On November 7, 2007, students were given the following Washington Post story along with five assumptions from the instructor and a request the students prepare a memo indicating how they would go about addressing such a case. Students had roughly 20 minutes; the exercise had not been announced in advance, involved material outside the scope of the class, was not graded, and the "memos" were submitted anonymously. Thus, the purpose of the exercise was not to test students' mastery of the underlying legal doctrines -- or indeed to "test" anything in the conventional sense -- but rather to get a sense of the general analytical approach they would bring to any legal problem or factual setting.

$11 Million Awarded in Funeral Protest Suit

By Ruben Castaneda
Washington Post Staff Writer
Thursday, November 1, 2007; B01

A federal jury in Baltimore awarded nearly $11 million in damages yesterday to the family of a Marine from Maryland whose funeral was disrupted by members of a Kansas-based fundamentalist church.

One of the defendants said the civil award was the first against the church, whose members have stirred anger across the nation by picketing at funerals for service members killed in Iraq and Afghanistan, often carrying placards bearing virulent anti-gay slogans. The church maintains that God is punishing the United States, killing and maiming troops, because the country tolerates homosexuality.

Fred Phelps, pastor of the Topeka-based Westboro Baptist Church, scoffed at the jury and the award.
"It was a bunch of silly heads passing judgment on God," he said. "I don't believe anyone in the courtroom knows what the First Amendment is. Religious views are expressly protected by the First Amendment. You can't prosecute a preacher in civil law or in criminal law for what he preaches."

Phelps said the church would appeal, and he predicted that a higher court would overturn the award "in five minutes."
In the lawsuit, the family of Lance Cpl. Matthew A. Snyder argued that it had suffered invasion of privacy and infliction of emotional distress.

"The fact of the matter is, a funeral's private," said one of their attorneys, Sean Summers. "There was no public concern when [church members] showed up with a 'God Hates You' sign."

Messages left for Snyder's parents at their home were not immediately returned.

The jury ordered the pastor and two other church members -- his daughters, Shirley L. Phelps-Roper and Rebekah L. Phelps-Davis -- to pay $8 million in punitive damages and $2.9 million in compensatory damages. Snyder, of Westminster, died in a vehicle accident March 3, 2006, in Anbar province.

Members of the church protested at Snyder's funeral, displaying signs, including one that read, "Thank God for Dead Soldiers."

The church reportedly has fewer than 100 members, and it is far from clear whether the award will be collected. After the jury awarded the smaller compensatory damages, U.S. District Judge Richard Bennett noted that the size of that award "far exceeds the net worth of the defendants," the Associated Press reported.

In his closing arguments during the punitive damages phase, plaintiffs' attorney Craig Trebilcock described church members as bullies who "seek out those among us who are at the weakest point in our lives," the news agency reported.
"That's why they've gotten away with it until this point," the attorney said, adding that grieving families were too weak to fight back "until this man."

As a result of the pickets, several state legislatures have passed bills restricting protests at funerals or tightening existing limits, and lawmakers in more than a dozen other states are considering such measures, the Associated Press said.
Shirley Phelps-Roper said the verdict made her 50th birthday yesterday a happier one. She said the verdict would help the church, many of whose members are from the Phelps family, get its message out.

"We're making new signs: 'Thank God for $10.9 million.' Listen to that amount. It's so laughable," she said. "It was all I could do not to laugh. You guys think you can change God?"

