Balancing Intentional Infliction of Emotional Distress Claims and

BALANCING INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS CLAIMS AND FIRST
AMENDMENT PROTECTIONS IN
SNYDER v. PHELPS
Douglas Behrens*
"If all mankind minus one were of one opinion, and only one person
were of the contrary opinion, mankind would be no more justified in
silencing that one person than he, if he had the power, would be
justified in silencing mankind."-John Stuart Mill1
I.
II.
A PROTEST Is WORTH A THOUSAND WORDS .........
IIED C LAIM S .........................................
III.
221
SPLITTING THE DIFFERENCE: PROPOSING A
M ODERNIZED TEST ..................................
A. Constructing the Test's Framework ..................
B. Applying the EnhancedPublicity Test ................
V.
216
THE SUPREME COURT'S HEAVY EMPHASIS ON PUBLIC
C ONCERNS ...........................................
IV.
213
THE TENSION BETWEEN THE FIRST AMENDMENT AND
MOVING FORWARD, CAUTION IS CRUCIAL ............
I.
227
227
231
235
A PROTEST IS WORTH A THOUSAND WORDS
"You're Going to Hell"; "God Hates You"; "Thank God for Dead
Soldiers." 2 Imagine attempting to bury your son, a Marine who gave his
life serving the United States in Iraq, knowing that the Westboro Baptist
Church ("Westboro" or "church") was conducting a protest with similar
signs just 1,000 feet away.' In 2010, this horror confronted Albert Sny* Villanova University School of Law, J.D. Candidate 2013; University of Delaware, B.S.
2010. Thanks are due to Professor Tuan Samahon for his helpful comments and editorial advice
throughout the writing process. This Article would not have been possible without the love and
unwavering support of the author's family.
1 JOHN STUART MILL, ON LIBERTY (Longman, Roberts & Green 1869) (1859), available
at http://www.bartleby.com/25/2/2.html.
2 See Snyder v. Phelps, 131 S. Ct. 1207, 1213 (2011) (providing messages displayed on
several signs that Westboro Baptist Church used to picket Lance Corporal Matthew Snyder's
funeral).
3 For a discussion of the facts giving rise to this hypothetical, see infra notes 48-63 and
accompanying text.
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[Vol. 11:213
der during the funeral service for his son Matthew in his hometown of
Westminster, Maryland-and the U.S. government did nothing about
it.4
Contrast this with the recent governmental crackdowns on speech
in other parts of the world.5 After Vladimir Putin won a third term as
Russia's President in an election that many considered "predetermined
and marred by irregularities," people took to the streets to protest the
results. 6 In order to discourage this type of public outcry in the future,
riot police were quickly dispatched to break up the protests, and many
who participated in the demonstrations were detained. 7 In late February, the Chinese government resorted to a similar display of force. Communist Party leaders in China seized communal land from the villagers
in the rural town of Panhe.8 When the villagers marched in protest, the
police descended upon the demonstrators, hauled off the protest organizers and participants, and then coerced the remaining villagers into
posting on social media sites that things had returned to normal. 9 The
chilling effects that this display of force had on speech were apparent:
when interviewed by foreign newspapers, the villagers insisted on remaining anonymous for fear of retribution."l All of these protests related to matters of public concern-the fate of America, election fraud,
4 See generally Snyder, 131 S. Ct. at 1213-14 (detailing events causing Albert Snyder to file
suit against Westboro).
5 See infra notes 6-10 (discussing recent displays of force by foreign governments in attempt
to silence unwanted speech).
6 See Alan Cullison et al., Russia Detains Hundreds of Protestors: Riot Police Seize Anti-
Putin Activists in Moscow, St. Petersburg After Demonstrators Try to Occupy Square in Capital,
ST. J., Mar. 6, 2012, at A7 (describing discontent held by many Russian citizens over
objectivity of election process in March 2012).
7 See id. (explaining that these protests were "pushing the regime's limits of tolerance," and
offering pessimistic view that these types of rallies will succeed in effectuating political reform in
Russia).
8 See Tom Lasseter, Out of the Public Eye, China Cracks Down on Another Protesting
WALL
Village, MiAMi HERALD (Feb. 27, 2012), www.miamiherald.com/2012/02/26/v-fullstory/
2662185/out-of-the-public-eye-china-cracks.html (detailing allegations from villagers that "corrupt officials and well-connected businessmen" conspired to steal their land).
9 See id. (indicating that villagers were well aware that when police are called to scene of
protest, usual results are "threats, beatings, and then getting dragged off by the police").
10 See id. (painting desolate picture for Chinese citizens who have been wronged by authoritarian regime). In response to the protests, the government established a police checkpoint at
the towns' entrance to monitor arrivals and departures. See id. Even more disturbing is that
officials forced the villagers to make online posts indicating that the situation had been resolved,
and the state-controlled media reported that the villagers were "emotionally stable." See id.
One villager noted that the clampdown has been painful, and opined that "[t]here's nothing we
can do. Everything is being controlled. All of the information is being controlled." See id.
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BALANCING INTENTIONAL INFLICTION
and property rights, respectively-but the American government took
no action against the "unwanted" speech, whereas the Russian and Chinese governments quickly moved to suppress it."
Instead of allowing governmental brute force to inhibit unwanted
speech, the American judicial system provides its citizens with legal remedies to combat hurtful speech, such as Intentional Infliction of Emotional Distress (IIED).1 2 Because these remedies necessarily infringe on
free speech, however, they are available only under certain limited circumstances. 13 The facts of Snyder v. Phelps14 highlight the delicate balance between protecting speech relating to matters of public concern
and shielding private individuals from malicious verbal attacks. 15 On
one hand, the First Amendment provides broad protection to all speech
and expression, thus cultivating a lively public debate in the marketplace
of ideas. 16 On the other hand, the tort of lIED permits a party to
recover against another who intentionally or recklessly causes severe
emotional distress through extreme or outrageous conduct.' 7 Just as
physical assaults are illegal, this tort seeks to sanction speech used to
11 See supra notes 6-10 (contrasting governmental reactions to disapproved speech in
America, Russia, and China).
12 See generally infra notes 39-43 (discussing lIED as potential remedy, among others, offered to combat offensive speech).
13 For a discussion of the lIED requirements, see infra notes 39-43 and accompanying text.
14 Snyder, 131 S. Ct. at 1207 (2011).
15 For a further discussion of the conflicting legal theories at issue in Snyder, see infra notes
48-85 and accompanying text.
16 See U.S. Const. amend. I (prohibiting Congress from passing laws infringing on freedom
of speech, press, and assembly); N.Y. Times Co. v. Sullivan, 376 U.S. 254, 271-72 (1964)
(quoting N.A.A.C.P. v. Button, 371 U.S. 415, 433 (1963)) (expressing desire to provide
"breathing space" to freedom of expression).
17 See RESTATEMENT (SECOND) OF TORTS § 46 (1965) (stating standard for lIED claims).
The Restatement provides that:
(1) One who by extreme and outrageous conduct intentionally or recklessly
causes severe emotional distress to another is subject to liability for such emotional
distress, and if bodily harm to the other results from it, for such bodily harm.
(2) Where such conduct is directed at a third person, the actor is subject to
liability if he intentionally or recklessly causes severe emotional distress
(a) to a member of such person's immediate family who is present at the
time, whether or not such distress results in bodily harm, or
(b) to any other person who is present at the time, if such distress results in
bodily harm.
Id. In adopting the tort of lIED in Maryland, the Maryland Court of Appeals based its fourpart test on this standard. See Harris v. Jones, 380 A.2d 611, 614 (Md. 1977) ("We agree that
the independent tort of intentional infliction of emotional distress should be sanctioned in
Maryland.").
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[
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11:213
berate an individual rather than to contribute to the public debate on a
pertinent issue. 8 The intersection of these legal doctrines is very fact
specific, and applying the Court's current framework represents an extremely difficult task.19
The Supreme Court arrived at the correct result in Snyder, but the
case demonstrated that the Court's test is outdated and inadequate to
handle today's never-ending news cycle and the advent of social media
(i.e., Twitter, Facebook, and MySpace).2 ° Part II of this Article describes
the expansive protections offered by the First Amendment and details
the development of IIED as a tort claim.2 Part III summarizes the
factual background of Snyder, and analyzes the rationale of the majority,
concurring, and dissenting opinions.22 Part IV proposes a new test, the
"enhanced publicity test," that modernizes the Court's First Amendment analysis and applies it to several factual scenarios. 23 Part V concludes by acknowledging that the Court's current framework needs
revision, but cautioning that any modifications must be undertaken
carefully to avoid inadvertently silencing valuable speech.24
II.
