Snyder v. Phelps

IV. Conclusion fur we REMAND

Accordingly, will this consideration consistent ther opinion.15 SNYDER, Plaintiff-Appellee,

Albert Bap- PHELPS, Sr.; Fred W. Westboro Church, Incorporated; Rebekah tist Phelps- Shirley Phelps-Davis; L. A. Defendants-Appellants, Roper, Doe; Jr., Doe, Defendants. John Jane for the Protec Thomas Jefferson Center Expression; Free American tion of Union; Liberties American Civil Civil Maryland, Amici Liberties Union of Appellants, Supporting Jeffrey Shulman, Ira Amicus

Supporting Appellee.

No. 08-1026. Appeals, States United Court of Fourth Circuit. Argued: Dec. 24, 2009. Sept. Decided: remand, considering may past persecution. the BIA's On the BIA wish to consider But agreement blanket statement of with the IJ directly. this issue more conjunction with decision to never- the BIA’s analyze assumption theless case under the The BIA also held that Camara "failed to ac- that Camara’s father was abducted on independent, objectively reason- establish Act, protected ground we count of a under the persecution able well-founded fear future if adopt cannot tell whether the BIA meant to Ivory forced to Coast.” she is return to father was the IJ’s conclusion that Camara's However, if, remand, BIA determines protected abducted on of a account experience persecution, past did that Camara must, therefore, ground. We review the government will shift the burden to the adopt opinion as if the IJ's BIA's it did not possesses a presumption rebut that she Ashcroft, See Abdulai v. conclusion. persecution. well-founded fear of future case, (3d Cir.2001) (“In 549 n. or not has herself made Whether Camara expressly 'adopted' any portion BIA never therefore, showing, not be dis- such a would opinion the IJ's it was or announced positive. deferring any findings. We IJ's decision.’’) review therefore the BIA’s Tope- Margie Phelps, Jean ARGUED: ka, Kansas, Appellants. for Sean E. Sum- mers, LLC, York, Snyder, Penn- Barley & BRIEF: sylvania, Appellee. for ON Trebilcock, Williams, Craig T. Shumaker PC, York, Pennsylvania, Appellee. for J. Wheeler, The Thomas Jefferson Joshua Ex- Free Center For Protection Of Charlottesville, pression, Virginia, for The Center for the Protec- Thomas Jefferson Support- tion of Amicus Expression, Free Kleinman, ing Joel David Appellants. Schur, Sourirajan, Shapi- Ranga Dickstein ro, L.L.P., Washington, D.C., American Civil Union and American Civil Liberties Maryland; R. Liberties Union Steven Shapiro, American Civil Liberties Union York, York, Foundation, New New for Union; American Liberties Deborah Civil Jeon, Maryland, A. ACLU Foundation of Baltimore, Maryland, for Civil American Maryland, Sup- Amici Liberties Union of Shulman, porting Appellants. Jeffrey I. Center, Georgetown University Law D.C., Ap- Washington, Supporting Amicus pellee. DUNCAN, KING, SHEDD, and

Before Judges. Circuit OPINION

KING, Judge: Circuit Albert Snyder June instituted in diversity action of Ma- District Church,

ryland against Baptist Westboro (the “Church”), Incorporated and several (collectively, of its the “Defen- members dants”). Snyder’s lawsuit predicated a protest two related the Defen- events: Maryland in the fa- dants conducted near (an Sr., Snyder’s Phelps, son Matthew enlisted Defendant Fred W. neral of Iraq founded Defendant tragically Baptist Marine who died Westboro Church, Kansas, 2006), Topeka, Inc. in self-styled and a written March (the fifty-two years, For he has been the “Epic”) Defendants “epic” church, pastor approxi- which has several after posted on the Internet weeks mately sixty seventy members, or fifty Snyder’s complaint funeral. al- Matthew’s children, of whom are claims, grandchildren, leged state law tort three of five Among family in-laws. these mem- in this implicated appeal: which are inva- Shirley bers are L. Phelps- Defendants seclusion, upon intrusion privacy sion of Roper Phelps-Davis. and Rebekah A. intentional infliction of emotional distress approximately There are ten to twenty (“IIED”), conspiracy. and civil After a members of church who are not jury trial in October found the related to Phelps marriage. blood or million in com- Defendants liable $2.9 According testimony to the of Defen- damages and a total of mil- pensatory $8 expert, dants’ the members of this punitive damages. Although lion in church practice a “fire and brimstone” aggregate puni- district court remitted the religious fundamentalist faith. Among million, it tive award to otherwise $2.1 religious their beliefs is God hates post-trial denied the motions. See homosexuality punishes and hates and (D.Md.2008) Phelps, F.Supp.2d America for its tolerance of homosexual- (the Opinion”). “Post-Trial The Defen- ity, particularly in the United States mil- contending have appealed, dants itary. Members the church in- have the First Amend- judgment contravenes creasingly picketed funerals to assert explained ment of the Constitution. As these beliefs. Defendants have also es- below, we reverse on that basis. tablished a website identified as www. godhatesfags.com publicize in order to I. religious viewpoint. their A. testimony Defendants’ at trial estab- presented The facts of this case as lished that their picketing gained efforts undisputed, trial largely they are and are increased they began attention when to detailed in the district court’s Posh-Trial picket funerals of soldiers killed in re- Opinion: years. cent Phelps Members of the 3, 2006,

