to continue there in order to peacefully preserve the union, and the south betrayed their country anyway, even though it was completely unnecessary to preserve slavery as they wanted.

              Why you think this is a defense of the confederacy is unclear to me.

          2. Also, I’m getting heartily sick of stuff like this from EV:

            And of course there’s nothing constitutionally special about Confederate flags: If courts can pressure parents to stop displaying such symbols, they can pressure parents to likewise stop conveying any other political messages that the court conjectures will be indirectly harmful to the child or inflaming to the other parent.

            Holy expletive, Batman. Step away from the Constitution slowly.

            Freedom of speech must be fought on distasteful grounds lest it encroach on something meaningful.

            This is something both “the marketplace of ideas” and “denying the tyrant his greatest trick” agree on.

            1. Krayt, I have grown weary of the encroachment on normative freedom EV’s style of argument inflicts. Society sometimes needs a means more flexible than law to put extreme anti-social behavior out of bounds.

              A person seems unwilling to defend the Confederate battle flag per se, so attempts to invoke a slippery slope argument to defend it anyway—while evading or ignoring the tougher implications of the defense. That is less than forthright. In fact, it is a nasty kind of argument. It can be used to disguise vicious anti-social intent as principled virtue.

              Nevertheless, I don’t think that style of argument ought to be excluded altogether. I do think it ought to be narrowed. Maybe say in court that the right place to discern a slippery slope is not from the top, looking outward toward the horizon. The right place to discern a slippery slope is from the bottom. If you don’t see a pile of rubble accumulating at the bottom, then the slope ain’t that slippery. That would suggest in a case like this one a family court could pick off one opportunity to do some good, without setting off an avalanche.

              Obviously, that result would discomfit actual fans of this particular racist symbol. I don’t care. Ours is a decent nation, but the future is always uncertain. In the unlikely event those racists would ever find themselves securely in power, concentrating our attentions on carelessly crafted legal analogies would then prove even less helpful than it is now.

              1. We get it. You don’t like free speech.

          3. Oh Stephen — Delaware, Maryland, Kentucky, Missouri, and West Virginia….

          4. “I’m getting heartily sick of stuff like this from EV:

            ‘And of course there’s nothing constitutionally special about Confederate flags: If courts can pressure parents to stop displaying such symbols, they can pressure parents to likewise stop conveying any other political messages that the court conjectures will be indirectly harmful to the child or inflaming to the other parent.’

            There are but few, “such” symbols. It is not a giant slippery slope. The vile meanings associated with the battle flag are not, ‘conjecture.’

            Nothing in the law says courts have to buy into EV’s ever-flowing streams of culture-blind analogies. Let’s let courts pressure parents to be sensible about confederate battle flags and swastikas, and then see what happens later. Maybe no court will weigh in on whether a parent has to get rid of a depiction of a pineapple as a symbol of hospitality.”

            Will he back the rights of parents to display child pornography in their homes?

        3. “The confederate flag is not a symbol of slavery. Period.”

          Question mark.

          But the confederate battle flag doesn’t have the advantage of having been forgotten, as the actual confederate flag has been.

          1. Jame Pollock, a point I was considering myself. What distinguishes the battle flag, of course, is that it became not merely a Confederate symbol, but a post-Confederate anti-reform symbol. It was officially adapted, widely and prestigiously—on state flags, for instance—to express ongoing hatred and contempt, for both blacks, and for any political movement to grant them equality. All that while the actual flag of the confederacy was fading so far from memory that few people today could tell you what it was if they saw it. That unavoidable historical contrast tells us definitively that there is no benign use for the battle flag.

            1. Was it anti-Black or anti-DC?

              Do not forget that the concept of secession started with the Hartford Convention and that neither Connecticut nor Massachusetts are southern states…

              Furthermore, how much of our troubled history of racism was caused by Reconstruction and things that wouldn’t have happened had Lincoln lived?

              1. Our “troubled history of racism” was not caused by Reconstruction, you ignoramus. In fact, much of the post-Civil War racist practice began when Reconstruction was abandoned, and white thugs were allowed to persecute Blacks, and deny them their rights, to their hearts’ content.

              2. Do not forget that the concept of secession started with the Hartford Convention

                Do not forget something that Dr. Ed once again made up! The concept of secession went back a lot farther than 1814. And there is no real evidence that they actually considered secession at the Convention. And this is all a red herring anyway, since nobody said that secession inherently is about slavery. Just that the southern treason was — we know, because they said so.

                Furthermore, how much of our troubled history of racism was caused by Reconstruction

                None, Mr. Blacks Shouldn’t Have Worn Those Short Skirts.

              3. “Furthermore, how much of our troubled history of racism was caused by Reconstruction and things that wouldn’t have happened had Lincoln lived?”

                0% of racism was caused by Reconstruction.

              4. “Was it anti-Black or anti-DC?

