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Wednesday, March 02, 2011

Snyder v. Phelps Decision Alert

Today the U.S. Supreme Court held 8-1 in Snyder v. Phelps that the state could not impose liability for intentional infliction of emotional distress on Phelps and the Westboro Baptist Church for picketing the funeral of deceased soldier Matthew Snyder, at least where "Westboro addressed matters of public import on public property in a peaceful manner, in full compliance with the guidance of local officials."

At first glance: The decision contains an important discussion of how to distinguish speech of public concern from speech of purely private concern.  The decision defines public concern broadly to encompass the Westboro Baptists Church's commentary on the "political and moral conduct of the United States and its citizens. . . ."  Procedurally, the Court clarifies that courts must "make an independent examination of the whole record" to evaluate whether the speech is of public concern. (7-8). Alito's dissent stresses several times that the plaintiff in the case was a private figure "brutalize[d]" by speech on a matter of private concern.

Posted by Lyrissa Lidsky on March 2, 2011 at 01:26 PM in Constitutional thoughts, First Amendment, Lyrissa Lidsky, Torts | Permalink


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Lot of folks might disagree, but I think the Supreme Court got it right on this.

Posted by: Shena | Mar 4, 2011 2:10:16 AM


Some of your comments are well-taken, but I think you are in fact using the weakness of the intrusion claim in Snyder to leverage the "public concern" exemption. Obviously, there is no tort claim if a reporter simply reports, from 1,000 feet away, on a funeral.

Perhaps Cpl. Snyder was a limited purpose public figure, as a fallen soldier. And his family was accordingly "drawn into the vortex" thereof. But does that mean that they are pubic figures for all purposes now? That is, assuming that tort law would otherwise punish some kind of intruding or offensive behavior, is there no requirement of a rational connection between the assertedly public issue and the public figure? Would objectively harassing and offensive conduct be excused if the Phelpsian cause was collective bargaining rights in Wisconsin, and Cpl. Snyder, a Maryland native, had once written a high school newspaper article endorsing an autoworkers strike in Detroit?

Posted by: Adam Scales | Mar 3, 2011 8:23:40 AM

The bedroom example is blatantly off base since it involves stuff in the home. The ruling specifically differentiates that (see Frisby) and I'm not sure why it is relevant here. The fact it is sex in the home is very important as to the "intrusion" as is the sex act itself.

The first comment underlines the confusion. Yes, if there actually was a trespass on their "lawn" or even on corporate property, it would be different. But, the opinion notes this took place in a public place. In fact, buildings separated them from the ceremony. The father didn't even see what was on the signs until it was on t.v. The lack of intrusiveness was spelled out in the opinion.

The group here has a message. This isn't an ad hoc thing. As to targeting one family, any number of causes (as noted) use someone as a "message amplifier" in a positive or negative way. As to the reference to the "2007 financial crisis," yes, this includes individual cases. News stories are quite "intrusive" in this fashion. They "invade" people's lives in various ways. If a reporter went 1000 feet w/i the funeral, would s/he be liable for suit?

It was avoided, but really the person here was a person of public concern. The family promoted the funeral. It wasn't just a private affair like many. He was not just an ordinary person dying. It was newsworthy and positive shows of support was present. I don't understand, in a public place, why there is some right of only a one way ratchet in that respect.

The ruling left open a lot of room for regulation here. That too should not be ignored.

Posted by: Joe | Mar 3, 2011 7:55:21 AM


I won't have time to return to this until much later, so I'll leave you with a comment and a hypothetical. In my view, this is not really a case involving matters of public concern - indeed, that trope is the final confirmation of the success of the Phelpsians' trompe l'oeil here.

Suppose Phelps had determined that a heterosexual couple was "living in sin". Relying on the religious teachings now regrettably familiar, he tape-records the couple having sex in their bedroom. He then posts it to a site called Peoplehavingsex.com, which unsurprisingly attracts about a million page views. The site does in fact contain the video, but in order to get to it, one is forced to sit through tedious lectures on the link between America's tolerance for sexual licentiousness and the 2007 financial crisis. Is this a matter of public concern, protected under the First Amendment?

In answering, don't allow yourself to be distracted by the apparent strength of the intrusion claim (and weakness of the claims in Snyder); under the Court's 1A jurisprudence, that's irrelevant. I want to know whether the public concern character of the speech is invariant with respect to context. If you think that it is a matter of public concern, what would be required to meet that test going forward? Simply uttering the words, " 2007 financial crisis", perhaps in a small pop-up window? Would meta-tags so doing qualify for protection? Suppose instead that the tedious lectures describe America's moral decay and increase in illegitimate childbirth rates, and associated welfare costs. A matter of public concern effortlessly obliterating any tort claims for invasion of privacy?

