Sticks and stones: IIED and speech after Snyder v. Phelps.

• Author: Hooper, Heath
• Position: Intentional infliction of emotional distress

1. Introduction

   On March 3, 2006, Marine Lance Corporal Matthew Snyder died while serving a tour of duty in Iraq. (1) After hearing of his funeral, members of the Kansas-based Westboro Baptist Church attended and protested the Maryland ceremony bearing graphic photos and signs declaring "Thank God for IEDs" and "Thank God for Dead Soldiers." (2) The church members did so in reflection of their religious belief that God has doomed America and its military missions because of the country's tolerance for homosexuality. (3) Following the protest, Matthew Snyder's father, Albert Snyder, sued the Westboro Baptist Church for a variety of civil wrongs, including intentional infliction of emotional distress, (4) thus setting up a conflict pitting free speech against tort liability that ultimately reached the united States Supreme Court.

   The tort of intentional infliction of emotional distress, commonly known as IIED, is a relatively new type of civil wrong, and one to which courts have not been terribly friendly. (5) An early problem with IIED was "the fear that the protection of interests in mental peace of mind would be 'the "wide door" which might be opened, not only to fictitious claims, but to litigation in the field of trivialities and mere bad manners.'" (6) While courts have allowed prosecutions under the tort since its recognition by the American Law Institute in 1948, (7) prosecutions based on speech have been relatively rare.

   Prior to the Court's decision in Snyder v. Phelps, it had only once, in Hustler Magazine, Inc. v. Falwell, considered an IIED claim based on speech. (8) The Court in Hustler decided against the plaintiff, using what appeared to be a modified defamation standard, (9) but the decision nonetheless left open a hole in speech jurisprudence. Hustler's plaintiff, televangelist Jerry Falwell, was a public figure, a kind of person the Court in other defamation rulings held to a higher standard than private figures like Albert Snyder. (10) The question remained whether the same IIED standard would apply to both public and private figures. (11)

   Although Albert Snyder succeeded at the trial level, the Supreme Court ultimately ruled against him. (12) The Court did so because the speech did not target the mourning family (13) nor did it "in any way interfere[] with the funeral service itself." (14) The Court did not, however, specify the standard under which Snyder's claim could have been successful. This Note attempts to fill the hole left by the Court's reticence to name an IIED standard for private figures. It argues that the public/private figure distinction on which many relied to dismiss Falwell as a precedent in Snyder is irrelevant in an IIED claim involving speech on a matter of public concern given the nature of the harm at issue.

   Building on the work of First Amendment scholars Christina Wells and Robert Post, (15) along with a thorough examination of the Court's relevant First Amendment cases, this Note argues that Hustler did not simply import the "actual malice" defamation standard into IIED cases involving public figures. (16) Instead, the IIED tort itself demands these elements be added to adequately protect speech on matters of public concern, regardless of the addressee's status. As the Court has long recognized, offensive speech requires significant protection to be free from censorship under community norms. (17) The very nature of the harm in IIED, emotional distress, is simply not capable, without more, of providing protection against such subjective censorship. Ultimately, the Court's standards in Hustler were not simply "defamation" standards; they are historically recognized tests necessary under an IIED claim to make potentially protected speech on matters of public concern actionable when made against any individual.

2. Facts and Holding

   Following twenty-year-old (18) Matthew Snyder's death in Iraq, his father, Albert Snyder (Snyder), chose to have his son's funeral service in a Catholic church in their hometown of Westminster, Maryland. (19) Snyder posted notices of his son's funeral service in the local newspapers. (20) Members of the Westboro Baptist Church of Topeka, Kansas, noticed the time and location of the funeral. (21) The church, headed by the Rev. Fred Phelps, believes "God hates and punishes the United States for its tolerance of homosexuality, particularly in America's military." (22) For more than twenty years, the Westboro Baptist Church has publicized its message by picketing funerals, including several military ceremonies. (23)

