American University Law Review Volume 61 | Issue 2 Article 5 2011 Funeral Protests, Privacy, and the Constitution: What Is Next After Phelps? Mark Strasser Follow this and additional works at: http://digitalcommons.wcl.american.edu/aulr Part of the Law Commons Recommended Citation Strasser, Mark (2011) "Funeral Protests, Privacy, and the Constitution: What Is Next After Phelps?," American University Law Review: Vol. 61: Iss. 2, Article 5. Available at: http://digitalcommons.wcl.american.edu/aulr/vol61/iss2/5 This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Funeral Protests, Privacy, and the Constitution: What Is Next After Phelps? Abstract In Snyder v. Phelps, the United States Supreme Court struck down a damages award against Reverend Fred Phelps Sr. and the Westboro Baptist Church for picketing a military funeral. Although the Court asserted that its holding was narrow and the legal issues involved were straightforward, this Article argues that Phelps ultimately raises more questions than it answers and almost guarantees increased confusion in First Amendment jurisprudence. The ourC t in Phelps explained that the First Amendment prohibits tort damages when the comments at issue involve matters of public concern, yet failed to explain whether private speech that was juxtaposed with public, political speech also warranted the protection of the First Amendment. The Court also neglected to provide guidance on how its holding fits into the current defamation and privacy jurisprudence; in addition, it left unanswered pertinent questions about the constitutionality of a growing number of funeral protest statutes. Lower courts are likely to feel frustrated by this decision and, consequently, a relatively clear area of the law is likely to become muddled. This article is available in American University Law Review: http://digitalcommons.wcl.american.edu/aulr/vol61/iss2/5 STRASSER.OFF.TO.PRINTER (DO NOT DELETE) 3/26/2012 8:08 PM FUNERAL PROTESTS, PRIVACY, AND THE CONSTITUTION: WHAT IS NEXT AFTER PHELPS? MARK STRASSER In Snyder v. Phelps, the United States Supreme Court struck down a damages award against Reverend Fred Phelps Sr. and the Westboro Baptist Church for picketing a military funeral. Although the Court asserted that its holding was narrow and the legal issues involved were straightforward, this Article argues that Phelps ultimately raises more questions than it answers and almost guarantees increased confusion in First Amendment jurisprudence. The Court in Phelps explained that the First Amendment prohibits tort damages when the comments at issue involve matters of public concern, yet failed to explain whether private speech that was juxtaposed with public, political speech also warranted the protection of the First Amendment. The Court also neglected to provide guidance on how its holding fits into the current defamation and privacy jurisprudence; in addition, it left unanswered pertinent questions about the constitutionality of a growing number of funeral protest statutes. Lower courts are likely to feel frustrated by this decision and, consequently, a relatively clear area of the law is likely to become muddled. TABLE OF CONTENTS Introduction ........................................................................................ 280 I. The Funeral and the Possible Torts Implicated ..................... 281 A. Background ....................................................................... 281 B. Tort Law ............................................................................. 283 II. Tort Damages and the First Amendment ............................... 286 A. The Developing Defamation Jurisprudence .................... 286 1. Public officials, public figures, and defamation ......... 286 a. Demonstrating actual malice ................................ 288 b. Proving recklessness as actual malice ................... 289 2. Private actors and defamation: The Rosenbloom Trustees Professor of Law, Capital University Law School, Columbus, Ohio. I would like to thank Professors Susan Gilles, Daniel Kobil, and James Beattie for helpful discussions on these and related issues. 279 STRASSER.OFF.TO.PRINTER (DO NOT DELETE) 3/26/2012 8:08 PM 280 AMERICAN UNIVERSITY LAW REVIEW [Vol. 61:279 standard ........................................................................ 290 3. Rejecting Rosenbloom: easing defamation requirements for private individuals ........................... 292 B. Constitutional Limitations on Other Torts ...................... 296 1. The actual malice standard and the tort of intentional infliction of emotional distress ................ 