Catherine Ross | The George Washington University (original) (raw)
Papers by Catherine Ross
Despite doctrinal requirements that the state establish a compelling interest to justify content-... more Despite doctrinal requirements that the state establish a compelling interest to justify content-based regulations on speech, Professor Ross argues that courts have routinely taken the government\u27s interest at face value when it argues that it inhibits speech to protect children. The Article examines the Supreme Court\u27s test which requires the state to establish a compelling interest by articulating the precise harm it wishes to address, demonstrating a nexus between that identified harm and the regulated speech, and showing that restriction of the speech will alleviate the harm. The author seeks to reframe the discussion surrounding controversial speech and children by calling on courts to scrutinize the interest asserted by the government. This Article examines the two compelling interests on which the government relies in justifying its efforts to shield children from controversial speech: an interest in reinforcing parental authority and an independent state interest in pr...
American University of International Law Review, 2009
and the Institute for Advanced Study for research support, reference librarians Kasia Solon and H... more and the Institute for Advanced Study for research support, reference librarians Kasia Solon and Herb Somers for their help, Ralph Ghadban for his comments on an earlier draft, and Paul Kraczek for his excellent research assistance, especially for translating materials from the original German. The author is also indebted to Richard Alba, and to Roland Kempner, a German lawyer, for his introduction to German law bearing on the treatment of religion in schools and his assistance with related projects. 1.
Vanderbilt Law Review, 2007
Despite doctrinal requirements that the state establish a compelling interest to justify content-... more Despite doctrinal requirements that the state establish a compelling interest to justify content-based regulations on speech, Professor Ross argues that courts have routinely taken the government's interest at face value when it argues that it inhibits speech to protect children. The Article examines the Supreme Court's test which requires the state to establish a compelling interest by articulating the precise harm it wishes to address, demonstrating a nexus between that identified harm and the regulated speech, and showing that restriction of the speech will alleviate the harm. The author seeks to reframe the discussion surrounding controversial speech and children by calling on courts to scrutinize the interest asserted by the government. This Article examines the two compelling interests on which the government relies in justifying its efforts to shield children from controversial speech: an interest in reinforcing parental authority and an independent state interest in ...
Social Science Research Network, 2010
This article discusses the trend in and legal recognition of homeschooling throughout the United ... more This article discusses the trend in and legal recognition of homeschooling throughout the United States. I focus on Christian parents who argue that homeschooling is a means of avoiding exposure to issues about which they do not want their children to learn. I offer two proposals in this article: first, that state governments should impose and adjust curricular requirements for homeschoolers so that they must expose their children to mainstream norms about diversity and social inclusion and second, that when parents who share legal custody of their children disagree about where to educate them, courts should apply a rebuttable presumption in favor of sending the child to a public or state-licensed school.
This article advocates for the creation of a parent-child privilege by focusing on the parental c... more This article advocates for the creation of a parent-child privilege by focusing on the parental contribution to raising their children. The article argues that children cannot fully exercise their constitutional rights without being able to confide freely in their parents and consult them before waiving rights and while working with their attorneys. I begin by describing the current state of privilege law and suggest that there is already a “de facto” tendency to observe a parent-child privilege. I show that courts have failed to distinguish among three distinctive kinds of confidences: (1) testimony concerning confidences from a minor child to a parent; (2) testimony concerning confidences from adult children to parents; (3) testimony concerning confidences from parents to their children; and have failed to distinguish all three from testimony not based on confidences at all. The first category should be at the heart of any parent-child privilege. Finally, I provide three justifica...
Social Science Research Network, 2008
Whether and how to accommodate students' personal religious symbols worn in public schools ar... more Whether and how to accommodate students' personal religious symbols worn in public schools are part of a mounting global debate. The competing claims of the body politic and the religious or cultural identity of minority groups came to a head in what the French called the "affair of the veil." This chapter examines the problem of the veil from a cross-cultural perspective, comparing the United States to several other western democracies. The comparison involves both legal and cultural premises. In each instance, the analysis must consider the fundamental values of the body politic, the laws and covenants that govern decision-making, and the society's basic premises about the relation between religion and the state. The inquiry is further complicated by broader claims of the sub-groups with which parents and children identify. Part one of this chapter discusses the cultural significance of dress, and briefly summarizes the apparel associated with certain religions a...