                Do not forget that the concept of secession started with the Hartford Convention and that neither Connecticut nor Massachusetts are southern states…”

                Yet, oddly, the state flags of both Connecticut and Massachusetts incorporate the battle flag of the Confederacy, as a sign of their opposition to federal power.
                OH, NO, WAIT! That’s only true for Special Ed.

    2. I’m not sure I’m following.

      Why does the fact that hundreds of thousands of patriotic Americans risked (and,all too often, gave) their lives to defeat a cabal of racist traitors mean that modern Americans who support the racist traitors aren’t expressing sympathy with racism and treason?

      1. One doesn’t uphold one’s principles by trsshing them.

    3. Union veterans had no problems with the Confederate flag. See photos of reunions, read about reconciliation efforts of William McKinley (look him up). Today, after decades of public school distortions of American history, outrage exists.

      1. Nobody has problems with the Confederate flag. Because nobody remembers what it looked like.

      2. Distortions?

        The “distortions” are the Lost Cause myth, the glorification of Lee and the Confederate soldiers, and the wonders of the old South. Those distortions were taught in public schools, and repeated elsewhere, for over a century.

        1. Lee should be honored *for* surrendering — had he not, there would have been a guerrilla war lasting to probably 1870 with far more serious consequences than there were.

          1. Sherman might have had to cut another swath through the rebellious territory.

    4. “That’s why I have a very hard time seeing the Confederate flag as racist (per se) in New York (or New England)”
      Let’s get this out of the way, first. The Confederate battle flag (not the Confederate flag, which has faded into history) was widely adopted by racists, which is why it’s considered racist today.

      ” — the Civil War was so traumatic that until recently (the 1980s), there was no “Southern Maine” — the state was divided into “Eastern” and “Western” and the school athletic competitions still are that way. ”

      Further away, still, the annual intercolliegate football game between University of Oregon and Oregon University was called the “Civil War game” until recent years. This, in a state that is so proud of which side they took in the War that that state flag bears the state motto of “The Union” on one side. When my daughter was in elementary school, they had a field trip to the Civil War ruins… gun emplacements that guarded the mouth of the Columbia River. Coincidentally, the counties of Southern Oregon would like very much to secede from the state.

  4. Professor Volokh….from your own monograph, “When the next period of intense hostility to some ideology arrives, the foes of that ideology will likely take advantage of all the lawful tools at their disposal, much as the anti-Communists did in the 1950s.”

    What you wrote (or was that cited? it was #350) then seems prescient, thinking about where we are today. So what’s the way out? Because I do not see where anyone can draw a bright line in custody cases where one’s individual free speech (or association) rights trump the ‘best interests of the child’.

    Is there really a bright line?

    1. “Because I do not see where anyone can draw a bright line in custody cases where one’s individual free speech (or association) rights trump the ‘best interests of the child’. ”

      Nor free practice of religion. and rightly so.

      Just picture someone who advocates for sacrifice of children coming up in a custody fight.

  5. So the appeals court took it upon itself to comb through the record and do its own factfinding and then add speculation on top of factfinding?

    Is this one of the courts with elected judges?

    1. In New York at least the appellate court can make its own findings of fact.

      1. Impeach the schmucks!!!!

        1. Special Ed has no use for judges who use facts to decide cases.

  6. If not removed….then change in circumstance…..PRIOR RESTRAINT.
    Appellate court lacks jurisdiction for such order. Appellate jurisdiction is limited to the FINAL orders of trial court. Just another jewish game to rub the civil war in whitey’s face.

    Note the Judge Pritzker is a JEW!!!!

    1. In a completely different state, in a completely different time zone, the courts kept allowing my ex-wife to try to re-open custody orders. Didn’t do her any good.

    2. Thank you for reminding me why the mute button was added.

  7. One of many instances in which the Volokh Conspiracy suffers from being all-white and proudly so.

    1. Boo hoo. If non-whites don’t like America, they should get the hell out. Not like they’re contributing anything anyway.

      1. I bet you have a swastika on your lawn. Bye!! Another benefit of having the “mute user” feature.

        1. Do you have any idea how snotty you sound when you assume anyone gives a shit if you quit reading their comments?

          -jcr

          1. Better lecture the poor fellow on the topic, because that’s what everybody needs.

      2. “If non-whites don’t like America, they should get the hell out. Not like they’re contributing anything anyway.”

        Non-whites contributed nearly all the land that presently makes up the United States. Some of it passed though the hands of some other white folks (Russia sold us Alaska, and France sold us Louisiana), but those other white folks got it from non-whites.

    2. Don’t you at least kinda wonder what the father has on *his* driveway?

      My gut feeling is that this is a spitefest between two adult-sized children who aren’t mature enough to have a child…

      1. The child doesn’t get to pick the parents.

      2. Don’t you at least kinda wonder what the father has on *his* driveway?

        No. Some of us prefer to confine our discussions to reality.

      3. “Don’t at least kinda wonder what the father has on *his* driveway?”

        Bet it’s blacktop, from edge to edge.

    3. Many of the non-whites fleeing to America, as they should, are fleeing lands where dictators can and do outlaw speech, which aids them immensely in their tyrant-hood.

