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Invasion of Privacy and the Freedom of Speech:

The Snyder v. Phelps jury held defendants liable not just for intentional infliction of emotional distress, but also for invasion of privacy. "Invasion of privacy" covers several torts, but the ones alleged here were "intrusion upon seclusion" (because the picketing was outside a funeral, albeit 1000 feet away) and "publicity given to private life" (apparently because of the Phelpsians' statements on their Web site that plaintiff and his wife "raised [the deceased] for the devil," "RIPPED that body apart and taught Matthew to defy his Creator, to divorce, and to commit adultery," "taught him how to support the largest pedophile machine in the history of the entire world, the Roman Catholic monstrosity," and "taught Matthew to be an idolator").

Even if the disclosure tort is constitutionally permissible -- most lower courts have held it is, though the Supreme Court hasn't opined on this -- it has been interpreted quite narrowly, and I don't see anything in this case that involves the sort of disclosure of highly embarrassing personal information (e.g., medical or sexual history) generally required for liability. Both the site and the picketing is offensive because of the viewpoint they express, the harsh language that they use, and their expression of the viewpoint in a way that's personalized to a recently killed soldier -- not because it reveals some embarrassing secrets.

The intrusion upon seclusion tort generally focuses on conduct that is offensive regardless of the message it expresses (the Restatement of Torts illustrations are entering a patient's hospital room to take a photograph over the patient's objection, photographing through someone's bedroom window through a telescope, tapping someone's phone, getting someone's bank records using a court order, and calling someone every day for a month at inconvenient times). The tort is constitutional precisely because it's content-neutral. Here, though, the intrusion stemmed not just from the proximity of the picketing to the funeral -- there must have been a good deal of speech within 1000 feet of the church at which the funeral service was being conducted, and surely one wouldn't call all of it "highly offensive intrusion upon seclusion" -- but also from the message of the picketing.

Applying the intrusion tort here thus raises pretty much the same overbreadth, vagueness, and viewpoint discrimination problems as does apply the emotional distress tort. It may be a little narrower because it at least formally requires some sort of physical proximity with the plaintiffs. But it's also broader because it doesn't even require a finding of outrageousness (only the intrusion's being "highly offensive to a reasonable person"), and in any case the narrowing is pretty slight, if speech within 1000 feet of the funeral qualifies as physical proximity.

And one can easily see how dangerous this tort, if applicable here, could potentially be: It could conceivably lead to massive liability for antiabortion picketing within 1000 feet of abortion clinics (on the theory that people who are going in for emotionally draining and possibly life-altering medical procedures are just as entitled to "seclusion" as people who are going to a funeral). It could lead to massive liability for protests within 1000 feet of churches (including the Phelpsians), mosques, and synagogues, on the theory that people are entitled to "seclusion" in their ordinary religious services as well as in funeral religious services. It could lead to universities' being allowed to punish students for distributing or posting allegedly offensive materials near dorms; and more.

aces:
I agree that 1,000 feet seems like an overly large zone on its face, but a number of drug laws provide enhanced penalties for posession or sale within 1,000 feet of a school, and AFAIK, those laws have stood up. What would be the difference in this case--civil versus criminal ?
11.7.2007 7:56pm
William Spieler (mail) (www):
I think the invasion of seclusion tort is probably the only actually actionable claim here. Here's my gut opinion on the constitutionality:

Imagine that the family were Orthodox Jews, and that they lived in an Orthodox Jewish community. The son dies, and the parents are sitting shiva. As such, their home is open to visitors. Phelps comes in and says his schtick. Actionable?

Yeah, people can come in and engage in speech, but it's understood that the guests are coming in only for the sake of saying certain things. Coming in for different reasons is uninvited under the rationale of having the ceremony.

It's at least trespass of some sort.
11.7.2007 8:19pm
CrazyTrain (mail):
Imagine that the family were Orthodox Jews, and that they lived in an Orthodox Jewish community. The son dies, and the parents are sitting shiva. As such, their home is open to visitors. Phelps comes in and says his schtick. Actionable?


It would be an actionable trespass.

That is not what happened here, not even close so your hypo is irrelevant.
11.7.2007 8:25pm
Steve2:
Honestly, Professor Volokh, I'm having trouble seeing that kind of chill from the invasion of seclusion tort as "dangerous" instead of "desirable", and to an extent I've got the same feelings about the intentional infliction of emotional distress tort.

