Sticks and Stones: IIED and Speech after Snyder V. Phelps
Hooper, Heath, Missouri Law Review
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.
II. 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. …