Scholarly Commons @ UNLV Boyd Law Scholarly Works Faculty Scholarship 2010 Snyder V. Phelps: Searching For a Legal Standard Leslie C. Griffin University of Nevada, Las Vegas -- William S. Boyd School of Law Follow this and additional works at: https://scholars.law.unlv.edu/facpub Part of the First Amendment Commons Recommended Citation Griffin, Leslie C., "Snyder V. Phelps: Searching For a Legal Standard" (2010). Scholarly Works. 800. https://scholars.law.unlv.edu/facpub/800 This Article is brought to you by the Scholarly Commons @ UNLV Boyd Law, an institutional repository administered by the Wiener-Rogers Law Library at the William S. Boyd School of Law. For more information, please contact [email protected]. C ARDOZO L A W R E V I E W de •novo • Funerals, Fire, and Brimstone • SNYDER V . PHELPS : SEARCHING FOR A LEGAL STANDARD Leslie C. Griffin * INTRODUCTION The case of Snyder v. Phelps 1 offers an array of legal issues in search of clearer legal standards. The original lawsuit by plaintiff Albert Snyder, father of the deceased soldier Matthew Snyder, against defendants Fred W. Phelps, his Westboro Baptist Church, and other church members for their picketing of Matthew’s funeral and their website’s “epic” account of Matthew’s life, pleaded five tort causes of actions under Maryland law for defamation, intrusion upon seclusion, publicity given to private life, intentional infliction of emotional distress and civil conspiracy. 2 The district court dismissed the defamation and publicity claims. The jury found the defendants liable on the other three theories and awarded plaintiff $2.9 million in compensatory damages and $8 million in punitive damages. The district court remitted the punitive damages award to $2.1 million. 3 On appeal, the Fourth Circuit reversed, ruling that the First Amendment required a judgment for the defendants as a matter of law “[b]ecause the judgment [incorrectly] attaches tort liability to constitutionally protected speech . .” 4 Preaching the doctrine of constitutional avoidance, however, a concurrence by Judge Shedd concluded that there was insufficient evidence to establish tort liability under Maryland law. 5 There was no intrusion upon seclusion because the defendants never disrupted the funeral service, confronted the plaintiff, called the websites to his attention or intruded upon Snyder’s privacy in any way. 6 Moreover, Phelps’ conduct was not sufficiently “outrageous” * Larry & Joanne Doherty Chair in Legal Ethics, University of Houston Law Center; [email protected]. 1 580 F.3d 206 (4th Cir. 2009), cert. granted 130 S. Ct. 1737 (2010). 2 Snyder v. Phelps, 533 F.Supp.2d 567 (D. Md. 2008). 3 Id. at 595. 4 580 F.3d at 226. 5 Id. at 227 (Shedd, J., concurring in the judgment). 6 Id. at 230-31. 353 354 CARDOZO LAW REVIEW DE•NOVO 2010 to meet the requirements of the tort of intentional infliction of emotional distress. In Maryland, intentional infliction of emotional distress requires the element of extreme and outrageous conduct. 7 Despite the jury’s finding for Snyder on this tort, Judge Shedd concluded that Phelps’ conduct in protesting the funeral “simply does not satisfy the heavy burden required for the tort of intentional infliction of emotional distress under Maryland law.” 8 Because the defendants had not raised the sufficiency of the evidence claims in their appeal, however, the other judges rejected Shedd’s reasoning, held the appellants had waived the evidence argument, and decided the case on First Amendment grounds. 9 Snyder’s petition for a writ of certiorari presented three questions for the Supreme Court to decide: 1. Does Hustler Magazine, Inc. v. Falwell apply to a private person versus another private person concerning a private matter? 2. Does the First Amendment’s freedom of speech tenet trump the First Amendment’s freedom of religion and peaceful assembly? 3. Does an individual attending a family member’s funeral constitute a captive audience who is entitled to state protection from unwanted communication? 10 The three questions presented and the underlying opinions suggest that the case is about religion, tort law and free speech. Snyder v. Phelps concerns tort law and free speech, and offers the Court an opportunity to clarify the constitutional law of defamation and privacy lawsuits involving speech. But it should not be a case about religion. I. RELIGION The Petition’s second question forces us to consider what role religion played in the case, and we should conclude that religion should be irrelevant to the outcome of Snyder v. Phelps . The district judge rejected defendants’ argument that their conduct could not be subjected to tort liability because the Free Exercise Clause of the First Amendment protects their religion from the jury’s review. The court relied upon the traditional First Amendment doctrine that although the freedom to believe is absolute, the government may regulate religious 7 Id. at 232. 