[1:56 pm: Bumped up above the more specific posts on the case.]
The Supreme Court has just agreed to hear Snyder v. Phelps, the funeral picketing case. I think the lower court decision is quite right, and I worry that the Court’s decision signals the Justices’ willingness to overturn it. But I hope the Justices will do the right thing, notwithstanding the speech involved.
The Fourth Circuit’s Snyder v. Phelps decision reversed a $5 million intentional infliction of emotional distress / invasion of privacy verdict against the Phelpsians (that’s the “God Hates Fags” group) who picketed the funeral of a slain soldier.
The Fourth Circuit essentially concluded that, at least where speech on matters of public concern is involved (see pp. 25–26), the First Amendment precludes liability based on “statements on matters of public concern that fail to contain a ‘provably false factual connotation’” (see pp. 16–20). This applies not just to libel liability, but also liability for intentional infliction of emotional distress and intrusion upon seclusion (the specific form of invasion of privacy alleged here). If the speech fits within “one of the categorical exclusions from First Amendment protection, such as those for obscenity or “fighting words’” (p. 18 n.12) it might be actionable. But if it’s outside those exceptions, then it can’t form the basis for an intentional infliction of emotional distress or intrusion upon seclusion lawsuit — regardless of whether it’s “offensive and shocking,” or whether it constitutes “intentional, reckless, or extreme and outrageous conduct causing ... severe emotional distress” (p. 23).
I think the Fourth Circuit was quite right, for the reasons that I give in today’s other posts on the case. In particular, the decision helps forestall similar liability for other allegedly outrageously offensive speech, such as display of the Mohammed cartoons (or other restrictions on such speech, such as campus speech codes’ being applied to punish display of the cartoons).
The Fourth Circuit did leave open the possibility that some content-neutral restrictions on funeral picketing may be imposed (p. 32), but it didn’t discuss this in detail. For more on that, see here. We’ll see this coming Term what the Supreme Court has to say on all this.
ruuffles says:
Lest anyone think this was the 4th ct going the way of the 9th with new Obama nominees, the panel majority was King (Clinton) and Shedd (W Bush), with Duncan (W Bush) concurring on narrower (non 1st am.) grounds.
Quote
March 8, 2010, 12:53 pmJay says:
There are only two Obama appointees on the Fourth Circuit; one was confirmed within the last two weeks and the other (Davis) last fall. So I doubt anyone thought that an opinion the court issued last September was heavily influenced by them.
Quote
March 8, 2010, 4:04 pmPeteP says:
Just as your right to wave your fist ends at my nose, the Phelp’s right to protest as ‘free speech’ ends when it crosses over into violating the right of the Snyders to bury their dead in peace and with respect.
Talk ‘the law’ all you want — the SC needs to overturn the 4th, and re-instate the verdict against them.
Free speech has it limits, as do all things. Yelling fire in a theater is one. What they do to the bereaved at the funerals of ANYONE, regardlesss who or why, is not and should not be ‘protected speech’ either.
Let them hold their protest elsewhere, at another place and time, fine. They should not be allowed to disrupt funeral services or burials. The bereaved have rights, too.
Quote
March 8, 2010, 7:49 pmEMB says:
I’m a little confused here... suppose that someone wanted to engage in some intentional infliction of emotional distress and intrusion upon seclusion. Would they be able to do so with impunity as long as they avoided factually incorrect statements and obscenity and phrased their insults, etc. in a way that involved “matters of public concern”?
(On another, but related, note, is there any sort of content that funeral picketing speech might have that wouldn’t cause emotional distress?)
Quote
March 8, 2010, 8:06 pmIR Student says:
Prof Volokh –
How does Phelps-led protests differ from the UC-Irvine student “protest” of Michael Oren speaking at their campus? You take the position that the First Amendment should allow Phelps to protest the funeral but would agree (I presume) that the UCI student speech is not protected speech under the first amendment. The conduct by both protesters seems pretty similar to me (i.e. they both aim to disrupt the proper functioning of an event), though to be fair I haven’t thought it through that hard. I’d be curious to hear how you differentiate the two cases.
Quote
March 8, 2010, 8:13 pmEMB says:
(To be clear, I don’t see how anything at a public government funeral could be intrusion upon seclusion and am very skeptical about the infliction of severe emotional distress from 1000 ft away, but I’m worried the slope on the other side may be slippery as well.)
Quote
March 8, 2010, 8:17 pmPeteP says:
EMB — wait until it’s your son or daughter being buried. Then you’ll understand.
Quote
March 8, 2010, 9:38 pmlicrimlawyer says:
Over the past few years, I have dealt with some Gold Star parents. Here on Long Island, they were outraged that several anti-war groups were using the names, and likenesses, of their deceased loved ones to make a political point. I have personally observed instances where the actions, and speech, of the demonstrators came close to the “fighting words” that are NOT protected by the first amendment.