THE TENSION BETWEEN THE FIRST AMENDMENT AND
IIED CLAIMS
The First Amendment's text guarantees rigorous protection against
any laws made by Congress or the States abridging the right to free
See Russell Fraker, Reformulating Outrage: A Critical Analysis of the Problematic Tort of
VAND. L. REv. 983, 990-91 (2008) (suggesting need for lIED claims arose in part
from humiliation and intimidation tactics employed by credit and insurance industries).
19 Compare Snyder, 131 S. Ct. at 1217 (holding First Amendment protected speech in
18
LIED, 61
question and IED claim must fail), with Snyder, 131 S. Ct. at 1226-27 (Alito, J., dissenting)
(concluding IED should prevail because of personal nature of attack and appalling content of
speech).
20 See id. at 1213 (majority opinion) (resolving constitutional question at issue in Snyder in
favor of broad free speech rights). For a critique of the current framework and the proposal of a
new test, see infra notes 86-102 and accompanying text.
21
For a discussion of the First Amendment and lIED claims, see infra notes 25-43 and
accompanying text.
22 For a discussion of Snyder's factual background and the three opinions it produced, see
infra notes 44-85 and accompanying text.
23
For a discussion of the enhanced publicity test and its application, see infra notes 86-123
and accompanying text.
24 For a discussion of the overarching policy concerns incumbent in redefining the scope of
First Amendment protection, see infra notes 124-132 and accompanying text.
20131
BALANCING INTENTIONAL INFLICTION
217
speech.2 5 That protection, however, is not limitless, and the Court has
carved out several exceptions to protected speech. 26 After all, most people agree that Congress should be able to prohibit a person from falsely
screaming "fire" in a crowded movie theatre to cause a panic. 27 Several
29
28
other categories of unprotected speech include incitement, obscenity,
25
See U.S. CONST. amend. I ("Congress shall make no law . . . abridging the freedom of
speech, or of the press; or the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances."). Originally, the First Amendment only restricted the
federal government's power, but adoption of the Fourteenth Amendment and application of the
First Amendment to the States eliminated this distinction. See N.Y. Times Co. v. Sullivan, 376
U.S. 254, 276-77 (1964) (citing Gitlow v. New York, 268 U.S. 652, 666 (1925)).
26 For a discussion of the categories of speech that the Court has held are not protected by
the First Amendment, see infra notes 27-31.
27 See Schenck v. United States, 39 U.S. 47, 52 (1919) (paraphrasing crowded theatre example employed by Justice Holmes to explain that even most stringent free speech protection
would not prevent liability in this situation). Justice Holmes continued, "The question in every
case is whether the words used are used in such circumstances and are of such a nature as to
create a clear and present danger that they will bring about the substantive evils that Congress
has a right to prevent." Id.
28 See Brandenburg v. Ohio, 395 U.S. 444, 445-46 (1969) (citing OHIO REV. CODE ANN.
2923.13 (West 1919)) (reversing conviction for advocating violence against blacks and Jews
after finding Ohio statute violated First Amendment). The Court drew a distinction by noting
that "the mere abstract teaching ... of the moral propriety or even moral necessity for a resort to
force and violence, is not the same as preparing a group for violent action and steeling it to such
action." Id. at 448 (quoting Noto v. United States, 367 U.S. 290, 297-98 (1961)). Appellant
was a Ku Klux Klan (KKK) member who contacted a reporter to invite him to attend a KKK
rally at a farm, which was isolated from the general population. See id. at 445. The reporter
attended and broadcast portions of the rally where appellant made derogatory and threatening
remarks about blacks and Jews. See id. at 446. These broadcasts became the basis for the suit
against appellant. See id. After noting that "[W]e are here confronted with a statute which, by
its own words and as applied, purports to punish mere advocacy and to forbid, on pain of
criminal punishment, assembly with others merely to advocate the described type of action," the
Court struck down Ohio's Criminal Syndicalism Act. See id. at 449 n. 4 (noting statute impedes
right to assemble and erased "established distinctions between mere advocacy and incitement to
imminent lawless action").
29 See Roth v. United States, 354 U.S. 476, 484 (1957) ("At the time of the adoption of the
First Amendment, obscenity law was not as fully developed as libel law, but there is sufficiently
contemporaneous evidence to show that obscenity, too, was outside the protection intended for
speech and press."). Roth was convicted of mailing obscene circulars and advertisements in
violation of the federal obscenity law. See id. at 480. Obscenity, which is distinct from sexual
images, "deals with sex in a manner appealing to prurient interest." Id. at 487. In upholding
Roth's conviction, the Court noted that any speech "having even the slightest redeeming social
importance" will receive full constitutional protection, but obscene speech is implicitly rejected
by the history of the First Amendment as being "utterly without redeeming social importance."
Id. at 484.
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fighting words, 30 and false statements. 3 1 While varying slightly, the underlying theme connecting these classes of unprotected, "low-value"
speech centers on their lack of contribution to the debate on an issue of
32
public concern.
30
See Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942) (upholding statute that
criminalizes "fighting words" against First Amendment challenge). Chaplinsky was distributing
literature on the street and denouncing other religions, at which point a police officer warned
Chaplinsky that the crowd was becoming restless with his behavior. See id. at 569-70. Chaplinsky responded by saying "'You are a God damned racketeer' and 'a damned Fascist and the
whole government of Rochester are Fascists or agents of Fascists."' Id. at 569. In acknowledging an exception to First Amendment protection for "fighting words," speech which inflicts
injury or tends to "incite an immediate breach of the peace," the Court concluded that this type
of speech is of such slight social value that any benefit derived from it is outweighed by the
interests of order and morality. See id. at 572. Because New Hampshire's statute did no more
than proscribe face-to-face words likely to cause a breach of peace, the Court upheld the statute.
See id. at 573. But see Cantwell v. Connecticut, 310 U.S. 296, 309-10 (1940) ("Resort to
epithets or personal abuse is not in any proper sense communication of information or opinion
safeguarded by the Constitution, and its punishment as a criminal act would raise no question
under that instrument."). In Cantwell, Mr. Cantwell and his two sons, who were Jehovah's
witnesses, were going door-to-door seeking to interest the residents in their religious propaganda. See id. at 300-01. Jesse Cantwell stopped two men on the street and asked permission
to play a phonograph record entitled "Enemies." See id. at 302-03. After receiving permission,
Jesse played the record, which attacked the religion of the two men and angered them to the
point that they were ready to hit Jesse. See id. at 303 (explaining facts leading to Jesse's arrest
for breach of peace). In reversing Cantwell's convictions, the Court found Cantwell engaged in
"only an effort to persuade a willing listener to buy a book or to contribute money in
the
interest of what Cantwell . . . conceived to be true religion." Id. at 310 (decreeing "[T]hese
liberties are, in the long view, essential to enlightened opinion and right conduct on the part of
the citizens of a democracy.").
31 See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) ("The constitutional guarantees require . . . a federal rule that prohibits a public official from recovering damages for a
defamatory falsehood relating to his official conduct unless he proves that the statement was
made with 'actual malice'-that is, with knowledge that it was false or with reckless disregard of
whether it was false or not."). The New York Times indirectly accused Sullivan, an elected
Commissioner of Montgomery, of suppressing various Civil Rights demonstrations in the
South. See id. at 256-58 (accusing police of arresting Dr. Martin Luther King, Jr. seven times,
padlocking dining hall to "starve students into submission," and expelling students for leading
Civil Rights demonstration). There were numerous falsities in the New York Times' Report that
painted Sullivan as a control-hungry racist, and he responded by suing the newspaper for libel.
See id. The Court concluded that "constitutional protection does not turn upon 'the truth,
popularity, or social utility of the ideas and beliefs which are offered,"' and established the
onerous "actual malice" standard for public officials seeking to recover in a libel suit. Id. at 271,
279-80 (quoting N.A.A.C.P. v. Button, 371 U.S. 415, 445 (1963)).
32 See infra notes 33-38 (examining rationale for excluding certain types of speech from First
Amendment's protection).
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BALANCING INTENTIONAL INFLICTION
Thus, whether the First Amendment affords protection to speech
33
depends primarily on whether it relates to a public or private matter.
According to the Court, speech deals with a matter of public concern if
it relates to "any matter of political, social, or other concern to the community," or "is a subject of legitimate news interest." 34 The Court evaluates this by conducting an independent examination of the content,
form, and context of the speech to ensure that no intrusion on free
expression results. 3 Not to be overlooked is the realization that the
"inappropriate or controversial character of a statement is irrelevant to
36
the question [of] whether it deals with a matter of public concern.
This standard evinces a commitment to the principle that the "debate
37
on public issues should be uninhibited, robust, and wide-open."
