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”).
Even if the disclosure tort is constitutionally permissible — most lower courts have held it is, though the Supreme Court hasn’t opined on this — it has been interpreted quite narrowly, and I don’t see anything in this case that involves the sort of disclosure of highly embarrassing personal information (e.g., medical or sexual history) generally required for liability. Both the site and the picketing is offensive because of the viewpoint they express, the harsh language that they use, and their expression of the viewpoint in a way that’s personalized to a recently killed soldier — not because it reveals some embarrassing secrets.
The intrusion upon seclusion tort generally focuses on conduct that is offensive regardless of the message it expresses (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 court order, and calling someone every day for a month at inconvenient times). The tort is constitutional precisely because it’s content-neutral. Here, though, the intrusion stemmed not just from the proximity of the picketing to the funeral — 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” — but also from the message of the picketing.
Applying the intrusion tort here thus raises pretty much the same overbreadth, vagueness, and viewpoint discrimination problems as does apply the emotional distress tort. It may be a little narrower because it at least formally requires some sort of physical proximity with the plaintiffs. But it’s also broader because it doesn’t even require a finding of outrageousness (only the intrusion’s 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.
And one can easily see how dangerous this tort, if applicable here, 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 the Phelpsians), 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.