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Free Speech and Funeral Picketing:

The Fourth Circuit has just reversed — in Snyder v. Phelps — the $5 million intentional infliction of emotional distress / invasion of privacy verdict against the Phelpsians (that's the "God Hates Fags" group) who picketed the funeral of a slain soldier.

The court essentially concluded that, at least where speech on matters of public concern is involved (see pp. 25-26), the First Amendment precludes liability based on "statements on matters of public concern that fail to contain a 'provably false factual connotation'" (see pp. 16-20). This applies not just to libel liability, but also liability for intentional infliction of emotional distress and intrusion upon seclusion (the specific form of invasion of privacy alleged here). If the speech fits within "one of the categorical exclusions from First Amendment protection, such as those for obscenity or 'fighting words'" (p. 18 n.12) it might be actionable. But if it's outside those exceptions, then it can't form the basis for an intentional infliction of emotional distress or intrusion upon seclusion lawsuit — regardless of whether it's "offensive and shocking," or whether it constitutes "intentional, reckless, or extreme and outrageous conduct causing ... severe emotional distress" (p. 23).

I think the court was quite right, for the reasons I gave in my earlier criticisms of the district court's allowing the verdict. In particular, the decision helps forestall similar liability for other allegedly outrageously offensive speech, such as display of the Mohammed cartoons (or other restrictions on such speech, such as campus speech codes' being applied to punish display of the cartoons).

The court did leave open the possibility that some content-neutral restrictions on funeral picketing may be imposed (p. 32), but it didn't discuss this in detail. For more on that, see here.

One of the three panel members, Judge Shedd, didn't reach the First Amendment issue, but concluded that (1) there wasn't intrusion upon seclusion under Maryland law because the protest was in a public place, and not even very near the funeral (p. 40), (2) the protest was not "extreme and outrageous" enough for purposes of the emotional distress tort because it was "confined to a public area under supervision and regulation of local law enforcement and did not disrupt the church service."

Thanks to How Appealing for the pointer.

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