Snyder v. Phelps – Oral Argument – October 06, 2010

Media for Snyder v. Phelps

Audio Transcription for Opinion Announcement – March 02, 2011 in Snyder v. Phelps

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John G. Roberts, Jr.:

We will hear argument first today in Case 09-751, Snyder v. Phelps.

Mr. Summers.

Sean E. Summers:

Mr. Chief Justice, and may it please the Court:

We are talking about a funeral.

If context is ever going to matter, it has to matter in the context of a funeral.

Mr. Snyder simply wanted to bury his son in a private, dignified manner.

When the Respondent’s behavior made that impossible, Mr. Snyder was entitled to turn to the tort law of the State of Maryland.

Antonin Scalia:

Are we just talking about a funeral?

That’s one of the problems I have with the case.

There was also this video that your client watched, right, later, after the funeral.

Sean E. Summers:

There was a flyer that was sent out prior to the funeral.

We have the funeral and we have what they described as the epic which was put on the Internet afterwards, which–

Antonin Scalia:

Right.

Well, what does that have to do with the funeral?

Sean E. Summers:

–As the district court explained, and the circuit court followed their logic, and I think the facts at trial confirmed this, that the epic was essentially a recap of the funeral protest itself.

Antonin Scalia:

That’s fine, but it — it does not intrude upon the funeral.

I mean, no.

You either have two separate causes of action — one is the intrusion upon the funeral and the other is the harm caused by viewing this posting on the Internet — but I don’t see how they both relate to intrusion upon the funeral.

Sean E. Summers:

Well, the–

Antonin Scalia:

And they were just submitted to the jury as one big lump, right?

Sean E. Summers:

–Well, we had the flyer that was submitted, that was sent out before the funeral.

We have the facts of the funeral.

And yes, the epic did — of course, we focused on the personal, targeted comments in the epic when we presented our evidence.

But yes, it was–

Antonin Scalia:

Suppose there hadn’t been a funeral protest, just the epic.

Would that have supported the cause of action you assert here?

Sean E. Summers:

–I think that’s a closer call.

But when we have the personal–

Antonin Scalia:

Yes or no?

Sean E. Summers:

–I would say yes, because we have the personal, targeted epithets directed at the Snyder family.

Antonin Scalia:

Even though it’s — he doesn’t have to watch them?

They are just posted on the Internet.

Sean E. Summers:

That’s correct, Justice Scalia.

Antonin Scalia:

It’s his choice to watch them, but if he chooses to watch them he has a cause of action because it causes him distress.

Sean E. Summers:

Well, the — he has a cause of action.

That doesn’t mean he’s going to win.

You still have the pleading standards, the summary judgment standards, and the motion to dismiss standards.

Ruth Bader Ginsburg:

Well, why does he have a claim?

As I understand it, after this case arose Maryland passed a statute putting time, place, and manner restrictions.

I read that statute and it seems to me that there was nothing unlawful, nothing out of compliance with that statute, that was done here.

It was at considerable distance.

There was no importuning anyone going to the funeral.

It stopped before the funeral, the service, began.

Am I right that under the current statute this conduct was not unlawful?

Sean E. Summers:

Justice Ginsburg, the statute wasn’t in place at the time.

But there’s a complicated answer to the question, because they were positioned about 30 feet from the main vehicle entrance to the church, and they rerouted the funeral procession so they were 200 to 300 feet away from–

Ruth Bader Ginsburg:

Didn’t they stand where the police told them to?

Sean E. Summers:

–Well, they — they told the police where they wanted to stand and the police said okay.

So the police didn’t say, please stand here.

They said — in fact, they sent out a flyer–

Ruth Bader Ginsburg:

And it was there with the knowledge of the police and with the permission of the police.

Sean E. Summers:

–It’s true they did not violate any criminal statutes.

Samuel A. Alito, Jr.:

Is there anything to suggest that the Maryland legislature, in enacting that statute, intended to occupy the field of regulations of events that occur at funerals?

Sean E. Summers:

I believe the Maryland legislature made it clear that they didn’t want people to protest funerals in general.

When you–

Ruth Bader Ginsburg:

But they didn’t prohibit it.

Sean E. Summers:

–They didn’t prohibit it under certain circumstances and in a certain–

Ruth Bader Ginsburg:

Well, is this the case which the facts here meet.

Sean E. Summers:

–For statutory enforcement.

But what we are dealing with here is tort law.

Antonin Scalia:

That statute applies to any protest at funerals: Protesting the Vietnam War, protesting whatever.

Your case involves, at least if we accept your version of it, a protest of the dead soldier who — who is going to hell and whose parents have raised him to go to hell.

So simply to say you can have a protest within a certain distance is not to say you can have a protest within a certain distance that defames the corpse.

That’s a different issue, isn’t it?

Sean E. Summers:

That’s our position, yes, Justice Scalia.

And–

Ruth Bader Ginsburg:

If you knew just what was going on, do you suppose — because this had been done before.

In fact, wasn’t this the very same day they picketed at Annapolis and at the State Capitol.

Sean E. Summers:

–They picketed, yes, those three locations that day.

Ruth Bader Ginsburg:

So they knew what the signs were going to be.

Could they have gotten an injunction, do you suppose, against this protest?

Sean E. Summers:

I don’t think they could have beforehand because although you said we knew what the signs were going to be, generally from their pattern I think we could guess what the signs may have been, but you don’t really know what the signs are going to be until they show up.

For example, in this case, they had a sign that said “priests rape boys”, they had a sign that said

“God hates you, you are going to hell. “

Ruth Bader Ginsburg:

So you could go into court and say that the signs were this, that or the other things at the State Capitol, the same signs at Annapolis; they’re going to use the same signs at this protest.

Sean E. Summers:

As — Justice Ginsburg, from our perspective, the signs that said

“God hates you, you are going to hell. “

referred directly to Matthew Snyder and we would hope and believe that the district court could enjoin those types of specific targeted epithets.

If, for example, this was done at a public park in Montana, logically I think you could conclude that it wasn’t directed at the family.

But when you show up at a 20-year-old marine’s funeral and say “you are going to hell”–

Ruth Bader Ginsburg:

Did they have the “going to hell” sign at the State Capitol and Annapolis?

Sean E. Summers:

–They had — the majority of the signs were the same, yes.

Ruth Bader Ginsburg:

Those particular ones that you mention, did they have those at the other two?

Sean E. Summers:

Yes.

I believe the only ones that they changed is they have a sign for each different branch of the service.