(1) Assume this case is on appeal and that the judge who is to hear the case, a judge for whom you are clerking, wants an analytical memo from you (not a draft opinion) identifying and addressing the potential issues, and possible ways of resolving them

(2) Take the following as based on the Restatement’s definition of “intentional infliction of emotional distress”:
“extreme and outrageous” conduct, beyond all reasonable bounds of decency, intentionally inflicted on the plaintiff (that is, the defendant desired to cause mental anguish to the plaintiff, or knew it was substantially certain to occur)

(3) Assume that the defendants’ picketing, messages on their signs (e.g., “Thank God for dead soldiers” and “God hates fags”), and shouting took place on a city sidewalk, sufficiently close to the graveside services and burial that the plaintiffs were aware of it (and were in fact distressed by it), but not so close as to drown out the conduct of the services or cause family members reasonably to fear for their physical safety

(4) Assume that the cemetery is in Maryland, and that Maryland has no statute regarding protests at funerals, and that no agency of government (other than the federal district court, and representatives of the U.S. military – who are not parties or otherwise involved in the litigation) was involved in the case

(5) Assume that there are no issues on appeal involving damages

Funeral Protest:
This case obviously has some pretty serious implications.  There are some first amendment issues – do the people have the right to protest however and wherever they wish?  The 1st amendment does not welcome content-based restrictions, but there could be a question of “fighting words”, or words that would probably incite violence in a reasonable person – perhaps protesting at a person’s funeral would cause a reasonable, grieving family member to react in such a way.  That said, the group is probably in a “public forum” where 1st Amendment protects speech, given that they stayed on the government-owned sidewalk.  But we would have to consider whether being within earshot makes a difference.  Also, regarding the issue of IIED, it seems that, even though the funeral services were not disrupted per se, they were in the fact that the relatives had to attempt to participate in closing its for their loved one with constant yelling and picketing occurring quite nearby.  Also, there might be a problem since Maryland does not provide specifics statutory authority on the subject, but we could probably argue for the adoption of some such authority, by following the lead of our sister circuits.

The IIED claim seem valid to me.  Surely the D’s knew that their conduct, at a funeral, would be considered extreme and outrageous and beyond all bounds of decency because of the solemnity that our society has traditionally always afforded funerals/death.  Surely the protestors knew that havoc was substantially certain to occur.   Who wouldn’t believe that protesting at another’s funeral with fairly explicit signs would cause mental anguish?  It shouldn’t matter, in my eyes that, the protestors weren’t close enough to totally drown out the services or cause the family to fear physical harm – that isn’t required under IIED.  Obviously, the protest was directed at the family in a means to disturb the solemn occasion, and it qualifies as extreme in my mind.

The next issue is whether a restriction on this speech violates the protestors 1st Amendment.  Of course, the 1st Amendment only applies to government regulation of speech and since there is not statute that prohibits this kind of speech there might initially appear to be no ‘gov’t action’.  However, simply allowing this kind of IIED claim to be enforced by the courts might make it ‘state action’.  We’ve seen religion cases call action like this state action.  If it is considered state action – then what test applies?  O'Brien (is it an incidental restriction or speech?) or a true 1st amendment test (compelling interest, etc.).

The following are potential issues in this case:

I.  Did the family of Lance Cpl Matthew A. Snyder suffer invasion of privacy?

Within this issue are several sub-issues.  We will need to research whether courts recognize a right to privacy during a funeral.  Once we know the strength of that right, we will need to balance it alongside the 1st Amendment freedom of speech right that the church protestors claim.  We will need to pay close attention to Supreme Court opinions that discuss freedom of speech on publicly-owned sidewalks and we may be able to analogize to cases regarding abortion protests on public sidewalks outside clinics.  We will also want to examine the line of Supreme Court cases that discuss the likelihood of violence or disruption that arises from the speech at issue.  It is entirely possible that some of the protesting activities were protected and some were not.  We should analyze the protestors’ speech in terms of the written messages on their signs and in terms of their shouting (spoken messages). (The Supreme Court has recognized a difference, I think.)

II. Did the soldier’s family suffer an intentional infliction of emotional distress?  (IIED)

It appears that several elements must be proved in order to show the family did suffer IIED, under the restatement standard.

Did the protestors engage in “extreme and outrageous conduct?” Did their conduct extend “beyond all reasonable bounds of decency?” Was it “intentionally inflicted?” Within this third prong, we will have to analyze whether the protestors wanted to “cause mental anguish” to the family or whether the protestors “knew [anguish] was substantially certain to occur.”  These elements will likely be questions of fact.  The first element appears to contain an objective standard, although the others are subjective.

