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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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The First Amendment and the Media/Nonmedia Distinction:

I was also pleased by this footnote from the Fourth Circuit's free speech / funeral picketing decision:

Neither the Supreme Court nor this Court has specifically addressed the question of whether the constitutional protections afforded to statements not provably false should apply with equal force to both media and nonmedia defendants. The Second and Eighth Circuits, however, have rejected any media/nonmedia distinction. Like those two circuits, we believe that the First Amendment protects nonmedia speech on matters of public concern that does not contain provably false factual assertions. Any effort to justify a media/nonmedia distinction rests on unstable ground, given the difficulty of defining with precision who belongs to the "media."

Sounds exactly right to me.

Related Posts (on one page):

  1. The Free Press Clause:
  2. The First Amendment and the Media/Nonmedia Distinction:
  3. Free Speech and Funeral Picketing:
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The Free Press Clause:

Some people have argued that (1) statutes and constitutions should generally not be read in ways that render particular provisions superfluous, and (2) therefore the Free Press Clause should be read as providing special protection for the institutional press, beyond what the Free Speech Clause provides for other speakers.

I generally agree with point (1), but I don't think that point (2) follows. Protection for the "freedom of speech, or of the press" can quite sensibly be understood as ensuring that both speech (spoken words) and press (printed words) are to be equally protected (and perhaps other communication would be protected as well).

Without the Free Press Clause, the First Amendment might have been understood as not covering material that is printed and thus capable of being broadly disseminated. (One can imagine a government official arguing that speech, or even a handwritten letter, is all well and good, but printed material is much more dangerous; in fact, English history had been full of similarly justified restrictions on printing.) Without the Free Speech Clause, the First Amendment might have been understood as only covering material that is printed and thus capable of being broadly disseminated. Reading both clauses as protecting the same context, albeit in both media, doesn't make either provision superfluous.

Indeed, modern discussions of freedom of speech often cast it broadly enough to cover all communication, whatever the medium. But this broad understanding of the provision was likely itself molded by the breadth of the "freedom of speech, or of the press" language. To the extent that even newspaper publication is often described as protected under the Free Speech Clause, that's so precisely because the accompanying Free Press Clause has created a legally culture in which printed speech is as seen as no less protected than other speech.

I should note that, even independently of the above, I don't think the "press" must refer to the press as a business, as opposed to the press as a technology. But in any event, "freedom of speech, or of the press" strikes me as providing equal protection under both clauses, not special protection under one or the other.

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