Matt was a marine, so–

Ruth Bader Ginsburg:

So it sounds like to you it’s the whole society, the whole rotten society in their view.

Sean E. Summers:

–If we are forced to accept their view, yes, Justice Ginsburg, that’s what they testified to.

Mr. Snyder’s view, the view of the Fourth Circuit, was that these Mr. Snyder certainly interpreted that as referring to his son, because after all Matthew Snyder was the only deceased marine/soldier at the funeral.

Ruth Bader Ginsburg:

Where did — you said the Fourth Circuit found that those signs targeted the family rather than the whole U.S. society?

Sean E. Summers:

The v. Falwell.

Samuel A. Alito, Jr.:

Do you think that the epic is relevant as an explanation of some of the these arguably ambiguous signs that were displayed at the funeral?

For example, “You are going to hell”, “God hates you”; who is “you”?

If you read the epic, perhaps that sheds light on who “you” is.

Sean E. Summers:

It can shed light, but if you put this in the context of a funeral-goer, Justice Alito, what you have is — it was a typical funeral, family members driving in and–

Samuel A. Alito, Jr.:

Well, yes, but the signs say “you” and the argument is made “you” doesn’t mean Matthew Snyder; it means a larger group.

And then you have the epic, which is directed directly at Matthew Snyder.

Doesn’t that show — shed light on what “you” meant on those signs?

Sean E. Summers:

–Correct, and that’s where I was going to go with that, Justice Alito.

The epic specifically referenced Matthew Snyder by name, specifically referenced Matthew’s parents by name.

So in our judgment, and the defendants testified that the epic sort of explained, at least in their explanation, explained the funeral protest itself.

Stephen G. Breyer:

I’m not certain that this is about the funeral.

I mean, understand there was a funeral in it, but the First Amendment question seems to me a different, possibly a broader and different question.

Did your client see the signs?

I gather from the record he didn’t see what the signs were; he just saw tops of signs.

So he didn’t read anything on the signs, is that right?

Sean E. Summers:

He didn’t read the content.

Stephen G. Breyer:

So he hadn’t seen them.

So how does — how did your client find out that the signs, the tops of which he saw at the funeral when the demonstrators were standing, with the approval of the police, 300 feet away, how did he find out what they said?

Sean E. Summers:

Your Honor, 2 days in advance they sent out a flyer announcing they were going to protest the funeral.

They had Matthew Snyder’s picture there.

They claimed they were going to protest at St. John’s Catholic dog kennel.

Stephen G. Breyer:

Did they say in — my question is, how did your client find out these very objectionable things on the signs?

How did he find out what they said?

Sean E. Summers:

He found out about the specifics of the signs–

Stephen G. Breyer:

Yes, that’s what I’m interested in.

Sean E. Summers:

–by going to the family wake immediately following and seeing it on the television.

Stephen G. Breyer:

Okay.

So now we have two questions.

One is under what circumstances can a group of people broadcast on television something about a private individual that’s very obnoxious, because at the funeral you say that — and I accept that from your point of view — that is very obnoxious.

Stephen G. Breyer:

And the second is to what extent can they put that on the Internet, where the victim is likely to see it, either on television or by looking it up on the Internet?

Now, those are the two questions that I am very bothered about.

I don’t know what the rules ought to be there.

That is, do you think that a person can put anything on the Internet?

Do you think they can put anything on television even if it attacks, say, the most private things of a private individual?

Does Maryland’s — does Maryland’s law actually prohibit that?

Do we know it does, and what should the rules be there?

Have I said enough to get you talking?

[laughter.]

Sean E. Summers:

Yes, Your Honor.

Right now the rule we are stuck with is Hustler v. Falwell for intentional infliction of emotional distress, and the–

Ruth Bader Ginsburg:

Your claim is that Hustler was a — Falwell was a public figure and the Snyder family is not.

So I think what I got from your brief is you don’t fall under that case because you are not dealing with a public figure.

Sean E. Summers:

–That’s correct, Justice Ginsburg.

John G. Roberts, Jr.:

Okay.

Were you finished answering Justice Breyer’s question?

Stephen G. Breyer:

The more you say about this the happier I will be, because I’m quite interested.

Sean E. Summers:

The private targeted nature of the speech in our judgment is what makes it unprotected.

So for example, the epithets directed at the family would be unprotected.

If, for example, a person repeatedly put on the web site that Mr. Smith has AIDS, whether it’s true or not, essentially at some point in time it might rise to the level of an intentional infliction of emotional distress.

There would have to be other facts combined there.

John G. Roberts, Jr.:

So you have no objection if the sign said “Get out of Iraq”, an antiwar protest, in other words not directed at this particular individual?

Sean E. Summers:

Correct.

I don’t think–

John G. Roberts, Jr.:

So no objection there?

Sean E. Summers:

–I don’t think there’d be any constitutional impediment to bringing — or the Constitution would not — would bar that claim from going forward.

Sonia Sotomayor:

Excuse me–

Antonin Scalia:

So the intrusion upon the privacy of the funeral is out of the case then, right, because that sign would intrude upon the privacy of thea funeral just as much?

That’s not really what you are complaining about.

You are complaining about the personal attacks, aren’t you?

Sean E. Summers:

Yes, Justice Scalia, and I think under a certain scenario, you could have, regardless of the signs, you could have a scenario where the funeral was disrupted and it was disrupted in this case.

Ruth Bader Ginsburg:

It was or it wasn’t.

Sean E. Summers:

It was, Justice Ginsburg.

Ruth Bader Ginsburg:

I thought that when the service itself began the protesters stopped.

Sean E. Summers:

The police testified that, I think it was, about 8 minutes after the funeral started, that the protesters left the area.

Sonia Sotomayor:

–Were they encouraged–

Antonin Scalia:

I thought that they had to come in a different entrance?

Is that the extent of the disruption?

Sean E. Summers:

Well, according to I believe all the witnesses, yes, they had to come in–

Antonin Scalia:

In order to avoid the protest.

Sean E. Summers:

–That, and they certainly took away, according to the priest that was coordinating the mass, they certainly took away the peaceful experience that all private figures–

Antonin Scalia:

But you wouldn’t have objected to that if there weren’t these nasty signs, you just said, right?

Sean E. Summers:

–No.

I hope I said, Justice Scalia, that under the right context, jut the signs alone, if that’s all we are saying, there’s a sign out there that says “God hates America”, I don’t think that we could have a claim there.

But if they in fact disrupted the funeral, I do think in some set of facts there could be a claim.

Antonin Scalia:

All right.

