Snyder v. Phelps: Intentional Infliction of Emotional Distress and the First Amendment

In a previous post, I analyzed the intrusion upon seclusion claim in Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), a case where the Supreme Court recently granted certiorari.

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.  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.”  A jury found for Snyder, awarding him millions of dollars in damages.  The Fourth Circuit reversed on First Amendment grounds.  Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009).

In this post, I’ll analyze the intentional infliction of emotional distress issues.  The tort provides:

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

Restatement (2nd) of Torts, Sec. 46.

Here are the questions being considered by the Supreme Court:

1. Does Hustler Magazine, Inc. v. Falwell apply to a private person versus another private person concerning a private matter?

2. Does the First Amendment’s freedom of speech tenet trump the First Amendment’s freedom of religion and peaceful assembly?

3. Does an individual attending a family member’s funeral constitute a captive audience who is entitled to state protection from unwanted communication?

I’ll address each in turn.

1. Does Hustler Magazine, Inc. v. Falwell apply to a private person versus another private person concerning a private matter?

Hustler Magazine, Inc. v. Falwell, 485 U.S. 86 (1988) involved a parody ad consisting of a fake interview between the Reverend Jerry Falwell and his mother, suggesting he had sex with his mother.  He won a jury verdict for intentional infliction of emotional distress.  The Supreme Court held that the First Amendment barred liability unless Falwell (a public figure) proved actual malice:

We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with “actual malice,” i. e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.

In Snyder v. Phelps, the district court had applied the standard in Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974), which provides an exception to the actual malice standard for “private figures.”  But the Fourth Circuit reasoned that Phelps’s speech involved a matter of public concern and wasn’t directed specifically at Snyder.  Whether Snyder was a public or private figure was irrelevant.

Specifically, the court stated:

In assessing the Defendants’ First Amendment contentions, the [district] court focused almost exclusively on the Supreme Court’s opinion in Gertz, which it read to limit the First Amendment’s protections for “speech directed by private individuals against other private individuals.” Snyder v. Phelps, 533 F. Supp. 2d 567, 577 (D. Md. 2008). The court therefore assessed whether Snyder was a “public figure” under Gertz and whether Matthew’s funeral was a “public event.” See id.17

The Supreme Court has created a separate line of First Amendment precedent that is specifically concerned with the constitutional protections afforded to certain types of speech, and that does not depend upon the public or private status of the speech’s target. See Milkovich, 497 U.S. at 16; Hustler Magazine, 485 U.S. at 50. Thus, even if the district court (as opposed to the jury) concluded that Snyder and his son were not “public figures,” such a conclusion alone did not dispose of the Defendants’ First Amendment contentions. In focusing solely on the status of the Snyders and the funeral, and not on the legal issue concerning the nature of the speech at issue, the court failed to assess whether the pertinent statements could reasonably be interpreted as asserting “actual facts” about an individual, or whether they instead merely contained rhetorical hyperbole. See Milkovich, 497 U.S. at 20; CACI, 536 F.3d at 293. Whether a statement can reasonably be interpreted as stating actual facts about an individual is a question
of law for the court.

The court concluded later on:

A distasteful protest sign regarding hotly debated matters of public concern, such as homosexuality or religion, is not the medium through which a reasonable reader would expect a speaker to communicate objectively verifiable facts. In addition, the words on these signs were rude, figurative, and incapable of being objectively proven or disproven. Given the context and tenor of these two signs, a reasonable reader would not interpret them as asserting actual facts about either Snyder or his son.

I’m inclined to agree.  Although I find the speech by Phelps and the others at his church to be despicable, it isn’t specifically directed at particular individuals.  They picket at particular funerals, but their message is directed more generally at making anti-gay and anti-US comments, as well as broad attacks against the troops.  Gertz doesn’t fit because it involved a defamatory claim against the plaintiff, and there is no defamation against Snyder here.

Hustler, though, doesn’t directly apply because it involved a public figure.  Snyder isn’t a public figure.  Hence the issue before the Supreme Court — what to do in this case, which doesn’t fall under Gertz or Hustler.

I think that the Hustler rule should apply here.  The speech involved in Snyder was crude, obnoxious, and ridiculous, but it wasn’t directed at specific people and couldn’t reasonably be interpreted in making any factual assertions about specific people.  It was certainly odious speech and caused Snyder emotional distress.  But we tolerate a lot of speech that deeply offends people.  I can call you a jerk, an idiot, and express my opinions about you freely, no matter how crude.  The fact you might be very upset about this is outweighed by the First Amendment protection of free speech.  I might also express views that you find offensive: “All Republicans are selfish idiots” or “All Democrats are weak-minded fools.”   This speech might be insulting to you, but it’s protected by the First Amendment.

Where I start to run into problems is when I invade your privacy or defame you.  If I just say something that offends you, it’s not enough — and shouldn’t be enough — to allow you to prevail in a lawsuit.  That’s because of the danger that unpopular speech will strike many people as offensive, and it will be easy for juries to be offended to and punish the speaker.  If I say that “Yankee fans are morons” in New York City, I certainly wouldn’t want to face a jury trial there brought by an offended fan.