On March Marine Corpo- Lance family prepare signs at an on-site sign ral Snyder Matthew A. was killed in shop at their Kansas church to take with Iraq duty. Shortly in the line of there- in They them their travels. also utilize after, two United States Marines came production facility produce an on-site to Plaintiff, Sny- to the home of the displayed Albert videos on the church’s website. der, and told him that his son had died. Phelps testified that members of the Snyder As Matthew in had lived West- Baptist Westboro Church learned of minster, Maryland, graduated and from Cpl. Snyder’s Lance funeral and issued School, High Westminster St. John’s 8, 2006, a news on release March an- Catholic Church in was se- Westminster nouncing Phelps that members of the funeral, lected as the site for his which Westminster, family intended to come to 10, was scheduled for March 2006. Maryland, picket and the funeral. On Obituary 10, placed notices were in local Phelps, daughters March his newspapers providing notice of the time Phelps-Roper Phelps-Davis, and and grandchildren location the funeral. four of his in arrived utilization of Matthew

Westminster, Defendants’ Maryland, picket to Mat- their mes- Snyder’s publicize funeral De- funeral. None of the Snyder’s thew actual funeral continued after the sage any met members fendants ever returning 2006. After on March Snyder family. Kansas, Phelps-Roper published quite rationale was sim- Defendants’ website, on the church’s www. “epic” Snyder’s ple. They traveled to Matthew In “The Burden of godhatesfags.com. publicize in order to their mes- funeral Snyder,” Cpl. Lance Matthew Marine hatred of America for its sage of God’s Snyder that Albert Phelps-Roper stated Plain- homosexuality. In tolerance of defy “taught and his ex-wife Matthew turned the funer- eyes, tiffs Defendants devil,” creator,” him “raised for the into a “media circus for al for his son him a liar.” “taught that God was By notifying police offi- their benefit.” funeral, of his son’s the aftermath advance, recognized cials in Defendants Snyder learned that there was reference be a reaction there would running to his son on the Internet after community. They signs carried which Google. Through the use of search general messages such as expressed engine, Phelps-Rop- that search he read USA,” “America is Hates the “God on the church’s website. “epic” er’s doomed,” hell,” “Pope “Fag Snyder Phelps, F.Supp.2d 571- more troops.” signs also carried (internal omitted).1 (D.Md.2008) citation going specific messages, to wit: “You’re hell,” fi you,” “Semper hates “God B. and “Thank God for dead sol- fags,” testified that it was De- Phelps diers.” “duty” message

