Snyder v. Phelps, which asks whether the First Amendment protects protesters at a military funeral from liability for intentional infliction of emotional distress, has already received considerable attention in the press. Now academics are weighing in on that question as well in an online symposium sponsored by the Cardozo Law Review.
In his essay, Professor Eugene Volokh asserts that speech on matters of public concern, however outrageous, is protected by the First Amendment. Although he believes that the state may set some narrow and content-neutral limits on picketing near funerals, holding protesters liable for intentional infliction of emotional distress for such speech is too "vague, content-based, and potentially viewpoint-based.” Professor Jeffrey Shulman takes the opposite position, arguing that the protesters' public concerns have little connection to the funeral of a private citizen, and that the state has a substantial interest in protecting families' privacy during intimate moments of mourning. The other participants give further thoughts on how to reconcile the clash of interests presented by such cases.