Sonia Sotomayor:

–Counsel, I’m trying to tease out the importance of the — whether the person’s a private — or public figure — a private person or a public figure.

Does it make a difference if I am directing public comments to a public or private figure?

Sean E. Summers:

Well, in the context of defamation we had the Rosenbloom followed by the Gertz decision.

Sonia Sotomayor:

No, I’m talking about in terms of infliction of emotional distress.

If I am talking to you as a Marine, if you were a Marine, and I was talking about the Iran war and saying that you are perpetuating the horrors that America’s doing and said other things that were offensive, would you have a cause of action because you are being called a perpetrator of the American experience?

Sean E. Summers:

I’d think there’d be — have to be a lot more facts involved, harassing type of facts.

The–

Sonia Sotomayor:

But you are saying yes.

So public speech, speech on a public matter, if directed to a private person, should be treated differently under the law?

I think that was part of what Justice Breyer was asking.

Is that what your position is?

Sean E. Summers:

–Public speech, even directed to a private figure, should be treated differently than as directed towards a public official.

Sonia Sotomayor:

All right.

And under what theory of the First Amendment would we do that?

Sonia Sotomayor:

What case would stand for, our case, stand for the proposition that public speech or speech on a public matter should be treated differently depending on the recipient of the speech?

Sean E. Summers:

Gertz v. Welch treated the public versus private figure status different, albeit–

Ruth Bader Ginsburg:

That was defamation, wasn’t it?

Sonia Sotomayor:

That was defamation.

That’s false — truth or falsity.

Sean E. Summers:

–Correct.

Correct, but the problem is, the only other case we have that deals with intentional infliction of emotional distress from this Court is Hustler v. Falwell, and Hustler v. Falwell clearly dealt with a public figure.

The States have interpreted Hustler v. Falwell as not applying to a private figure.

Sonia Sotomayor:

But have they done it in the context of differentiating between public and private speech?

Sean E. Summers:

Yes, there is an Illinois case that we cited in the brief where it was specifically said it was a matter of public concern, and they said the plaintiff was not a public figure; therefore the — just, you have to meet the elements of intentional infliction of emotional distress.

Sonia Sotomayor:

I was not talking about State cases.

I was talking about a Supreme Court case that suggested that we would treat — we would treat the First Amendment and the right to — to speak on public matters differently, depending on the person to whom it was directed?

Sean E. Summers:

I think Gertz v. Welch says that.

Dun & Bradstreet says you have to at least look at the context of the situation.

Sonia Sotomayor:

So it goes — it goes to the context.

Now, going to the context of this speech, do we look at the words on a sign alone or do we look at the entire context of what all of the other signs said at the demonstration, to determine whether or not the speech here was public or private speech?

Sean E. Summers:

I think you have to look at the particular signs, because if you don’t, anyone could come up with a public concern, because they could direct any type of epithets at a person.

In the middle of their paragraph they could say: I’m for taxes or I’m against taxes, and therefore the entire statement would be–

Sonia Sotomayor:

Well, in that case–

Antonin Scalia:

Mr. Summers, I’m a little concerned at your apparent acceptance of — of the proposition that if one comes up to a Marine and says, you are contributing to a — a terribly unfair war, that that alone would — would form the basis for the — the tort of intentional infliction of an emotional distress.

What — what are the requirements for that?

I thought that it had to be outrageous conduct.

Doesn’t it have to be outrageous conduct?

Sean E. Summers:

–It does, Justice Scalia, and I wasn’t suggesting–

Antonin Scalia:

Well, I mean — I mean, why accept that as — as parallel to what — to what you are claiming here?

Sean E. Summers:

–And I hope I didn’t.

What I meant to say, if I didn’t, was there would have to be a lot more facts involved to rise to the level of an intentional infliction of emotional distress case if you just told the Marine, for example, you’re not in favor of the war.

Stephen G. Breyer:

What about the — taking — if you have an instance where the defendant has said on television or on the Internet something absolutely outrageous, you showed that.

You show that it was intended to and did inflict serious emotional suffering.

You show that any reasonable person would have known that likelihood, and then the defendant says: Yes, I did that, but in a cause, in a cause.

Stephen G. Breyer:

And now — in a cause that we are trying to demonstrate how awful the war is.

At that point I think the First Amendment might not leave this alone.

But if it’s not going to leave this alone, there’s where we need a rule, or we need an approach or we need something to tell us how the First Amendment in that instance will begin to — enter and force a balancing.

Is it that you want to say no, no punitive damages in such a case?

Or that you would have to insist upon a particularly clear or a reasonable connection between the private part of this and the public effort?

Have you thought about that at all?

Because that’s where I am thinking and having trouble.

Sean E. Summers:

The — I think the standard should be Hustler v. Falwell generally does not apply–

Stephen G. Breyer:

Hustler — Hustler v. Falwell is defamation.

Sean E. Summers:

–I thought Hustler v. Falwell was intentional infliction of emotional–

Stephen G. Breyer:

Intentional infliction, okay, good.

Thank you.

Go ahead.

Elena Kagan:

Mr. Summers–

Stephen G. Breyer:

Well, answer then, please.

Sean E. Summers:

–I think the rule should be Hustler v. Falwell generally does not apply to a private figure unless the defendant can show some compelling connection there, and if you — if you–

Stephen G. Breyer:

Compelling.

Sean E. Summers:

–Or at least reasonable, rational connection.

In this case they don’t even claim there is a connection.

They just used this moment to hijack someone else’s private event when they are grieving over a 20-year-old child’s funeral.

Elena Kagan:

–Mr. Summers, Hustler seems to me to have one sentence that is key to the whole decision, and it goes like this.

It says:

“Outrageousness in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views or perhaps on the basis of their dislike of a particular expression. “

How does that sentence — how is that sentence less implicated, in a case about a private figure than in a case about a public figure?

Sean E. Summers:

Well at least in Hustler — Justice Kagan, at least in Hustler v. Falwell we had a traditional area of public discourse.

We had a parody.

I believe the opinion went to great length to explain that.

Here what we are talking about is a private funeral.

I don’t — I would hope that the First Amendment wasn’t enacted to allow people to disrupt and harass people at someone else’s private funeral.

Ruth Bader Ginsburg:

So–

Elena Kagan:

But that goes back to the question that was asked previously about, suppose you had a general statute that just said, there will be no disruptions of any kind at private funerals.

You know, pick your distance, 500 feet, 1,000 feet, but something that didn’t refer to content, that didn’t refer to ideas, that just made it absolutely clear that people could not disrupt private funerals.

