Justices decline free-speech challenge to Md. abuse-reporting law

By Steve Lash
BridgeTower Media Newswires

BALTIMORE, MD — The U.S. Supreme Court on Monday declined to hear a free-speech challenge to Maryland’s law requiring state residents to report suspected child abuse to law enforcement.

Without comment, the justices rejected Kevin Sewell’s request that they review a Maryland high court ruling that affirmed his first-degree murder conviction in the beating death of his 3-year-old nephew, a guilty verdict secured with Sewell’s wife’s compelled disclosure of incriminating texts he sent her regarding his abuse of the youngster.

In papers filed with the justices, Sewell’s attorney argued that the government’s reporting requirement compels speech in violation of the Constitution’s First Amendment.

“Freedom of speech, embodied by the First Amendment, includes the right not to speak,” Erin Murphy wrote in her unsuccessful request for Supreme Court review. “Freedom of speech prohibits the government from telling people what they must say.”

The Maryland Court of Appeals reinstated Sewell’s conviction in April, saying Amanda Sewell’s statutory duty to report child abuse trumped the marital communications privilege that prevents spouses from testifying against each other.

By striking down the reporting law as unconstitutional, the Supreme Court would restore the primacy of the marital communications privilege and compel a new trial in which the texts between husband and wife would be inadmissible, wrote Murphy, of Silverman Thompson Slutkin White LLC in Baltimore.

The Maryland Attorney General’s Office, which waived its right to file a response to Sewell’s request for Supreme Court review, has defended the reporting requirement as necessary to achieve the state’s compelling interest in preventing continued child abuse.

In response to that argument, Murphy told the high court that the law is overbroad and that only 16% of reported child abuse cases are substantiated, according to 2017 data from the U.S. Department of Health and Human Services.

“Maryland’s restriction on the First Amendment freedom is direct, not merely incidental, and it is greater than what is essential to further the state’s interest in investigating suspected child abuse,” Murphy wrote in the ill-fated Supreme Court petition. “Maryland’s effort to criminalize the failure to speak further evidences the state’s disregard for the First Amendment.”

Murphy was joined in the filing by her law partner Steven D. Silverman.

The Supreme Court’s refusal to hear the appeal is just that and not a ruling on the merits of the arguments. The appeal was docketed at the high court as Kevin Sewell v. State of Maryland, No. 19-12.

In the text messages, Sewell told his wife, Amanda, of his increasing frustration with their nephew’s whining and biting and said he had bitten the child back so hard that he must tell the mother a story of how the bruises occurred. Sewell also referred to the child by profanities in the text messages, which the wife gave to prosecutors in return for being given immunity from prosecution.

A medical examiner listed the child’s cause of death as shaken or slammed syndrome, with additional trauma to the chest, abdomen, back and extremities. The autopsy also mentioned bite marks.

The Worcester County Circuit Court jury found Sewell guilty of first-degree murder and he was sentenced to life in prison without parole. The Court of Special Appeals overturned the conviction, citing the marital communications privilege.

In reinstating that conviction and sentence, the Court of Appeals cited Section 5-705(a)(1) of Maryland’s Family Law Article, which states that any Marylander “who has reason to believe that a child has been subjected to abuse or neglect shall notify the local (Department of Social Services) or the appropriate law enforcement agency.” The requirement applies “notwithstanding any other provision of law,” which the Court of Appeals said includes the marital communications privilege.

The privilege is rooted in a belief that enabling spouses to keep their communications private promotes marital harmony, but that goal does not supersede a spouse’s statutory obligation to come forward, the Court of Appeals said.