However, speech relating to purely private matters receives less rigorous
protection because "there is no threat to the free and robust debate of
public issues," no "potential interference with a meaningful dialogue of
ideas," and no risk of "self-censorship on matters of public import." 38
Tort claims for lIED have only gained traction within the past few
decades, and Maryland, where the Snyders held the funeral, did not
approve it as a separate and distinct cause of action until 1977. 39 The
33 See Snyder, 131 S. Ct. at 1215 (2011) (explaining that protection "turns largely on
whether that speech is of public or private concern"). The Snyder Court noted that it was a
threshold issue determined by considering the totality of circumstances. See also Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 758-59 (1985) (asserting "speech on
'matters of public concern' . . . is 'at the heart of the First Amendment's protection'" (quoting
First Nat'l Bank of Bos. v. Belotti, 435 U.S. 765, 776 (1978))).
34 Connick v. Myers, 461 U.S. 138, 146 (1983) (establishing standard for public concern);
City of San Diego v. Roe, 543 U.S. 77, 83-4 (2004) (per curiam).
35 See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984) (explaining
no factor is dispositive when analyzing content, form, and context of speech).
36 See Rankin v. McPherson, 483 U.S. 378, 387 (1987) (emphasizing that speech on matters of public concern is not rendered unprotected under First Amendment simply because views
expressed in speech are considered distasteful or appalling).
37 See N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964) (reflecting on importance of
free marketplace for ideas); see also Connick v. Myers, 461 U.S. 138, 145 (1983) ("[S]peech on
public issues occupies the 'highest rung of the hierarchy of First Amendment values,' and is
entitled to special protection." (quoting N.A.A.C.P. v. Claiborne Hardware Co., 458 U.S. 886,
913 (1982)).
38 Snyder, 131 S. Ct. at 1215 (recognizing distinction between value of speech relating to
public versus private concerns); see also Dun & Bradstreet, Inc., 472 U.S. at 760 (stating compelling reasons for different levels of constitutional protection afforded to speech relating to
matters of public and private concern).
39 See Harris v. Jones, 380 A.2d 611, 614 (Md. 1977) (affirming IIED as independent tort
in Maryland). At that time, only thirty-seven other jurisdictions recognized lIED as a valid tort.
See WILLIAM L. PROSSER, LAW OF TORTS 56 (4th ed. 1971). In 1993, Texas became the last
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slow acceptance of IIED can largely be attributed to the notion that the
law need not mediate every dispute amongst private individuals that
results in hard feelings, as this has the potential to overwhelm the judicial system. 40 The standard for proving an lIED claim was made particularly onerous to prevent unnecessary burdens on already scant judicial
resources.4" In order to prevail, the plaintiff must prove not only that
the conduct in question caused severe harm, but also that the defendant's conduct was "so outrageous in character, and so extreme in de-
gree, as to go beyond all possible bounds of decency, and to be regarded
as atrocious, and utterly intolerable in a civilized community. ''4 2 Even
with such an exacting standard, however, lIED can be satisfied by
speech alone.43
state to adopt the Restatement's formulation. See 2 JACOB A. STEIN, STEIN ON PERSONAL
INJURY DAMAGES § 10:10 (3d ed. 2012).
40 See, e.g., Calvert Magruder, Mental and Emotional Disturbance in the Law of Torts, 49
HARV. L. Rnv. 1033, 1035 (1936) ("Against a large part of the frictions and irritations and
clashing of temperaments incident to participation in a community life, a certain toughening of
the mental hide is a better protection than the law could ever be."). Moreover, Professor Magruder feared that permitting IIED would open the court doors to relatively minor annoyances that
could better be handled in other ways. See id. He proceeded to caution that "[n]o pressing
social need requires that every abusive outburst be converted into a tort; upon the contrary, it
would be unfortunate if the law closed all the safety valves through which irascible tempers
might legally blow off steam." Id. at 1053.
41 See Snyder, 131 S. Ct. at 1222 (Alito, J., dissenting) (recognizing difficult requirements of
IIED claim) (citing W.
PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS
1984)).
42 Harris, 380 A.2d at 614 (quoting
RESTATEMENT
(SECOND)
OF TORTS
§
61 (5th ed.
46 cmt. d
(1965)). The four-prong test identified by the court requires: "1) The conduct must be intentional or reckless; 2) The conduct must be extreme and outrageous; 3) There must be a causal
connection between the wrongful conduct and the emotional distress; and 4) The emotional
distress must be severe." Id. The court elaborated that the "distress must be so severe that no
reasonable man could be expected to endure it." Id. at 616 (quoting RESTATEMENT (SECOND)
OF TORTS § 46 cmt. j (1965)); see also Figueiredo-Torres v. Nickel, 584 A.2d 69, 75 (Md.
1991) ("[R]ecovery will be meted out sparingly, its balm reserved for those wounds that are truly
severe and incapable of healing themselves.").
43 See Snyder, 131 S. Ct. at 1223 (Alito, J., dissenting) (explaining that leading case recognizing lIED involved speech); see also KEETON ET AL., supra note 41, at 60 (citing Wilkinson v.
Downton, 2 Q.B. 57 (1897)); RESTATEMENT (SECOND) OF TORTS § 46 illus. 1 (1965).
BALANCING INTENTIONAL INFLICTION
2013]
III.
THE SUPREME COURT'S HEAVY EMPHASIS ON
PUBLIC CONCERN
The picket signs giving rise to Albert Snyder's IIED suit against
Westboro are enough to make any parent cringe. 44 Yet the Court concluded that the First Amendment trumped the IIED tort claim in this
scenario because Westboro's speech related to matters of import to society at large. 45 Justice Breyer's concurrence noted that the majority opinion was limited to Westboro's picketing activities and did not consider
the effects of television broadcasting or Internet postings.4 6 In a strong
dissenting opinion, Justice Alito criticized the majority for over-extending the First Amendment protection and explained that "[o]ur
profound national commitment to free and open debate is not a license
47
for the vicious verbal assault that occurred in this case."
A.
Factual Backgroundand ProceduralHistory
In 1955, Fred Phelps founded the Westboro Baptist Church in Topeka, Kansas. 4 ' The church, comprised almost exclusively of Phelps and
his extended family, believes that God hates the United States for accepting homosexuality. 49 In order to raise awareness and communicate
its controversial message, the church frequently pickets at funerals, espe5
cially those of fallen soldiers. 1
44 For a discussion of the deplorable content displayed on Westboro's picket signs, see infra
note 54 and accompanying text.
45 For a discussion of the majority's analysis, see infra notes 64-73 and accompanying text.
46 For a discussion of Justice Breyer's narrow reading of the Court's holding, see infra notes
74-76 and accompanying text.
47 Snyder, 131 S. Ct. at 1222 (Alito, J., dissenting) (critiquing Court's decision). For a
discussion of Justice Alito's assessment of the Court's analysis, see infra notes 77-85 and accompanying text.
48 See God Hates Fags: Therefore I Abhorred Them, WESTBORO BAPTIST CHURCH, http://
godhatesfags.com/wbcinfo/aboutwbc.html (last visited May 6, 2012) (identifying Westboro's
mission as "opposing the homosexual lifestyle of soul-damning, nation-destroying filth"). In
addition to keeping a tally of the fallen American soldiers in Iraq and Afghanistan, the number
of cities visited by church members, and the total number of pickets conducted, the homepage
proudly displays a link to the Supreme Court's opinion in Snyder. See id.
49 See Gabriel Walters, On Hate Speech: The Westboro Baptist Church, Campuses, and
Nazis in Virginia, AMERICAN CIVIL LIBERTIES UNION (Mar. 24, 2011, 2:29 PM), https://ac-
luva.org/7388/on-hate-speech-the-westboro-baptist-church-campuses-and-nazis-in-virginia/ (indicating that members of church come predominantly from single family); see also Snyder, 131
S. Ct. at 1213 (noting church's core beliefs include an anti-homosexual message).
50 Snyder, 131 S. Ct. at 1213 (stating Westboro has picketed nearly 600 funerals since its
foundation).
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After Marine Lance Corporal Matthew Snyder was slain in the line
of duty in Iraq, his father selected the Catholic church in his hometown
of Westminster, Maryland for the funeral.5 The time and location of
the service was announced by the local newspaper, and Phelps decided
to travel to Maryland to picket Matthew's burial.5 2 Westboro gave the
authorities advance notice of its intent to picket, and the picketers complied with all police instructions during their demonstration.1 3 The
picketing was peaceful, and the members displayed their offensive
signs54 within a ten-by-twenty-five foot plot of public land located next
to a public street. This location was approximately 1,000 feet from the
church where the funeral occurred, and although the procession drove
within 200 feet of the picketing, a temporary fence blocked all but the
tops of the signs. 55 Several weeks after the funeral, Westboro posted a
hateful message (the "epic") with direct personal attacks against the
Snyders on its website, but the Court declined to consider this in its
56
First Amendment analysis for procedural reasons.