What harm would that statute not address in your case?

Sean E. Summers:

Well, the States have — in the statutory case, they have the interest of penalizing the offending party.

In tort law, the State’s interest is to provide a remedy for its citizens.

Under the Fourth Circuit’s interpretation of these facts, Mr. Snyder has absolutely no remedy, none.

He is a private figure, a grieving father, and he is left without any remedy whatsoever.

Ruth Bader Ginsburg:

–We have other instances where conduct is lawful, meets all the terms of the statute that’s meant to govern protests at funerals, and yet there is an award of damages permitted.

Sean E. Summers:

I believe that the Hustler v. Falwell was a — had several tort claims, but there was no criminal statute violated.

I understand that it went the other way because of the public figure status, but that would be an example.

Another example–

Ruth Bader Ginsburg:

Well, that was a — I’m not asking you for an example where — a Federal case where the conduct was permitted by the statute, by the policemen there, and yet there was — was a damage award.

Sean E. Summers:

–Justice Ginsburg, I am not aware of any case, but I think the — if for example someone sued someone for defamation, there probably wouldn’t be a statute that was violated so I don’t — I would presume–

Ruth Bader Ginsburg:

I’m talking about this intentional infliction of emotional distress claim that you’re bringing.

Sean E. Summers:

–Other than Hustler v. Falwell, I do not have any Federal cases to cite to you.

The State cases we cited in our brief–

Samuel A. Alito, Jr.:

Is this the situation in which all conduct that complies with the Maryland funeral protest statute is lawful?

If the Maryland legislature said this is the — these are the exclusive regulations that apply here, so that if someone came up to Mr. Phelps at the funeral and spat in his face, that would not be — that wouldn’t be illegal?

Sean E. Summers:

–Justice Alito, I don’t know whether that would be criminally–

Samuel A. Alito, Jr.:

Because it’s not specifically prohibited by the statute.

Ruth Bader Ginsburg:

Well, it certainly wouldn’t be because of the distance.

I mean, you would have to be a lot closer than the Maryland statute allows to spit in someone’s face.

John G. Roberts, Jr.:

Perhaps you would like to answer Justice Alito’s question.

Sean E. Summers:

–I believe that you could commit a tort and still be in compliance with the criminal code, Justice Alito.

Antonin Scalia:

Mr. Summers, can I ask you: Suppose I don’t think you have a cause of action for invasion of privacy when these people were at this distance from the funeral.

But that was one of the causes of action submitted to the jury.

If I disagree with you on that cause of action, I suppose I would have to say there has to be a retrial now.

Sean E. Summers:

Of course this Court could do that, Justice Scalia.

Antonin Scalia:

So you have to support both causes of action here, the intentional infliction of emotional distress and the invasion of privacy, right?

Sean E. Summers:

Yes, Justice Scalia.

Sean E. Summers:

But according to the Fourth Circuit, we agree that the Respondents waived that issue by not appealing that issue.

Antonin Scalia:

Waived what issue?

Sean E. Summers:

The invasion — or elements of the invasion of privacy.

They didn’t contest that we met the elements of the tort.

They — they contested the constitutional issue, but not whether or not we met the elements of the tort.

Antonin Scalia:

Oh, all right.

Okay.

Sean E. Summers:

I’d like to reserve the remainder.

John G. Roberts, Jr.:

Thank you, counsel.

Ms. Phelps.

Margie J. Phelps:

Mr. Chief Justice, and may it please the Court:

When members of the Westboro Baptist Church entered an ongoing, extensive, public discussion and wide array of expressive activities taking place in direct connection with the deaths and funerals of soldiers killed in Iraq and Afghanistan, they did so with great circumspection and they did so with an awareness of the boundaries that have been set by the precedents of this Court.

Elena Kagan:

Ms. Phelps, suppose — suppose your group or another group or — picks a wounded soldier and follows him around, demonstrates at his home, demonstrates at his workplace, demonstrates at his church, basically saying a lot of the things that were on these signs or — or other offensive and outrageous things, and just follows this person around, day-to-day.

Does that person not have a claim for intentional infliction of emotional distress?

Margie J. Phelps:

Any non-speech activity like stalking, following, importuning, being confrontational, could indeed give rise to a cause of action.

Elena Kagan:

Demonstrations outside the person’s home, outside the person’s workplace, outside the person’s church — demonstrations, not disruptions, but saying these kinds of things: You are a war criminal, you — what — would — whatever these signs say or worse?

Margie J. Phelps:

My answer, Justice Kagan, is: No, I don’t believe that that person should have a cause of action or would under your cases have a cause of action.

You couldn’t give that cause of action without direct reference to the viewpoint, which is exactly what happened in this case.

Antonin Scalia:

My goodness.

We did have a doctrine of fighting words, and you acknowledge that if somebody said, you know, things such as that to his face, that wouldn’t be protected by the First Amendment.

Margie J. Phelps:

We agree that fighting words are less protected under the First Amendment.

Antonin Scalia:

Unprotected.

Margie J. Phelps:

I will go with unprotected, Justice Scalia.

And if I may add this: Fighting words require imminence, they require proximity, and they require a lack of those words being part of a broader political or social–

Antonin Scalia:

Is that so?

Do we know that?

Margie J. Phelps:

–I beg your pardon?

Antonin Scalia:

Do we know that?

Is it the criterion of the fighting words exception to the First Amendment that there be an actual fight?

Certainly not that.

Antonin Scalia:

Is it a requirement that there be a potential for a fight?

I doubt it.

Where — where do you get the notion that it has — that there has to be an imminent fight?

Margie J. Phelps:

I get the notion from the series of cases starting within 7 years after your Chaplinsky case with the Gooding case and on down through the Brandenburg case and on down–

Antonin Scalia:

Which say what?

Margie J. Phelps:

–That say that–

Antonin Scalia:

The person was too remote?

The fight was not — was not imminent?

Margie J. Phelps:

–The — the definition, the working definition of “fighting words”, is that they have to be words which by their nature are likely to incite an immediate breach of the peace and not occur in the context of some social, artistic, educational, or political kind of speech.

And if I may hasten to add, Justice Scalia, these Respondents were not charged with fighting words.

The jury was not instructed to limit themselves to fighting words.

No element of the tort under which liability attached included fighting words.

The words that were at issue in this case were people from a church delivering a religious viewpoint, commenting not only on the broader public issues that the discussion was underway in this nation about dying soldiers, about the morals of the nation–

Ruth Bader Ginsburg:

Ms. Phelps, there is no question that these signs and the signs like that we saw during the Vietnam War.