fendants’ to deliver the complaint filed his When Albert they want to hear it or not.” “whether Sr., Phelps, he Fred June sued W. Cpl. Snyder’s Lance funeral was thus Church, later adding and the its members utilized Defendants as the vehicle for Shirley Phelps-Roper L. A. Rebekah message. Phelps-Davis as defendants. The com plaint alleged at trial that five state law tort claims: undisputed It was Defen- defamation, seclusion, upon pub intrusion complied dants with local ordinances and life, IIED, police respect being licity given private directions with to to and civil Fur- for conspiracy. certain distance from the church. Defendants moved thermore, claims, summary judgment it at trial that on those con was established alia, Snyder actually signs tending, challenged did not see the inter that their opinion, program expressions until he saw a television later words “constitute[ ] day footage Phelps with fami- which are not actionable.” J.A. 239.2 ly They words “are clear- at his son’s funeral. asserted their (6th Cir.2008). history 1. The Defendants have a substantial As result such activi- ties, approximately forty and protesting at fu- states the federal venues other than soldiers' government legislation example, day have enacted address- on the of Matthew nerals. For funeral, ing picketing. Stephen R. McAl- they protested funeral See Snyder's in An- also lister, Picketing and Free Funeral Laws napolis Maryland at the State House and (2007). Speech, 55 U. Kan. L.Rev. Academy. the Naval The Defendants have litigation throughout the also been involved in _” See, country relating protests. e.g., to their "J.A. refer the Citations herein to to Nixon, (8th Phelps-Roper Appendix v. 545 F.3d 685 Cir. of the Joint filed contents 2008); Strickland, Phelps-Roper parties appeal. in this rhetorical, every my at times and time I think of hypothetical, religious ly impossi- and that “it is opinion,” pass picture hanging son or his on laced things, disprove par- these prove ble to hanging wall or see the medals on the viewpoints that doctrinal ticularly given wall that he received from the [M]arine opinions.” Id. drive [C]orps, signs.” I see those He testified badly “I also that want so to remember 15, 2007, the district court On October far, all I good stuff and so remember summary judgment to the Defen granted stuff, good always it but turns into of the five tort claims: defa dants on two the bad.” given private life.3 publicity mation and summary judgment The court awarded perma- Plaintiff also testified as to the the defamation claim because Defen nency of the injury. emotional He testi- ... “essentially was reli dants’ [i.e., think that “I sign fied about the realistically not gious opinion” and “would Thank every day God dead soldiers] public hatred or expose tend to my sign life.... I see that I lay when Snyder, F.Supp.2d at 572-73. scorn.” nights. in bed at I one [had] chance to claim, life publicity given private On the bury my they son and took the dignity summary judgment court awarded be away from it. I re-bury my cannot son. public the Defendants had not made cause life, my And for the rest of I will re- ruling, In so any private information. they member what did to me and it has explained court that the Defendants had memory of my tarnished son’s last gleaned information from a published hour on earth.” He stated also newspaper obituary publica such “somebody could have stabbed me in the to a highly tion would be offensive arm or the back and the wound would person, reasonable because the informa have healed. But I think don’t this will already was a matter of record. tion heal.” parties proceeded In October trial, Throughout Plaintiff demon- trial remaining on the three claims of emotion, significant appearing strated seclusion, complaint: upon intrusion distressed, visibly shaken and and was IIED, trial, conspiracy. Sny- civil At often reduced to tears. On occasion testified, “recounting] der fond memories trial, during requested Plaintiff son ... and the traumatic news of of his granted was leave from the courtroom to passing.” Snyder, F.Supp.2d compose jury himself. The witnessed Opinion, Post-Trial the district its un- anguish firsthand Plaintiffs and the Snyder’s testimony: court summarized grief resolved he harbors because of the severity He described the of his emo- failure to conduct a normal burial. injury, stating tional that he is often (second Id. at 588-89 and third alterations angry, that he tearful and and becomes (internal omitted). in original) citations actually that so sick to his stomach he Snyder expert called several witnesses physically vomits. He testified that De- testify concerning injuries the the De- head, “bug” placed fendants him, had including fendants caused the separate such that he is unable to worsening of his diabetes and severe de- thoughts of his son from the [Defen- Snyder’s treating con- pression. physician I nights actions: “there are that dants’] know, my that just, you tryI to think of son firmed the Defendants’ actions had Thus, cross-appealed publicity given private 3. has not the district and life. summary judgment making court's awards to the De- whether the court erred in those rul- ings implicated appeal. fendants on his tort claims for defamation is not in this tution, provides Congress that thereby which Snyder’s depression, exacerbated prohibiting the no law ... the going through him from shall make preventing Snyder, religion]; abridging See or grieving process. [of normal free exercise Snyder’s psychologist F.Supp.2d speech. at 588. freedom of The Defendants the “that the demonstration Amend- right testified have a under the First [seeing] talked about things that [Plaintiff] engage picketing, pub- and to ment depres- ... have made the in the website message, no matter religious lish their (altera- it.” Id. lengthened worse and sion you may disagree how much original). tions message. applies The First Amendment to action at the state and local level summary judgment During the Fourteenth Amendment. through the trial, the Defendants proceedings and matter, fact that general As a First contended repeatedly society may speech find offensive is not In their actions.4 protects Amendment it. suppressing a sufficient reason for recognized court regard, the district hateful, Speech speech that is called or carried the Defen signs that certain with which unpopular, speech that is “America Is Doomed” and dants —such as you strongly disagree, may pro- still be gen “express[ed] Hates “God America”— speech. government, tected The includ- points may of view” that have merited eral courts, ing place can reasonable protection. Snyder, Amendment First time, place, and manner restrictions on But court ruled F.Supp.2d at 578. may expressed. protected speech how be “Thank signs that certain other as —such narrowly These restrictions must be tai- Soldiers,” Fi “Semper for Dead God lored, and should balance the interests Hell,” and “God Fags,” Going “You’re people Speech of all the involved. fact Hates You”—created issues of offensive, shocking ... vulgar, is they interpreted “could be as jury because not entitled to absolute constitutional Snyder family.” being directed Id. protection under all circumstances. Likewise, the court concluded that state published Epic in the on the ments Church Supreme has The United States Court “created similar to be ad website issues speech that not all is of long recognized fact.” dressed the finder of Id. protection. Amendment equal First civil lia- speech gives When rise to tort trial, challenged At the Defendants bility, pro- the level of First Amendment propriety jury proposed instructions depending tection varies on the nature regarding During the First Amendment.5 subject the speech. matter of instructions, hearing jury the Defen objected to specifically particular subject dants Instruction to the matter of As provided No. which in full as follows: speech, a distinction has been drawn private between matters