After seeing the content of Westboro's picket signs in the news
coverage of Matthew's funeral, Albert Snyder filed suit against Westboro
51
See id.
52 See id. (explaining how Phelps became aware of time, location, and date of Matthew's
funeral).
53 See id. (acknowledging that picketers displayed their signs, sang hymns, and recited Bible
verses). Importantly, the picketers did not enter the church where the service was being held,
did not scream or use profanity, did not interfere with traffic or the funeral service, and did not
incite any violence. See id.
54 See id. Several of the signs read: "'God Hates the USA/Thank God for 9/11,' 'America is
Doomed,' 'Don't Pray for the USA,' 'Thank God for IEDs,' 'Thank God for Dead Soldiers,'
'Pope in Hell,' 'Priests Rape Boys,' 'God Hates Fags,' 'You're Going to Hell,' and 'God Hates
You."' Id.
55 See id. at 1213-14 (discussing minimal visibility of protests to those attending funeral).
56 See id. at 1214 n.1 (explaining that the epic was not properly before Court because Snyder did not mention it in his petition for certiorari). The epic, in part, stated:
God blessed you, Mr. and Mrs. Snyder, with a resource and his name was Matthew .... [Y]ou had a DUTY to prepare that child to serve the LORD his GODPERIOD! You did JUST THE OPPOSITE-you raised him for the devil.
Albert and Julie RIPPED that body apart and taught Matthew to defy his Creator.., taught him how to support the largest pedophile machine in the history of the
entire world, the Roman Catholic monstrosity ...
taught Matthew to be an idolater.
Then after all that they sent him to fight for the United States of Sodom, a filthy
country that is in lock step with his evil ... putting him in the cross hairs of a God
that is so mad He has smoke coming from his nostrils ....
How dumb was that?
Id. at 1226 (Alito, J., dissenting).
BALANCING INTENTIONAL INFLICTION
2013]
in the United States District Court for the District of Maryland alleging
defamation, publicity given to private life, IIED, intrusion upon seclusion, and civil conspiracy.5 7 At trial, Albert testified that "he is unable
to separate the thought of his dead son from his thoughts of Westboro's
picketing," and further stated that "he often becomes tearful, angry, and
physically ill when he thinks about it." 58
The district court instructed the jury that it could hold Westboro
liable for IIED on a showing that Westboro's picketing was "outrageous," and the jury found in favor of Snyder, awarding $2.9 million in
compensatory damages and $8 million in punitive damages.5 9
Westboro filed several post-trial motions and the district court reduced
the punitive damages award to $2.1 million, but left the rest of the jury
verdict intact. 60 Westboro appealed, arguing that it was entitled to judgment as a matter of law under the First Amendment. 6' The Court of
Appeals agreed, and concluded that Westboro's statements were entitled
to protection under the First Amendment because "those statements
were on matters of public concern, were not provably false, and were
expressed solely through hyperbolic rhetoric. '62 Snyder timely appealed
63
to the Supreme Court.
B.
The Majority's Staunch Defense of Free Speech
In determining whether speech relates to a matter of public or private concern, the speech's "content, form, and context" must be examined "as revealed by the whole record. '64 Employing this test, the
Court concluded that the content of Westboro's speech represented concerns of interest to society at large. 65 Despite its lack of social tact,
57 See id. at 1214 (majority opinion) (noting that Snyder sued under court's diversity jurisdiction). The district court granted Westboro's motion for summary judgment on the defamation and publicity given to public life claims, but the remaining claims went to trial. See id.
58 Id. at 1214 (describing impact that Westboro's protests had on Albert's ability to remem-
ber his son's burial).
59 See id. at 1214-19.
60 See id. at 1214.
61 See id.
62 Id.
63 See id. at 1214.
64 Id. at 1216 (quoting Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749,
761 (1985)) (explaining standard to be applied in determining whether speech is of public or
private concern). The Court emphasized that no factor is dispositive, and an evaluation of
"what was said, where it was said, and how it was said" is necessary. See id.
65 See id. at 1216-17 (concluding that acceptance of homosexuality relates to broad societal
interests).
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[
Westboro's signs conveyed its position on numerous public issues including the scandals surrounding the Catholic Church, the moral and
political conduct of the United States, homosexuals in the military, and
our Nation's fate.6 6 Moreover, the fact that several signs could be
viewed as directed at the Snyder family was immaterial, according to the
Court, because the "overall thrust and dominant theme" of the church's
67
picketing addressed broader social issues.
Additionally, the context of Westboro's picketing in close proximity to Matthew's funeral does not, by itself, convert the speech into a
matter of private concern. 68 The Court repeatedly emphasized the location of the orderly picketing on public land near a public street as insulating Westboro's speech from liability.6 9 In response, Snyder argued
that certain "time, place, and manner" restrictions on picketing are permissible, despite the public location, provided that the restrictions are
content-neutral. 7 ' The Court distinguished that line of precedent because it involved noisy protests outside of a private residence and disruptive picketing at the entrance to an abortion clinic.7" Chief Justice
Roberts summarized the case as follows: "[T]he church members had
the right to be where they were. Westboro alerted local authorities...
and fully complied with police guidance on where the picketing could
be staged. The picketing was conducted under police supervision ....
The protest was not unruly; there was no shouting, profanity, or vio66
See id. at 1216; Rankin v. McPherson, 483 U.S. 378, 387 (1987) ("[The] inappropriate
or controversial character of a statement is irrelevant to the question [of] whether it deals with a
matter of public concern.").
67 See Snyder, 131 S. Ct. at 1217 (responding to assertions from Snyder and Justice Alito
that Westboro's picketing was nothing more than thinly veiled personal attack on Snyder
family).
68
69
See id.
See id. at 1217-19 (noting "Westboro's signs [were] displayed on public land next to a
public street," that "Westboro conducted its picketing peacefully on matters of public concern at
a public place adjacent to a public street," and "[gliven that Westboro's speech was at a public
place on a matter of public concern, that speech is entitled to 'special protection'"); see also
Frisby v. Schultz, 487 U.S. 474, 480 (1988) ("[We have repeatedly referred to public streets as
the archetype of a traditional public forum.").
70 See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 293 (1984) (establishing
confines of permissible regulation for content-neutral speech).
71 See Madsen v. Women's Health Ctr., 512 U.S. 753, 768 (1994) (upholding injunction
mandating buffer zone between pro-life protestors and entrance to abortion clinic); Frisby, 487
U.S. at 477 (approving ordinance prohibiting picketing in front of private residence). In contrast, Westboro's picketing did not interfere with traffic or the church service. See Snyder, 131
S. Ct. at 1218-19.
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lence. ' ' 7 2 Importantly, the Court cautioned that its holding-was narrow
and limited to the particular facts of the case because of the sensitivity of
73
the issues presented in First Amendment disputes.
C.
The Concurringand Dissenting Opinions
In his concurrence, Justice Breyer agreed with the majority's narrow holding, but expressed reservations about the extent to which the
First Amendment limits lIED claims.7 ' He posed the following hypothetical question:
[W]hether our holding unreasonably limits liability for intentional infliction of emotional distress-to the point where A (in order to draw
attention to his views on a public matter) might launch a verbal assault upon B, a private person, publicly revealing the most intimate
details of B's private life, while knowing that the revelation will cause
B severe emotional harm. Does our decision leave the State powerless
to protect the individual against invasions of, e.g., personal privacy,
even in the most horrendous of such circumstances?75
Because he did not interpret the Court's opinion as rendering the government powerless to provide private individuals with the necessary protection should the circumstances warrant, Justice Breyer concurred.7 6
Justice Alito's dissent acknowledged that the First Amendment
provides nearly limitless opportunities for Westboro to make its views
heard, but opined that it does not follow that the church can intentionally inflict emotional distress on private individuals when they are
72
Snyder, 131 S. Ct. at 1218-19.
See id. at 1220 (emphasizing that significance of First Amendment issues counsels limiting "principles that sweep no more broadly than the appropriate context of the instant case"
(quoting Florida Star v. B.J. F., 491 U.S. 524, 533 (1989))).
74 See id. at 1221 (Breyer, J., concurring). Justice Breyer explained that the holding only
addressed picketing on matters of public concern, and not the effect of television broadcasting or
Internet postings. See id. (implying that consideration of epic could have changed outcome of
case).
