Short Essay on Snyder v. Phelps, Part V: The Intrusion Upon Seclusion Tort

For more about the essay (for an online symposium), see here; to read the full 9 pages, see here. This week, I’m posting (and combining using the Snyder v. Phelps tag) some passages: Earlier, I blogged about Hustler v. Falwell and why it applies here, as well as about the arguments that the liability in Snyder is akin to a time, place, and manner speech restriction, justified by the proximity of the speech to a funeral, that the liability is justified because the Phelps’ speech interfered with Snyder’s own religious freedom, and that the liability is justified because the Snyders are private figures. Today I close by blogging about the invasion of privacy tort claim.

The Snyder v. Phelps jury held defendants liable not just for intentional infliction of emotional distress, but also for invasion of privacy. It seems unlikely that the Court will consider the invasion of privacy claim, because it doesn’t seem to be within the scope of the questions presented by the certiorari petition. Nonetheless, I thought I’d briefly speak about it here.

“Invasion of privacy” covers several torts, but only one led to liability in Snyder: “intrusion upon seclusion.” The intrusion upon seclusion tort generally focuses on conduct that is offensive regardless of the message it expresses, or even whether it expresses a message at all. The Restatement of Torts illustrations are entering a patient’s hospital room to take a photograph over the patient’s objection, photographing through someone’s bedroom window through a telescope, tapping someone’s phone, getting someone’s bank records using a forged court order, and calling someone every day for a month at inconvenient times. The tort is constitutionally sound precisely because it focuses on physical conduct, not communication.

Here, though, the intrusion stemmed not just from the proximity of the picketing to the funeral, but also from the message of the picketing. There must have been a good deal of speech within 1000 feet of the church at which the funeral service was being conducted, and surely one wouldn’t call all of it “highly offensive intrusion upon seclusion.”

Applying the intrusion tort here thus raises pretty much the same overbreadth, vagueness, and viewpoint discrimination problems as does applying the emotional distress tort. The intrusion tort may be a little narrower than the emotional distress tort if one interprets the intrusion tort as requiring some sort of physical proximity with the plaintiffs (though then the Web page would have to be excluded). But it’s also broader because it doesn’t even require a finding of outrageousness, only of the intrusion being “highly offensive to a reasonable person.” And in any case the narrowing is pretty slight, if speech within 1000 feet of the funeral qualifies as physical proximity.

One can also see how dangerous this tort, if applicable in Snyder, could potentially be: It could conceivably lead to massive liability for antiabortion picketing within 1000 feet of abortion clinics, on the theory that people who are going in for emotionally draining and possibly life-altering medical procedures are just as entitled to “seclusion” as people who are going to a funeral. It could lead to massive liability for protests within 1000 feet of churches (including any church the Phelpsians might use), mosques, and synagogues, on the theory that people are entitled to “seclusion” in their ordinary religious services as well as in funeral religious services. It could lead to universities’ being allowed to punish students for distributing or posting allegedly offensive materials near dorms; and more.

So allowing liability on an intrusion upon seclusion theory in Snyder would be as improper as allowing liability on an intentional infliction of emotional distress theory. Again, a narrowly crafted, content-neutral rule restricting picketing immediately outside funerals might well be a constitutionally permissible means of protecting grieving families’ seclusion. But there’s nothing narrowly crafted or content-neutral about the two torts as they were applied in Snyder.