The Defendants in this ease claim that concern. is directed protected by their actions were the First Where private people private Amendment of the Consti- and matters of United States objecting Speech proposed Free to a instruction on Clause of the First Amend claim, specifically guarantees "Congress ment upon the intrusion seclusion the Defen- abridging ... shall make no law freedom sought jury’s consideration dants to limit Const, speech." of U.S. amend. I. The Free court, specific signs. to three The trial how- Speech applies Clause to the various states as ever, jury to consider all of the authorized a result of the Fourteenth Amendment. See signs Epic. as well as the 359, 368, California, Stromberg v. 283 U.S. (1931). S.Ct. L.Ed. concern, punitive and a total of million in Supreme Court has held dam- $8 interest in the First Amendment After the court ages. district entered types -speech of protecting particular 5, 2007, judgment on November the Defen- a inter- against state’s must be balanced post-trial seeking filed motions judg- dants from protecting in its residents est law, a matter judgment ment as not- injury. You must balance the wrongful verdict, withstanding the reconsideration religious be- expression Defendants’ trial, a rehearing, new relief from right priva- another citizen’s lief with judgment, equity. and relief of law and right to be free from cy and his or her The district court denied each of these reckless, intentional, extreme and Opinion. motions its Post-Trial The him causing conduct or her outrageous remittitur, Defendants also moved for a distress. As I have severe emotional contending that grossly verdict was at the start you indicated to previously excessive. case, you judges as the of the of this Opinion February In its Posh-Trial wheth- facts this case must determine 2008, the court disposed district Defendants’ actions were directed er the legal challenges. Defendants’ various Snyder family. you If specifically at the Opinion explained Post-Trial case determine, you do must then deter- so balancing “involves [the Defendants’ First mine whether those actions would be rights Amendment religious expression] person, a highly offensive to reasonable rights with the private other citizens to outra- they whether were extreme and being verbally avoid assaulted outra- geous and whether these actions were so geous speech and comment shocking during offensive and as to not be enti- time protection. tled to First Amendment of bereavement.” Snyder, F.Supp.2d at 579. to the signs,” As “content of the (alteration and omissions in J.A. 3113-14 the court “in- was satisfied that it had (internal omit- original) quotation marks ted). jury Amendment, on structed the First objecting to Instruction No. specifically the Defendants asserted that “the First balance between Defen- heavy more of a balance rights Mary- Amendment has dants’ First Amendment just anybody even civil cases than citizens,” protecting land’s interest its wanting to be offended.” Id. such that there “was sufficient evidence in Phelps-Roper, defending who was herself jury the trial record for a reasonable basis, objected, a pro stating: se further conclude that Defendants’ conduct was so just say “I want to ... it has never outrageous extreme and as to cause Plain- been clear in the record or to me what of injury.” tiffs Id. at 581. The court also our words are actionable and ... [the rejected post-trial the Defendants’ conten- court not limited the evidence to those has] tion that the court “should have held as a you say words that would were directed to matter of law that [the Defendants] were specific family.” Id. at 2884. The court protection.” entitled First Amendment objections overruled the to Instruction No. emphasized Id. 582. The court that it 21, observed that the constitutional issues permitted jury if had to decide preserved, gave were the instruction Defendants’ conduct was sufficient to hold jury. to the Maryland them liable on the three tort claims, jury and the had found the Defen- dants liable. See id. at 580-82. 31, 2007, jury On October found for claims, Finally, by Opinion, its Posh-Trial tort awarding on the three compensatory damages upheld compensatory him million in district court $2.9 216 dants and their counsel have exercised punitive but remitted the