      Apparently this is lost on you?

    4. Take your diversity campaign to the NBA and to the 100%-Han crappy Chinese space program, which stole intellectual property.

      1. If the Chinese believed there was such a thing as intellectual property.

  8. On that note, thanks for coming everybody!
    See you next Thursday and please don’t forget to tip your servers. They work hard!

    1. How’s the veal?

      1. Akkk! I’m the son of a butcher but I will not eat veal. I’ve seen those “farms”.

        1. Really? No veal francaise for you? Tough to beat.

  9. ” she has a small confederate flag painted on a rock near her driveway ”

    Bigots have rights, too.

    But not the right to have their views respected by their betters.

    1. That’s why you have the right to air your bigoted views, and we have the right to counter them with facts and logic.

      1. Or the mute user function… 🙂

        1. That’ll have to do until you can summon some facts and/or logic.

    2. It’s the rulership by self-described “betters” that enjoys censorship, not freedom of speech.

      It’s not about lousy, terrible speech having some strange value. It’s about denying dictators their greatest tool.

      Why do you enjoy the powerful telling you what’s proper speech and not? History shows they will take 0.026 seconds to move on to other, much more important speech.

      1. ” It’s about denying dictators their greatest tool.”

        The ability to indoctrinate the young?

  10. the judge is most likely a far leftie with “old world” issues..as for the two “parents”….I’ve seen this all too often..young people of different races having a kid and the dad takes off…sounds like the mom is just trying to upset him. Family court needs to stay out of this “flag” display..its too bad we even need a “family court”..if people could act like adults in the first place you wouldn’t need them. Children should not be having children.

    1. Judge Pritzker is a jew.

      1. And to think that some people figured law professors operating an on-the-spectrum right-wing blog couldn’t make movement conservatism more palatable in modern America!

      2. And so is the law professor who is condemning him.

        Bigotry is the refuge for idiots too sophomoric to dislike people for legitimate reasons.

  11. Pfaugh…plenty of Confederate whites had mixed-race children.

    1. Tell us more about that . . .

      1. If you want to quibble over what I thought was an obvious point, you can consult Lisa Richardson:

        “Like millions of African-Americans, I am the descendant of a Confederate soldier.”

        I’d like to link to the LA Times version of this article, which would make it extra-credible for the likes of you, but they have a paywall, so I’ll link to this version –

        https://www.circlevilleherald.com/comment/a-black-daughter-of-the-confederacy-corrects-history/article_485c207e-e38c-55d6-89a3-460ff3ab950c.html

        1. The writer assails “the contorted logic that it is possible to separate the Confederacy from the institution of slavery, that it’s a whites-only story and slavery is blacks-only, and that treason is the same as patriotism.” Yes — she would agree with me. The Confederate flag is a celebration of slavery.

          1. There WERE Black slave owners.

            Our current Vice President is the descendant of one…

            1. “There WERE Black slave owners.”

              Well, that makes it OK, then.

          2. “Yes — she would agree with me. The Confederate flag is a celebration of slavery.”

            I also believe that the Confederacy was founded on the “cornerstone” of African slavery and white supremacy, the only question is why you thought I disagreed.

      2. The sons of Chang and Eng Bunker were Confederate soldiers. Many Indians who had been screwed by the US government sided with he Confederacy and five tribes had soldiers in organized Confederate armies.

        1. … and they still lost, enabling the abolition of slavery in all of the United States.

          1. And replaced it with something worse.

            In the 1930s, FDR sent people out to interview people still living who had been slaves 70 years earlier. Many were recorded on the primitive wire recorders of the day.

            They said that things had been better during slavery — that they would prefer to have remained slaves than to subsist as sharecroppers. That’s what they said…

            When you look at the factory towns (and company stores), when you look at the working conditions in the North, I argue that slavery in this country didn’t really end until the 1950s/1960s.

            1. In the 1930s, FDR sent people out to interview people still living who had been slaves 70 years earlier. Many were recorded on the primitive wire recorders of the day.

              Exactly how many people who had been adult, or even teen-aged, slaves were around in the 1930’s? Why do you make shit up?

              It’s true, of course, that conditions for Blacks in the South were very bad after the war, especially after Reconstruction ended, but that was because the Southerners imposed Jim Crow law, forced labor, debt peonage, etc., and engaged in a campaign of terror against free Blacks, all of which was unopposed by the federal government.

              The problem was not the absence of slavery. It was the lack of the normal protection of the law for Blacks. The “liberty-loving” white southerners imposed tyranny on Black citizens.

              1. In the 1930s, FDR sent people out to interview people still living who had been slaves 70 years earlier. Many were recorded on the primitive wire recorders of the day.

                Exactly how many people who had been adult, or even teen-aged, slaves were around in the 1930’s? Why do you make shit up?”

                You might want to scroll down to the section headed ‘The WPA Begins Collecting Slave Narratives’. It was news to me.

                “The problem was not the absence of slavery. It was the lack of the normal protection of the law for Blacks.”

