A soldier is killed in Iraq, serving his country; his grieving father arranges a funeral service and burial in the nearby cemetery of their hometown church; a publicity-seeking religious sect, dedicated to hateful religious and homophobic disparagement, as well as denigration of the U.S. government and its military efforts, pickets the funeral service. Due to this arresting set of factual circumstances, Snyder v. Phelps, an intentional infliction of emotional distress claim by the dead soldier’s father against the leader and members of the sect, was afforded considerable media attention—triggering widespread outrage in support of the victimized father. Despite the outpouring of sympathy, however, when the case reached the U.S. Supreme Court, the Circuit Court of Appeals decision overturning a jury verdict in favor of the plaintiff was affirmed, 8-1, on First Amendment grounds, Snyder v. Phelps, 131 S.Ct. 1207 (2011).

Snyder is, in fact, an easy case, in my view. When an individual or organized group engages in speech about a matter of public concern, the landmark case of New York Times Co. v. Sullivan, 376 U.S. 254 (1964) has generated more than a half-century of precedent standing for the proposition that tort victims’ common law rights are substantially limited. The authority of Times—the power of its articulation of the values promoted by free and robust public discourse—has spilled beyond the borders of that Civil Rights-era defamation claim by southern officials against a widely-respected national newspaper to related tort areas of protection of personality: privacy (Time, Inc. v. Hill, 385 U.S. 374 (1967)) and intentional infliction of emotional distress (Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988)).