damages award million, voluntarily waived the their discretion and award to a total of damages $2.1 sufficiency Notwithstanding issue. such aggregate judgment in an resulting $5 waiver, however, Judge Shedd would re- appeal have now million. The Defendants judgment agrees the because he ed, jurisdiction pursuant to verse possess and we supporting that evidence § the amicus U.S.C. 1291.6 28 was insufficient. II. respectfully reject good our We con primary appellate The Defendants’ contention, friend’s reliance on the amicus judgment is that the contravenes tention evidentiary plainly issue has because Amendment. In addition to their the First by only party waived entitled to been contentions, First Amendment the Defen result, pursue it. the First Amend As following other issues: that dants raise the Put ment contention must be addressed. lacked and sub personal the district court simply, our Court and our sister circuits

ject jurisdiction; matter that had wary, consistently prohibi have been even funeral; that privacy right no in Matthew’s tive, addressing solely by raised issue contravenes punitive damages award Buculei, an amicus. See United States v. jury process; impermissi due was Cir.2001) (4th 322, 262 F.3d 333 n. biased; bly that court made the district (“ by appellant ‘An issue waived cannot be trial; prejudicial evidentiary errors at ”) (quoting raised amicus curiae.’ Chris conspiracy the civil verdict is inconsistent topher Corpus Indep. M. v. Christi Sch. law; Maryland’s with state and that statu (5th Dist., Cir.1991)); 933 F.2d tory cap compensatory damages applies on Enter., v. 100 F.3d Cavallo Star damages to the award. We are content to (4th Cir.1996) n. 2 (declining to address reject each of these non-First Amendment brief, opening issue not raised in as it contentions without farther discussion be appellee “unfair to would be and would they all merit.7 plainly cause are without improvident opinion risk an or ill-advised (internal Notably, legal quotation the Defendants do not on the issues” “ omitted)). evidence, Indeed, challenge sufficiency appellant marks ‘[a]n although may split up an amicus brief seeks to raise and an not amicus issues they good colleague Judge expect issue. Our the court to consider that ” Buculei, against all judgment appeal.’ Shedd would reverse the have been raised (quoting the Defendants on the issue of evidence 262 F.3d at 333 n. 11 Amoco Oil States, sufficiency only by is asserted the Co. v. United (Fed.Cir.2000)). Hilton, amicus In that we respect, Spicer submission. But see (3d Cir.1980) that, agree although prop (concluding the Defendants F.2d erly sufficiency yield raised the issue that constitutional issues should to court, ones, they district have abandoned that nonconstitutional even where non- Thus, contention on the Defen- appeal. constitutional issues were raised requested stay stay judgment pending ap- Each of Defendants without bond peal. judgment appeal, pending execution of which conditionally granted. the district court appeal 7. The Defendants also assert on required Phelps and the Church were then improperly requests Phelps- we denied the bonds, post property Phelps-Roper and Roper Phelps-Davis stay judgment Phelps-Davis post had to substantial cash explained pending appeal. As without bond below, 19, 2008, May On we denied the bonds. discharge we the various bonds as a requests Phelps-Roper Phelps-Davis reversing corollary judgment.

217 aptly has III. As the Federal Circuit parties). situation, ap- such a is “[i]t described respect to the First With Amendment case, by joint appeal not a pellant’s issue, they the Defendants maintain that Appellant amicus. must appellant judgment were entitled to as a matter of all the it opening in its brief issues raise fully law because the First Amendment Oil, the court to address.” Amoco