75 Id. (probing to test reach of majority's holding).
76 See id. Westboro communicated its view by picketing in a lawful location and in compli73
ance with police direction. See id. Albert Snyder admitted that he could only see the top of the
signs, and the picketing was not visible or audible from the funeral service. See id. at 1221-22.
Given the specific facts, restricting Westboro's expression would unfairly burden speech on matters of public concern without proportionately furthering the government's interest in guarding
private citizens from emotional distress. See id. at 1222.
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acutely and emotionally sensitive.7 7 Unlike other speech that receives
protection under the First Amendment, Westboro's malicious speech
made no contribution to the marketplace of ideas, and the Snyders were
not public figures. 78 As a result, the dissent concluded that Albert Snyder should have prevailed on his lIED claim because he satisfied the
"rigorous[] and difficult" requirements of the tort.7 9 Westboro even
conceded this when it decided not to contest whether Albert Snyder had
suffered IIED and instead focused its argument on the fact that the First
Amendment shielded it from liability even if a valid IIED claim was
alleged. 80
The dissenting opinion asserted that the majority's rationale rests
on three pillars, all of which were fundamentally flawed. 8 First, Justice
Alito argued that the decision to immunize actionable speech merely by
virtue of it being entwined with protected speech lacked merit.82 Moreover, the dissent claimed that the majority side-stepped the public figure
issue raised in Gertz v. Welch8 3 by holding that the speech was not
motivated by a private grudge or a pre-existing relationship with Snyder.84 Finally, Justice Alito contended that the Court placed too much
77 See id. (Alito, J., dissenting) (asserting that majority has extended First Amendment protection too far); id. at 1223 (reaffirming lIED can be satisfied by speech alone).
78 See id. at 1222 (noting Westboro's speech was without redeeming social value); see also
Gertz v. Welch, 418 U.S. 323, 344-45 (1974) (establishing standard for evaluating whether
person can be characterized as public figure).
79 See Snyder, 131 S. Ct. at 1222 (Alito, J., dissenting) (quoting W. PAGE KEETON ET AL.,
supra note 41, at 61) (asserting that Snyder has overcome challenging burden to establish lIED);
see also Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 53 (1988) (observing that many jurisdictions offer tort claim of lIED for plaintiffs in Albert's situation). For a further discussion of the
requirements for lIED and how the requirements can be satisfied by speech, see supra notes 3943 and accompanying text.
80 See Snyder, 131 S. Ct. at 1223 (Alito, J., dissenting) (recognizing that Westboro did not
dispute that Albert Snyder's mental wounds were incapable of healing themselves, but instead
maintained that First Amendment provided church with license to act as they did).
81 For a discussion of Justice Alito's critique of the majority's analysis, see infra notes 82-85.
82 See Snyder, 131 S. Ct. at 1226-27 (Alito, J., dissenting) (asserting that this logic is inconsistent with approach Court has taken to other First Amendment issues). Before addressing the
merits of the majority's rationale, he emphasized that the portrayal of Westboro's speech being
mainly directed at issues of public concern was factually inaccurate. See id. (contending that
Matthew and his family were of central importance, especially when text of epic was considered). Additionally, the dissent argued that the First Amendment permits recovery for defamatory statements that are combined with non-defamatory statements and there is no reason for
the distinction drawn between lIED and defamatory claims in this regard. See id.
83 418 U.S. 323 (1974).
84 See Snyder, 131 S. Ct. at 1227 (Alito, J., dissenting) (asserting that there is "no basis for
this strange distinction."). Justice Alito noted that Westboro's desire to maximize publicity for
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BALANCING INTENTIONAL INFLICTION
227
weight on the fact that Westboro's picketing took place on a public
85
street.
IV.
SPLITTING THE DIFFERENCE: PROPOSING A MODERNIZED TEST
The Court's current framework for determining whether First
Amendment protection attaches to speech is outdated and places too
much emphasis on the speech relating to a matter of public concern. 86
The new "enhanced publicity" test seeks to reform this approach by
combining several existing doctrines from the Court's First Amendment
jurisprudence.8 7 To determine whether the enhanced publicity test will
produce reasonable results, it has been applied to several "test cases,"
including the facts of Snyder.88
A.
Constructing the Test's Framework
While the Court ultimately reached the correct outcome in Snyder,
the cautious concurrence and the vigorous dissenting opinion suggest
that this case might have been much closer than an 8-1 decision would
otherwise indicate. 89 The Court's current test places a substantial
amount of weight on whether the speech addresses a matter of public
concern, but when the prevalence of social media sites and today's 24/7
its views does not morph its statements berating the character of a private individual into statements that contribute to the public debate on an issue of national importance. See id. In fact,
even if this were the case, Justice Alito questioned the rationale behind it. See id. ("[O] ne might
well think that wounding statements uttered in the heat of a private feud are less, not more,
blameworthy than similar statements made as part of a cold and calculated strategy to slash a
stranger as a means of attracting public attention."); see also Gertz, 418 U.S. at 344-45 (laying
out requirements for public figure determination that are included as second prong of enhanced
publicity test).
85 See Snyder, 131 S.Ct. at 1227 (Alito, J., dissenting) (questioning why public area in close
proximity to funeral should be characterized as "free-fire zone" where otherwise actionable
speech receives First Amendment protection). While the location of the speech certainly represents an important factor, Justice Alito believes that this should not be dispositive. See id. ("A
physical assault may occur without trespassing; it is no defense that the perpetrator had 'the right
to be where [he was]."' (quoting Snyder, 131 U.S. at 1218-19 (majority opinion))).
86 For a discussion of the current test's shortcomings, see infra notes 90-91 and accompanying text.
87 For a discussion of the enhanced publicity test's prongs, see infra notes 93-102 and accompanying text.
88 For a discussion of the enhanced publicity test's application, see infra notes 103-123 and
accompanying text.
89 For a discussion of the competing legal doctrines involved and the gravity of the issues
presented, see supra notes 64-85 and accompanying text (discussing strong arguments posed on
both sides of issue).
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news coverage are taken into consideration, examples of what would not
satisfy the public concern test are exceedingly rare. 90 More often than
not, speech that relates to issues of public concern should receive First
90 See, e.g., Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985) (holding individual's credit report is not a matter of public concern). However, one not need stretch
their imagination too far to envision a scenario in which this would be a matter of public
concern, for instance, if it was President Obama's credit score.
For example, Mitt Romney's tax return, which is similarly personal in nature to a credit
report, came under considerable scrutiny during the 2012 presidential election because of his
proposal to lower income tax rates across the board, even for the wealthiest Americans. See
Katrina Trinko, Romney Gets Specific, NATIONAL REVIEW ONLINE (Apr. 16, 2012), http://
www.nationalreview.com/corner/296078/romney-gets-specific-katrina-trinko#
(explaining
Romney's plan to lower rates for all earners while eliminating some tax loopholes that disproportionately benefit richer Americans). Given the debate over whether wealthy Americans pay their
"fair share" in taxes and its implications on revamping our national tax policy, it would be
difficult to argue that tax returns for Romney, as well as others in the "1%" would not constitute
a matter of political or social concern to the community under the current public concern test.
See Do the Rich Pay Their Fair Share in Taxes?, U.S. NEWS, http://www.usnews.com/debateclub/do-the-rich-pay-their-fair-share-in-taxes (last visited May 6, 2012) (highlighting conflicts
among conservatives and liberals over proper distribution of tax burden on American taxpayers);
see also Lori Montgomery, Jia Lynn Yang & Philip Rucker, Romney Sheds Some Light on His
Fortune, WASH. POST, Jan. 24, 2012, at AO 1 (noting pressure from Republicans on Romney to
publicize his tax returns, arguing "it is critical for the public to vet his finances before the party
settles on its nominee"); Mr. Romney's Tax Returns, WASH. POST,Jan. 19, 2012, at A14 (decreeing "intrusion of making taxes public goes with the territory of running for president").