This paper explores issues raised by the Adoption and Safe Families Act of 1997 (ASFA) and conten... more This paper explores issues raised by the Adoption and Safe Families Act of 1997 (ASFA) and contends that the Act may have unwittingly harmed some children and mothers by creating a categorical imperative that a child's health and safety must be a paramount consideration in child welfare decisions. After discussing the reforms made by the Act, this paper analyzes hard cases, in particular cases involving substance abusing mothers and battered mothers, and concludes that in some instances children's interests in these cases might be better served by a flexible standard where the child asserts a claim to a continued relationship with a biological parent.
WOMEN WORK [& FAMILY LOUISE A.TILLY! JOAN w. scon ... WOMEN, WORK, AND FAMILY ?~ *$ m ^'&quo... more WOMEN WORK [& FAMILY LOUISE A.TILLY! JOAN w. scon ... WOMEN, WORK, AND FAMILY ?~ *$ m ^'" # T^iY w?; A^i>i*IfiD iK gublicatkm Dates o? /. 7 *f*V^lr«»«W^»^JD»;'.'"(-'fl'- J ... WOMEN, WORK, AND FAMILY Louise A. Tilly and Joan W. Scott Methuen New York and ...
SSRN Electronic Journal
On college campuses across the nation people have sought to silence words that wound. They strive... more On college campuses across the nation people have sought to silence words that wound. They strive to ban expression they blame for contributing to a "rape culture." Some students demand that colleges censor student speech that appears to denigrate individuals or groups. The question I tackle here is what-if anything-the Constitution permits authorities to do about assaultive student speech in the venues governed by the First Amendment. Expression that may be regarded as assaultive is usually protected by the First Amendment-at least at public colleges and universities, which are units of the state. Protecting offensive speech from censorship also promotes higher education's norms, which is why most private institutions of higher learning have voluntarily bound themselves to free-speech principles.' Campuses are rocked by racially and sexually offensive speech and counter speech. Offensive speech and counter speech, including demonstrations and calls for policies that shield the vulnerable and repercussions for offenders, are both protected by the Constitution. Yet some college administrations regulate this protected speech. Expression on both sides of a cultural and political divide brings to the fore a conflict that has been simmering in legal commentary for about two decades: the tension between the often competing demands of the First Amendment's express guarantee of free speech and the Fourteenth Amendment's implicit promise of dignity and equality This clash between two fundamental principles seems to have been exacerbated recently by a renewed focus on identity politics both on campus and in national and international affairs.
SSRN Electronic Journal
The distinction between truth and falsehood in politics is much in the news these days. Candidate... more The distinction between truth and falsehood in politics is much in the news these days. Candidates and office holders from water district board members like Xavier Alvarez (of United States v. Alvarez1) to President Donald Trump-are fact checked, awarded Pinocchios, and sometimes indicted, for half truths, untruths, and fantastical fabrications. Many observers fear there is an increasing disconnect between verifiable facts and political discourse, a lack of embarrassment about even complete fabrication, and a divide between voters who appear to be operating based on completely different sets of "facts." Lies in politics and political campaigns are nothing new. Neither are efforts to rein them in. Legislators and citizens insist "something must be done" to curtail the most egregious abuses. However, any government-directed effort to restrain deception in campaign speech by candidates or their supporters faces constitutional obstacles that appear to be insurmountable. This Article analyzes lies during electoral campaigns, 2 legislative fixes that have been enacted, and the constitutional obstacles to such regulation. Part I provides a brief historical introduction to the problem. Part II proposes a taxonomy of the kinds of lies that arise during political campaigns. Part III reviews federal and state statutes that regulate campaign falsehoods. In Part N, I demonstrate the First Amendment infirmities of campaign falsehood statutes. Part V presents a case study that reveals the difficulty of reaching agreement on what constitutes a verifiable lie. In concluding, Part VI briefly considers whether recent developments in technology, social media, and culture require modifications of First Amendment doctrine in order to ensure informed voting.
SSRN Electronic Journal
enemy-of-the-people-stalin.html (discussing the response historians have had to President Trump's... more enemy-of-the-people-stalin.html (discussing the response historians have had to President Trump's use of the phrase "enemy of the people" and the use of the phrase by infamous authoritarian rulers) .