                I completely agree with that. ‘Blacks were better off as slaves’ or ‘poor whites had it just as bad’ is nonsense.

              2. “Exactly how many people who had been adult, or even teen-aged, slaves were around in the 1930’s?”

                https://www.loc.gov/item/mesnp.162015/

                “It’s true, of course, that conditions for Blacks in the South were very bad after the war, especially after Reconstruction ended, but that was because the Southerners imposed Jim Crow law, forced labor, debt peonage, etc., and engaged in a campaign of terror against free Blacks, all of which was unopposed by the federal government. “

                In other words, worse than during slavery.

                Now this was in the depths of the Depression, and it is natural for the elderly to think that things were better when they were young, *but* these people did say this.

                1. How do you get from “very bad after the war” to “worse than during slavery”?

                  Because I’m thinking that a world where, say, the missus and I could head north and try life there if we wanted is lots better than a world where if we try that and get caught, we’re getting sold down the river.

                  1. It was WAY worse, because the black folks was free, and not dependent on the Dr. Ed’s of the world.

                    What a nightmare.

        2. Fun fact for Dr. Mo:

          Ely Samuel Parker (1828 – August 31, 1895), born Hasanoanda, later known as Donehogawa, was a Tonawanda Seneca U.S. Army officer, attorney, engineer, and tribal diplomat. He was commissioned a lieutenant colonel during the American Civil War, when he served as adjutant and secretary to General Ulysses S. Grant. He wrote the final draft of the Confederate surrender terms at Appomattox.

  12. I can see how the court might want to reach out and stamp out this little problem before it became the occasion – or excuse – for more parental fighting. Though I wonder who in NY is decorating their rocks with Confederate flags?

    On the other hand, if you want to be “involved in your child’s life” (other than by mandatory support payments) then one way to do this would be to marry the child’s mother before making the beast with two backs, doing the old rumpy-pumpy, etc.

    1. Plus, some therapist is going to get richer thanks to this poor kid.

    2. “Though I wonder who in NY is decorating their rocks with Confederate flags?”

      Volokh Conspiracy fans

      1. Drive around in the sparsely populated upstate, say around Watertown, and you will see the Stars and Bars shockingly frequently, usually above barn doors.

        1. I did notice a reference to “driveway” and as she is clearly low income, and figured that it would have to be upstate in order for it to be “her” (i.e. singular) driveway.

        2. “you will see the Stars and Bars shockingly frequently, usually above barn doors.”

          No, you won’t. The “Stars and Bars” was the actual flag of the Confederacy, not the Battle Flag,

  13. On the legal side, yup, this is bad and I simply can’t see how the court can make this decision – and hopefully the mother has the means to appeal.

    To the traitor flag issue, father has equal custody and equal access to the child so hopefully he uses his time to teach the child about these losers.

    Education – always the best policy.

    1. All that suffering and sacrifice to defend slavery and racial caste…such zeal was worthy of a better cause.

      Or is that too complicated a sentiment for modern Internet discourse?

      1. Honestly, it was more social caste than racial — slavery and segregation was about maintaining the WHITE castes more than anything else.

        The same thing was true in Maine, except that it was done on the basis of birthplace rather than skin color.

        1. So, you, as an inbred, were lower caste even then?

    2. apedad — the issue behind all of this may well be what the father is teaching the child.

      Take someone like Barack Obama — who is half White and was raised by his White mother and White grandparents — and yet he is “Black.”

      My guess is that the school, the father, the social workers and everyone else is teaching the child that he/she/it is Black — and the mother is merely trying to remind the child that he/she/it is also White as well….

      This is where we wind up with our version of the Nuremburg Laws…

      1. Did you start with the conclusion, and work backwards from there, or did you start with your assumptions about the facts, and from there reach your backwards conclusion?

        1. You’re ascribing to Dr Ed the ability to follow a logical chain? How bizarre. He just handwaves the bit between ‘I believe this’ and ‘I want this to be the result’.

          1. He does have more than a bit of the magical thinking curse that afflicts the modern conservative. This belief that objective reality is only a suggestion and that if you REALLY want something to be true you just have to wish it hard enough to make it true.

      2. “My guess is that the school, the father, the social workers and everyone else is teaching the child that he/she/it is Black”

        And if the child ever tries to forget it, there will be someone to remind that poor child that darkened skin is a sign of something -or-other.

  14. Interesting how the Confederate flag, at times embraced by US presidents from Mckinley to FDR and others all the way to Slick Willie (and candidate Howard Dean), is now considered worse than those ridiculous Che portraits. The power of media propaganda is evident.

  15. I’ll mention in passing that “the best interests of the child” is a really bad legal standard as a policy matter.

    In the first place, in a normal unbroken family “the best interests of the child” is never, and properly never, the standard. There are all sorts of other interests to consider, and to be weighed and balanced – such as the interests of the parents, the other children, the grandparents, the neighbors, the children’s friends, the children’s friends parents. Family life simply does not operate on the basis of “the best interests of the child” – nor should it, nor could it.

