Snyder v. Phelps and the Death of Intentional Infliction of Emotional Distress as a Speech-Based Tort

W Wat Hopkins Ph.D., Virginia Tech

Abstract

From New York Times Co. v. Sullivan through Hustler Magazine v. Falwell, the Supreme Court of the United States established a reasonable balance between the rights of private persons to be free from unwarranted verbal attacks by groups or persons whose primary goal was self aggrandizement. The framework for that protection was the tort of intentional infliction of emotional distress, which required plaintiffs to overcome an onerous burden of proof in order to prevail. In March 2011, however, the Court ruled in Snyder v. Phelps that the verbal attack of the Westboro Baptist Church against Albert Snyder during and after the funeral of Snyder’s son, a Marine killed in Iraq, was protected because it involved matters of public concern. In making its ruling, the Court ignored tort law precedent related to public and private figures and diverted the issue from intentional infliction of emotional distress to matters of public debate, even though the Snyder case involved no public debate. In so doing, the Court all but eliminated intentional infliction of emotional distress as a speech-based tort.