Distressing Speech after Snyder-What's Left of Iied?
Meerkins, Andrew, Northwestern University Law Review
ABSTRACT-Speech has the potential to cause devastating emotional injury. Yet it has been less than a century since intentional infliction of emotional distress-a tort designed to punish a person who, through outrageous conduct or speech, intentionally causes severe distress to another-has entered the scene. When the tortfeasor acts through speech alone, the First Amendment is inevitably implicated. In 2011, the Supreme Court took its most recent stance on the constitutionality of punishing distressing speech when it decided Snyder v. Phelps. Despite the reprehensibility of the speech involved, the Court properly immunized the speech from tort liability for emotional distress. The Court has already suggested that IIED actions face a constitutional bar for public figures and for private figures embroiled in a matter of public concern. This Note picks up the IIED doctrine where Snyder leftoffand argues that the First Amendment should bar most IIED actions even against a private figure where the speech relates to a matter of private concern. This result flows from the difficulty in distinguishing between public and private matters, the danger of silencing unpopular speech, and the positive value that injurious speech can have.
Few would dispute the notion that speech can be harmful and distressing. Consider the malicious prankster who falsely told a woman her husband had suffered a serious car accident,1 the team doctor who intentionally misdiagnosed one of his football players with a fatal disease,2 or the school administrators who accused a teenage girl of unchaste behavior and threatened her with imprisonment.3 It was against this backdrop of outrageously distressing conduct and speech that the law gradually began to recognize a tort action for the intentional infliction of emotional distress (IIED). But the law has guarded liability for emotional distress closely, and the courts have always expected America's citizenry to endure the vast majority of insults, vulgarities, and other interpersonal stressors they encounter.
IIED has proven especially problematic when plaintiffs seek to recover for distressing speech rather than for conduct. In a variety of pure-speech contexts, the Supreme Court has found that the First Amendment's demand for the free exchange of ideas trumps the need to compensate individual emotional distress. Most recently, the behavior of the Westboro Baptist Church (Westboro) brought IIED into the public consciousness in the 2011 case Snyder v. Phelps.4
Westboro's incendiary protests have made it a nationwide poster child for hate and intolerance despite its low membership. The church is best known for its vitriolic anti-gay protests at the funerals of military servicemen and servicewomen.5 The church teaches that the deaths of service men and women are God's punishment for America's tolerance of homosexuality,6 and the protesters carry signs with slogans such as "GOD HATES FAGS," "FAGS BURN IN HELL," "THANK GOD FOR DEAD SOLDIERS," "GOD HATES AMERICA," and "AMERICA IS DOOMED."7 Westboro has picketed approximately 600 funerals in the past 20 years.8
The funeral of Marine Lance Corporal Matthew Snyder was one of the 600. Matthew died in the line of duty in Iraq.9 His parents held his funeral at St. John Catholic Church in his hometown of Westminster, Maryland.10 Before the service, Matthew's father, Albert, placed an obituary in the newspaper, and Westboro targeted the funeral for protest.11
On the day of the service, Westboro devotees engaged in a small protest. In addition to their usual placards, they carried signs that were allegedly directed personally at Matthew-who was Catholic as well as a Marine-that read "God Hates You," "You're Going To Hell," "Semper Fi Fags," and "Priests Rape Boys."12 Albert Snyder did not view the signs before or during the funeral, and Westboro did not interrupt the service, but the protest still aggrieved him.13 He filed suit for IIED, among other charges. …