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.]