wishes protects Maryland their at the pro- Epic they published test and in the written on the Internet. We will first address the hand, other we acknowl On the that Defendants’ assertion the court erro- fit, edge Supreme that the Court has seen neously permitted jury legal to decide in narrow and circumscribed circum issues reserved to the court. Such an choosing, to address and stances of its own garner error would the Defendants a new solely by of an issue raised an dispose trial, but there is no need for a new if trial Lane, 288, Teague amicus. See v. 489 U.S. prevail the Defendants were entitled to (1989) 300, 109 1060, 103 L.Ed.2d 334 S.Ct. Thus, under the First Amendment. after (addressing retroactivity appeal issue on describing general legal frame-work question foreign is not “th[e] because here, applicable specifically we address the retroactivity parties,” who addressed application legal of that framework to the claim); another see respect also protest signs Defendants’ various their States, 457 Davis v. United U.S. * Epic. written (1994) (recognizing Supreme n. may contentions raised Court assess A. so). brief, declining in amicus but to do It well is established tort Supreme to the Court’s respect With all law, liability under state even the con in Teague treatment of the waiver issue litigation private parties, text of between Davis, this situation does not warrant by circumscribed the First Amendment. exception post-Teague an to our circuit Sullivan, See New York Times v.Co. the Defendants have precedent.8 Because 254, 264-65, U.S. 11 L.Ed.2d S.Ct. voluntarily any waived contention (1964).10Although Supreme Court support the ver evidence is insufficient dict, specifically in New York Times obligated grapple we are with and addressed defamation, the common law tort pre resolve the First Amendment issues by judgment.9 explained reasoning sented Court that its did not (internal regard, concurring) quotation In this we further observe that rec- marks omit- ted). ognition right present of an amicus to The resolution of the First Amendment parties absolutely necessary, have no desire to issues is as it is the sole issue litigate judicial appropriate disposing ap- would constitute rec- means for of this further ognition inviting peal. lawyer law- relief rule— nonparties yers otherwise without stand- properly distinguished 10. The district court ing engage to seek out and in mischief that proceedings, these where Defendants con- readily barratry, would be likened to cham- tend that the First Amendment immunizes perty, or maintenance. liability, them from tort from other decisions sufficiency addressing 9. Because the of the evidence is relied on the Defendants waived, principle— constitutionality statutory prohibitions the Askwander af- sue was questions fecting pickets. Phelps, that a court should not “decide funeral See (D.Md.2008) (dis- absolutely F.Supp.2d constitutional nature unless neces 578-79 sary” inapplicable tinguishing attacks here. See Ashwander v. certain "successful —is Auth., 288, 347, Valley upon statutory [Defendants] Tenn. 297 U.S. restrictions” J., muster). (1936) (Brandeis, S.Ct. 80 L.Ed. 688 have met constitutional 218 recovering damages officials from “form in which state precise on the

turn 265, for the common law tort of defamation Id. at 84 applied.” has been power allegedly defamatory statement later unless Accordingly, Court S.Ct. malice,” “actual and the to other was made with the First Amendment applied fal- knowing defined such malice as involving reputational damages, Court torts not Falwell, sity disregard for the truth. Inc. v. 485 or reckless Magazine, Hustler see 279-80, 46, 53, 876, 41 at 84 710. The 99 L.Ed.2d 376 U.S. S.Ct. 108 S.Ct. U.S. (1988) that constitutional (IIED), applied expanded have the Court later and we speech concerning “public fig- to controlling principles to other state standard Court’s officials,” Curtis torts, Capital “public v. Citi ures” as well as law see Food Lion (4th Butts, 130, 164, es/ABC, Inc., 505, 511, Publ’g 522 Co. v. 388 U.S. 87 194 F.3d (1967) (War- Cir.1999) 1975, (fraud, duty loyalty, of of S.Ct. 18 L.Ed.2d 1094 breach result), Thus, ren, C.J., regardless concurring in the but trespass). of extending protective of its being employed, stopped tort the First short specific plaintiff speech targeting private figures, a seeks rule to applies Amendment when Welch, Inc., mental, v. 418 damages reputational, or emo see Gertz Robert U.S. 323, 344-46, 2997, 41 from the 94 S.Ct. L.Ed.2d 789 injury allegedly resulting tional (1974). at speech. defendant’s See id. 523.11 Nevertheless,