Abstract: This casebook captures the rapid evolution of doctrine, introduces students to emerging... more Abstract: This casebook captures the rapid evolution of doctrine, introduces students to emerging policy debates, and explores issues that arise in family law practice including the importance of collaborating with professionals from other disciplines. The book emphasizes that ...
SSRN Electronic Journal, 2000
Adoption Fostering, Dec 22, 2006
In olden days, a glimpse of stocking Was looked on as something shocking. But now, God knows, Any... more In olden days, a glimpse of stocking Was looked on as something shocking. But now, God knows, Anything goes.-Cole Porter, Anything Goes (1934) I. INTRODUCTION Protecting children from contamination by speech has become the focus of national attention. The content of the protected speech that the state seeks to regulate is as varied as the form of communications targeted, including the allegedly indecent, sacrilegious, and violent in media ranging from books to the Internet. Echoing similar crusades to protect children from virtually every new form of entertainment over the last century, contemporary regulatory efforts to protect children reflect the unique legal status of children and the fragility of constitutional liberties where their vulnerabilities are invoked. But content-based restrictions on speech-even in the name of protecting young people-presumptively violate the First Amendment, 1 which mandates "above all else. .. that government has no power to restrict expression because of its message, its ideas, its subject matter or its content." 2 Strict scrutiny under the Speech Clause requires the government to demonstrate a compelling interest in regulating speech based on its content and to show that a real harm exists which the restriction on speech will redress. Confronted with the incantation that the state aims to safeguard children, courts at every level, including the Supreme Court, have regularly failed to scrutinize the interest alleged by the government. This lack of analysis is all the more striking because the speech at issue in this Article is protected under the Constitution. It is neither legally obscene nor used in the service of criminal acts against children. Both of these categories of speech are unprotected, and are subject to criminal prosecution under pertinent statutes. Although many parents and other adults might wish it were otherwise, the Supreme Court has recognized that as long as controversial speech is available, some "enterprising youngsters" will find it. 3 The Supreme Court has conceded that no "fail-safe" methods can block the most determined teen, especially since government regulations based on content must be narrowly tailored. 4 The Supreme Court has long held as inviolable the principle that even the desire to protect youth will not allow the state to "reduce the adult population. .. to reading only what is fit for children." 5 Regardless of the strength of the government's interest in protecting children, the Court has insisted that "the level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox." 6
Despite doctrinal requirements that the state establish a compelling interest to justify content-... more Despite doctrinal requirements that the state establish a compelling interest to justify content-based regulations on speech, Professor Ross argues that courts have routinely taken the government\u27s interest at face value when it argues that it inhibits speech to protect children. The Article examines the Supreme Court\u27s test which requires the state to establish a compelling interest by articulating the precise harm it wishes to address, demonstrating a nexus between that identified harm and the regulated speech, and showing that restriction of the speech will alleviate the harm. The author seeks to reframe the discussion surrounding controversial speech and children by calling on courts to scrutinize the interest asserted by the government. This Article examines the two compelling interests on which the government relies in justifying its efforts to shield children from controversial speech: an interest in reinforcing parental authority and an independent state interest in pr...
American University of International Law Review, 2009
and the Institute for Advanced Study for research support, reference librarians Kasia Solon and H... more and the Institute for Advanced Study for research support, reference librarians Kasia Solon and Herb Somers for their help, Ralph Ghadban for his comments on an earlier draft, and Paul Kraczek for his excellent research assistance, especially for translating materials from the original German. The author is also indebted to Richard Alba, and to Roland Kempner, a German lawyer, for his introduction to German law bearing on the treatment of religion in schools and his assistance with related projects. 1.
Vanderbilt Law Review, 2007
Despite doctrinal requirements that the state establish a compelling interest to justify content-... more Despite doctrinal requirements that the state establish a compelling interest to justify content-based regulations on speech, Professor Ross argues that courts have routinely taken the government's interest at face value when it argues that it inhibits speech to protect children. The Article examines the Supreme Court's test which requires the state to establish a compelling interest by articulating the precise harm it wishes to address, demonstrating a nexus between that identified harm and the regulated speech, and showing that restriction of the speech will alleviate the harm. The author seeks to reframe the discussion surrounding controversial speech and children by calling on courts to scrutinize the interest asserted by the government. This Article examines the two compelling interests on which the government relies in justifying its efforts to shield children from controversial speech: an interest in reinforcing parental authority and an independent state interest in ...
