Free Speech At Risk

Bad facts make bad law.

The Supreme Court yesterday accepted cert. in Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), cert granted March 8, 2010. In this case, the 4th Circuit two judge majority (Judge King writing for himself and Judge Duncan) upheld the First Amendment right of individuals to picket the funeral of a homosexual Marine who died in Iraq, the pickets using the funeral as a platform to gain media attention for their anti-homosexual message. Judge King aptly quoted from a 1993 decision by Judge Hall of that court in which Judge Hall stated that judges defending the Constitution “must sometimes share [their] foxhole with scoundrels of every sort, but to abandon the post because of the poor company is to sell freedom cheaply. It is a fair summary of history to say that the safeguards of liberty have often been forged in controversies involving not very nice people.” Kopf v. Skyrm, 993 F.2d 374, 380 (4th Cir. 1993) (internal quotation marks omitted).

For those of us who practice employment law in the 4th Circuit, including Maryland from where this case arose, the opinion of Judge Shedd concurring with the other two judges on the panel, is a startling message regarding intentional infliction of emotional distress claims. Judge Shedd, driven by the doctrine of constitutional avoidance, finds that these facts do not satisfy the elements of an IIED claim under Maryland law, stating that “this conduct simply does not satisfy the heavy burden required for the tort of intentional infliction of emotional distress under Maryland law.”

As there were four votes on the Supreme Court to take cert. in this case, one must be concerned that the Court is prepared to create a major exception to the First Amendment.