Where, here, First a distinct but re as decisions, rec implicated by the assertion lated line of the Court has Amendment arising speech, ognized of tort claims from we have there are constitutional limits independent speech “to ‘make an on the to which state tort obligation type Milkovich, liability may attach. examination of the whole record’ order See 497 16, 2695; Maga at Hustler judgment to make sure ‘the does U.S. S.Ct. zine, 876; 50, 108 constitute a forbidden intrusion on the 485 U.S. at S.Ct. see also ” (8th 300, expression.’ Corp. Deupree Iliff, field of free Bose v. 860 F.2d 304-05 Cir.1988) U.S., Inc., (recognizing types Consumers Union 466 U.S. that certain 485, 499, 1949, speech protected regardless of plain 104 S.Ct. 80 L.Ed.2d are (1984) Times, (quoting private public figure). New York tiffs status as or U.S. 284-86, 710); Thus, although categorical at 84 S.Ct. see also Milko there is no con Co., 1, 21, “opin vich v. Lorain Journal 497 U.S. stitutional defense for statements of (refer (1990) 2695, ion,” fully pro 111 L.Ed.2d 1 Amendment will S.Ct. First ring required Corp. ‘reasonably to the review Bose tect “statements cannot review”). appellate interpreted stating as “enhanced We re as actual facts’ [be] Milkovich, view de novo a district court’s conclusions about individual.” 497 U.S. (alteration 20, a at respect original) of law with to First Amendment 110 S.Ct. 2695 Bly, (quoting Magazine, issue. States v. Hustler See United U.S. 876).12 (4th Cir.2007). 453, 457 108 S.Ct. Milkovich, decision,