296 2. The privacy interest and tortious injury ...................... 299 a. Zacchini, the right of publicity, and funeral protests ................................................................... 302 b. Pacifica Foundation, offensive speech, and the duty to avert one’s attention ................................. 307 C. Reconciling the Different Cases with Phelps ..................... 309 1. Compliance with the law: a vaccine against tortious liability? ........................................................... 310 2. A balance of interests: Snyder’s right to privacy and the Church’s right to protest ............................... 315 3. Phelps’s captive audience problem .............................. 317 4. Phelps’s impact on the regulation of funeral picketing ....................................................................... 321 Conclusion .......................................................................................... 324 INTRODUCTION In Snyder v. Phelps,1 the United States Supreme Court issued a much-anticipated decision, striking down a damages award against Reverend Fred Phelps, Sr. and the Westboro Baptist Church for picketing the funeral of a Marine killed in Iraq. In a relatively short opinion, the Court suggested that the legal issues were straightforward—the First Amendment precludes the imposition of tort damages when the comments at issue involve matters of public concern.2 Yet, the Court failed to explain whether comments that were not of public concern were somehow immunized by those that were. The Court also failed to explain how the holding fits into current defamation and privacy jurisprudence. The opinion raises more questions than it answers, and is sufficiently opaque that one cannot tell whether it marks a sea-change in the jurisprudence or, instead, is a straightforward application of it. Part I of this Article offers a brief discussion of the background behind Phelps and of the torts asserted by the father of Lance Corporal Matthew Snyder against Phelps and the Westboro Baptist Church. Part II discusses the constitutional limitations imposed on torts involving defamation, invasion of privacy, and intentional 1. 131 S. Ct. 1207 (2011). 2. Id. at 1215 (citing Dun & Bradstreet, Inc. v. Greenmoss Builders Inc., 472 U.S. 749, 758–59 (1985)). STRASSER.OFF.TO.PRINTER (DO NOT DELETE) 3/26/2012 8:08 PM 2011] WHAT IS NEXT AFTER PHELPS? 281 infliction of emotional distress that were recognized prior to Phelps. Part II also explains why these limitations might have cast light upon, but could not determine, the correct resolution of a case involving the imposition of damages for funeral picketing. The Article concludes by explaining that although Phelps resolved very little, it nonetheless almost guarantees increased confusion in First Amendment jurisprudence. I. THE FUNERAL AND THE POSSIBLE TORTS IMPLICATED Matthew Snyder’s funeral was picketed by a group protesting, among other things, Catholicism and equality policies across the country.3 That same group posted various hurtful comments about Snyder on their website; as a result, Albert Snyder—the father of the deceased Marine—sued the group, asserting various claims in tort.4 While some of these claims were found to be without merit as a matter of law, others were left to the jury to decide, resulting in a substantial verdict.5 This section includes a brief discussion of the background of the case and the various tort theories asserted. A. Background On March 3, 2006, Matthew Snyder died fighting for his country in Iraq.6 A notice regarding the time and place of the funeral was placed in local papers in Westminster, Maryland.7 Five days later, Phelps, the pastor of the Westboro Baptist Church, became aware of the funeral and issued a news release announcing that he and his family would picket the funeral.8 The plaintiff and the defendants differed on why the funeral was being picketed. The defendants said that they “traveled to Matthew Snyder’s funeral to publicize their message of God’s hatred of 3. See id. at 1226 (Alito, J., dissenting) (noting that the Phelps family had discussed, among other issues, “homosexuality, the Catholic Church, and the United States military”). 4. See Snyder v. Phelps, 533 F. Supp. 2d 567, 570 (D. Md. 2008) (noting that the case proceeded to trial on the issues of intrusion upon seclusion, intentional infliction of emotional distress, and civil conspiracy), rev’d, 580 F.3d 206 (4th Cir. 2009), aff’d, 131 S. Ct. 1207 (2011). 5. See Phelps, 131 S. Ct. at 1214 (“A jury found for Snyder on the intentional