Fred Phelps and his West­boro Bap­tist Church have, for some time now, been trav­el­ing the coun­try protest­ing at the funer­als of Amer­i­can sol­diers killed in the line of duty. Back in 2006, they protested out­side the funeral of Marine Lance Cor­po­ral Matthew Sny­der, who was killed in action at the age of 20. See this arti­cle, the orig­i­nal com­plaint, and Monica’s (of Spark a Synapse) post on the same topic for the unpleas­ant details.

Eng­lish as a lan­guage lacks invec­tives of suf­fi­cient force and color to con­demn this kind of behav­ior in the terms jus­tice demands.

How­ever, has WBC done any­thing prop­erly con­sid­ered tortious?

The com­plaint states five claims: defama­tion (for mate­ri­als pub­lished on WBC’s var­i­ous web­sites); inva­sion of pri­vacy — intru­sion on seclu­sion; inva­sion of pri­vacy — pub­lic­ity given to pri­vate life; inten­tional inflic­tion of emo­tional dis­tress; and civil con­spir­acy. The lat­ter is really just a mod­i­fier of the oth­ers and would not stand on its own with­out them. I know noth­ing of inva­sion of pri­vacy as a tort (Mary­land appar­ently rec­og­nizes both these and two other forms of inva­sion of pri­vacy). The state­ments involved in the defama­tion count were enough to sur­vive a 12(b)(6) motion to dis­miss for fail­ure to state a claim, but I don’t think they are enough to prove mate­r­ial fal­sity, which is required to win on that count. The count that inter­ests me is inten­tional inflic­tion of emo­tional distress.

[If some­one knows more about inva­sion of pri­vacy as a tort action, please share. I’m not presently in a posi­tion to research it.]

IIED is a shifty claim to begin with. It is very, very rarely suc­cess­ful, and all the cases I’ve read on the tort have involved delib­er­ate, per­sonal cam­paigns of psy­cho­log­i­cal harass­ment, mostly in employ­ment sit­u­a­tions or where the harassed per­son oth­er­wise had a strong extrin­sic dis­in­cen­tive to extri­cat­ing him­self from the abu­sive sit­u­a­tion. It is amor­phously defined as “extreme and out­ra­geous con­duct” caus­ing “severe emo­tional distress.”

In this sit­u­a­tion, I think it would be very dif­fi­cult for Mr. Sny­der to win on this claim. The con­duct was not par­tic­u­larly extreme. Their behav­ior was, report­edly, not atyp­i­cal of protests. In fact, WBC, despite their absolutely repel­lent opin­ions, tend to be less extreme in their protest tac­tics than the dirty hippy ‘viro WTO pro­test­ers have been of late. They appear more extreme because their posi­tion is so hor­rid, but their con­duct is very con­sciously reserved, pre­cisely (I believe) out of a desire to avoid legal issues. (In the case filed by Mr. Sny­der, the court was forced to allow alter­na­tive ser­vice of process because defen­dants WBC et al. actively evaded ser­vice of process, suc­cess­fully cre­at­ing an appeal­able issue where none should have existed.) IIED requires extreme and out­ra­geous con­duct, and I have never read an IIED case the extreme­ness and out­ra­geous­ness of the opin­ions expressed affected the extreme­ness or out­ra­geous­ness of the con­duct used to express them.

Some inter­est­ing ques­tions are nonethe­less raised. Is a court judg­ment, pur­suant to a civil com­plaint and pre­sum­ably pred­i­cated on a jury ver­dict, the type of gov­ern­ment action barred by the First Amend­ment? The think­ing has long been that yes, the courts and com­mon law can­not do what the Con­sti­tu­tion pro­hibits Con­gress to do. (Aside: One might argue that the First Amend­ment, via the Four­teenth Amend­ment and Git­low v. United States, 268 U.S. 652 (1925), applies to all State action, because the Four­teenth Amend­ment says “No State shall...” instead of “No State leg­is­la­ture shall...,” but only to Fed­eral Con­gres­sional action and not, for exam­ple, action by the Fed­eral exec­u­tive, some Fed­eral exec­u­tive agency [which encom­passes the whole admin­is­tra­tive state], or the Supreme Court [but not the lower Fed­eral courts, which enjoy juris­dic­tion only by Con­gres­sional grant]. In this way, one might argue that the First Amend­ment restrains State gov­ern­ment more than it restrains the Fed­eral gov­ern­ment. Why one would want to so argue is beyond me.) There­fore Mary­land could not rec­og­nize a civil action that would require the courts, in enforc­ing a judg­ment, to vio­late the First Amendment.

I think this approach is strained and with­out merit. A civil adju­di­ca­tion is premised on a find­ing that the plain­tiff has been wronged. That his rights have been vio­lated by some­one else. If that’s the case, then the defen­dant had no right to take the wrong­ful action. No per­son has a right to take any action that vio­lates some­one else’s rights. Rights, being indi­vid­ual in nature, do not con­flict. So why should the First Amend­ment be pre­sumed to pro­tect rights which do not exist?

On the other hand, are words alone enough to vio­late someone’s rights? What about the act of com­mu­ni­cat­ing those words? The “free­dom of speech” and “free­dom of the press” are rep­re­sen­ta­tive of the right to free thought. They rep­re­sent the propo­si­tion that man must be free to try to per­suade other men using non-​​coercive means. Look­ing only at the acts of WBC, I do not see any coer­cion here. There­fore, I would rec­og­nize no tort.

Unfor­tu­nately, WBC’s actions took place within the con­text of “pub­lic prop­erty.” That lit­tle con­tra­dic­tion in terms leads to an irrec­on­cil­able prob­lem: funeral atten­dees are forced, if they want to attend the funeral, to tra­verse pub­lic prop­erty, and may exer­cise no right of exclu­sion against unwanted WBC pro­test­ers. By virtue of pub­lic prop­erty, the funeral atten­dees are forced either to put up with the WBC pro­test­ers or not attend the funeral. And the gov­ern­ment can take no action, morally or legally, to silence the pro­test­ers while they are on “pub­lic prop­erty.” The con­tra­dic­tion is unre­solv­able with­out “check­ing the premise” of pub­lic prop­erty in gen­eral, a premise the courts (and, indeed, the sub­stan­tial major­ity of Amer­i­cans) are absolutely unwill­ing to check.

So we will see hack­neyed, patch­work gap­filler laws estab­lish­ing com­plex, twisted rules try­ing to nav­i­gate around the con­tra­dic­tion, rather than to resolve it.

[Please note that, while I doubt whether WBC has done any­thing ille­gal or tor­tious, there can be no doubt what­so­ever that what they have done is in mon­strously poor taste, and the ideas they espouse are wicked on an unpar­al­leled scale. The lack of Eng­lish ver­biage ade­quate to prop­erly con­demn those ideas and the man­ner in which they were expressed is the source of the title of this post.]