But you had the demonstration at the capitol, and you had the demonstration at Annapolis.

This is a case about exploiting a private family’s grief and the question is: Why should the First Amendment tolerate exploiting this Marine’s family when you have so many other forums for getting — getting across your message, the very same day you did?

Margie J. Phelps:

–Right.

So several pieces to that, Justice Ginsburg.

When I hear the language “exploiting the bereavement”, I look for: What is the principle of law that comes from this Court?

And the principle of law, as I understand it, is without regard to viewpoint, there are some limits on what public places you can go to, to deliver words as part of a public debate.

If you stay within those bounds — and under these torts even, this notion of exploiting, it has no definition in a principle of law that would guide people as to when they could or could not.

And if I may–

Samuel A. Alito, Jr.:

Is it your — is it your argument that the First Amendment never allows a claim for the intentional infliction of emotional distress based on speech unless the speech is such that it can be proven to be false or true?

Margie J. Phelps:

–In–

Samuel A. Alito, Jr.:

Is that your argument?

Margie J. Phelps:

–With a — yes, Justice Alito, and with a little bit more from your cases, if I may: And not under an inherently subjective standard, and where you’re only claiming that the impact of the speech was adverse emotional impact.

Samuel A. Alito, Jr.:

All right.

Well, Justice Kagan gave you one example.

Let me give you another example along the same lines.

Let’s say there is a grandmother who has raised a son who was killed in Afghanistan or in Iraq by an IED.

Samuel A. Alito, Jr.:

And she goes to visit her son’s — her grandson’s grave, and she’s waiting to take a bus back to her home.

And while she’s at the bus stop, someone approaches and speaks to her in the most vile terms about her son: He was killed by an IED; do you know what IEDs do?

Let me describe it for you, and I am so happy that this happened; I only wish I were there; I only wish that I could have taken pictures of it.

And on and on.

Now, is that protected by the First Amendment?

There is no false statement involved and it’s purely speech.

Margie J. Phelps:

Right.

And — and it may give rise to some fighting words claim, depending on the proximity and the context.

And I would have to know what–

Samuel A. Alito, Jr.:

Well, it’s an elderly person.

She’s really probably not in — in a position to punch this person in the nose.

Antonin Scalia:

And she’s a Quaker, too.

[Laughter]

Margie J. Phelps:

–Yes.

Let us assume that the grandmother had not done what Mr. Snyder did in this case.

Mr. Snyder from the moment he learned of his son’s death went to the public airways multiple times in the days immediately before and immediately after–

Antonin Scalia:

Do you think that everybody–

John G. Roberts, Jr.:

What is your answer to Justice Alito’s question?

Do you think the First Amendment would bar that cause of action or not?

Margie J. Phelps:

–There would have to be a very narrow circumstance where it didn’t, Mr. Chief Justice.

That’s my answer.

John G. Roberts, Jr.:

So you think there are situations where a tort of intentional infliction of emotional distress is allowed, even for a matter of public debate?

Margie J. Phelps:

Not public debate, Mr. Chief Justice.

That is not the way I understood the hypothetical he posed me.

John G. Roberts, Jr.:

Well, I understood the hypothetical, that the person disagreed with the war in Iraq and the sending of American troops there.

Margie J. Phelps:

Right, and knew that this elderly woman was the grandmother of a soldier.

And I would ask the question in the hypothetical, how they knew, which is why I was making reference to what Mr. Snyder did.

John G. Roberts, Jr.:

The person selects the grandmother because he thinks that will give maximum publicity to his views.

Now, is — does the First Amendment bar that cause of action or not?

Margie J. Phelps:

If the grandmother entered the public discussion, the First Amendment bars it.

John G. Roberts, Jr.:

Well, no — Justice — Justice Alito posed, the grandmother was returning from the grave of her grandson.

She didn’t enter the public discussion at all.

So I’m anxious to determine whether in those circumstances you think the First Amendment allows that cause of action or not.

Margie J. Phelps:

I am reluctant to say that it does not, Mr. Chief Justice.

However–

Ruth Bader Ginsburg:

But you gave the answer before about — you said stalking.

Margie J. Phelps:

–Right.

Ruth Bader Ginsburg:

Isn’t this comparable to stalking?

Margie J. Phelps:

And that’s what I was trying to liken it to, and that’s what it sounds more like to me.

John G. Roberts, Jr.:

Do you think it satisfies the normal tort or law against stalking for someone to come up to an individual and engage in discussion?

I thought a lot more was required.

Margie J. Phelps:

Well, Mr. Chief Justice, I would not file that claim for that person, for that elderly grandmother.

I am not prepared, without knowing more, to say absolutely there could be no cause of action.

What I am prepared to say is there was absolutely much more than that in this case.

Samuel A. Alito, Jr.:

Well, if there — if that — there is a possibility there is a claim there, then what distinguishes that from this case?

Now, I thought you were beginning to say that my hypothetical is different because Mr. Snyder made his son into a public figure; and the question I wanted to ask in that connection is whether every bereaved family member who provides information to a local newspaper for an obituary thereby makes the deceased person a public figure?

Margie J. Phelps:

Not the deceased person, Justice Alito.

We don’t allege that the young man dead was a public figure.

We do–

Samuel A. Alito, Jr.:

But if the grandmother called up the local paper and said, let me tell you something about my grandson–

Margie J. Phelps:

–Yes.

Samuel A. Alito, Jr.:

–who was just killed in Iraq.

You know, he liked football and camping.

Margie J. Phelps:

Right.

Samuel A. Alito, Jr.:

That makes him — that makes her a public figure?

Margie J. Phelps:

It’s getting closer.

And Justice Alito, if she went on then to say, and how many more parents like me and my ex-wife are going to have to suffer this way and when will this senseless war end, and I’ve gotten Congressman Murtha on the phone and talked about this situation, and I’m against the war, and then proceeded to repeat that question in the public airwaves repeatedly, then a little church where the servants of God are found say, we have an answer to your question that you put in the public airwaves and our answer is you have got to stop sinning if you want this trauma to stop happening–

John G. Roberts, Jr.:

Your response — your response to Justice Alito is dwelling on the facts of this particular case.

Margie J. Phelps:

–Yes, sir.

John G. Roberts, Jr.:

I’m interested in knowing what your position is on the broader question.

John G. Roberts, Jr.:

Can you imagine a circumstance where this same type of discussion is directed at an individual and yet would give rise to the tort of emotional distress?

