We can be grateful for the accelerating chorus of commentary to the effect that there is a constitutional right to build a mosque near the site of the world trade center attacks even if it is offensive to many people. One should not confuse this right with the idea that there is an absolute right to offend people through speech.
The question is nicely presented to the Supreme Court in Snyder v. Phelps this term. Phelps and his church group appeared at a military funeral (some distance from it, but close enough to be seen) carrying signs saying “Thank God for Dead Soldiers” and “God Hates Fags.” As Mike Dorf sardonically observes this morning, “The fallen Marine, Mathew Snyder, was not gay, but [Phelps’ church] believes that 9/11 and the wars in Iraq and Afghanistan are God's punishment for America's failure to address sin. Lovely.” See Dorf on Law here.
The lower court found that Phelps was guilty of intentional infliction of emotional distress and invasion of privacy. The Fourth Circuit, knowing more about crazy ways to apply the First Amendment than common sense, reversed. The Fourth Circuit is supported in many briefs by people with absolutist views (which I regard as a First Amendment fetish) including Eugene Volokh, Martin Redish, and Nadine Strossen.
In Hustler Magazine v. Falwell, The Court held that the tort of intentional infliction of emotional distress could not be applied to a public figure without a showing that the statement in question was a knowing or reckless falsehood. The Fourth Circuit’s extension of Falwell is likely to be disapproved by the Court and rightly so. It will be a dark day if the Court declares that the tort of intentional infliction of emotional distress has secretly been unconstitutional all this time.
cross-posted at religiousleftlaw.com
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