    Is Dad’s new job in North Carolina to be nixed because it disrupts the children’s schooling ? Maybe, maybe not, but it’s certainly not going to be decided on the basis of “the best interests of the child.” It’s going to be decided based on the reasonable interests of the family as a whole, as valued, weighed and balanced by the parents.

    Secondly any standard of “best interests” taken literally requires the judge to defer to his own opinion of what is in the child’s best interests. There may be 12 different possible courses of action, which the judge may categorise – in his own scale of values – as :

    1. the best course of action (1)
    2. other excellent courses of action (3)
    3. other reasonable courses of action (4)
    4. unreasonable courses of action (4)

    A sensible legal standard would be to allow the judge to substitute his own opinion for the opinions of the parent, only where the parent’s proposed course of action is unreasonable. That allows the parent to choose any reasonable (or excellent) course of action, and dissuades judicial megalomania.

    But “the best interests of the child” has only one possible answer. The “best” one. Even if the judge thinks the parent’s choice is an excellent one, so long as the judge thinks there’s a better one, he substitutes it. Going back to Dad’s North Carolina job, Dad and the judge may weigh the benefits of extra family income, a more outdoor lifestyle, and cheaper housing as better for the family than the judge does. But it would be totally unreasonable for the judge’s weighting to trump Dad’s in a case where Dad’s plan is perfectly reasonable, if not “the best” according to some other people’s valuation.

    The “best” is the enemy of the reasonable, and a dangerous inducement for judges to encroach in family decisions when encroachment is unnecessary and undesirable.

    1. At the point when these cases are coming to the court, the court is acting as if the child is basically the property of the state and only working for the best interests of the child. You are correct that a normal family does not have to function that way, but why is the relevant?

      1. At the point when these cases are coming to the court, the court is acting as if the child is basically the property of the state and only working for the best interests of the child

        I agree that’s what the court does, but my proposition is that it should not be acting that way. It should be acting on the basis that the parents are responsible for bringing up the child and that the court’s role is no more extensive than to prevent the parents doing things that are obviously against the interests of the child. The courts should not be assuming the role of parent.

        1. I agree that family decisions are multi factor – is taking that promotion, which will help pay for the kid’s college, worth the disruption of moving the kids to a new city?

          We wisely defer to the parent’s joint decision making on those things, trusting the parents to best weigh the tradeoffs.

          But when the parent no longer agree and bring the dispute into family court, what criteria should the court use instead of best interest of the child?

          1. 1. not “best interest of the child” but “best interest of the parents and the child” and

            2. “best” means the better of the two proposals for an order submitted by the parties, unless the judge finds both proposals unreasonable.

            The points being – if each parent has a reasonable proposal, the judge should not be allowed to pick a third that he prefers. If only one parent has a reasonable proposal, the judge should pick that one. And the criteria should be the interests of all the parties not just the child.

            1. When parents choose to divorce, each has the option of hiring a legal representative to present their interests. Generally speaking, the minor children do not have this option. Some jurisdictions will appoint such an advocate for the childrens’ benefit, but the Court, as agent of the state, has a responsibility to the children who are unable to adequately advocate for their own interests.
              In most civil courts, the court picks a winner and the other party is the loser. In divorce court, there are no winning parties, just different kinds of losing.

            2. Best interests of the child include the factors you’re talking about. The courts’ job is to balance the different factors.

              The best interests of a child are at times interpreted surprisingly widely. I’ve read judgments where the best interests of a child were held to include the family putting all its time and money into saving the life of a sick sibling – there wasn’t time or money to provide for regular visitation rights for a relatively short period. On the whole, the right ruling, but arguably contrary to law.

    2. “In the first place, in a normal unbroken family “the best interests of the child” is never, and properly never, the standard.”

      You’re speaking for your own broken children here.

      For me, the transition from looking for “the best interests of the child” as half of a married couple to looking for “the best interests of the child” as a single parent was seamless. That’s why I became a single parent instead of a non-custodial one. My ex-wife kept trying to argue “the best interests of the mom” over and over, every year, as soon as the court was willing to entertain requests to modify the custody order.

    3. “But “the best interests of the child” has only one possible answer.”

      Sure. and telling a jury either award damages to the plaintiff or find for the defendant has only one possible answer. Picking the winner/loser is what courts DO. Either what the mother wants to do or what the father wants to do is the best of the two, they can’t both be best.

  16. THE VOLOKH CONSPIRACY

    This strikingly White, remarkably
    male, movement conservative
    blog has operated for
    FIVE (5) DAYS
    without gratuitous publication
    of a vile racial slur and for
    742 DAYS
    without imposing viewpoint-driven
    censorship and for
    ZERO (0) DAYS
    without claiming to be libertarian
    rather than movement conservative.

    Congratulations on achieving the best
    clingers can manage these days!