   Fred Phelps, along with two of his daughters and four other members of his congregation, travelled to Westminster to picket Matthew Snyder's funeral. (24) The group carried signs bearing the church's slogans, including "God Hates the USA/Thank God for 9/11," "America is Doomed," "Thank God for Dead Soldiers," and "Thank God for IEDs." (25) Standing on a plot of public land adjacent to a public street, the group picketed and sang hymns for about 30 minutes before the service began.26 The Westboro protestors contacted the police prior to the protest and stood more than 1000 feet from the location of the service. (27) The funeral procession, in which Albert Snyder rode, passed within 300 feet of the Westboro protesters. (28) Snyder later testified that he could see the tops of the protestors' signs, but he did not see the messages until after the funeral while watching a newscast covering the protest. (29)

   Snyder sued the Westboro Baptist Church in the United States District Court for the District of Maryland alleging defamation, publicity given to private life, intentional infliction of emotional distress, intrusion upon seclusion, and civil conspiracy. (30) Westboro motioned for summary judgment, claiming the speech fell under the First Amendment's protection. (31) The District Court granted Westboro's request on the claims of defamation and publicity given to private life, finding the torts' necessary elements could not be proven. (32) A jury found the Westboro Baptist Church liable on the claims of IIED and intrusion into seclusion, awarding Snyder "$2.9 million in compensatory damages and $8 million in punitive damages." (33) The District Court later lowered the punitive damages to $2.1 million but did not otherwise disturb the verdict. (34)

   The Westboro Baptist Church appealed to the United States Court of Appeals for the Fourth Circuit, again claiming the protests were protected under the First Amendment. (35) The Fourth Circuit, after concluding that the Church's signs contained speech on matters of public concern, reversed the jury's verdict "because those statements ... were not provably false, and were expressed solely through hyperbolic rhetoric." (36)

   Snyder petitioned the Supreme Court for certiorari, (37) and the Court granted the petition on three issues:

   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? (38)

   The Supreme Court heard oral arguments on October 6, 2010, and issued an opinion on March 2, 2011. (39) The opinion cleared the Westboro Baptist Church of all liability, holding that "[w]hat Westboro said, in the whole context of how and where it chose to say it, is entitled to 'special protection' under the First Amendment, and that protection cannot be overcome by a jury finding that the picketing was outrageous." (40)

3. Legal Background

   1. Regulable Speech

      According to the First Amendment of the United States Constitution, "Congress shall make no law ... abridging the freedom of speech." (41) Despite the strong protections afforded to speech via the so-called "speech clause," the Court has consistently recognized that not all speech is afforded absolute protection. The speech clause does not, for instance, protect someone who falsely shouts "Fire!" in a crowded theater. (42) Such speech creates a substantial danger of a harmful situation, namely a stampede toward the exits in which an attendee might be hurt. (43) A truthful shout of fire under the same circumstances would, however, clearly not be actionable. Through the years, the Court has named particular kinds of speech as falling outside the First Amendment's protection, refusing to acknowledge any ad hoc "balancing test" for speech protection. (44) Indeed, recognizable, distinct categories of regulable and unregulable speech have been a cornerstone of the Court's modern First Amendment jurisprudence.

      The Court has recognized that the First Amendment protects most strongly speech on matters of public concern. (45) Speech on matters of public concern is speech that can "be fairly considered as relating to any matter of political, social, or other concern to the community" (46) or speech regarding "legitimate news," defined as "a subject of general interest and of value and concern to the public." (47) In particular, the Court's First Amendment jurisprudence indicates a pattern of protecting speech from particular community norms when that speech adds to the public discourse. (48) As the Court recognized in Hustler, "[a]t the heart of the First Amendment is the recognition of the fundamental importance of the free flow of ideas and opinions on matters of public interest and concern." (49)

      According to the Court, speech, particularly that which adds to the public discourse, must be regarded as independent from community norms to afford it full First Amendment protection. (50) The Court protects speech on matters of public concern primarily because such protections ultimately serve the democratic principles enshrined in the Constitution. As Robert Post argues, the First Amendment carves out exceptions...