If you were one of the few people who still thought your civil liberties were intact, the recent Ashcroftian assaults upon them probably changed your tune. But while civil libertarians tilt, thrust, and parry with our attorney generalissimo's rewriting of the Bill of Rights -- justified, of course, in the name of the war on terror, the war on drugs, the war on drunk driving, the war on high prices, the guerre du jour -- a dangerous force is slowly chipping away, unnoticed, at our most precious liberties. It's not Herr Ashcroft we should fear. The real culprit is out in the local playground.

Yes, it seems our most serious threat to liberty is little Susie or Jimmy -- the nation's children. Take, as exhibit A, a March ruling by New York State Supreme Court judge Robert Julian that a woman had to choose between smoking or visitation with her son Nicholas. The case, the latest salvo in a long and bitter divorce, would at first blush seem to pit the narcissistic indulgences of a mother against a defenseless child who wants only to visit his dear mom without having to breathe the deadly secondhand smoke with which she so thoughtlessly surrounds him on their all-too-brief visits.

Problem is, Johnita DeMatteo, the mother in question, does not smoke around her son. In fact, she claims she never has. If she needs a cig while her son is there, she goes outside. When he's not around, she smokes in the privacy of her own home and car, which, as far as I know, is still legal. But Nicholas, bolstered by his father and paternal grandparents -- who are "only thinking of the boy" -- complains that the house smells smoky. The child never mentioned the problem to his mother. But his father, with whom he lives, is apparently quite concerned about the effect on his son's health of all that . . . smelly furniture.

While admitting that Nicholas doesn't suffer from any health problems or allergies that would make the smell a medical concern, the judge nevertheless ordered that "the best interests of Nicholas dictate that he shall not reside in, or visit, or occupy any residence or motor vehicle of the parties in which smoking of any type occurs at any time and that he shall reside in a smoke-free environment to the extent practical outside the home."

Does anyone but me think that old Judge Julian has his head planted so far up his butt that he can see out of his own mouth? Short of relocating to Mars, where the carbon-dioxide gas would surely present more problems than cigarette odor, the judge's order is nearly impossible to comply with -- even if Johnita DeMatteo did quit smoking. We can safely assume that transgressions on the part of the father will go unreported by 13-year-old Nicholas (and doesn't that age just speak volumes?).

But the issue here is not so much the obvious abuse of the legal system by the boy's father, nor his equally abusive use of the child as a pawn in his war against the mother. The issue concerns the judge, who got so bogged down in being politically correct that he forgot to read the Bill of Rights. The judge believes that a child's whining about bad smells is sufficient reason to invade a woman's privacy and prohibit her from engaging in a legal activity that causes no harm to anyone but her. Can it be true that our personal freedoms are worth so little in today's judicial system?

I can only imagine what further assaults on our civil rights are in store for us now that this precedent has been set. Remember all those times you sat at the dining-room table until midnight because you wouldn't eat your Brussels sprouts? Well, now you might think twice about pulling the same stunt on your own children: they could haul your ass into court and ban you from serving the offending vegetable in the future. One can only imagine the court ruling, "Jimmy shall not reside in, or visit, or occupy any residence in which Brussels sprouts of any type are served at any time, and he shall reside in a Brussels-sprout-free environment to the extent practical outside the home -- because Brussels sprouts are yucky."

"It's about the culinary sensibilities of the child," Jimmy's attorney would surely assert. "Although he has no allergies to Brussels sprouts, this case is about Jimmy's right to live in a home free of unpleasant things. We hope to have equal success with the suit we filed last week concerning his mother's destructive Oprah habit, and her choice of hairstyle -- both of which are deeply distressing to Jimmy. Next month, we're filing a cease-and-desist request against the installation of new carpeting in the living room, which would interfere with my client's ability to ride his scooter there."

I fear for young Nicholas, a boy who will grow up believing that litigation is better than conversation. I also fear that he and his father have mistaken Nick's desire to live far from anything unpleasant for his right to live far from anything unpleasant -- a right they also believe trumps basic individual freedoms. But mostly I fear for a nation where judges, increasingly, are more than willing to agree.

Kris Frieswick can be reached at krisf1@gte.net.

Issue Date: April 12 - 18, 2002