In an opinion that may have been written by Heidi Montag, a federal court of appeals recently threw out a jury verdict for intentional infliction of emotional distress in favor of Albert Snyder against protesters who had showed up at his son Matthew’s funeral.

Solely because Matthew was a Marine, a Kansas-based cult, whose members are almost entirely from a single family, traveled to Maryland in order to stand outside Matthew’s funeral with placards saying things like, “God Loves Dead Soldiers,” “God Hates You,” “You’re Going to Hell,” “Semper Fi Fags,” “Thank God for Dead Soldiers,” “Thank God for IEDs” and “God Hates Fags.”

But wait, it gets funnier.

The cult’s leader/father is Fred Phelps, who calls America a “sodomite nation of flag-worshipping idolaters.” Since you won’t read it anyplace else, Phelps has run for public office five times – always as a Democrat.

The Fred Phelps cult members travel around the country and hold vile signs outside military funerals because they believe that the reason American soldiers die in wars is that God hates the U.S. because it tolerates homosexuals.

I’ll leave it to others to speculate as to why the very thought of male homosexuality gets Fred Phelps into such a lather.

Snyder has appealed his case to the Supreme Court, and now the court will have to decide whether the tort of intentional infliction of emotional distress (IIED) can exist in a country with a First Amendment.

The tort of IIED is not an obscure legal doctrine written in pig Latin. It means what it says: speech or conduct specifically intended to inflict emotional distress. The standard description of IIED is that a reasonable man viewing the conduct would react by saying, “That’s outrageous!”

The Second Restatement of Torts (1965) defines IIED as conduct “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” A classic example of IIED is to tell a mother her child is dead when he is not.

As a respected New York judge, Judith Kaye, put it, “The tort is as limitless as the human capacity for cruelty.” Inasmuch as IIED claims are based on all manner of insults, rudeness, name-calling and petty affronts, the claim is often alleged, but rarely satisfied.

But if a group of lunatics standing outside the funeral of a fallen American soldier with signs saying “GOD HATES FAGS!” does not constitute intentional infliction of emotional distress, then there is no such tort, anymore.

The protesters weren’t publishing their views in a magazine, announcing them on a “Morning Zoo” radio program, proclaiming them on some fringe outlet like “Countdown With Keith Olbermann.” They weren’t even standing on a random street corner. Their protest was held outside a man’s funeral for the specific purpose of causing pain to the deceased’s father and others left behind.

But the 4th Circuit Court of Appeals noticed that the cult’s malicious signs contained words, and that words are “speech” … which is protected by the First Amendment! (Or was it the Seventh?) Anyway, that was basically the end of the court’s analysis.

True, speech is typically involved in inflicting emotional distress.

Similarly, words are used in committing treason (“The Americans are over here!”), robbery (“Your money or your life!”) and sexual harassment (“Have sex with me or you’re fired.”). Copyright law prohibits speech that uses someone else’s words, and insider trading and trade-secrets laws prohibit the use of words revealing protected information.

The fact that “speech” was involved in the Fred Phelps cult’s assault on Matthew Snyder’s funeral is a mundane and irrelevant fact. The question is: Did that speech constitute intentional infliction of emotional distress? Hey, look! That reasonable man over there is nodding his head “yes.” If so, the First Amendment is as irrelevant as it is to a copyright law violation.

In Taylor v. Metzger, for example, the New Jersey Supreme Court found that a single joking reference to the plaintiff as “jungle bunny” despite an apology, stated a cause of action for “intentional infliction of emotional distress.”

The Fourth Circuit’s fascination with the Supreme Court’s decision in Hustler v. Falwell is utterly obtuse. That case involved Rev. Jerry Falwell’s lawsuit for intentional infliction of emotional distress based on a trashy parody of him in the magazine published by Clinton advisor Larry Flynt.
The court essentially held that not only can public figures not be defamed (New York Times v. Sullivan), but they cannot recover for intentional infliction of emotional distress caused by trashy magazine parodies.

Oh well. Public figures generally have pretty good lives.

Albert Snyder was not a public figure. He was not injecting himself into the public eye in any way. He was a father attending his son’s funeral.

The Supreme Court has upheld shockingly restrictive bans on speech outside of abortion clinics: content-based restrictions on the speech of pro-lifers singing, “Jesus loves the little children, all the children of the world, red and yellow, black and white, they are precious in His sight, Jesus loves the little children of the world.”

Is abortion more sacrosanct than a son’s funeral? Is singing “Jesus loves the little children” deserving of less First Amendment protection than placards saying, “God Loves Dead Soldiers”? Hey, reasonable man over there — got a minute?

Even the Fred Phelps cult’s “epic” posted online and accusing the Snyders of raising their son badly, which would seem to have the strongest claim to First Amendment protection, might not be protected in other contexts. Last week in Massachusetts, nine teenagers were criminally charged with cyberbullying, based in part on malicious postings about the victim on their Facebook pages.

Thanks to idiot lawyers, who think it makes them sound smart to defend the indefensible, one of the biggest problems in society today is the refusal to draw lines. Here’s a nice big, bright line: Holding malevolent signs outside the funeral of an American son, defaming the deceased, constitutes intentional infliction of emotional distress.

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