Social Science Research Network, 2010
This article discusses the trend in and legal recognition of homeschooling throughout the United ... more This article discusses the trend in and legal recognition of homeschooling throughout the United States. I focus on Christian parents who argue that homeschooling is a means of avoiding exposure to issues about which they do not want their children to learn. I offer two proposals in this article: first, that state governments should impose and adjust curricular requirements for homeschoolers so that they must expose their children to mainstream norms about diversity and social inclusion and second, that when parents who share legal custody of their children disagree about where to educate them, courts should apply a rebuttable presumption in favor of sending the child to a public or state-licensed school.
This article advocates for the creation of a parent-child privilege by focusing on the parental c... more This article advocates for the creation of a parent-child privilege by focusing on the parental contribution to raising their children. The article argues that children cannot fully exercise their constitutional rights without being able to confide freely in their parents and consult them before waiving rights and while working with their attorneys. I begin by describing the current state of privilege law and suggest that there is already a “de facto” tendency to observe a parent-child privilege. I show that courts have failed to distinguish among three distinctive kinds of confidences: (1) testimony concerning confidences from a minor child to a parent; (2) testimony concerning confidences from adult children to parents; (3) testimony concerning confidences from parents to their children; and have failed to distinguish all three from testimony not based on confidences at all. The first category should be at the heart of any parent-child privilege. Finally, I provide three justifica...
Social Science Research Network, 2008
Whether and how to accommodate students' personal religious symbols worn in public schools ar... more Whether and how to accommodate students' personal religious symbols worn in public schools are part of a mounting global debate. The competing claims of the body politic and the religious or cultural identity of minority groups came to a head in what the French called the "affair of the veil." This chapter examines the problem of the veil from a cross-cultural perspective, comparing the United States to several other western democracies. The comparison involves both legal and cultural premises. In each instance, the analysis must consider the fundamental values of the body politic, the laws and covenants that govern decision-making, and the society's basic premises about the relation between religion and the state. The inquiry is further complicated by broader claims of the sub-groups with which parents and children identify. Part one of this chapter discusses the cultural significance of dress, and briefly summarizes the apparel associated with certain religions a...
This paper explores issues raised by the Adoption and Safe Families Act of 1997 (ASFA) and conten... more This paper explores issues raised by the Adoption and Safe Families Act of 1997 (ASFA) and contends that the Act may have unwittingly harmed some children and mothers by creating a categorical imperative that a child's health and safety must be a paramount consideration in child welfare decisions. After discussing the reforms made by the Act, this paper analyzes hard cases, in particular cases involving substance abusing mothers and battered mothers, and concludes that in some instances children's interests in these cases might be better served by a flexible standard where the child asserts a claim to a continued relationship with a biological parent.
WOMEN WORK [& FAMILY LOUISE A.TILLY! JOAN w. scon ... WOMEN, WORK, AND FAMILY ?~ *$ m ^'&quo... more WOMEN WORK [& FAMILY LOUISE A.TILLY! JOAN w. scon ... WOMEN, WORK, AND FAMILY ?~ *$ m ^'" # T^iY w?; A^i>i*IfiD iK gublicatkm Dates o? /. 7 *f*V^lr«»«W^»^JD»;'.'"(-'fl'- J ... WOMEN, WORK, AND FAMILY Louise A. Tilly and Joan W. Scott Methuen New York and ...
SSRN Electronic Journal
On college campuses across the nation people have sought to silence words that wound. They strive... more On college campuses across the nation people have sought to silence words that wound. They strive to ban expression they blame for contributing to a "rape culture." Some students demand that colleges censor student speech that appears to denigrate individuals or groups. The question I tackle here is what-if anything-the Constitution permits authorities to do about assaultive student speech in the venues governed by the First Amendment. Expression that may be regarded as assaultive is usually protected by the First Amendment-at least at public colleges and universities, which are units of the state. Protecting offensive speech from censorship also promotes higher education's norms, which is why most private institutions of higher learning have voluntarily bound themselves to free-speech principles.' Campuses are rocked by racially and sexually offensive speech and counter speech. Offensive speech and counter speech, including demonstrations and calls for policies that shield the vulnerable and repercussions for offenders, are both protected by the Constitution. Yet some college administrations regulate this protected speech. Expression on both sides of a cultural and political divide brings to the fore a conflict that has been simmering in legal commentary for about two decades: the tension between the often competing demands of the First Amendment's express guarantee of free speech and the Fourteenth Amendment's implicit promise of dignity and equality This clash between two fundamental principles seems to have been exacerbated recently by a renewed focus on identity politics both on campus and in national and international affairs.