    1. White is good, Rev.
      See Baltimore, Bangladesh, Guatemala, Zimbabwe.

    2. Rev, your antisemitism is showing again. Several of the authors here are not ‘white’. Pretty right wing, to say the least, but not ‘white’.

    1. From the link:

      “The old craggy jew Judge Stan L. Pritzker, hailing from the inbreds of Washington County, authored today’s opinion in Christie BB v Isaiah CC which claims the stars & bars is not in the best interest of a child. Oi vey, what the jews will do to rub whitey’s face in the War of Northern Aggression. Pritzker is a jew who oversteps the jurisdictional limits of the appellate court, with the blessing of dyke Justice Elizabeth Garry. Dykes and jews, but no niggers on the appellate bench of the 3rd Department. Note the Jamaican does not count, she ain’t negro.”

      Delightful and insightful at the same time!

      1. No matter what side you take on any issue, there will be some people who agree with you that you desperately wish did not.

      2. “hailing from the inbreds of Washington County”

        I read that differently — in rural areas there often are politically-connected families that go back generations.

        The current Governor of Maine — Janet Mills — is such a person and the Mills of Franklin County (Farmington — pop. 7,760) go back at least three generations as judges and politicians.

        1. Ed says Mainers are inbred.

          1. Some are.
            Sometimes even more than the official records indicate.

            1. Obviously, it affects intelligence.

              1. … not in a good way.

    2. ” An unmarried white woman and a black-ish bachelor fucked each other into family court with a child; a rather common horny drama of upstate New York peasants.”

      The last six words are most relevant, I’ve seen a lot of the same in rural New England. As there are no jobs and haven’t been for so long that any young person with any ambition leaves — and what is left are the Welfare recipients.

      While I tend to dismiss the accuracy of anything with as much gratuitous racism in it as this, the “black-ish” reference does raise the question of how Black is he — and hence the child. Like a lot of other people, I was presuming the situation of BH Obama, i.e. half & half — but if he is only one-half then the children are only a quarter Black.

      1/4th, 1/8th, 1/16th, 1/32nd, 1/64th….

      We’ve brought back the infamous “one drop” rule and the real question is if a mixed race child will learn about ALL of the child’s races, or just the preferred one…

      1. “As there are no jobs and haven’t been for so long that any young person with any ambition leaves — and what is left are the Welfare recipients” & Dr. Ed, the Commander McBragg of the VC.

        1. Usually the fastest way to the truth is to assume the opposite of what Ed has to say, although, this is no guarantee.

    3. Pavel….I am not going to mute you. Mostly because I want people like you out in the open where we can see you.

      There is only one proper response: Am Chai Yisrael!.

      We will live good lives; rewarding, productive and full of the best life has to offer. You on the other hand, will die unloved and will be forgotten. We’ve been dealing with people like you for at least 5,000 years. We’re still here.

      1. I’ve been told that this can be summarized as “they tried to kill us, we survived, let’s eat!”, although I have no direct knowledge.

  17. You don’t get much more opposed than myself to the display of the traitor flag. However, the measure of freedom of speech is how you can support it in those you despise for speech that you cannot stand.

    The court has no authority to tell someone how they may decorate their home.
    The court is making up harm from a decoration when there is no complaint about it in order to create a fictitious authority.
    Even if there was a complaint, the court has no authority to determine custody based on political affiliation.
    If there is no evidence of actual harm, the court is 100% in the wrong here.

    Considering the actions of the past few years, it’s hardly a slippery slope to worry that we will soon hear a judge say “you voted for X, therefore you are an unfit parent”. Do we want that to happen?

    1. I suspect that it already is happening.

      20 years ago, I saw public housing tenants being reminded of how they needed to go to Boston to attend a protest for more welfare funding, and the personal consequences they would suffer if they didn’t go.

      1. I suspect that it already is happening.

        It’s not.

        20 years ago, I saw public housing tenants being reminded of how they needed to go to Boston to attend a protest for more welfare funding, and the personal consequences they would suffer if they didn’t go

        No. You didn’t.

    2. “Considering the actions of the past few years, it’s hardly a slippery slope to worry that we will soon hear a judge say “you voted for X, therefore you are an unfit parent”. Do we want that to happen?”

      Depends entirely on whether or not voting for X actually is a sign of unfit parenting. If some politician introduces a “Hansel und Gretel” law, making it legal to take your children into the woods with intent to leave them there, so long as there is a house made of candy somewhere in the woods, then yeah, supporting that is probably a sign of a parent who should not be the custodial parent.

    3. “The court has no authority to tell someone how they may decorate their home”

      Unless it does. You can tell the judge to go get bent, but it’s a bad idea to do it right there in the courtroom.

  18. As another poster noted, pretty much anything is fair game in family court for determining custody. Does one parent drink alcohol even just socially? Could be an issue if the other parent is a recovering alcoholic or converts to a religion that forbids it. Does one parent decorate their house for Christmas or display crosses while the other parent is a non-Christian ? While these might not seem like important issues for most people, each parent is trying their best to smear the other to get the most custody of the child

  19. The South were not traitors nor did they commit treason. That’s why none of them were tried as such. In fact, the pardons that were issued preclude any argument that they were traitors, ipso facto.