In On Liberty, John Stuart Mill argues (persuasively in my opinion), that people should be free to say and do what they want so long as they don’t harm others (self-regarding acts).  He examines the objection that there are few purely self-regarding acts since others might be deeply offended by a person’s conduct or speech:

There are many who consider as an injury to themselves any conduct which they have a distaste for, and resent it as an outrage to their feelings; as a religious bigot, when charged with disregarding the religious feelings of others, has been known to retort that they disregard his feelings, by persisting in their abominable worship or creed. But there is no parity between the feeling of a person for his own opinion, and the feeling of another who is offended at his holding it; no more than between the desire of a thief to take a purse, and the desire of the right owner to keep it. And a person’s taste is as much his own peculiar concern as his opinion or his purse.

I agree with Mill.  We need to tolerate a lot of offensiveness in society.  There are no purely self-regarding acts, since our behavior will invariably offend some people who hold different values and opinions.  But if the law were to recognize being offended as an injury, it would swallow up the category of self-regarding acts.  Therefore, the law must not recognize as a cognizable injury merely being offended (or even deeply offended).

On the other hand, we must protect against direct attacks, false rumors, invasions of privacy, and so on.  Speech used as a weapon to attack specific people and cause them emotional distress should be actionable.  Such speech should rise above mere insults or offensive messages — it should be defamatory, invasive of privacy, or harassing.  A line should be drawn between generally offensive speech and speech that is specifically targeted at particular individuals so as to injure them.

I’d be all for allowing Snyder to recover against Phelps if Phelps invaded the funeral or disrupted it with his speech.  But the facts indicate this didn’t happen here.  Snyder found out about Phelps’s speech afterwards, and he became offended (and rightly so).  But I think that as offensive as Phelps’s speech was, the Fourth Circuit was correct — the speech wasn’t directed at Snyder, and therefore the first question posed to the Supreme Court above isn’t entirely accurate.  This wasn’t speech about a private matter — it was speech of public concern directed to the public.

2. Does the First Amendment’s freedom of speech tenet trump the First Amendment’s freedom of religion and peaceful assembly?

This is an interesting question, but it doesn’t apply to this case.  The question would apply if Phelps’s protest disrupted the funeral.  Suppose Snyder were having a funeral procession out in public, and Phelps made his protest there, disrupting Snyder’s event.  We would then have Snyder’s First Amendment rights to freedom of religion and assembly (a funeral is often religious and a funeral procession can be understood to be a form of assembly) pitted against Phelps’s First Amendment rights to the speech.  But that isn’t this case, as the funeral was held in private and Phelps was far away.

3. Does an individual attending a family member’s funeral constitute a captive audience who is entitled to state protection from unwanted communication?

I don’t think this question applies to this case since Snyder’s family wasn’t a captive audience to Phelps’s speech.  In fact, Snyder didn’t even hear or notice Phelps’s speech until after the funeral.  If he were a captive audience, however, then the First Amendment analysis would have to take that into account.

In short, while Phelps’s speech was odious, it was general enough and sufficiently distant from the funeral so as to avoid (1) making specific statements about Snyder and (2) invading or disrupting the funeral.  Accordingly, it deserves First Amendment protection.

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11 Responses

  1. Kimball Robinson says:

    Regarding point #2: even if this happened at a funeral procession out in public, how widely can we interpret the meaning of the word \”peaceable?\” as it applies to such protests? I\’ll offer another example: After proposition 8 passed in California, protests were organized around a Mormon temple–and those running the temple chose to close it for at least one day. This could be considered peaceable assembly, even though it encouraged the Mormons running the temple to close the temple (would this be considered disruptive?). I guess my question is, do some people apply the words disruption and/or peaceable too widely? And where should one draw the line where first amendment rights are concerned?

  2. Logan Roise says:

    Daniel: I agree.

    Kimball: I think you have to lean towards peaceable assembly. It’s a delicate matter for sure but in your example, the church didn’t HAVE to close, they just choose to.

  3. Colin says:

    I believe that this case would be best fought as a bullying case. Thoughts?

  4. Jim says:

    I haven’t been able to confirm this statement: “In fact, Snyder didn’t even hear or notice Phelps’s speech until after the funeral.” In your prior post, you stated that they were 1,000 feet away. Do you have a source for it?

    I will admit I am much more sympathetic if its true, but still find myself unable to agree that their activities aren’t “specifically directed at particular individuals.” Its one thing for them to post issues on a website or speak generally, but following funerals around the country to picket is clearly targetting the individuals.

    I found the following conclusion in the opinion particularly stretched:

    “The reasonable reader’s reaction to two other signs — ‘You’re Going to Hell’ and ‘God Hates You’ — also must be specifically addressed, as these two signs present a closer question. We must conclude, however, that these two signs cannot reasonably be interpreted as stating actual facts about any individual.”

