I do not usually predict the outcomes of Supreme Court cases, having learned from Jesse Choper that "he who lives by the crystal ball must be prepared to eat ground glass." But I received an e-mail a while ago from a former student, now clerking for a federal appellate judge, who wondered what I thought the Supreme Court will do in this case. This is, of course, the funeral picketing case in which intemperate and somewhat bizarre messages of condemnation of homosexuality were displayed near the funeral of Marine L.Cpl Matthew Snyder, killed in action in the Middle East. Lyle Denniston has a summary of today's oral argument up on SCOTUSBlog. I don't think the transcript is available yet. At any rate, in a moment of reckless courage, I offer this prediction.
By a vote of 6-3 the Supreme Court will reverse the Fourth Circuit and remand for a new trial in accordance with the Court's opinion, authored by Justice Kennedy. The opinion will say that free speech principles do not limit the imposition of tort liability for intentional infliction of emotional distress where the victim is a private figure, the speech that is the basis for the tort liability invades the victim's reasonable expectation of tranquility at a moment of vulnerability, and the speech (taken as a whole and considered from the vantage point of a reasonably objective observer) is primarily directed at the victim in order to inflict emotional injury, even if it otherwise raises issues of public concern. Kennedy will be joined in the entirety of the opinion by Breyer, and Roberts, Scalia, Thomas, and Alito will either join in its entirety or concur in part and concur in the judgment. Ginsburg will dissent, joined by Sotomayor and Kagan.
If I am wrong, you may forget that you ever read this.