As another example, City of San Diego v. Roe held that videos of a government employee
engaging in sexually explicit acts were not a matter of public concern. City of San Diego v. Roe,
543 U.S. 77, 83-84 (2004) (per curiam). But this certainly seems to reflect on the government
employee's character and fitness for office, which relates to a subject of legitimate news interest
under the public concern test as currently understood. See supra note 33-38 and accompanying
text (laying out framework for public concern test). One need look no further than Anthony
Weiner's recent "sexting" scandal or John Edwards's marital infidelity to verify that these types
of stories create a massive media buzz, and thus satisfy the public concern test. See Dana Bash,
Weiner Resigns After Sexting Scandal, CNN (June 16, 2011), http://articles.cnn.com/2011-0616/politics/weiner.scandal 1 congressman-weiner-sexting-scandal-poor-judgment?_s=PM:
POLITICS (documenting resignation of Representative Weiner after intense media coverage led
to pressure from his party leaders to resign); James Oliphant, Twitter Photo Drama Hounds
Congressman from New York, L.A. TIMES, June 2, 2011, at 1 (describing Weiner as being
"under siege" by reporters); see also Alex Spillius, Democrat Presidential Candidate John Edwards Admits Love Child, THE TELEGRAPH (Jan.21, 2010), http://www.telegraph.co.uk/news/
worldnews/northamerica/usa/7046435/Democrat-presidential-candidate-John-Edwards-admitslove-child.html (detailing Edwards's affair with former campaign aide and his attempt to cover it
up by having another former aide claim custody of child). Mr. Edwards is currently on trial for
accepting almost $1 million from his supporters to cover up this affair, a charge that would be a
violation of the election laws if true. See Fredreka Schouten, John Edwards Indicted, Pleads not
Guilty in Affair Coverup, USA TODAY,June 6, 2012, http://www.usatoday.com/news/washington/2011-06-03-john-edwards-indictment n.htm (detailing ongoing saga and media attention
that scandal has generated).
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Amendment protection, but there are certain factual circumstances in
which it would be unjust to prevent a private citizen from sustaining an
IIED claim simply because the perpetrator's speech fell within the allencompassing public concern test. 9' With that in mind, this Article
proposes a revision to the existing test that synthesizes case law from
other First Amendment areas to create a framework that is more consis92
tent with speech in the twenty-first century.
The "enhanced publicity" test comprises three prongs that carve
out areas where a plaintiff may sustain an lIED claim, while ensuring
continued First Amendment protection for speech that contributes to
the lively debate on a matter of public concern.93 The first prong
("public concern prong") asks whether the speech relates to "any matter
of political, social, or other concern to the community" or "isa subject
of legitimate news interest. ' 94 If the speech does not express a matter of
public concern, then this becomes a straightforward lIED claim brought
95
by a private individual against the speaker of the low-value speech.
However, as noted above, the public concern test is easily satisfied and
rarely would speech fail to meet this standard.96
On the other hand, if the first prong is satisfied, then the inquiry
progresses to the second prong. Derived from Gertz, this prong ("public
figure prong") queries whether the speech references a public figure-an
91 See infra notes 116-23 and accompanying text (discussing scenario where an individual
should be able to recover on lIED claim despite the fact that speech relates to the matter of
public concern).
92 For details of the proposed enhanced publicity test, see infra notes 93-102 and accompanying text (noting that test combines public concern test from Connick v. Myers and public
figure test from Gertz v. Welch, while also adding N.Y. Times Co. v. Sullivan's actual malice
standard to establish lIED).
93 See infra notes 94-102 (describing prongs of enhanced publicity test).
94 See Connick v. Myers, 461 U.S. 138, 146 (1983) (providing basis for public concern
test); City of San Diego v. Roe, 543 U.S. 77, 83-4 (2004) (per curiam) (same). This first prong
represents the standard public concern test currently employed by the Court. See Snyder v.
Phelps, 131 S.Ct. 1207, 1216 (2011). Furthermore, when analyzing this prong, the court must
conduct an independent analysis. See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S.
485, 499 (1984).
95 See Harris v. Jones, 380 A.2d 611, 617 (Md. 1977) (recognizing validity of lIED, but
finding plaintiff failed to meet rigorous standard of proof required to prevail).
96 See supra note 90 and accompanying text (describing how virtually everything can become matter of public concern). Even though the first prong sets a low bar, it is an important
threshold that some speech may not be able to meet. Examples of speech that would fail the
standard are difficult to define, but as Justice Potter Stewart famously remarked in reference to
the Court's attempts to define pornography, "l['ll] know it when I see it." Jacobellis v. Ohio,
378 U.S. 184, 197 (1964) (Potter, J., concurring).
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individual occupying a position of prominence or who has "access to the
channels of effective communication," and thus possesses a "realistic opportunity to counteract false statements" made against him. 97 This
analysis must be evaluated immediately prior to the speech or conduct
that gave rise to the speech in question, and the plaintiff bears the burden of proving that she is not a public figure. 98 If the speech references
a public figure, or the speech in question is so broad and generalized as
to abstain from referencing any individual at all, then the speech will
receive the full rigor of protection that the First Amendment has to
offer. 99
If instead the conclusion reached under the second prong indicates
that the speech is about a private person, then that person has the opportunity, and the burden, of establishing an lIED claim.' 0 0 Not only
must the plaintiff prove the elements of an lIED claim discussed above,
but the plaintiff is also required to satisfy the actual malice standard
proffered by the Court in New York Times Co. v. Sullivan" 1 for defa97 Gertz v. Welch, 418 U.S. 323, 344-45 (1974) (describing general guidelines for determining public figures). A public figure includes individuals who have "assumed roles of special
prominence in the affairs of society," who "occupy positions of such persuasive power and influence," or "in either event, [who] invite attention and comment." Id. at 345. The Supreme
Court recognized the need for a distinction between public and private persons long ago because
of the disparity in their abilities to counter attacks leveled against them in the mass media. See
id. at 344 (acknowledging greater state interest in protecting more vulnerable private individuals
from injury caused by defamation).
98 See, e.g., Adrian Chen, The Best Instant Celebrities of 2011, GAWKER (Dec. 28, 2011),
http://gawker.com/5871025/the-best-instant-celebrities-of-the-2011 (listing several people who
gained instant but short lived fame after occurrence of noteworthy events). In ranking this "best
of" list, Chen credited "cameras and Twitter" for converting everyone into a "potential microcelebrity." Id. Because of this ability to instantly gain a following, analyzing the public figure
prong after the event has occurred would likely lead to the conclusion that everyone is a public
figure and would thus render this prong meaningless. In keeping with the presumption in favor
of protecting speech, the party seeking classification as a private figure bears the burden of proof.
99 See, e.g., Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 57 (1988) (declining Jerry
Falwell's claim of IIED resulting from offensive parody because First Amendment provides
broad protection to speech relating to public figures); see also Texas v. Johnson, 491 U.S. 397,
399, 420 (1989) (overturning Johnson's conviction for burning American flag in protest of
President Reagan's policies on nuclear weapons after concluding that it constituted expressive
conduct). In reassuring the country that permitting Johnson his constitutional right to burn the
flag will actually strengthen the flag's "cherished place in our community," Justice Brennan
stated that "the remedy to be applied is more speech, not enforced silence." Id. at 419 (quoting
Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring)).
100 See supra note 42 (detailing four-prong test for lIED claim).
10o 376 U.S. 254 (1964).
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mation suits. 1 2 Under these limited circumstances, a plaintiff would be
able to overcome the presumption of First Amendment protection and
succeed in alleging an lIED claim against the speaker.
B.
Applying the EnhancedPublicity Test
To ensure that the enhanced publicity test is realistic, it has been
applied to several factual scenarios below.10 3 When applied to the facts
of Snyder-the first test case-the result reached under the enhanced
publicity test is consistent with the Court's holding.10 4 Westboro satis-
fies the public concern prong because the picket signs offer the church's
view on the fate of America, the military's toleration of homosexuality,
and scandals involving the Catholic Church-all of which relate to matters of public concern.1 0 5 The public figure prong is rendered inapplicable by the content of Westboro's picket signs, which were couched in
broad and generalized language.' 1 6 As the Court noted, the prevailing
message of the picket signs addressed matters of public concern, and
only a few signs could even be argued to have been directed towards the
Snyder family.' 0 7 Therefore, because Westboro's speech relates to a matter of public concern and the speech did not reference a private individual, the First Amendment fully protects Westboro's speech.
102
See id. at 280 (explaining actual malice standard requires plaintiff to prove that statement
was made with knowledge or reckless disregard as to information's falsity). For a further discussion of the New York Times actual malice standard, see supra note 3 1. Implicit in this framework is that the enhanced publicity test will not permit recovery for IIED if the speech in
question is true, even if it does cause emotional distress.
103 See infra notes 104-23 and accompanying text (applying framework to several "test cases"
to verify enhanced publicity test's reasonableness).
104 See infra notes 105-07 and accompanying text (discussing application of enhanced publicity test to facts of Snyder case).
105 See Snyder v. Phelps, 131 S.Ct. 1207, 1217 (2011) (noting Westboro's message "fall [s]
short of refined social or political commentary," but still relates to matters of public
importance).
106 For details on the generalized content of Westboro's picket signs, see supra notes 54, 67
and accompanying text.