The most important of rights, after all, is the right to be let alone. If that's going to include being let alone from private actors and not just government, doesn't that require making speech that constitutes those torts be unprotected?
11.7.2007 8:28pm
calmom:
Someone needs to point out here that the father-plaintiff did not actually see the protesters at the funeral or along the funeral route. He didn't hear them then either.

He didn't even know about the Phelps' presence until he turned on television to watch the coverage of his son's funeral later that evening.

There seems to be a basic factual discrepancy on the intrusion on seclusion aspect of the tort.

And as for emotional distress, well, if I had a nickel for every news story that distressed me, I'd be as rich as Warren Buffett by now.
11.7.2007 9:21pm
William Spieler (mail) (www):
I don't find the "the father didn't hear about it until television coverage" argument compelling. Let's say theoretically someone installs a camera in my bedroom without my knowledge, videotapes me without my knowledge, etc. I find out that he's done so when he's arrested. The cause of action arose at the time of the taping, not at the time of me becoming aware of it. At least that's how I'd argue it.
11.7.2007 9:55pm
markm (mail):
It could even lead to non-approved political speech being restricted to small fenced off areas out of sight of staged political events.

Oh wait, that's already happened.
11.8.2007 12:34pm
one of many:
re:
I don't find the "the father didn't hear about it until television coverage" argument compelling. Let's say theoretically someone installs a camera in my bedroom without my knowledge, videotapes me without my knowledge, etc. I find out that he's done so when he's arrested. The cause of action arose at the time of the taping, not at the time of me becoming aware of it. At least that's how I'd argue it.



If the action were for intrustion of seclusion it would be time at which your seculsion were violated by the showing of the videotape, or any videotape for that matter even if you were not in it. Your privacy would have been violated earlier, unless the videotapers were in the room with you at the time the tape was made your seclusion would have been intact. If someone had a hideyhole in your attic and were physically present to observe you then it might be arguable (using the apparent logic of Snyder) that your seclusion was violated at the time of the observation. I am hesitant about seclusion being violatable without the victim being aware of it, it seems counterintuitive.
11.8.2007 1:46pm
calmom:
1. I don't think there is any invasion of privacy when the picketers are so far away that you didn't hear them, on a public street.

2. If there was an invasion of privacy by the picketers, then by the same logic wouldn't the TV cameras filming the picketers and the funeral also constitute an invasion of privacy? What 'privacy' was expected if the father knew that news crews were going to be filming the funeral for the nightly news?

The entirety of this suit is based on the fact that the father was pissed off at the content of the speech of the protesters and the jury went along. I don't think the award survives appeal on First Amendment grounds.
11.8.2007 3:59pm
one of many:
there were 2 invasion of privacy counts, one for violation of seclusion and one for revealing personal information. as for the TV news crews, i am reasonable sure they were covering the protest and not the funeral, not positive but if so then probably the news crews also violated the family's right to seclusion, an interesting argument. while it could have been used to minimze the damages attributable to the seclusion count, the fact that multiple parties committed seperate intrusions does remove any one of them for responsibilty for the damages caused by thier intrustion. if the precedent is followed, the snyders can now sue the tv station for intrusion of privacy and should win (want to bet on that), but that doesn't necesarily mean they will sue the tv station.
11.8.2007 5:09pm
Jamesaust (mail):
"Here, though, the intrusion stemmed not just from the proximity of the picketing to the funeral ... but also from the message of the picketing."

I believe one might make a good case that the message itself is irrelevant. One can claim IIED or privacy invasion as a result of ANY demonstration - negative content, positive content, or no content at all.

Would one not have a valid claim if a group of persons disrupted a funeral with random noise and barking (presumptively content neutral)? If a group physically occupied the funeral space and was engaged in any form of speech (prayer meeting, book discussion, singing pop songs, humming)?
11.8.2007 6:03pm
Eugene Volokh (www):
Jamesaust: Remember that the picketers here didn't disrupt a funeral with noise, or physical occupation. They expressed their views 1000 feet from the funeral. I can't imagine a jury finding it "outrageous" (not just disrespectful but outrageous) if someone 1000 feet from the funeral (a) expressed sympathy and condolences, (b) spoke out about a completely unrelated subject, or (c) picketed about the church's labor practices towards its employees. The message is highly relevant to the IIED liability, since without the outrageous message the mere time and place would not be outrageous.
11.8.2007 10:11pm
calmom:
My understanding from seeing the father-plaintiff interviewed is that the TV news was covering the funeral. That's why he turned on the news--to see the coverage of his son's funeral. He didn't know about the protests until then.

I can't see any claim of violation of privacy when an event is so public as to be on television.
11.8.2007 10:36pm