Download this Paper Open PDF in Browser

R.I.P IIED: How the Supreme Court Eliminated Tort Liability for Verbal Conduct with the First Amendment

22 Pages Posted: 22 Mar 2012  

Amanda Lea Maillet

affiliation not provided to SSRN

Date Written: March 19, 2012


This article discusses the constant tension created by our legal system’s delegation of individual and state rights. Since the application of the Bill of Rights to state actions, tort liability and First Amendment immunity for verbal conduct have created conflicting objectives of safeguarding the public from wrongful conduct versus protecting the individual’s right of free expression. These clashing objectives converged in the Supreme Court case of Snyder v. Phelps. This article discusses the relationship between tort actions and freedom of expression in the American legal system tracking the history of the Court’s decision, the Supreme Court’s most recent decision of Snyder v. Phelps, and how such a decision unset the delicate balance between tort action and free speech. This article will demonstrate that the Supreme Court’s decision in Snyder negated previous dicta and undermined a state’s right to protect its citizen through tort liability. Previously, individuals could receive First Amendment Immunity from tort liability for verbal conduct only if the verbal conduct concerned a public concern or a public figure. However, the Court granted Phelps immunity from liability even though Snyder was not a public figure and some of the actions of Phelps were not a public concern. This article will discuss the flaws in the Supreme Court’s decision and how this decision has fatal ramifications for tort law.

Keywords: First Amendment, Intentional Infliction of Emotional Distress, Tort, Westboro, State Action, First Amendment Immunity, Snyder

Suggested Citation

Maillet, Amanda Lea, R.I.P IIED: How the Supreme Court Eliminated Tort Liability for Verbal Conduct with the First Amendment (March 19, 2012). Available at SSRN: or

Amanda Lea Maillet (Contact Author)

affiliation not provided to SSRN ( email )

Paper statistics

Abstract Views