107 See Snyder, 131 S.Ct.at 1217 (providing text of picket signs). The majority of the signs
used by Westboro were very broad in nature (i.e., "God Hates the USA," "God Hates Fags," and
"America is Doomed"). See id. at 1213. Even though some were less broad (i.e., "You're Going
to Hell" or "God Hates You") none of these signs mention Matthew or family by name. See id.
at 1213, 1217 (leading majority to conclude that "overall thrust and dominant theme ... spoke
to broader issues").
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A more difficult scenario arises when considering a hypothetical
lawsuit brought by Steve Bartman °8 against the Chicago media networks for their extended coverage of him deflecting a fly ball during a
Chicago Cubs playoff game.' 0 9 The sport of baseball, and events that
occur during a game, satisfies the public concern prong because it represents a matter of social concern to the community and qualifies as the
subject of legitimate news interest.' ' Bartman, however, would be able
to sustain his burden under the public figure prong. By all accounts,
Bartman kept to himself and did not have access to communications
that would afford him a realistic opportunity to counter false
statements.' 11
108 Steve Bartman lives in infamy as the Chicago Cubs fan who interfered with a fly ball to
left field during Game Six of the National League Championship Series between the Cubs and
the Marlins. See Amber Lee, Catching Hell: The Steve Bartman Incident, BLEACHER REPORT
(Sept. 27, 2011), http://bleacherreport.com/articles/868517-catching-hell-espn-revisits-the-chicago-cubs-steve-bartman-fiasco/page/2 (detailing facts surrounding Bartman's interference with
fly ball that Cubs outfielder Moises Alou would have caught had Bartman not deflected it).
109 See generally K.C. Johnson, The Invisible Fan, CHI. TRIBUNE, Sept. 26, 2011, http://
articles.chicagotribune.com/2011-09-26/sports/ct-spt-0927-bartman-chicago-20110927
1
cubs-five-outs-scapegoat-bartman-alex-gibney (providing details on media onslaught and fan anger confronting Bartman that caused him to issue public apology and go into hiding); see also
Dave Hoekstra, Steve Bartman Catches More Hell in ESPN Documentary, CHI. SUN-TIMES,
Sept. 27, 2011, http://www.suntimes.com/sports/7888784-419/documentary-revisits-bartmanfallout.html; Michael McCarthy, Catching Hell: Review of Steve Bartman Documentary, USA
TODAY, Apr. 25, 2011, http://content.usatoday.com/communities/gameon/post/2011/04/themost-hated-man-in-chicago-espn-tells-steve-bartman-story/ I#.T6IQsMXAETA
[hereinafter
Catching Hell] (same); Michael McCarthy, Theo Epstein Wants Cubs to Bring Bartman in from
the Cold, USA TODAY, Oct. 26, 2011, http://content.usatoday.com/communities/gameon/
post/2011/1 0/theo-epstein-chicago-cubs-steve-bartman-pardon-the-interruption-tonykornheiser-michael-wilbon/l#.T61Ql8XAETA (same); Bill Swartz, Cubs Fan "Catching Hell"
Subject of New Documentary, MY NORTHWEST Sept. 29, 2011, http://mynorthwest.com/11/
554359/Fan-Catching-Hell-subject-of-new-documentary.
1 10 See MLB Numbers Are a Winner for TBS in Cable Ratings, SPORTINGNEWS (Oct. 13,
2011, 1:39 PM), http://aol.sportingnews.com/mlb/story/2011-10-13/mlb-numbers-are-a-winner-for-tbs-in-cable-ratings (documenting Nielson ratings in which most recent Major League
Baseball playoff games took seven of top ten spots in rankings); see also Catching Hell, supra
note 109 (noting Bartman's unintentional interference with live ball during nationally televised
game and him having to be escorted out of stadium by security personnel for his own safety).
111 See Hoekstra, supra note 109 (describing Bartman as private figure who "didn't sign up
for any of this"); see also Johnson, supra note 109 (noting that Bartman does not have Facebook
or Twitter accounts, and that Bartman has rejected multiple six-figure offers to discuss his incident publicly).
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233
Thus, under the enhanced publicity test, Bartman would have the
opportunity to allege an IED claim.1 12 He could likely satisfy the four
elements of an lIED claim because the intense media coverage led to
death threats that forced him to change his phone number and move
out of his house. 1 3 Unfortunately for Bartman though, he would not
be able to meet the actual malice standard because there is no indication
that any of the reports about him were made with knowledge or reckless
disregard as to the information's falsity. 1 4 The media reports were factually accurate; fans and sportscasters were simply distraught that the
Cubs failed to reach the World Series and cast the blame for this on the
most convenient scapegoat: Steve Bartman.1 5 Therefore, while navigating his way through most of the enhanced publicity test's requirements,
his failure to establish actual malice by the media would bar him from
recovering on an lIED claim.
Contrast this with the result that would be reached if George Zimmerman were to file an lIED claim against the National Broadcasting
Company (NBC) for its reporting of the tragic shooting of Travyon
Martin. 16 In its coverage of the incident, NBC incorrectly painted
Zimmerman as a racist through its editing of his phone call to the 911
dispatcher immediately prior to the shooting. 1 7 NBC's speech on the
112
See supra notes 110-11 and accompanying text (establishing that media would be able to
satisfy public concern prong, but that Bartman would be able to sustain his burden of proof
under public figure prong).
113 See Swartz, supra note 109 (indicating Bartman had to "go into hiding").
114 The media coverage of Bartman generally did not defame him, but rather the constant
coverage engendered anger among Cubs fans that led to the numerous death threats he received.
See generally supra note 109 (providing examples of several news stories on Bartman that did
not report false information).
115 See Hoekstra, supra note 109 (commenting that some fans have gone as far as equating
Bartman with Biblical goat carrying peoples' sins).
116 For a discussion of the enhanced publicity test's application to the hypothetical facts of a
suit brought by George Zimmerman against NBC, see infra notes 117-23 and accompanying
text.
117 NBC reported that Zimmerman told the dispatcher "This guy looks like he is up to no
good. He looks black." Doug Mataconis, NBC Deceptively Edits George Zimmerman's Words
on 911 Tape, OUTSIDE THE BELTWAY (Apr. 1, 2012), http://www.outsidethebeltway.com/nbcdeceptively-edits-george-zimmermans-words-on-911-tape/ (providing NBC's wording of Zimmerman's conversation with dispatcher). In the actual transcript, Zimmerman called the dispatcher to report suspicious activity:
Hey we've had some break-ins in my neighborhood, and there's a real suspicious guy,
uh, it's Retreat View Circle, um, the best address I can give you is 111 Retreat View
Circle. This guy looks like he's up to no good, or he's on drugs or something. It's
raining and he's just walking around, looking about.
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issue-whether viewed as addressing hate crimes, police brutality, stereotyping, or the merits of Florida's "Stand Your Ground" law-certainly
relates to matters of social and political importance and thus satisfies the
enhanced publicity test's first prong.1 18
The determination under the public figure prong represents a
much more difficult inquiry. Zimmerman had no access to mass media
prior to the shooting, but his position as the head of the neighborhood
watch could be considered a position of influence or one that invites
attention and comment.1 19 Although it is a difficult analysis, being the
leader of the neighborhood watch probably falls short of making Zim-
merman a public figure, especially because he lacked the media access
William Deutsch, A Transcript of the George Zimmerman Police Call, ABOUT.COM BUSINESS
SECURITY (Feb. 26, 2012), http://bizsecurity.about.com/od/creatingpolicies/a/A-Transcript-OfThe-George-Zimmerman-Police-Call.htm. At that point, the dispatcher inquired, "Ok, and this
guy is he white, black, or Hispanic?" See id. Only then did Zimmerman respond by saying,
"He looks black." See id.
118 For a discussion of the public concern standard, see supra notes 34-38 (deriving test's
standard from Connick v. Myers and City of San Diego v. Roe). For instance, a Florida task
force convened at the beginning of May to examine the state's "Stand Your Ground" law in light
of Travyon's death, and commentators have been weighing in on the likely effects of Travyon's
tragic death on proper law enforcement training. See Lucy Madison, Florida's Stand Your
Ground Law Faces Task Force Scrutiny, CBS NEWS (May 1, 2012), http://www.cbsnews.com/
8301-503544_ 162-57425600-503544/floridas-stand-your-ground-law-faces-task-force-scrutiny/
(reviewing merits and policy behind law); Jean Reynolds, George Zimmerman Told Police He
Shot Trayvon Martin in Self-Defense, LAW
ENFORCEMENT TODAY,
http://lawenforcementto-
day.com/tag/race-relations/ (last visited May 7, 2012) (emphasizing importance of proper training and noting that racism still exists).
