In an opinion that may have been written by Heidi Montag, a federal court of appeals recently threw out a jury verdict in favor of a father, Albert Snyder, who had sued protesters at his son Matthew’s funeral for intentional infliction of emotional distress.
Solely because Matthew was a Marine, a Kansas-based cult, consisting mostly of members of a single family, traveled to Maryland in order to stand outside Matthew’s funeral with placards saying things like, "God Loves Dead Soldiers," "God Hates You," "You’re Going to Hell," "Semper Fi Fags," "Thank God for Dead Soldiers," "Thank God for IEDs" and "God Hates Fags."
But wait, it gets funnier.
The cult’s leader/father is Fred Phelps, who calls America a "sodomite nation of flag-worshipping idolaters." Since you won’t read it anyplace else, Phelps has run for public office five times — as a Democrat.
The Fred Phelps cult members travel around the country and hold vile signs outside military funerals because they believe that the reason American soldiers die in wars is that God hates the U.S.A. because it tolerates homosexuals.
I’ll leave it to others to speculate as to why the very thought of male homosexuality gets Fred Phelps into such a lather.
Snyder has appealed his case to the Supreme Court, and now the court will have to decide whether the tort of intentional infliction of emotional distress (IIED) can ever exist in a country with a First Amendment.
Unlike many legal concepts, the tort of IIED is not an obscure legal doctrine written in pig Latin. It means what it says: speech or conduct specifically intended to inflict emotional distress. The usual description of the tort of IIED is that a reasonable man viewing the conduct would react by saying, "That’s outrageous!"
The Second Restatement of Torts (1965) defines IIED as conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community."
As a respected New York judge, Judith Kaye, described it, "The tort is as limitless as the human capacity for cruelty." Inasmuch as IIED claims are made based on all manner of insults, rudeness, name-calling and petty affronts, the claim is often alleged, but rarely satisfied.
But if a group of lunatics standing outside the funeral of a fallen American serviceman with hateful signs about the deceased does not constitute intentional infliction of emotional distress, then there is no such tort recognizable in America anymore.
The protesters weren’t publishing their views in a magazine, announcing them on a "Morning Zoo" radio program, proclaiming them on some fringe outlet like "Countdown With Keith Olbermann" -– or even standing on a random street corner. Their protest was held outside a funeral for the specific purpose of causing pain to the deceased’s loved ones.
But the 4th Circuit Court of Appeals noticed that the cult’s malicious signs contained words, and that words are "speech" … which is protected by the First Amendment! (Or was it the Seventh?) Anyway, that was basically the end of the court’s analysis.
True, speech will often be involved in inflicting emotional distress on someone, say, for example, standing outside a funeral with signs that say "God Hates You!"
Similarly, words are used in committing treason ("The Americans are over here!"), robbery ("Your money or your life!") and sexual harassment ("Have sex with me or you’re fired."). Copyright law prohibits speech that uses someone else’s words, and insider trading and trade-secrets laws prohibit the use of words revealing insider information or trade secrets.
The fact that "speech" was involved in the Fred Phelps cult’s assault on Matthew Snyder’s funeral is a mundane and irrelevant fact. The question is: Did that speech constitute intentional infliction of emotional distress? Hey, look! That reasonable man over there is nodding his head "yes." If so, the First Amendment is as irrelevant as it is to a copyright law violation.
The Supreme Court has upheld shockingly restrictive bans on speech outside of abortion clinics: content-based restrictions on the speech of pro-lifers singing, "Jesus loves the little children, all the children of the world, red and yellow, black and white, they are precious in His sight, Jesus loves the little children of the world."
Is abortion more sacrosanct than a son’s funeral? Is singing "Jesus loves the little children" deserving of less First Amendment protection than placards saying, "God Loves Dead Soldiers"? Hey, reasonable man over there — got a minute?
Even the Fred Phelps cult’s "epic" posted online and accusing the Snyders of raising their son badly, which would seem to have the strongest claim to First Amendment protection, would not be protected in other contexts. Last week in Massachusetts, nine teenagers were criminally charged with cyberbullying, based in part on malicious postings about the victim on their Facebook pages.
Thanks to idiot lawyers, who think it makes them sound smart to say "Black is white" and "Up is down," one of the biggest problems in society today is the refusal to draw lines. Here’s a nice bright line: Holding malevolent signs outside the funeral of an American serviceman who died defending his country constitutes intentional infliction of emotional distress.
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