Margie J. Phelps:

Yes, I can imagine, Mr. Chief Justice.

John G. Roberts, Jr.:

I’m sorry, can or cannot?

Margie J. Phelps:

I can.

John G. Roberts, Jr.:

You can.

Margie J. Phelps:

I can imagine that there could be a circumstance, a hypothetical, where there was not this level of involvement, and it was out of the blue and it was up close, if I may use the term, confrontational.

John G. Roberts, Jr.:

Okay.

So if you recognize that there can be a tort of emotional distress in circumstances like that, isn’t that, the factual question of whether it rises to that level of outrageousness, which is part of the tort for the jury?

Margie J. Phelps:

I don’t agree with that, Mr. Chief Justice, because you have now taken an inherently subjective standard with the absence of any of these non-speech misbehaviors.

And now you are back to only — the only barrier between a person and their First Amendment right to robust public debate, including this Court has said, outrageous statements–

John G. Roberts, Jr.:

Does it make — I’m sorry.

Margie J. Phelps:

–with just that subjectively inherent standard, and that subjective statement of emotional impact.

This Court has said repeatedly–

John G. Roberts, Jr.:

Does it make a–

Margie J. Phelps:

–we won’t let that go.

John G. Roberts, Jr.:

–Does it make a difference, which seems to me to be the case here, that Mr. Snyder was selected not because of who he was, but because it was a way to get maximum publicity for your client’s particular message?

Margie J. Phelps:

That is not accurate, Mr. Chief Justice, with due respect.

John G. Roberts, Jr.:

Well, assuming it is accurate, does that make a difference?

Margie J. Phelps:

The motive of the speaker to get maximum exposure, which every public speaker pines for, looks for, strives for, and is entitled to — does not change the legal principle that’s at play.

John G. Roberts, Jr.:

Well, it might affect whether or not the selection inflicts emotional distress for a reason unconnected with the individual who is the subject of the emotional distress.

Margie J. Phelps:

Well, if–

John G. Roberts, Jr.:

In other words, if the person is selected because, as I indicated, it gives maximum publicity, rather than because of a particular connection to the matter of public debate, I wonder if that makes a difference.

Margie J. Phelps:

–I think it makes a difference when you are looking at what role the plaintiff had in that public discussion and how tied the words that they seek to punish are to his role in that public discussion.

I think that’s how you get to the point–

Elena Kagan:

Well, Ms. Phelps, let’s say that we disagree with you as to whether Mr. Snyder had at all injected himself into this controversy.

Or let’s take a case where it’s clear that the father of the fallen soldier had not injected himself, had not called any newspapers, had not said anything to anybody, but a group knew that this funeral was taking place, and was there with the same signs, with the same — are you — are you saying that that makes the difference?

That there, there would be a claim?

Margie J. Phelps:

–I’m saying it does make a difference, and no — but no, there would not be a claim there in my opinion because–

Elena Kagan:

So it’s not a difference that matters.

Margie J. Phelps:

–It is a difference that matters in some measure, I believe, Justice Kagan, in this light.

Margie J. Phelps:

I believe that the umbrella of protection under the First Amendment that this Court has established firmly is speech on public issues.

Sometimes you get under that umbrella because it’s a public official or it’s a public figure, but the umbrella that you give the protection for is speech on public issues.

Now, when a plaintiff comes to your Court and says, I want $11 million from a little church because they came forth with some preaching I didn’t like, I think it does make a difference for the Court to look closely at what role did that man have in that public discussion.

Samuel A. Alito, Jr.:

But your argument depends on the proposition that this is speech on a matter of public concern, is that correct?

Margie J. Phelps:

Absolutely, Justice Alito.

Samuel A. Alito, Jr.:

So let me — let me give you this example.

Suppose someone believes that African Americans are inferior, they are inherently inferior, and they are really a bad influence on this country.

And so a person comes up to an African-American and starts berating that person with racial hatred.

Now is that in — this is just any old person on — any old African-American on the street.

That’s a matter of public concern?

Margie J. Phelps:

I think the issue of race is a matter of public concern.

I think approaching an individual up close and in their grille to berate them gets you out of the zone of protection, and we would never do that.

Anthony M. Kennedy:

But that’s simply–

Antonin Scalia:

–Excuse me–

Anthony M. Kennedy:

–That simply points out that all of us in a pluralistic society have components to our identity; we are Republicans or Democrats, we are Christians or atheists, we are single or married, we are old or young.

Any one of those things you could turn into a public issue and follow a particular person around, making that person the target of your comments; and in your view because this gives you maximum publicity, the more innocent, the more removed the person is, the greater the impact — the Justice Alito hypothetical in — in — in the grandmother case.

So I — I think — I think your — your public concern issue may — may not be a limiting factor in cases where there is an outrageous conduct and where there should be a tort.

Margie J. Phelps:

Well, but again, this Court has given substantial, longstanding protection to speech on public issues, and how could it be gainsaid that the dying soldiers is not on the lips of everyone in this country?

And it is a matter of great public interest and why they are dying, and how God is dealing with this nation.

Were you to consult the Joint Appendix and see that at the very same funeral, right outside the front door of the church, were people with flags and signs articulating the “God bless America” viewpoint, and so this little church–

Anthony M. Kennedy:

But your position is you can take this and you can follow any citizen around at any point?

That — that was the thrust of the questions from Justice Kagan.

Margie J. Phelps:

–Not follow–

Anthony M. Kennedy:

And — and Justice Alito, and it seems to me that there — you should help us in finding some line there.

Margie J. Phelps:

–Yes, I will help you, Justice Kennedy and I am pleased to do that.

Because we don’t do follow-around in this church.

We were 1,000 feet away, 7 picketers, 1,000 feet away, out of sight, out of sound, not just standing where the police said to stand–

Anthony M. Kennedy:

But in the — but the hypotheticals point out that there can be an intentional infliction of emotional distress action for certain harassing conduct.

Margie J. Phelps:

–For harassing conduct, not for speech.

Not for public speech, Justice Kennedy.

Anthony M. Kennedy:

But torts and crimes are committed with words all the time.

Margie J. Phelps:

I agree with that.

And there has never been any allegation in this case that the words of the Westboro Baptist Church were in any category of low-value or less protected speech.

Antonin Scalia:

–Let’s talk about subjectively.

You’re concerned about — surely fighting words is — you know, whether something is a fighting word, that is a very subjective call, isn’t it?

Margie J. Phelps:

I believe that your cases give some good light on that, Justice Scalia.