    Seriously? If I saw those signs (and the others) near a funeral, I would interpret them as targetting the soldier and his or her family. The court’s explanation as to why “you” is ambiguous:

    “Historically, the pronoun “you” was used only in the plural form; the word “thou” was used to refer to a single person.”

    What?!?! Does this mean “thou are going to hell” crosses the line?

    They are welcome to their opinions, and I would stand-up for their right to protest outside a government building, community center, park, etc., but a private claim of IIED should include picketing someone’s funeral.

  5. Nick says:

    I think that the content of Phelps’ messages definitely indicate that he intended to inflict severe emotional distress on Snyder; the fact that the protesters chose to protest near the funeral is a clear enough indication of intent for me. After all, if the intent had simply been to make a political statement, another venue, such as the website or a military recruiter, would have been sufficient. The goal of Phelps’ group is to use the drama of the emotional suffering of Snyder and similar targets to invite attention to their radical and extreme views on homosexuality. The pertinent question seems to me to be whether the First Amendment protects emotionally distressing speech as a means of disseminating a political message … which seems a complex enough question to merit cert.

    Any thoughts on this? Am I wildly off-base?

  6. Jim says:

    Nick, I think you hit it on the head for me. It’s one thing for them to choose a general public venue, but when you target an individual’s personal grief to leverage your message (when the targetting arises to the tort concept of intentional infliction of emotional distress), you shouldn’t receive first amendment protection. (I might be convinced that this should be distinguished from protesting a similar situation for a public figure).

    Off the fly, I think I would rephrase the question as “whether the First Amendment protects against liability for speech that constitutes intentional, reckless, or extreme and outrageous conduct causing … severe emotional distress when the speech targets a non-public figure.” I suppose you can legimately debate whether or not the speech targetted anyone in particular, but I am inclined to say that following funerals around (albeit at a distance) is targetting.

  7. Rocky says:

    None of the resent stories mentions the singing and chanting of the WBC members, I can’t imagine why..it is very disturbing. I have been to far too many military funerals and heard their vile comments.

    The actions of the WBC, is nothing short of stalking and domestic terrorism. I would support their claim to the free speech if it were held in a city square, park or other public forums. If this were the case, the family, friends and other people who are invited guests of the family, would not have to see and hear the vile comments of these people.

    But since they are usually posted near the church the family friends and others almost Have to either walk or drive by them. this is similar to shooting fish in a barrel.

    This also invades their right to peaceable assembly and infringes on the families right to practice their religion.

  8. Michael H. Miller says:

    I’m inclined to agree with your analysis, as far as it goes. I do not think the demonstration was actionable, especially since it was conducted pursuant to police observance. However, both you and the 4th Circuit seem to give a relatively short shrift to “The Epic” online, which I believe to have been expressly targeted against the Plaintiff, and is extreme and outrageous (to put it mildly). In fact, I think an analysis of “The Epic” is the great unstated issue of this case.

    Your thoughts?

    Your thoughts?

  9. Luke says:

    I think that your analysis of the case is correct in saying that this is an issue that has never been seen before. It’s IIED laws against First Amendment speech protection. As hard as it is to not be biased in a situation like this, I think that the speech of the WBC needs to be protected.

    Things that swing this case for me.

    1. The protestors kept their distance from the funeral rather than invading the privacy of the ceremony and giving the attendees no option other than to view the speech.

    2. While the signs take swipes at soldiers, the main target of the most outrageous speech involved in the protests is the gays. This makes it even harder to identify Matthew Snyder or the Snyder family as a specific target of IIED.

    3. The “reasonable person” in this case, as I see it, wouldn’t draw any conclusions about Matthew Snyder or the Snyder family when reading the signs. They could, however, draw the conclusion that the WBC is out of their minds.

    As hard as it is to say, disallowing the protests of the WBC because of their ideas can be boiled down to nothing but a content based restriction, which the First Amendment is in place to prevent.

  10. Eoin says:

    These are all very wordy and I’m sure worthwhile comments. But why can’t this family just have some peace and quiet to bury their family member with grace and dignity ? Whatever you think about this military action or that – or your personal feelings about sexual orientation – let the first who has not sinned throw the first stone (sorry bad misquote).

    And for the folks who want to protest, they can leave the family alone in their time of grief. And, of course, they can protest whatever they want – the price of cabbage for example, or green peas, but they cannot do is to interfere in what most common people would for this purpose consider a temporarily expanded private space to grieve.

    Take it to City Hall, Main Street come back next week – but as decent human beings leave the dead and the grieving alone.

  11. Joe says:

    The protests here are pretty disgusting but the case does not necessarily prevent a certain buffer zone. At some point, however, we are talking public space & even here, the family barely saw the protests at all. With the ceremony and then the burial, we would in effect have to block out miles of public land from protests, which at some case is simply not really possible.