The Fourth Circuit hands down a new First Amendment decision today in Snyder v. Phelps

Snyder is an important case for more than purely doctrinal reasons. It involves the  Westboro Baptist Church, a group noted their quaint habit of proselytizing at funerals. The Church sports a website whose address is literally so offensive that I can’t spell it out here, what with this being a family blog. Charming folks, and they seem to have caught the public’s attention. As a result of their activities, about 40 states and the federal government have adopted legislation addressing the picketing of funerals.


The facts of the case are pretty staggering. Westboro Baptist Church protested the funeral of Matthew Snyder, an enlisted Marine who died in the line of duty in Iraq. The Church showed up at his funeral (at a Catholic church) bearing signs saying things like “Pope in hell, “Thank God for IEDs,” and “Thank God for Dead Soldiers.” The Church also saw fit to post on its website an “epic,” a written piece further trumpeting its, err, message.

Snyder’s father sued, alleging five state-law tort claims: defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress, and civil conspiracy. A jury found the defendants liable for $2.9 million in compensatory damages and a boatload of punitives, which were remitted to $2.1 million. The defendants appealed.Continue Reading Snyder v. Phelps: New First Amendment Opinion from the Fourth Circuit

In Howell v. Sobhan, the Supreme Court of Virginia clarifies the law of proximate cause and gives us a new opinion replete with appellate practice pointers.

The Case

The plaintiff, Esther Howell, went to a gastroenterologist for a colonoscopy. He found 3 polyps in her colon, but was only able to remove one. The gastroenterologist sent Howell in for a “probable subtotal colectomy”–yes, it’s as bad as it sounds. Before surgery, the gastroenterologist determined that her polyp was benign.

Not that it mattered.

Howell’s surgeon, Dr. Sobhan, removed almost all of her colon, reattaching it to her small intestine through an anastomosis. After she was discharged from the hospital, Howell developed a fistula, or leak, that was penetrating her abdomen and coming through her wound. While she was in the emergency room, the incision in her abdomen split open, and “the bowel contents came out” through her incision.

This led to two more surgeries, and ultimately a suit against Dr. Sobhan for removing too much of her colon and using inappropriate anastomosis techniques.

At trial, Howell produced two experts. Both testified that Dr. Sobhan breached the standard of care by removing too much of her large intestine.Continue Reading Howell v. Sobhan: Appellate Practice Points from the Supreme Court’s New Opinion

The Court of Appeals of Virginia welcomes us back from summer vacation with a discussion of questions presented that will keep appellate specialists up at night in Carroll v. Commonwealth.


In 2007, Carroll was charged with raping his stepdaughter twenty-four years earlier. Carroll had initially been charged in 1983, but the case was nolle prossed–only to be reopened later, as the result of a separate rape allegation involving Carroll’s sister. In 1984, the government destroyed specimens and other evidence obtained from a physical examination of the victim.

Despite the Commonwealth’s evidentiary difficulties, Carroll entered an Alford plea. This allowed him to maintain his innocence while acknowledging that the Commonwealth had enough evidence to convict him.

Carroll entered into a plea agreement with the Commonwealth, under which he did not admit that he committed the rape and, to the contrary, expressly claimed his innocence. The plea agreement provided that Carroll would satisfy the conditions of his probation, which included that he maintain good behavior, have no contact with the victim, and pay court costs. If he did so, his sentence would be continued while he was on probation, and upon satisfying probation, the government would ask the court to vacate his conviction and accept instead a guilty plea of assault and battery. The agreement included an integration clause: “I understand that the judge will not enforce any agreement not written down here.” The plea agreement made no mention of sex-offender treatment.

The trial court accepted Carroll’s plea and continued the case for 5 years. One of the conditions of the trial court’s order was that Carroll would comply with all rules and requirements set by his probation officer.

Carroll’s probation officer mandated that he attend sex-offender treatment, which required him to accept responsibility for his actions. Carroll refused, and was discharged from the program. The trial court issued a bench warrant. At the resulting hearing, Carroll argued that he had not violated his probation because the trial court had accepted his Alford plea. The trial court disagreed. It found that Carroll had violated his probation and convicted him of rape. It sentenced him to 5 years in prison, all suspended.Continue Reading New Court of Appeals Opinion on Questions Presented

The Fourth Circuit’s recent decision in The Real Truth About Obama, Inc. v. FEC, which adopts a new standard for issuing preliminary injunctions, will have serious implications for parties seeking temporary injunctive relief in Virginia’s state and federal courts.


For the past three decades, a plaintiff trying to secure a preliminary injunction in the Fourth Circuit–and, as a practical matter, in the Virginia state courts–had to satisfy the balance-of-hardship test set out in Blackwelder Furniture Co. of Statesville v. Selig Manufacturing Co., 550 F.2d 189 (4th Cir. 1977).

Under Blackwelder, the first step in the court’s analysis is to balance the likelihood of irreparable harm to the plaintiff against the likelihood of harm to the defendant. If that results in an imbalance in the plaintiff’s favor, the court moves on to determine whether the plaintiff has raised questions going to the merits so serious, substantial, difficult and doubtful, as to make them fair ground for litigation.

Blackwelder allows for a “flexible interplay” among these elements. The upshot of its approach is that, if the balance of the hardships falls in the plaintiff’s favor, he need not show a likelihood of success. It might be enough to show a substantial question. In fact, the Blackwelder court expressly held that the district court had erred by requiring the plaintiff to show a likelihood of success on the merits.

Blackwelder has proven to be a peculiarly influential federal decision. That’s because, while the Fourth Circuit has a robust body of temporary injunction case law, the Supreme Court of Virginia has very little. As a result, Virginia trial courts have adopted the Blackwelder test.

The Real Truth About Obama, Inc. v. FEC

For a long time, that was the state of things–although, as Steve Emmert notes in his excellent analysis, Blackwelder certainly had its critics.

Late last year, however, the Supreme Court of the United States clearly articulated the elements necessary to support a preliminary injunction in Winter v. Natural Resources Defense Council, Inc., 129 S. Ct. 365. Primary among these was a likelihood of success on the merits. This was, to say the least, bad news for Blackwelder, which allowed plaintiffs faced with serious harm to elide this requirement.

And so, earlier this month, the Fourth Circuit retired Blackwelder in a case styled The Real Truth About Obama, Inc. v. FEC.

The opinion is not nearly as interesting as it sounds, largely because the appellants had no apparent interest in discussing the real truth about President Obama:

Try JibJab Sendables® eCards today!

They just wanted to talk about election regulations.Continue Reading Bye-Bye, Blackwelder