Antonin Scalia:

You don’t think it’s subjective?

Margie J. Phelps:

There may be in some people’s mind an element of subjectivity.

My 20 years–

Antonin Scalia:

You think that’s solid, absolutely, what’s a fighting word, whereas what is an outrageous statement is very much different from what’s a fighting word?

I don’t see the difference.

Besides which, isn’t it the case that in order to recover for the tort of intentional infliction of emotional injury, you have to substantiate the injury with some physical manifestation, which the plaintiff here had?

And my goodness, for fighting words, you don’t even need that.

You can just say, these words angered me to the degree that I would have been inclined to fight.

At least for this tort, you have to have physical manifestations.

Why isn’t that a very objective standard?

Margie J. Phelps:

–Well, because the Court said it was inherently subjective in the Falwell case.

And I think that the language that Justice Kagan brought forth, and there’s a few more paragraphs that follow, identify why it’s inherently subjective.

And the way this case was tried identifies why it was inherently subjective, where although two signs and then three were identified as actionable by a strange reading of those words, all of the preachments of Westboro Baptist Church, including all of the signs at that picket, all of the other signs at other pickets, and all their doctrines, went to a jury with that inherent–

Antonin Scalia:

So your point depends — depends upon the proposition that what is outrageous is more subjective than what is fighting words?

Margie J. Phelps:

–Well, Justice Scalia, I must hasten to say this: I am not a fan of the fighting words doctrine.

I do think it has problems.

I just don’t think it applies in this case.

Ruth Bader Ginsburg:

The Court has made that a very narrow category, hasn’t it?

I mean, we have not allowed the fighting words — you say that to me and I’m immediately going to punch you in the nose, because it is an instinctive reaction.

I think the Court has rejected spreading fighting words beyond that.

Margie J. Phelps:

And especially not to where there’s just emotional injury.

That’s where I particularly think, although Chaplinsky would have suggested in some broad language you would go that way, you have not gone that way in any of the cases.

And again, I have to reiterate, you have required immediacy and intent.

Whether a fight ensues or not, I do understand that hasn’t been pinned down as a requirement.

Margie J. Phelps:

But in intent, it’s your purpose, is to mix it up with somebody, not to go out and say: Nation, hear this little church.

If you want them to stop dying, stop sinning.

That’s the only purpose of this little church.

1,000 feet away could not possibly be fighting words.

Stephen G. Breyer:

We are still so worried about the statements on television and on the internet and the knowledge there.

And I’m not — I’m still starting — and I am trying to get the same answer from you I was trying to get from your colleague.

Brandeis said the right to be let alone was the most important, and so he must have been thinking there could be a tort there for interference with privacy, and the First Amendment doesn’t stop State tort laws in appropriate circumstances.

Margie J. Phelps:

Right.

Stephen G. Breyer:

And emotional injury, deliberately inflicted, could be one.

Now, and I think it is one, but I see that in some instances that could be abused to prevent somebody from getting out a public message, and therefore, I’m looking for a line.

Now, let me suggest a couple and see what you think, and maybe you can think of some others.

You could have a judge make the decision, since the First Amendment is involved, not the jury, and the judge could say whether in this instance it was reasonable for the defendant to think that it was important to interfere with the emotional life of that individual.

You could say if that was so, there will still be no — there would be no punitive damages.

There could be ordinary damages.

You could remove all protection from the defendant in an instance where the defendant nonetheless knew, actually knew, that they were going to cause an individual who’s private severe injury, emotional injury, irrespective of their public message.

So what I’m doing is suggesting a number of thoughts of ways of trying to do what I’m trying to accomplish, to allow this tort to exist but not allow the existence of it to interfere with an important public message where that is a reasonable thing to do.

Now, maybe this is impossible, this task.

But I would like your thoughts on it.

Margie J. Phelps:

Thank you, Justice Breyer.

And I’m taking that we are speaking now of the intrusion claim, and I believe that I could offer you a compare and contrast, two extremes that may help us here.

On the one hand, you have a body of law that comes under the heading of captive audience.

And you can go into that body of law and read all those cases in one sitting, so to speak, from which you would conclude that it is very narrow, it is very limited, and there must be some actual physical sound, sight, intrusion, if you are talking about invasion of privacy.

At the other extreme, for a compare and contrast, is what they seek in this case, what the trial judge gave them in this case, which is: In an unspecified period of time that each individual will call their mourning period, no one, at any time, any place, any manner, may say any word that that mourner says caused me emotional distress.

That would chill too much speech.

Samuel A. Alito, Jr.:

Why aren’t the members of the family — why aren’t the members of the family of the deceased a captive audience at the funeral?

Margie J. Phelps:

If we were right outside the door like the other expressers were in these exhibits, they might have been.

Your body of law about captive audience, when you — Hill v. Colorado, Madison, Schenck.

That line of cases recently, taking the picketing — where they, by the way, specifically said at footnote 25 this isn’t about content.

You’ve got to be up — again, I will uses the colloquial term — up in your grill.

The term I think the Court used was confrontational.

Margie J. Phelps:

Now, you can’t be a captive audience with — to someone that you couldn’t see when the test is–

Samuel A. Alito, Jr.:

I thought the targeted picketing of a person’s house is not protected by the First Amendment.

Margie J. Phelps:

–Focused picketing, per Frisby, directly in front of can be regulated.

And even in Frisby, the Court–

Samuel A. Alito, Jr.:

What’s the difference between that and picketing around the site of the funeral?

Margie J. Phelps:

–Proximity, Justice Alito.

Because the captive audience doctrine, as fleshed out in those abortion picketing cases, what you were looking at was: Is it practical for the person to avoid it without having to run a gauntlet?

That’s why you said images observable, the only objection you can have there is content.

Get up and close the blinds.

Samuel A. Alito, Jr.:

So it doesn’t have to do with whether this is a — what you characterize as a public funeral as opposed to a private funeral?

That is not the distinction you are relying upon any longer?

Margie J. Phelps:

Not primarily.

I am primarily relying upon proximity.

I do think that you could have a public event where there was not an element of vulnerability in the people going in.

You might even let them up in their grill.

I don’t know for sure, but we don’t have to worry about that.

Sonia Sotomayor:

Counsel, I am following your argument that the bulk of your speech in the epic, and even the bulk of your signs, involve public speech.

What you have not explained to me is how your speech directed at the Snyders constituted public speech, or speech about a public matter.

Because you are talking about them raising Matthew for the devil, teaching him to, I think, defy the creator, to divorce and commit adultery.