Posted by: Adam Scales | Mar 3, 2011 7:42:20 AM

I don't understand how a misappropriation exception to the First Amendment would work, or rather, I don't understand why anyone has a right to not be used as someone else's "message amplifier." Animal rights activists couldn't get much headway with dog-fighting until a famous athlete got caught doing it; they then had a lot of success using Michael Vick as their "message amplifier," and their ability to use him in that way has been crucial to that success. As a general matter, people do tend to be more moved by policy arguments that take some particular person's behavior to task; what policy campaign doesn't involve the use of some person or corporation as a "message amplifier"? Michael Vick, you will say, is different, either because he broke a criminal law - but surely it would still be constitutional to lambaste his conduct if it were legal - or because he chose a career that made him a public figure. Should that really make a difference? Suppose Vick were an ordinary citizen who, like thousands of other Americans, participates in dog-fighting, and suppose he does so in a jurisdiction where that's legal. One day, he gets in a car accident, is rendered a paraplegic, and out come religious animal activists to picket outside the hospital where he stays, saying that this is what God does to dog-killers and dog-fighting must be banned. Could that speech be suppressed? It seems unlikely. What if he were a chef in a diner, and the activists protested there, saying that the local diner shouldn't employ dog-fighters? Surely that shouldn't be actionable. It's obvious to me that the real issue in Snyder is simply that people don't like the content of the speech. The church thinks that God killed Snyder because America's excessively tolerant of homosexuals; if they thought that God killed Snyder because Snyder committed atrocities, or even less offensively, if they merely protested some objectionable conduct on the part of Snyder without linking it to his supposedly divinely caused death, no one would be calling that misappropriation. As Roberts says, if you open the door to this sort of action when speech about matters of public concern are involved, you inevitably get verdicts condemning speech that juries find disgusting, and declining to sanction speech that they agree with or find less offensive.

Posted by: Asher Steinberg | Mar 2, 2011 10:45:14 PM

It seems to me that this case highlights the inadequacy of contemporary free speech jurisprudence. What makes the speech in this case particularly objectionable, and thus not protected under a morally sound interpretation of the 1st Amendment, is its particularly traumatic character. I say more about this point here: http://theconsternationofphilosophy.blogspot.com/2011/03/traumatic-harm-and-freedom-of-speech.html

Posted by: Matt | Mar 2, 2011 4:39:07 PM

church action was criminal, it was assault. handled best by law enforcement arrest or self-defense. case at hand was pure malpractice on the lawyers part for not telling the complainant the glaring truth and choosing to go for the gold $$$ instead.

Posted by: concerned citizen | Mar 2, 2011 3:01:18 PM

Wrong Decision,

Although I suspect it will be a minority view here, I generally agree with your perspective. I made a similar point - though not as evocatively as your own - at a conference last week. The tort concept is "misappropriation", which is an arguably more relevant form of invasion of privacy than the intrusion claims made here. The problem is that misappropriation generally requires a commercial nexus, which is not present here.

Sadly, despite an abundance of "outrageousness" in the facts, this is not a great torts case. And tort law could be made stronger by recognizing non-commercial dimensions to the wrongful appropriation of another's personal or dignitary interests.

Adam Scales

Posted by: Adam Scales | Mar 2, 2011 2:48:21 PM

The only guy I've seen really nail the analysis, and demonstrate why Phelps should have lost (better than did Alito), was this guy:


Here’s the gist (from the post):

This set of facts is unique to the hate speech and libel cases, where the Phelpses dragooned Mr. Snyder and his dead son into service as involuntary instrumentalities of their message. The Phelpses may have a right to their message, but there is no right to utilize funerals or their mourners as message amplifiers. Consider that under standard First Amendment doctrine the Phelpses could be held liable for trespass for standing on Mr. Snyder’s lawn while engaging in speech, or for harassment for telephoning Mr. Snyder and providing an unwanted message. If there are good reasons to respect those proscriptions (and the Supreme Court has found them), there is even better reason to engage in reasonable regulation of the same type of invasion done on a grander scale. Private harassment is not immunized by making it public. Thus it would make no sense to eradicate established protections merely because, in a high-profile funeral setting, the message reaches a broader audience. It only does so because the speaker has exploited both a setting due a measure of privacy and an audience captured by circumstance.

Indeed the main reason the message is amplified is the commission of the tort itself; that is, because of the injury to the Snyders. Without the infliction of distress upon their target, the Phelpses would be just another band of wandering weirdos. Viewed this way there is little distinction between proscribing a reasonable buffer between protesters and mourners, and punishing a classic “soapbox” speaker who lights an audience member on fire and declares “repent!”, or even one who steals a printing press to distribute a speech on civil rights, all to reach a wider audience. Values like autonomy and dignity, which tort law seeks to preserve and advance, are raised frequently as ones the First Amendment also protects. With similar interests at issue here, it would be inappropriate to run rough-shod over one side while granting full favor to the other.

* * *

And that’s the truth, Ruth.

Posted by: Wrong Decision | Mar 2, 2011 2:28:59 PM

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