I. Analytical memo

a. Issue:  Prior Restraints  Re: state laws

Prior restraints must pass a heavy burden to be constitutional. However, here the funerals are private, unlike a public court proceeding, which must be open  unless there is a compelling reason to close them and closing them is narrowly tailored (there are no other alternatives) (Richmond Newspapers)  this is not yet an issue in Maryland, but it’s reasonably foreseeable that it could be.

b. Issue:  IIED

There’s no proof that the D intended to cause mental anguish to the P. It appears to be more of a publicity statement.  Thus, the burden tips toward the D because they exercised 1st Amendment rights.

c. Issue:  Obscenity

The words D used could be considered obscene.

Defendant’s right to free speech.

Does D have a right to speak at these funerals?  They were on public property.

Would these damages have an effect on D actions?  If more than D’s worth, can’t D continue without punishment?

Does free speech outweigh right to privacy?  What about damages from emotional distress?  Does this outweigh speech:  If we don’t like someone’s speech can we just bring this action?

Plaintiff’s right to privacy

Isn’t a funeral a private event?

Doesn’t P have the right to mourn without interruption?

P actions have minimal connection with D’s message so don’t they have a right not to be targeted?

Plaintiff’s Emotional Distress

Isn’t this just saying P doesn’t like D message?

If we punish here, when can’t we punish?

Statutes vs. Lawsuits

D wasn’t in violation of any statutes.

Shouldn’t this be treated through legislation?

Need to give people like D fair notice.

Privacy – Sidewalks are a traditional public forum which generally is difficult to restrict speech.  There is no explicit constitutional right to privacy.  Since the protestors were on public property they have a stronger case, particularly since it was a traditional public forum.

FA Issue – The offensive nature of the signs was readily apparent but the content may still be protected under the FA.  The nature of the signs and funeral may raise issues under Chaplunsky and Brandenburg.  There also may be some hate speech issues regarding the derogatory remarks toward homosexuals.

IIED – The funeral setting would make it difficult for defendants to argue that the acts were not intentional even if they did not actually intend this.  They should have known it was likely to occur on such a somber occasion.  Most reasonable people would likely view this as outside decent conduct.  Defendants may argue that they were not intending to inflict pain on plaintiffs but were targeting another audience.  (US Govt.)

One possible issue would be whether the award in general (upon a finding that the lower court was right with regard to liability) is gross and excessive.  The function of a compensatory remedy is to place the plaintiff, he would have been but for the defendant’s wrong.

Another issue would be whether any restriction on the religious group’s speech is classified as “conduct based speech.”  If so, whether or not the trail court correctly utilized strict sentencing may lead to remand.

Whether the group’s actions can be said to be outside the realm of all decency and meant to cause/substantially certain to cause mental anguish is questionable.  It could be argued that their intent was merely to spread their religious message and controversial one but one they are entitled to share.

Whether this counts an “invasion of privacy”?

Despite the lack of a state statute regarding protests at funerals, did the defendants violate a disorderly conduct statute?  Were such charges filed against them?  What was the outcome of those proceedings?

Punitive damages:  does the punitive damages award violate due process due to excessiveness?

Assuming the Gov/state farm reprehensibility factor is sufficiently met (and these facts do not reveal that), and assuming there is no excessiveness notice issue regarding comparable coil penalties set far below $8 million, a punitive compensatory ratio of 2.76:1 should fall well within constitutionally permissible bonds.  (single digit ratio, well under 4:1 (State Farm))

This case involves conflicting interests or rights of individuals supported by constitutions.  Rights of religion, and rights of speech (freedom of speech), and rights of being private are all based on constitutions.

However, another important thing that needs to be taken into consideration would be rational and reasonable thinking of individuals.

It is common sense that no one has right to interrupt other’s funeral with disruption.