Monday, October 11, 2010


The Supreme Court recently heard arguments on the case of Snyder v. Phelps, et al. and will decide the case this season. This case is certain to test the limits of the free speech clause of the First Amendment. Fred Phelps, of the Westboro Baptist Church, has gained notoriety for protesting at funeral of military service members. However, this time Phelps and his followers protested against the wrong family when they protested the funeral of Snyder's son, Lance Corporal Matthew Snyder.

For the subject protest, Phelps positioned his followers outside Cpl. Snyder's funeral so that when the family left the funeral they would see Phelps' hate signs—signs such as "GOD HATES YOU" and "THANK GOD FOR DEAD SOLDIERS.”

Naturally, Snyder was emotionally disturbed by Phelps and his followers. So, he sued for, among other things, Intentional Infliction of Emotional Distress. Snyder won winning a multimillion dollar verdict. Phelps appealed on the theory that his hate speech is protected by the First Amendment. Hence, he is at the Supreme Court asking for relief.

Most are familiar with the First Amendment. The First Amendment is the part of the Constitution that allows citizens to speak what they want (within reason) without fear of prosecution. However, many may not be familiar with the tort of Intentional Infliction of Emotional Distress.

To prove Intentional Infliction of Emotional Distress, Snyder had to prove that Phelps intentionally or recklessly caused emotional distress by showing the following:

1. Phelps’s conduct was extreme and outrageous; and
2. Phelps's conduct was either intentional or reckless; and
3. Phelps’s conduct caused Snyder to suffer severe emotional distress.

Conduct is “intentional” if a person’s objective is to cause emotional distress. Conduct is “reckless” if a person is aware of and disregards the near certainty that it would result in emotional distress.

Given the standard for Intentional Infliction of Emotional Distress, it is not too hard to see why Phelps lost. The conduct of Phelps and his followers is beyond defense and societal decency. I can’t imagine how the Snyder family felt.

I firmly believe Phelps is free to continue the protests under the First Amendment. The government should not make his acts criminal or seek to restrain his speech. However, I also believe that Phelps should be held accountable when his actions harm real people. It would be sad if our Supreme Court allowed people like Phelps to intentionally cause harm to another without repercussion.

Allowing claims for Intentional Infliction of Emotional Distress will not harm the First Amendment. You have not seen the government trying to stop Phelps’s speech. Claims for Intentional Infliction of Emotional Distress merely give victims a means of recovery from harmful speech.

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