SSRN Electronic Journal
The distinction between truth and falsehood in politics is much in the news these days. Candidate... more The distinction between truth and falsehood in politics is much in the news these days. Candidates and office holders from water district board members like Xavier Alvarez (of United States v. Alvarez1) to President Donald Trump-are fact checked, awarded Pinocchios, and sometimes indicted, for half truths, untruths, and fantastical fabrications. Many observers fear there is an increasing disconnect between verifiable facts and political discourse, a lack of embarrassment about even complete fabrication, and a divide between voters who appear to be operating based on completely different sets of "facts." Lies in politics and political campaigns are nothing new. Neither are efforts to rein them in. Legislators and citizens insist "something must be done" to curtail the most egregious abuses. However, any government-directed effort to restrain deception in campaign speech by candidates or their supporters faces constitutional obstacles that appear to be insurmountable. This Article analyzes lies during electoral campaigns, 2 legislative fixes that have been enacted, and the constitutional obstacles to such regulation. Part I provides a brief historical introduction to the problem. Part II proposes a taxonomy of the kinds of lies that arise during political campaigns. Part III reviews federal and state statutes that regulate campaign falsehoods. In Part N, I demonstrate the First Amendment infirmities of campaign falsehood statutes. Part V presents a case study that reveals the difficulty of reaching agreement on what constitutes a verifiable lie. In concluding, Part VI briefly considers whether recent developments in technology, social media, and culture require modifications of First Amendment doctrine in order to ensure informed voting.
SSRN Electronic Journal
enemy-of-the-people-stalin.html (discussing the response historians have had to President Trump's... more enemy-of-the-people-stalin.html (discussing the response historians have had to President Trump's use of the phrase "enemy of the people" and the use of the phrase by infamous authoritarian rulers) .
Abstract: This casebook captures the rapid evolution of doctrine, introduces students to emerging... more Abstract: This casebook captures the rapid evolution of doctrine, introduces students to emerging policy debates, and explores issues that arise in family law practice including the importance of collaborating with professionals from other disciplines. The book emphasizes that ...
SSRN Electronic Journal, 2000
Adoption Fostering, Dec 22, 2006
In olden days, a glimpse of stocking Was looked on as something shocking. But now, God knows, Any... more In olden days, a glimpse of stocking Was looked on as something shocking. But now, God knows, Anything goes.-Cole Porter, Anything Goes (1934) I. INTRODUCTION Protecting children from contamination by speech has become the focus of national attention. The content of the protected speech that the state seeks to regulate is as varied as the form of communications targeted, including the allegedly indecent, sacrilegious, and violent in media ranging from books to the Internet. Echoing similar crusades to protect children from virtually every new form of entertainment over the last century, contemporary regulatory efforts to protect children reflect the unique legal status of children and the fragility of constitutional liberties where their vulnerabilities are invoked. But content-based restrictions on speech-even in the name of protecting young people-presumptively violate the First Amendment, 1 which mandates "above all else. .. that government has no power to restrict expression because of its message, its ideas, its subject matter or its content." 2 Strict scrutiny under the Speech Clause requires the government to demonstrate a compelling interest in regulating speech based on its content and to show that a real harm exists which the restriction on speech will redress. Confronted with the incantation that the state aims to safeguard children, courts at every level, including the Supreme Court, have regularly failed to scrutinize the interest alleged by the government. This lack of analysis is all the more striking because the speech at issue in this Article is protected under the Constitution. It is neither legally obscene nor used in the service of criminal acts against children. Both of these categories of speech are unprotected, and are subject to criminal prosecution under pertinent statutes. Although many parents and other adults might wish it were otherwise, the Supreme Court has recognized that as long as controversial speech is available, some "enterprising youngsters" will find it. 3 The Supreme Court has conceded that no "fail-safe" methods can block the most determined teen, especially since government regulations based on content must be narrowly tailored. 4 The Supreme Court has long held as inviolable the principle that even the desire to protect youth will not allow the state to "reduce the adult population. .. to reading only what is fit for children." 5 Regardless of the strength of the government's interest in protecting children, the Court has insisted that "the level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox." 6