    In that time, a citizen’s loyalty was to his sovereign State, not to a union of states. They sought to peacefully secede from the Union. Any trial for treason would only have highlighted the legality of secession, which was a singular principle of the American founding. Of course, the would-be prosecutors were not keen on a high-profile trial on a losing issue highlighting this. The South was on more solid ground legally than the revolutionaries 80 years prior. If they were traitors than the founders were doubly so.

    Jefferson in 1799:

    “[F]ully confident that the good sense of the American people and their attachment to those very rights which we are now vindicating will, before it shall be too late, rally with us round the true principles of our federal compact; but determined, were we to be disappointed in this, to sever ourselves from that union we so much value, rather than give up the rights of self government which we have reserved, & in which alone we see liberty, safety & happiness.”

    1. In that time, a citizen’s loyalty was to his sovereign State, not to a union of states.

      Complete and utter lost cause bullshit. (Indeed, all the officials had taken oaths to the United States.)

      They sought to peacefully secede from the Union.

      I guess, like that cop last month, they only meant to use their tasers on Fort Sumter and accidentally shot at it?

      Any trial for treason would only have highlighted the legality of secession, which was a singular principle of the American founding. Of course, the would-be prosecutors were not keen on a high-profile trial on a losing issue highlighting this.

      False. Perhaps you’re unfamiliar with Texas v. White.

      The South was on more solid ground legally than the revolutionaries 80 years prior. If they were traitors than the founders were doubly so.

      Um, no shit? The founders didn’t think they weren’t traitors. They were not claiming they could legally secede from England. They were arguing the natural right of revolution, not the legal right to secede. That’s why they cited the the Laws of Nature and of Nature’s God, not the Law of England.

      1. Citizens were loyal to their free and independent sovereign states. That’s how they saw it, at least.

        “Texas v White” A case about some treasury bonds, but it afforded Lincoln’s war-time Treasury of Secretary another opportunity wave the bloody shirt.

        I just think it’s funny that people get all frothy and start virtue preening about a “traitor flag.” Meanwhile they probably stand misty-eyed with hands over hearts for the other traitor flag, with nary a whit of historical knowledge to understand the irony.

        1. Winners define and write the history books you loser.

          That’s why we (the US) are now best friends with England and despise the Confederacy.

          Apparently you are the one without historical understanding.

          1. We’ve fought a couple of wars with Canada but are usually best buds, unless there’s a hockey game involved.

        2. Do you also think it funny that Americans laud people who spied on the Soviet Union for the U.S., while condemning people who spied on the U.S. for the Soviet Union? Do you also see irony in that?

          1. Nice try. Only if someone were claiming to be against spying per se would this be incongruous. Generally speaking, it is good to be on the side that is not the big government, imperialist, commie side.

            If California, or Texas, or whoever, seceded today, would you call them traitors? If they persisted, would you call for bloodshed and invasion to “collect the duties and imposts” ?

        3. “Meanwhile they probably stand misty-eyed with hands over hearts for the other traitor flag, with nary a whit of historical knowledge to understand the irony.”

          You were trying to suggest that the US flag is similar to the Confederate Battle flag in that both were emblems of rebellion against the lawful government at the time. The problem with your comparison is that the current United States flag is not the same as the flag carried by the Continentals during the Revolution.

          1. And, for that matter, the Confederate Battle Flag was not the flag of the Confederacy, either.

    2. “In that time, a citizen’s loyalty was to his sovereign State, not to a union of states. They sought to peacefully secede from the Union.”

      By firing on Fort Sumter.

      1. I don’t agree with — logically or tactically — but try looking at the argument raised about how Federal property really was the property of the state in which it was located.

        1. “We were acting peacefully by shooting at people” doesn’t work well under your alternative viewpoint, either. I can see why you were already trying to distance yourself from it.

    3. “The South were not traitors nor did they commit treason. ”

      This is a highly revisionist take. If your point is that the definition of terrorist fits more closely, you didn’t make it nearly as well as you thought you did.

  20. I’m sorry, Queenie.

    The correct term is “War of Northern Aggression”, not “civil war”.

    1. Queenie, WashRep is correct.

      The correct term is “War of Northern Aggression” – from the aggrieved losers’ point of view.

    2. “Civil War” was a movie about Captain America.

      1. Until recent years, it was a football game between the Oregon State University and University of Oregon teams. Now that game is officially NOT the “Civil War” any more.

    3. US Army discharge papers reference “the Rebellion.”

      1. How old are you?

        1. Come up with a counter-argument next time, James.

          1. A counter argument to what, exactly?

  21. > What if the mom were Hindu?

    A more realistic situation if one of the parents were a first generation Indian or Nepalese practicing Hindu would be that they’d have a mini altar/shrine within their home – a kind of mini temple or a sanctum-sanctorum – containing effigies of Hindu gods and goddesses to which daily prayers/puja are offered. This shrine would likely have some artifact with swastika on it.

