Tag Archives | Funeral Picketing

Funeral Picketing / Intentional Infliction of Emotional Distress Case Going to the Supreme Court

[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 […]

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The Intentional Infliction of Emotional Distress Tort and the Freedom of Speech

[1:55 pm: Bumped up above the other posts on this case.]

I’m blogging today about the Supreme Court’s decision to hear the funeral picketing case. That’s the one in which the jury entered a $10.9 million verdict (reduced by the trial judge to $5 million) against the Phelpsians for their offensive picketing 1000 feet away from a military funeral, and the Fourth Circuit reversed the verdict. […]

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The Phelpsians’ Speech, the Mohammed Cartoons, and the Slippery Slope

If the Phelpsians magically went to their reward tomorrow, public debate would suffer very little. But I think their speech needs to be protected, because allowing the restriction of such speech — especially using the “intentional infliction of emotional distress” tort — would lead to the restriction of much more valuable speech.

Now it’s true, as many have argued, that the Phelpsians’ speech is legally distinguishable from other speech that should be protected. A judge or jury could certainly hold other speech protected, even though some see it as outrageous and severely emotionally distressing, even if the verdict against the Phelpsians is upheld.

But to me the important question isn’t whether the other speech is legally distinguishable from the 1000-feet-from-the-funeral picketing — it’s whether the speech will indeed reliably end up being legally distinguished. I worry that it might not be, because judges and juries will be more likely to accept restrictions on other speech once the rationale of the anti-Phelpsian verdict is accepted. Let me briefly explain. […]

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Where’s the State Action in Tort Awards Based on Speech?

Occasionally I hear people ask this question. Criminal prosecution for speech of course involves the government prosecuting and imprisoning or fining someone; injunctions of speech involve a court order barring speech; but when one individual sues another, is that really “state action” that’s governed by the First Amendment? Why isn’t it like a private employer firing a private employee, or a private property owner ejecting a demonstrator from his private property, neither of which poses a First Amendment problem? I’ve most recently heard this question about the Snyder v. Phelps intentional infliction of emotional distress jury verdict, but the same could be asked about speech-based verdicts for libel, disclosure of private facts, false light invasion of privacy, unauthorized use of another’s name or likeness, interference with business relations, and the like. […]

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Jury Discretion, Viewpoint Discrimination, and the Size of the Snyder v. Phelps Compensatory Damages Award

The jury awarded $2.9 million in compensatory damages to the plaintiff in Snyder v. Phelps. (It also awarded $8 million in punitive damages, which the judge reduced to $2.1 million.)

Now I stress again that the speech here was extremely offensive (and, in my view, entirely unjustified); and of course the plaintiff, being a grieving parent, was especially emotionally vulnerable. Yet I would think that even a grieving father wouldn’t be that damaged by speech that (1) he saw on one occasion (albeit a deeply important occasion), during television reports following the funeral, that (2) he knew was not remotely reflective of the views of his community, and that (3) he knew was said by people who are held in contempt by the community. (“Snyder testified that he never saw the content of the signs as he entered and left St. John’s on the day of his son’s funeral,” and recall that the signs were 1000 feet away from the church.) […]

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Funeral Picketing and Residential Picketing

I’ve tried to explain recent posts why I think this particular verdict based on funeral picketing is unconstitutional, because the intentional infliction of emotional distress tort and the invasion of privacy tort can’t properly be used to punish such speech. But may a legislature permissibly enact statutes banning funeral picketing, perhaps by analogy to many jurisdictions’ bans on residential picketing? […]

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The Phelpsians’ Picketing and Fighting Words

I’ve argued in earlier posts that the verdict against Phelps should be set aside because the intentional infliction of emotional distress tort is facially overbroad and thus unconstitutional as applied to speech. The tort might be constitutional if a court limits it to applying only to otherwise unprotected speech (such as threats, fighting words, and so on); but it has not been so limited.

Still, some say, what if the tort is so limited, perhaps by the appellate court in this case, and liability is defended on the grounds that the Phelpsians’ speech was unprotected under the “fighting words” exception? I expect that would require reversing the verdict and retrying the case, since the jury wasn’t required to find that the speech was fighting words — but why not have such a retrial, or perhaps even affirm the verdict on the grounds that the speech was clearly fighting words and thus the failure to instruct the jury more narrowly was harmless error? […]

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Invasion of Privacy and the Freedom of Speech

The Snyder v. Phelps jury held defendants liable not just for intentional infliction of emotional distress, but also for invasion of privacy. “Invasion of privacy” covers several torts, but the ones alleged here were “intrusion upon seclusion” (because the picketing was outside a funeral, albeit 1000 feet away) and “publicity given to private life” (apparently because of the Phelpsians’ statements on their Web site that plaintiff and his wife “raised [the deceased] for the devil,” “RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery,” “taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity,” and “taught Matthew to be an idolator”). […]

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The Overbreadth Doctrine and the Funeral Picketing Case

I blogged above about why the intentional infliction of emotional distress tort is unconstitutional, at least unless it’s limited to otherwise unprotected speech (such as threats or fighting words) — which it hasn’t been. Here I want to explain why it’s proper to focus on the constitutionality of the law generally, and not just on whether the Phelpsians’ particular (and especially outrageous) speech was constitutionally protected. […]

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