At what point and how do we take personal attacks and permit those, as opposed to — I fully accept you’re entitled in some circumstances to speak about any political issue you want.

But what’s the line between doing that and then personalizing it and creating hardship to an individual?

Margie J. Phelps:

Right.

I believe, Justice Sotomayor, that the line is where it was in this case: Where the father used the occasion of the son’s death to put a question out in the public airwaves repeatedly.

Sonia Sotomayor:

So if we disagree that that made him a public figure, if we view him as a private figure, is that enough to defeat your argument?

Margie J. Phelps:

No, Justice Sotomayor.

Sonia Sotomayor:

Assume that the Matthews are private figures and you did this.

So explain to me how you are protected by the First Amendment.

Margie J. Phelps:

If without regard to what label is put on a person who steps into the public discussion.

Sonia Sotomayor:

You want to change my assumption.

Margie J. Phelps:

Okay.

Sonia Sotomayor:

We assume that he is a private figure.

You have now made a public statement and directed personal comments at an individual who is a private figure.

Is that actionable?

Margie J. Phelps:

Well, I don’t know, Justice Sotomayor.

I don’t know that I can give you a definitive answer as you have framed it.

What I can tell you is that I think the Court would have great difficulty making a rule of law that whether you call yourself private, public, limited, whatever, you — not the person you’re mad at over their words — but you step into the public discussion and make some public statements, and then somebody wants to answer you.

John G. Roberts, Jr.:

Well, so that what if — did Mr. Snyder, the father, become a public figure simply because his son was killed in Iraq?

Margie J. Phelps:

No, Mr. Chief Justice.

I don’t–

John G. Roberts, Jr.:

Okay.

Margie J. Phelps:

–I don’t allege that here.

John G. Roberts, Jr.:

So if he didn’t take out — if he didn’t take out the usual obituary notice, then this case should come out the other way?

Margie J. Phelps:

It’s not the obituary notice, Mr. Chief Justice, he went far beyond that.

John G. Roberts, Jr.:

All right.

Well, let’s just say he does nothing.

He does nothing other than bury his son.

Margie J. Phelps:

Right.

John G. Roberts, Jr.:

He is then not a public figure?

Margie J. Phelps:

If he does nothing we don’t picket him.

And I don’t know–

John G. Roberts, Jr.:

Well, that’s because if he does nothing and it’s not publicized, you don’t get the maximum publicity that your clients are looking for.

My question is, if he simply buries his son, is he a public figure open to this protest, or — or not?

Margie J. Phelps:

–I don’t know in the context of a war, if I can give a definitive answer to that.

It was not an issue of seeking maximum publicity; it was an issue of using an existing public platform to bring a viewpoint that was not being articulated.

For two years this church–

Samuel A. Alito, Jr.:

What if a parent is called after the — puts in the obituary information and called by the local newspaper and asked for a comment, and he says or she says, I’m proud of my son because he died in the service of our country.

Does that — is he stepping into a public debate by doing that?

Margie J. Phelps:

–How — by however you call it Justice Alito, a church or anybody has the right to answer that public comment; that is our position.

John G. Roberts, Jr.:

Thank you, Ms. Phelps.

Margie J. Phelps:

Thank you.

John G. Roberts, Jr.:

Mr. Summers, you have 4 minutes remaining.

Sean E. Summers:

Thank you, Mr. Chief Justice.

Elena Kagan:

Mr. Summers, could I ask you to go back to an answer that you gave to one of my colleagues when you were last up there?

You said that a — a more standard antiwar demonstration, “get out of Iraq”, “war is immoral”, at this funeral, same distance, same sized signs — that a more standard antiwar demonstration would be protected by the First Amendment from an intentional infliction of emotional distress suit.

And I’m wondering why that is.

If you think that what is — what causes the lack of protection here is the kind of glomming to a private funeral, the exploitation of a private person’s grief, the — the appearance for no other reason than to gain publicity at a private event — if that’s the problem, why doesn’t it also apply to a standard, you know, “get out of Iraq”, “war is wrong”, kind of demonstration?

Sean E. Summers:

Justice Kagan, I say that is a — one, it’s a much closer call, and two, I would look to the facts of the case to see if the funeral itself was disrupted.

But that isn’t the facts of our case.

The facts of our case was one, that it was disrupted and two, that it’s personal, targeted assaults on Mr. Snyder.

Elena Kagan:

Well, suppose it is not disrupted and suppose — and I know you that this is, that contest these facts — that yours wasn’t disrupted, that they stopped when you started, that they were a sufficient number of feet away from the funeral and so forth.

So we are just talking the fact that there are people who have — who are appropriating and taking advantage of a private funeral in order to express their views, and they are in compliance with all of the content-neutral rules.

Sean E. Summers:

I would say that’s a much closer call and not the–

Elena Kagan:

But why is it a closer call?

Sean E. Summers:

–It’s a closer call because it’s not a personal, targeted nature of the attack on the Snyder family that we have in this case.

Elena Kagan:

So does that mean that now we have to start reading each sign, and saying “war is wrong” falls on one side of the line but “you are a war criminal” falls on another side of the line?

Is that what we would have to do?

Sean E. Summers:

I think that, generally speaking, yes, Justice Kagan.

The court — the district court would have to look at the signs, as the district court did in this case, and determine which one he believed were directed at the family and which ones were not.

There was a comment earlier that all the signs were presented.

Well, all the signs were presented by the Respondents, not by Mr. Snyder.

So we–

Antonin Scalia:

I guess that that kind of a call is always necessary under — under the tort that you’re — that you’re relying upon.

The conduct has to be outrageous, right?

Sean E. Summers:

–Correct.

Antonin Scalia:

That always requires that kind of a call, unless the tort is unconstitutional, as applied to all — all harm inflicted by words.

Sean E. Summers:

Correct, Justice Scalia, the element of intentional infliction of emotional distress requires outrageousness.

Elena Kagan:

Well, that’s true, but I was assuming a situation in which a jury found that the war was wrong, that a jury did find that outrageous; and the question was were we going to reverse the jury verdict because we — the First Amendment prohibited it?

Sean E. Summers:

Again, I believe that’s a closer call and I would say yes, if it’s a general statement, does not disrupt the funeral, does not target the family, I would say that it’s one, a much closer call, and yes, it’s more likely that the Constitution is going to prevent that claim from going forward.

The — I’d say–

John G. Roberts, Jr.:

Thank you, Mr. Summers.

John G. Roberts, Jr.:

The case is submitted.