Snyder v. Phelps: Funeral Picketing, the First Amendment, and the Intrusion Upon Seclusion Tort

The Supreme Court had granted certiorari on Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), a First Amendment case involving some privacy law issues.   The Supreme Court seems quite interested in privacy law of late, having recently granted cert. in NASA v. Nelson, a case involving the constitutional right to information privacy.

Snyder involves tort claims against Fred Phelps, pastor of the Westboro Baptist Church, and others arising out of the practice of Church members to picket the funerals of U.S. soldiers.  Church members held a protest near the funeral of Albert Snyder’s son, who was killed in Iraq.  A jury found the defendants liable and awarded $2.9 million in damages as well as $8 million in punitive damages.  The total damages were reduced by the court to $5 million.

The Church preached anti-gay messages, protesting funerals of dead soldiers as a way to illustrate God’s hatred of America for tolerating homosexuality.  Some signs said: “God Hates the USA,” “Fag troops,” and “Thank God for dead soldiers.”

Snyder prevailed on at least two tort claims of relevance to privacy law: (1) intentional infliction of emotional distress; and (2) intrusion upon seclusion.

The Fourth Circuit reversed on First Amendment grounds.  Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009).

In this post, I’ll focus on the intrusion upon seclusion tort.  I’m not clear on the basis for the intrusion upon seclusion claim. The tort provides:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

Restatement (Second) of Torts 652B.

Generally, intrusion doesn’t involve speech.  It involves invasive actions — snooping, surveillance, trespassing.

Where was the intrusion in this case?

The protest occurred more than 1000 feet away from the funeral and wasn’t seen by the funeral attendees.  It is not clear that there was any disruption of the funeral.

Had the protesters invaded the funeral or disrupted it with noise, then this might constitute an intrusion upon seclusion.  But speaking about an event, even nearby, isn’t an intrusion unless it somehow invades or disrupts privacy.  The facts supplied in Snyder’s cert. petition point out police resources being used to promote safety at the protest and how a nearby school was affected.  But what is notably missing are facts alleging how the protest invaded the funeral itself.

I would like to know precisely what facts establish the intrusion upon seclusion claim.  Without facts to establish an intrusion upon seclusion, this claim should have been dismissed because the elements of the tort weren’t met.  This isn’t a First Amendment issue — it involves whether the requirements of the tort are met.  Based on the facts I’m aware of, I don’t see a cognizable legal claim for intrusion upon seclusion.

Click here for my analysis of the intentional infliction of emotional distress claim.

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10 Responses

  1. Howard Wasserman says:

    This post points out precisely why Snyder *is* a First Amendment case in one sense–protected, but hurtful and unpopular speech is being targeted (and, at least initially, subject to substantial liability) because of its unpopularity. The evidence that came out at trial is that Snyder did not see or hear the protest and only learned about it on the local news later that night, as well as when he went to Westboro\’s web site. I\’ve argued that this is not really a funeral-picketing case at all, since the protest took place well beyond any constitutionally valid buffer zone.

    Of course, this leads to the question of why SCOTUS granted cert in this case, given that Phelps prevailed in the Fourth Circuit. Frankly, that question worries me.

  2. Ken says:

    In the case of the Snyder funeral, it appears that the Phelps contingent acted out their protest at a substantial distance. Perhaps emboldened by their success in this case, or perhaps simply pushing further and further to test the “limits of the envelope,” the Phelps folks seem to move their protests ever closer to their targets, even engaging mourners (and churchgoers, in church protests) in acrimonious conversation.

    It is worrisome (to me) that a failure by the Snyders, because of the seemingly clear legal reason(s) pointed out above, may effectively close the door on other “victims” of the obnoxious Phelps crowd, victims whose suits might have a much stronger basis in tort law.

  3. carole douaire says:

    I wonder what would have taken place if radical Muslim/Americans were to “quietly,legally and obnoxiously” hold similar signs and protest in the same way at a soldiers funeral????

    I bet they would have more than taxes to pay!!