8 Id. The conspiracy claim required that the underlying torts of inclusion or IIED be proven and so was dismissed when they were. See id. at 232 n.3. 9 Id. at 216-17. 10 Petition for a Writ of Certiorari at i-ii, Snyder v. Phelps, No. 09-751 (U.S. Dec. 23, 2009), 2009 WL 5115222. 2010 SEARCHING FOR A LEGAL STANDARD 355 conduct. Because “this case involves balancing [religious freedom] rights with the rights of other private citizens to avoid being verbally assaulted by outrageous speech and comment during a time of bereavement,” 11 the court rejected a Free Exercise defense. The defendants reasserted their religious freedom argument in their appeal to the Fourth Circuit, arguing that [t]his case punished defendants’ religious belief that they are prophets and God’s elect; their belief in God’s hate; and their belief in the doctrines of reprobation, election and predestination. The jury should not have had the opportunity to put the official governmental stamp of disapproval on defendants’ religious beliefs. 12 The Fourth Circuit, however, did not address the religious freedom argument, dismissing the case instead under the First Amendment’s Free Speech Clause. In rejecting defendants’ free exercise defense, the district court quoted Justice Antonin Scalia’s opinion in the leading Free Exercise decision, Employment Division, Department of Human Resources v. Smith : We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. 13 The district court’s conclusion is unassailable. The case is a reminder of the importance of Smith . The Westboro Baptist Church should be treated like all other picketers. Matthew Snyder’s funeral at a Catholic Church should be treated like all other funerals. Tort law should not be skewed for or against religious plaintiffs and defendants. “‘Laws . are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Can a man [Phelps or Snyder] excuse his practices to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.’” 14 Snyder v. Phelps involves tort law and free speech. Unfortunately, the district court repeatedly referred to defendants’ “religious opinion” in deciding the free speech issues. The word “religious” should be deleted 11 Snyder v. Phelps, 533 F.Supp.2d 567, 579 (D. Md. 2008). 12 Brief of Appellant at *13, Snyder v. Westboro Baptist Church, Inc., 580 F.3d 206 (4th Cir. 2008) (No. 08-1026), 2008 WL 2563404 (footnote omitted). 13 533 F.Supp.2d at 579 (quoting Employment Div. v. Smith, 494 U.S. 872, 878-79 (1990)). 14 Smith , 494 U.S. at 879 (quoting Reynolds v. United States, 98 U.S. 145, 166-67 (1878)). 356 CARDOZO LAW REVIEW DE•NOVO 2010 and ignored. The outcome depends purely upon how constitutional free speech rights affect state tort law. II. DEFAMATION The original case involved allegations of one tort designed to protect the plaintiff’s reputation (defamation), two torts created to protect the plaintiff’s privacy (intrusion and publication of private facts) and one tort intended to protect plaintiffs against emotional harm (intentional infliction of emotional distress). Ironically, Snyder’s defamation claim did not survive in the district court even though it is the current state of defamation law that determined the outcome of the privacy and emotional distress lawsuits and set the stage for the important first question in the petition for certiorari about Hustler Magazine v. Falwell .15 Albert Snyder’s defamation claim involved the “epic” story about his son published on the church’s website, www.godhatesfags.com. The story, called “The Burden of Marine Lance Cpl. Matthew Snyder,” stated that Albert Snyder and his ex-wife “taught Matthew to defy his creator,” “raised him for the devil,” and “taught him that God was a liar.” 16 Maryland defamation law requires “(1) that Defendants made a defamatory communication to a third person, (2) that the statement was false, (3) that Defendants were at fault in communicating the statement, and (4) that Plaintiff suffered harm.” 17 The district court ruled that the first element was not satisfied “because the content of the ‘epic’ posted on the church’s website was essentially Phelps-Roper’s religious opinion and would not realistically tend to expose Snyder to public hatred or scorn.” 18 That sentence is somewhat confusing. First, it mistakenly suggests that religious opinion law differs from other speech law, whereas, as noted above, religion should not be significant to the case.