119 Zimmerman was a private figure who kept a relatively low profile prior to a rash of breakins in his neighborhood that spurred the homeowners association to ask Zimmerman to head up
a neighborhood watch program. See Chris Francescani, George Zimmerman: Prelude to a
2
Shooting, REUTERS (Apr. 25, 2012), http://www.reuters.com/article/ 012/04/25/us-usa-floridashooting-zimmerman-idUSBRE83018H20120425 (describing Zimmerman as deeply religious
individual from multi-racial background who agreed to begin neighborhood watch program to
reassure neighbors who had been terrorized by series of burglaries perpetrated by young African
American males).
Although Zimmerman likely had a Twitter or Facebook account, this certainly isn't enough
to be characterized as access to mass media. However, Zimmerman's position as head of the
neighborhood watch, while probably not a role of especial prominence or a position of persuasive power or influence, comes close to being a position that invited attention and comment.
See Gertz v. Welch, 418 U.S. 323, 344-45 (1974) (defining public figure standard). Because the
evidence of Zimmerman being a public figure is weak, equity favors allowing him a chance to
proceed with his claim-especially because he is still required to satisfy the lIED and actual
malice standards.
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BALANCING INTENTIONAL INFLICTION
that would provide a realistic opportunity to counter false statements
120
made against him.
Therefore, Zimmerman would have the opportunity to allege an
IIED claim against NBC. Given the bounty placed on Zimmerman by
the Black Panthers and the statements from his attorney discussing Zimmerman's emotional state, Zimmerman seems to meet the criteria for
lIED. 12 ' Finally, Zimmerman would likely be able to satisfy the actual
malice standard because of the egregious manner in which Zimmerman's statements were cut and pasted to suggest that racism played a
role in Zimmerman's shooting of Travyon. 122 As a result, Zimmerman
would overcome the presumption of First Amendment protection and
succeed in his IIED suit against NBC because Zimmerman would be
able to sustain his burden of proof that he was a private figure, the
evidence is sufficient to establish the statutory requirements for an IED
123
claim, and NBC's reporting was reckless at best.
V.
MOVING FORWARD, CAUTION Is CRUCIAL
While the Court's current test resulted in the proper holding in
Snyder, it is too focused on public concern and largely overlooks
120
See supra note 119 (analyzing public figure prong and concluding that equity favors find-
ing that Zimmerman is a private figure).
121 See Phil Keating, Attorneys for George Zimmerman, Who's at Center of the Trayvon
Martin Shooting Case, Say They Can't Find Him, Fear for His Safety, Fox NEWS (Apr. 11,
2012), http://www.foxnews.com/us/2012/04/11/george-zimmerman-gone-rogue/ (noting that
"George can't go down to the 7-Eleven to buy a Coke," that "he's absolutely alone," and "'emotionally crippled' by virtue of the pressure of this case"); see also Black Panthers Offer Bounty for
Zimmerman, YouTUBE (Mar. 25, 2012), http://www.youtube.com/watch?v=FWMgLvbZ0g8
(announcing Black Panthers' bounty on Zimmerman in video posted in late March).
122 For a discussion of the relevant portion of Zimmerman's communication with the dispatcher and NBC's edited version of the conversation, see supra note 117. When the two
statements are compared, NBC's editing must be seen as reckless at the very least, and at worst
could be viewed as a calculated effort to unfairly insinuate that race motivated this tragedy. See
Erik Wemple, NBC to Do "Internal Investigation" on Zimmerman Segment, WASH. POST
(Mar. 31, 2012), http://www.washingtonpost.com/blogs/erik-wemple/post/nbc-to-do-internal2
(characterizing
investigation-on-zimmerman-segment/ 012/03/31 /gIQAc4HhnS-blog.html
NBC's reporting of story as more likely to "paint Zimmerman as a racial profiler," and alleging
that to "portray that exchange in a way that wrongs Zimmerman is high editorial malpractice
well worthy of the investigation that NBC is now mounting"). The internal investigation resulted in the firing of an NBC producer. See Frazier Moore, NBC Fires Producer of Misleading
Zimmerman Tape, HUFFINGTON POST (Apr. 7, 2012), hrtp://www.huffingtonpost.com/2012/
04/06/nbc-fires-producer-of-misleading-tape n_1409405.html.
123 See supra notes 117-22 and accompanying text (summarizing evaluation of hypothetical
suit brought by Zimmerman against NBC under enhanced publicity test).
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[Vol. 11:213
whether the speech references a public or private figure. 124 Social media
and the ever-diminishing level of personal privacy have left private individuals increasingly susceptible to the damaging effects of any stranger's
speech. 2 The enhanced publicity test articulated above corrects for
this development by explicitly adding an inquiry into whether the person being referenced in the speech is a public figure. 126 The final step
would permit a private party to recover for lIED, but only if the plaintiff can satisfy the demanding lIED and actual malice standards. 127 Although providing an exception to the broad freedom of speech, this
rigorous test guarantees that speech advancing the public debate on a
128
matter of national importance will not be silenced.
Regardless of the form taken, the central goal of any test for adjudicating cases dealing with competing IIED and First Amendment issues should be to ensure no speech that contributes to the marketplace
of ideas is inhibited. 29 A delicate balance must be struck between pas124
See Snyder v. Phelps, 131 S. Ct. 1207, 1215 (2011) ("Whether the First Amendment...
[protects] speech in this case turns largely on whether that speech is of public or private concern." (emphasis added)).
125 See, e.g., Alyssa Newcomb, Spike Lee Incorrectly Tweets Address of George Zimmerman,
ABC NEWS (Mar. 28, 2012), http://abcnews.go.com/blogs/headlines/2012/03/spike-lee-incorrectly-tweets-address-of-george-zimmerman/ (detailing plight of Elaine and David McClain who
were forced to leave their home and live in hotel due to large amount of hate mail received after
Spike Lee incorrectly tweeted their home address as that belonging to George Zimmerman);
Chenda Ngak, Spike Lee Retweets Incorrect Address of George Zimmerman, Violates Twitter
Rules, CBS NEWS (Mar. 28, 2012), http://www.cbsnews.com/8301-501465-162-57405929-5014
65/spike-lee-retweets-incorrect-address-of-george-zimmerman-violates-twitter-rues;see also Randy
Ludlow, Checks on "Joe" More Extensive than First Acknowledged,
COLUMBUS
DISPATCH,
Oct. 29, 2008, http://www.dispatch.com/content/stories/local/2008/10/30/joe30.html (detailing searches of confidential databases by Ohio state officials for information on "Joe the
Plumber" after he was approached by then-Democratic candidate Barack Obama and asked
damaging questions about Obama's proposed tax policies). Ohio's Office of the Inspector General launched an investigation in which it concluded that the use of state resources in conducting
these searches in an attempt to exploit Joe's background for political gain were improper. See
STATE OF OHIO OFFICE OF THE INSPECTOR GEN., REPORT OF INVESTIGATION ii (2008).
126 For further discussion of the public figure prong, see supra notes 97-99 and accompanying text.
127 For further discussion of the final prong, see supra notes 100-02 and accompanying text.
128 For further discussion of the rationale motivating the enhanced publicity test's development, see supra notes 89-102 and accompanying text.
129
SeeAbrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting) ("[W]hen
men have realized that time has upset many fighting faiths, they may come to believe even more
than they believe the very foundations of their own conduct that the ultimate good desired is
better reached by free trade in ideas-that the best test of truth is the power of the thought to
get itself accepted in the competition of the market, and that truth is the only ground upon
which their wishes safely can be carried out.").
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BALANCING INTENTIONAL INFLICTION
sionately defending the right to free speech-even speech that the vast
majority of society finds deplorable-and shielding private individuals
from damaging verbal assaults. 130 Determining where to draw that line
represents a very slippery slope and extreme care must be taken, lest we
find ourselves in the shoes of the Panhe villagers or the Putin protestors.131 When redefining the scope of protected speech, society must be
ever conscious of George Washington's warning from more than two
[then]
centuries ago: "If. . . the freedom of Speech may be taken away,
132
Slaughter."
the
to
sheep,
like
dumb and silent we may be led,
130 See Snyder v. Phelps, 131 S. Ct. 1207, 1220 (2011) (acknowledging "sensitivity and
significance of the interests presented in clashes between First Amendment and [state law]" and
advocating for narrow, fact specific holdings in this area) (quoting Florida Star v. B.J.F., 491
U.S. 524, 533 (1989)).
131 For further discussion of what limiting free speech rights could lead to, see supra notes 610 and accompanying text.
132 George Washington, Speech to Officers at Newburgh (Mar. 15, 1783), available at http://
www.pbs.org/georgewashington/multimedia/arnn/newburgh.html (providing cautionary words
of wisdom regarding importance of free speech).