  4. Diana Welling says:

    Snyder v Phelps
    When has one of our most cherished and guarded freedoms gone too far?
    Common sense tells us not to yell fire in a crowed theater, if there isn’t one, because of the ensuing mass hysteria that can cause emotional and bodily harm that may result in the death of innocent people.
    So now we have at issue a subject that can border on a hate crime. No, not the burning of a religions book that has been in the news, but the slander and emotional fallout caused by an anti-war religious group protesting at a private funeral of a dead solider.
    I have no argument with their beliefs or the use of their freedom of speech to entice the media and ACLU to their side. However, I believe the Westboro church led by Fred Phelps did cross the line.
    Did any member of the group personally know the deceased? Did anyone of them have first hand knowledge of the deceased sexual preferences? Did they respect the privacy of his grieving family? Or did they just want their fifteen minutes of fame?
    While I defend the freedom of speech we hold so dear, (and the right of the individual one to have verbal opinions that may be so far out that they make the group or person look mentally imbalanced), this particular group crossed the line and it was premeditated. The action in itself reeks in many ways as a hate crime, in my opinion.
    Moral sense and human decency should prevail and rule on the side of the deceased man’s family. In my humble opinion this group not only targeted this grieving family, they slandered the name of the dead son with their unfounded sign about his sexual preference. A generalization they claim in the name of God. Yet, a premeditated one.
    My heart goes out to the Snyder family and to all of our brave men and women serving in the armed forces and to their families that have to endure such hate groups.
    I can only pray that common sense prevails and that the hate group led by Phelps is held accountable for their actions.

  5. Diana Welling says:

    I still find that it is more a case of MALICE than freedom of speech.

  6. Cal Henson says:

    According to yesterday’s testimony the WBC protestors were assembled 30 feet from the main entrance to the church, not 1000 ft. In fact, to avoid direct contact with the protestors, the entire procession was re-routed to bypass them. At the time, there were no statutes or ordinances in place to restrict how far from the church the protestors must assemble.
    As a member of the Patriot Guard Riders, I have witnessed many times the vile protests, the signs and the chants. It is disgusting. Luckily, our state has placed restrictions on proximity and time, and the great citizens of Oklahoma line up in mass to block the view of the protestors from the families.
    There are many opportunities across the country to witness this disgrace. For those who doubt this act is an intrusion, I suggest you go see it for yourselves.
    The WBC has a website – – they post a picket list of where they intend to protest.

  7. R. Connor Hopkins says:

    I feel that the case of Snyder vs. Phelps is a case of intrusion on seclusion, The irony in this is that even thought there was a well abided buffer zone, the thoughts were invasive on the Snyder family and their grievances were irritated by the thought of how a person can charge God with the death of American soldiers and hold him accountable under the prejudices against homosexuals in the armed forces. excuse my malice but i will be frank and concise in my statements, “It takes balls to do what they do out their fighting for our freedom, regardless of the war and the principals behind it. These soldiers are fighting risking their own lives 86 400 seconds a day without regard to their sexual orientation; for us to live our lives luxuriously and care free. The least we can do is honor them for their services and respect them after they have passed through this life.” I believe this is a First Amendment case in which the First Amendment is incorrectly used, instead a person should use conscience better known as just judgment. Thank you and God bless America.

  8. brendan Haberin says:

    connor i agree with u 100 percent about what the phelps’ did was wrong and i am not condoning what they did but this case is not about morals or how they charge god with the death of soldiers. this case is about peoples rights and their was a zone in which the phelps’ had and it was close to a thousand feet and their was no violation of rights. the Phelps’ are protected by their first amendment right of freedom of speech and freedom of religion. they are allowed to believe whatever they want to believe. there was no invasion of privacy because they Snyder’s even said they didn’t know what was going on until after the funeral was over. granted i am thoroughly disgusted by what they did and i am just stating facts for arguments sake.

  9. Billy says:

    Is saying “Thank God for dead soldiers” free speech? No. Free speech does not include thanking God a passed love one. Westboro Baptist Church has no right to practice these beliefs in a country who has a number of soldiers stationed and fight for their country and lives each and every day. They also have been brainwashing their children. In a class I took, reporters interviewed their children who would say “My favorite sign is ‘God hates fags'” and when asked what it means they reply “I don’t know I just like it.” This is not freedom of speech this is wrong.

  1. March 17, 2010

    […] Solove has two posts at Concurring Opinions analyzing the tort issues at the heart of Snyder v. Phelps, the recently granted […]