The “Phelpsians,” as you call them, are more than a mere “God hates fags” group. They go by the name of the “Westboro Baptist Church” and it is their belief that the death of every American service member is the almighty’s punishment of America for allowing gays in the military. They attempt to proclaim this belief at every military funeral.
In its simplest terms, the question to be decided is whether standing outside a cemetery, with a bullhorn, proclaiming, in a loud clear voice, “Ha, ha! Your kid is dead because America has gays in the military,” rises to the level of protected speech. Hopefully, in making that determination, the Court is cognizant of the fact that there are quite a few people who have expressed a willingness to do violence to Fred Phelps, and his minions. Arguably, the rantings of the Westboro Baptist Church members does not border on “fighting words” they define the term.
Just my opinion.
Quote
March 8, 2010, 11:11 pmneurodoc says:
The bone that Phelps and his crew had to pick with the Snyders was that the son they were burying was a Marine killed in combat, and Phelps wanted the Snyders to know that their son’s death was Divine punishment for America’s tolerance of homosexuality?! I can’t see any particularity in that message for the Snyders, rather it seems that the funeral for the Snyders’ son afforded Phelps an opportunity to draw attention to himself and the message he intended for the country at large to hear. To attract that attention, he conspicuously intruded on the Snyders’ privacy and in effect taunted the mourners.
This conduct must be countenanced because Phelps had a “political” message to get out, and while this was surely not the only way for him to do so, this was a highly effective way for him to accomplish that purpose, leveraging as it did the intended outrage to get him and his message a great deal of free publicity? It matters that Phelps probably couldn’t get as much publicity, let alone for free, otherwise? To allow the Snyders to recover for IIED would impermissibly infringe on Phelps’ First Amendment rights? The Snyders had no rights of their own to be protected, like one to be spared gratuitous harassment over something not of their doing (America’s supposed tolerance of homosexuality); or, did they have rights, but those rights had to give way to Phelps’ right to speak his mind whenever, wherever, and under whatever circumstances he chose to do so?
I don’t see it as a circumscription of the First Amendment to allow a recovery for IIED given facts like the ones in this case. Phelps would not be denied the right to express his odious opinions, he would just being denied an unfettered “right” to go about it in a way that doesn’t incidentally victimize the Snyders, but does so intentionally, inflicting emotional distress on them so he Phelps can draw attention at their expense. If the Supremes allow the trial court’s award of damages to the Snyders, they won’t cause me to fear for freedom of speech in this country.
Quote
March 9, 2010, 1:07 amThe Phelpsians and Free Speech | Little Miss Attila says:
[...] I despise saying this, but Volokh is right. [...]
SCOTUSblog » Tuesday round-up says:
[...] in the blogosphere, Eugene Volokh at the Volokh Conspiracy has a series of posts in which he argues that the Court should uphold the Fourth Circuit’s [...]
Borepatch says:
IANL, but it seems entirely plausible to me that Phelps’ protests are indeed “fighting words.” I’m sure that there are all sorts of legal scholars who can explain how it’s not really fighting words, just like there were all sorts who could explain how the second amendment didn’t apply to an individual.
In a younger and more vigorous era, the Phelps crowd would have been horsewhipped out of town, or worse.
There is a crisis of legitimacy that the entire government is struggling with. The more the courts split hairs in cases that are easy for Joe Bloggs to understand, the more they risk getting tarred with the same brush.
Quote
March 9, 2010, 2:21 pmMichael says:
In order to be fighting words, don’t you have to target an individual who is likely to be provoked to immediate violence? Given the distance the Phelpses were required to keep, I doubt the likelihood of violence could be established.
Quote
March 9, 2010, 6:39 pmHot-Button Issue Goes to Supreme Court- Picketing Military Funerals | usDemoCrazy says:
[...] Now to you Mr. Eugene Volokh… The Supreme Court has just agreed to hear Snyder v. Phelps, the funeral picketing case. I think the lower court decision is quite right, and I worry that the Court’s decision signals the Justices’ willingness to overturn it. But I hope the Justices will do the right thing, notwithstanding the speech involved. [...]
Stoneman says:
“Congress shall make no law . . . abridging the freedom of speech . . .” Seems to me that since this isn’t government censoring speech, the first amendment shouldn’t be stretched to preclude tort recovery.
Quote
March 10, 2010, 10:14 amHow To Diet Flawlessly says:
[...] The Volokh Conspiracy » Blog Archive » Funeral Picketing / Intentional Infliction of Emo... [...]
Michael Ejercito says:
As Snyder himself admitted, he had not known of the protest until he saw a video of it.
The Supreme Court should throw it out on the basis that he could not prove damages.
Did the protestors actually disrupt the speech, or was their presence unnoticed by the speaker until he saw a video of the protest?
Quote
March 11, 2010, 10:12 am