    Chances are good that someone with a Jewish child would be sensible enough to remove such artifacts from the shrine. That said, when they visit local Hindu temples (in the US) or visit India, the child will be exposed to swastika symbols in copious amounts – there is no avoiding it. Visiting relatives in the US or elsewhere could also expose them to swastika symbols.

    Swastika is not an innocuous symbol for practicing Hindus – it’s been continuously used as a symbol of good omen and this practice never stopped through the 1940’s through current times. It’s pretty deeply entrenched culturally and nearly impossible to get rid of by invoking the specter of Holocaust. When one walks around in India, Rangoli/Kolam on people’s homes’ doorsteps frequently have swastika symbols; men often wear throws around their bodies during pilgrimages that are printed all over with swastika symbols – it’s an endemic phenomenon.

    This is a good example of the tensions of cultural appropriation. Not everything that people complain about as appropriation is really that, but this seems to fit the bill IMHO. The Nazis appropriated the symbol and did terrible things under that mascot but the original culture never gave up its use or their emotional ties to it. So just because a bunch of largely rich western cultures decry it’s use (I think mostly correctly), does that mean Hindus just give it up ? Do they just hide it or act ashamed of it when they live in the US? If the are a parent to a half-Jewish-half-Hindu child do they suppress and erase the half-Hindu part of the child’s heritage and perpetuate even more cultural erasure ? The tension is real – I don’t think the answers are easy and anyone who claims so is mistaken.

    Being an ex-Hindu married to a non-religious Jew, I’ve had the benefit of reflecting on this subject a little bit.

    1. ” That said, when they visit local Hindu temples (in the US) or visit India, the child will be exposed to swastika symbols in copious amounts – there is no avoiding it.”

      I had occasion to enter the Hindu Society of North Carolina’s building in Morrisville, NC recently. I was somehow able to avoid running into any swastikas. Perhaps they had tidied up knowing that they were going to have non-Hindu visitors. Regardless of the exact reason, the swastika symbol was not displayed for at least those two days.

      1. > Regardless of the exact reason, the swastika symbol was not displayed for at least those two days.

        I find that generally believable/plausible. There is a price Hindus in the west have had to pay to be viewed as model citizens, and yielding to seemingly minor points with practical mindedness (rather than putting up a high-minded fight about rights) is usually the way to survive and avoid controversy.

        In general, I wouldn’t expect institutional displays of such a symbol in Hindu temples in the west, but I’d expect occasional patrons wearing clothing adorned with various symbols – and such occasional yet incidental sightings would be unavoidable, I think.

        That said, I haven’t set foot in a Hindu temple in nearly 15 years even for the sake of looking at history or architecture, so I could be terribly out of date about how things are these days. I’m relatively confident re: where things stand among practicing Hindus and their private habits because I continue to keep mildly in touch with a small portion of the diaspora and have a pulse of how things are – but even there habits and practices vary widely.

        I’d like to think to people try to act with kindness and adapt in ways that avoids giving offense or causing needless pain – I think most folks do this irrespective of their own cultural origins and regardless of the antecedents of the beneficiaries of such courtesies. I suspect that there is some social pressure to hide swastikas from Hindu temples, but I also think people are just trying to be decent and there is probably some of that going too.

        1. I’m sure the pressure is different in Hindu temples in India and Hindu temples in the United States or in Europe. I don’t usually have reasons to check, so I can only talk about the two days I was in this one to get vaccinated.

  22. Threatening the woman’s custodial rights in her children to induce her to remove the flag. That’s not just pressure. That’s extortion. And as the good professor says, a First Amendment violation.

    I propose that the prie…er…. judges in on this caper be defrocked.

    1. Judge Pritzker is a jew of jewdicial proportions who will threaten a goy mother for the purpose of trafficking her child for the private use of the pedophiles of the state. That is the purpose of unbridled discretion in family court for disposition of the child. The deviants of society rule family court … just the way the jews want it.

      Welcome to the pedophile underworld of ‘murika.

      1. BTW, in the Third Department, all decisions are reviewed by the CONSTULTATION CLERK on Liz Garry’s staff. Her name is Janis Cohen. She is a jew too!!!

        Consultation Clerk since March 2001, becoming the Court’s first Consultation Clerk. Attends confidential meetings with the Justices at which all cases before the Court are discussed and decided, reads and edits all decisions of the Court prior to publication. Also performs a variety of legal research services as well as administrative and related duties for the Court.
        Graduated from the University of Rochester (1979) and the University at Buffalo Law School (1982).

        http://www.nycourts.gov/ad3/Bios/CohenBios.html

        Appellate decisions just dripping with jewism. All Pritzker did was demonstrate how jews ignore the Constitution. He modified custody based on his dislike for the War of Northern Aggression? He thinks 620k Americans died over an argument about slavery. Just another dumb jew playing with fire.

        1. “Appellate decisions just dripping with jewism.”

          Don’t even want to imagine what this might mean.

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