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Naming baby: The constitutional dimensions of parental naming rights

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http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1747858
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Abstract

This Article provides the first comprehensive legal analysis of parents' rights to name their own children. Currently, state laws restrict parental naming rights in a number of ways, from restrictions on particular surnames, to restrictions on diacritical marks, to prohibitions on obscenities, numerals, and pictograms. Yet state laws do not prohibit seemingly horrific names like "Adolf Hitler," the name recently given to a New Jersey boy. This Article argues that state laws restricting parental naming rights are subject to strict scrutiny under both the Due Process Clause of the Fourteenth Amendment and the Free Speech Clause of the First Amendment. This Article concludes that although many restrictions are constitutional, prohibitions on diacritical marks, such as that employed by the state of California, are unconstitutional. If parents wish to name their child "Lućia" or "Jośe," they have a constitutional right to do so. Similarly, current laws restricting parental choice of surnames fail strict scrutiny review. This Article also considers the constitutionality and desirability of statutory reforms that would address certain harmful names not prohibited by current law.

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