Sep 252009
 
 September 25, 2009  Posted by  Court

Annie Youderian reports:

Signs declaring “Thank God for dead soldiers” and “Fag troops” at the funeral of a Marine killed in Iraq may have been “distasteful and vulgar,” but they are nonetheless protected by the First Amendment, the 4th Circuit ruled Thursday, overturning a $5 million verdict against the Westboro Baptist Church.

The three-judge panel in Richmond, Va., vacated the verdict on the ground that it contradicted the Constitution.

Full story here. Court opinion here. (pdf)

The 2007 jury trial had considered three claims based on the funeral protest and an “epic” posted to the church group’s web site: intrusion upon seclusion, intentional infliction of emotional distress, and civil conspiracy. The jury had found for the Marine’s family on all three claims. Although the 4th Circuit found that the defendants should have prevailed based on the First Amendment, a dissenting opinion by Judge Dennis Shedd is interesting, because he argues that the plaintiff (Snyder) failed to provide sufficient evidence to any of the three tort claims and that the ruling should have been reversed on the grounds of state law and never reached the constitutional issue. With respect to the intrusion upon seclusion claim, Shedd writes:

In light of these cases, it is clear that there was no type of “intrusion” under any of the bases that Snyder asserts. First, as to the funeral protest itself, the Phelps did not “intrude” or “pry” upon any private seclusion. The Phelps never intruded upon a private place because their protest occurred at all times in a public place that was designated by the police and located approximately 1,000 feet from the funeral. Further, the Phelps never confronted Snyder, and Snyder admits he could not see the protest. Finally, there was no intrusion because the evidence is undisputed that the church service was never disrupted.

The Phelps never entered the church, and they stopped protesting when the church service began. In sum, I would hold the funeral protest did not intrude upon Snyder’s seclusion.

Likewise, I would hold that the Phelps’ posting of the “epic” on their church Internet website is not, as a matter of law, an intrusion upon Albert Snyder’s seclusion under Maryland law. In posting the “epic,” the Phelps did not do anything to direct it to Snyder’s attention, such as email or transmit it to him. Cf. Hollander, 351 A.2d at 426 (noting that repeated phone calls may give rise to an intrusion upon seclusion claim). Instead, Snyder learned of the “epic” during an Internet search, and upon finding it he chose to read it. By doing so, any interference with Snyder’s purported interest in seclusion was caused by Snyder himself rather than the Phelps.

In short, I conclude that the verdict on Count One cannot stand. The evidence is insufficient under Maryland law for the jury to have found that the Phelps committed any act that intruded upon Snyder’s right to seclusion.

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