Legal Commentary

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

By Eugene Volokh

[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.

Full post as published by The Volokh Conspiracy on March 08, 2010 (boomark / email).