Snyder v. Phelps: Funeral Picketing, the First Amendment, and the Intrusion Upon Seclusion Tort
posted by Daniel Solove
The Supreme Court had granted certiorari on Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), a First Amendment case involving some privacy law issues. The Supreme Court seems quite interested in privacy law of late, having recently granted cert. in NASA v. Nelson, a case involving the constitutional right to information privacy.
Snyder involves tort claims against Fred Phelps, pastor of the Westboro Baptist Church, and others arising out of the practice of Church members to picket the funerals of U.S. soldiers. Church members held a protest near the funeral of Albert Snyder’s son, who was killed in Iraq. A jury found the defendants liable and awarded $2.9 million in damages as well as $8 million in punitive damages. The total damages were reduced by the court to $5 million.
The Church preached anti-gay messages, protesting funerals of dead soldiers as a way to illustrate God’s hatred of America for tolerating homosexuality. Some signs said: “God Hates the USA,” “Fag troops,” and “Thank God for dead soldiers.”
Snyder prevailed on at least two tort claims of relevance to privacy law: (1) intentional infliction of emotional distress; and (2) intrusion upon seclusion.
The Fourth Circuit reversed on First Amendment grounds. Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009).
In this post, I’ll focus on the intrusion upon seclusion tort. I’m not clear on the basis for the intrusion upon seclusion claim. The tort provides:
One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.
Restatement (Second) of Torts 652B.
Generally, intrusion doesn’t involve speech. It involves invasive actions — snooping, surveillance, trespassing.
Where was the intrusion in this case?
The protest occurred more than 1000 feet away from the funeral and wasn’t seen by the funeral attendees. It is not clear that there was any disruption of the funeral.
Had the protesters invaded the funeral or disrupted it with noise, then this might constitute an intrusion upon seclusion. But speaking about an event, even nearby, isn’t an intrusion unless it somehow invades or disrupts privacy. The facts supplied in Snyder’s cert. petition point out police resources being used to promote safety at the protest and how a nearby school was affected. But what is notably missing are facts alleging how the protest invaded the funeral itself.
I would like to know precisely what facts establish the intrusion upon seclusion claim. Without facts to establish an intrusion upon seclusion, this claim should have been dismissed because the elements of the tort weren’t met. This isn’t a First Amendment issue — it involves whether the requirements of the tort are met. Based on the facts I’m aware of, I don’t see a cognizable legal claim for intrusion upon seclusion.