Snyder v. Phelps, Outrageousness, and the Open Texture of Tort Law

45 Pages Posted: 6 Oct 2010


In Snyder v. Phelps, the United States Supreme Court will decide to what extent state tort law may impose liability for “intentional infliction of emotional distress through outrageous conduct” without running afoul of the First Amendment’s guarantee of freedom of speech. The defendants, the Phelpses, picketed the funeral of a young Marine who died in the line of duty in Iraq; they carried signs with statements such as “God hates the USA,” “God hates you,” “Fag troops,” and “Thank God for dead soldiers.” Sickened, depressed, and infuriated by the conversion of his son’s funeral into a media circus for an extremist group, the soldier’s father, Albert Snyder, successfully sued the defendants for the torts of intentional infliction of emotional distress through outrageous conduct and invasion of privacy. Several important First Amendment scholars have argued that an emotional harm tort that depends on applying the vague, subjective, and malleable concept of “outrageousness” to political speech cannot withstand First Amendment scrutiny, and that the Court should therefore rule for the defendants.

This Essay examines Snyder v. Phelps from a tort scholar’s point of view and, in doing so, puts forward strong reasons for rejecting the outrageousness argument. When one looks into the nature of the emotional distress tort carefully, as one must if one takes federalism seriously, three points become clear: first, that state tort law contains its own well-developed resources for scrutinizing such emotional distress claims and carefully filters out the vast majority of such claims; second, that the concept of outrageousness is used in part to insure that only a narrow range of kinds of cases can succeed; and third, that one of the most longstanding and best established paradigms for liability in emotional distress torts involves persons who have intentionally or recklessly interfered with a plaintiff’s efforts to grieve for a deceased child, parent, or spouse. As a unanimous United States Supreme Court recognized only seven years ago in the privacy case National Archives and Records Administration v. Favish, the law does acknowledge that “[f]amily members have a personal stake in honoring and mourning their dead” and does not protect the activity of one who, by intruding on the family members’ grief, “tends to degrade the rites and respect they seek to accord to the deceased person who was once their own.” To suppose that Snyder’s tort claim cannot be permitted because “outrage” and “emotional harm” are too vague or mercurial is simply to invert legal reality.

Suggested Citation

Zipursky, Benjamin C., Snyder v. Phelps, Outrageousness, and the Open Texture of Tort Law. DePaul Law Review, Forthcoming, Fordham Law Legal Studies Research Paper No. 1687688, Available at SSRN:

Benjamin C. Zipursky (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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