In NASA v. Nelson, 530 F. 3d 865 (9th Cir. 2008), the United States Court of Appeals for the Ninth Circuit found that before the Government could require potential employees to provide certain information, the Government must first justify the inquiry by showing that is use of the information would advance a legitimate state interest. Today the United States Supreme Court granted a writ of certiorari in order to determine whether or not the government, when acting as an employer, must advance some legitimate state state interest when delving into personal background checks of potential employees. Thus, this case, once decided by the Supreme Court, will potentially determine the scope of public employee privacy rights.
On the other hand, in Snyder v. Phelps, the Supreme Court will consider the First Amendment rights of picketers. The Phelps case is particulalry significant because it arises out of a unique set of facts. In Phelps, the family of a dead American soldier won a jury verdict against a Christian fundamentalist minister’s church which dedicated itself to picketing the funerals of servicemen and women who were killed in action. In this regard, the minister and his follweres preached a particularly vitriolic anti-gay message. Specifically,
The Rev. Phelps’ church preaches a strongly anti-gay message, contending that God hates America because it tolerates homosexuality, particularly in the military services. The church also spreads its views through an online site, www.godhatesfags.com. When the Snyder funeral occurred, the Rev. Phelps, two of his daughters and four grandchildren staged a protest nearby. They carried signs with such messages as “God Hates the USA,” “America is doomed,” “Matt in hell,” “Semper fi fags,” and “Thank God for dead soldiers.” The demonstration violated no local laws, and was kept at police orders a distance from the church. After the funeral, the Rev. Phelps continued his protest over the Snyder funeral on his church’s website, accusing the Snyder family of having taught their son irreligious beliefs.
The soldier’s father, Albert Snyder, sued the Rev. Phelps, his daughters and the Westboro Church under Maryland state law, and won a $5 million verdict based on three claims: intrusion into a secluded event, intentional infliction of emotional distress, and civil conspiracy. (The verdict included $2.9 million for compensatory damages and $2.1 million for punitive damages; the punitive award had been reduced from $8 million by the trial judge.) The Fourth Circuit Court overturned the verdict, concluding that the protesters’ speech was protected by the First Amendment because it was only a form of hyperbole, not an assertion of actual facts about the soldier or his family. While finding that the Phelps’ remarks were “utterly distasteful,” the Circuit Court said they involved matters of public concern, including the issue of homosexuality in the military and the political and moral conduct of the United States and its citizens.
As abhorrent as the Rev. Phelps’ message may be, this case raises important constitutional issues regarding the rights of other picketers in other lawful contexts.
These cases will likely not be argued until sometime next calendar year. We will continue to keep abreast of these important proceedings.