In In prece- its New York Times which is crucial barring in our Supreme disposition appeal, Court established rule dent Supreme damages resulting 11. The Court has deemed the First economic from defendant's inapplicable promise). Amendment defense to a state tortious breach of plaintiff law tort claim when the seeks loss, suggestion damages pecuniary opposed no for actual as There is injury reputation categorical or state of mind. See issue falls within one of exclu- Co., protection, v. Cowles 501 U.S. sions from First Amendment such Cohen Media (con- (1991) "fighting obscenity 111 S.Ct. 115 L.Ed.2d 586 as those for words.” See, 15, 20, cluding e.g., California, Amendment did not bar Miller v. 413 U.S. that First Milkovich, adopt light an artifi- and as care declined Supreme Court dichotomy “opinion” fully explained by Judge between Motz in our Bios cial “fact,” eschewed the specifically decision, and it obliged we are pherics assess lower courts tests that several multifactor objective, how an reasonable reader would Court) utilized to cate- this had (including challenged by a statement understand fo 19, 110 497 U.S. at speech. See gorize cusing plain language on of the state 2695; Biospherics, Inc. v. see also S.Ct. general ment and the context and tenor of (4th Forbes, Inc., 180, 183-84 151 F.3d message. Biospherics, its See 151 F.3d at Cir.1998) re- (explaining that Milkovich emphasize 184. And we must the “verifia test). Milkovich, jected our multifactor statement,” bility a because state newspaper assessed whether a the Court subject objective ment not verification is a protection First Amendment enjoyed likely Chapin not to assert actual facts. v. wrestling that referred to a coach column Inc., 1087, Knight-Ridder, 993 F.2d 1093 “liar,” allegedly on deceitful as a based (4th Cir.1993); Haynes see also v. Alfred council. testimony before a state athletics (7th Inc., 1222, Knopf, A. 8 F.3d 1227 2, 110 The 497 U.S. at 4-5 & n. S.Ct. 2695. (“[I]f Cir.1993) plain it is that the speaker maintained that the column newspaper view, subjective is a expressing an inter opinion, and was merely stated its author’s theory, conjecture, surmise, a pretation, subject categorical thus First Amend- claiming possession rather than to be in of 17-18, Id. at 110 S.Ct. protection. ment facts, objectively verifiable the statement contention, rejected Court actionable.”). is not ruling “dispositive ques- instead that the subcategories There are two of a tion” was “whether reasonable factfinder speech reasonably that cannot be inter in the could conclude that the statements stating as actual preted facts about imply an assertion [newspaper] column individual, speech and that thus constitute judi- himself in a perjured that [the coach] First, constitutionally protected. 21, proceeding.” cial Id. at 110 S.Ct. 2695. Amendment serves to protect First Concluding that the column’s assertions of public statements matters concern “susceptible being proved of true or were “provably that fail to contain a false factual false,” they determined that the Court Milkovich, 20, connotation.” 497 U.S. at protected by not the First Amend- were 110 2695.13 assess as a matter of ment. Id. S.Ct. We 2607, (1973); Chap applies (implying 93 S.Ct. 37 L.Ed.2d 419 in dicta that Milkovich 568, defendants). equally linsky Hampshire, to media and nonmedia v. New 315 U.S. 571— circuits, 72, 766, (1942). Like those two we believe that 62 S.Ct. 86 L.Ed. 1031 protects speech First Amendment nonmedia Supreme 13. Neither the Court nor this Court public of on matters concern does specifically question has addressed the provably Any contain false factual assertions. protections constitutional afford- whether the justify effort to distinction media/nonmedia provably ed to statements not false should ground, given difficulty rests on unstable apply equal force to both media and with precision defining belongs who Milkovich, See 497 nonmedia defendants. And, importantly, more the Su- "media.” 6, U.S. at 20 n. 110 S.Ct. 2695. The Second preme Court concluded that the "inherent has Circuits, however, rejected Eighth have speech depend upon worth of ... does not any See Flamm source, distinction. identity corporation, media/nonmedia of its whether Women, 144, association, union, v. Univ. 201 F.3d Am. Ass’n Nat’l or individual.” First (2d Cir.2000); Bellotti, 765, 777, 149 In re IBP Bus. v. U.S. Bank Boston Confidential 632, (8th 1407, (1978). Thus, Litig., Cir. Documents 797 F.2d 98 S.Ct. 55 L.Ed.2d 707 Cities/ABC, 1986); Capital purposes, see also Foretich v. for our the status of the Defendants Inc., 1541, (4th Cir.1994) immaterial. 37 F.3d 1563 n. 39 as media or nonmedia is actionable); Coop. Publ’g Ass’n involves a Greenbelt challenged speech whether law Bresler, 6, 13-14, 1537, v. 398 U.S. 90 S.Ct. by examining concern public matter of (1970) (treating content, form, speech, description such 26 L.Ed.2d 6 and context of epi- as as negotiating position record. See Dun “blackmail” as revealed the whole Bradstreet, Builders, conveying commission of actual Inc. v. thet not & Greenmoss crime). Inc., assess as a matter of law 105 S.Ct. We U.S. (1985). hyper- contains rhetorical “Speech involves whether L.Ed.2d 593 protected it involves bole the First Amendment. matter of concern when Tech., Rhodes, social, Inc. v. or other inter See CACI Premier political, an issue of (4th Cir.2008). community.” Kirby City est to a of N.C., 440, F.3d 446 City, Elizabeth 388 apply legal had occasion to these We Cir.2004).14 (4th as In order to be treated principles just year last in our CACI deci con speech involving public a matter of at was a sion. See 536 F.3d 293. CACI cern, community need not the interested performed civilian defense contractor that especially large nor the relevant con be military at interrogation services for the or “paramount importance cern of national Iraq. in claimed prison Abu Ghraib CACI scope.” Levinsky’s, Inc. v. Wal-Mart by that it had a talk radio been defamed (1st Stores, Inc., 122, F.3d Cir. host had made on-air statements who 1997). blaming CACI for the mistreatment de prison at criticizing tainees the use Second, rhetorical statements general. of wartime contractors in See id. “loose, figurative, hyperbolic employing or Judge opinion at af 288-92. Michael’s language” are entitled to First Amend summary judgment firmed the award to protection “public ment to ensure that de host, in part the radio based on the deter ‘imaginative bate will not suffer for lack of mination that her statements were protect expression’ hyperbole’ or the ‘rhetorical they ed the First Amendment because traditionally which has added much to the “did not state actual facts about CACI.” Milkovich, discourse of our Nation.” at Id. 304.15 20-21, 110 at general U.S. S.Ct. 2695. The speech, of rhetorical host, tenor as well as example, The radio for had claimed “loose, figurative, hyperbolic use of or lan and other CACI defense contractors guage” sufficiently negates any impression employed all over the coun- “[m]ercenaries speaker asserting actual facts. try, killing people,” and she had character- 2695; Id. at 110 S.Ct. see also Letter ized CACI and other contractors as “hired (alteration Austin, CACI, 264, 284-86, Carriers v. 418 U.S. at killers.” 536 F.3d (1974) (con 2770, 41 original). Judge explained 94 S.Ct. L.Ed.2d 745 in Michael cluding reference to worker who no reasonable listener would understand challenged line “traitor” was not actual picket crossed as statements assert decision, Kirby opinion 14. In our we assessed whether 15. The CACI also concluded that oth- the words at issue involved matter er statements made the radio host were public employ- the context concern in protected by the First Amendment because ment retaliation action. See 388 F.3d at 444. malice,” they made were not with "actual as Supreme Both the Court and the courts decision, i.e., defined in the New York Times appeals have borrowed from that context for those statements had not been made with purposes analyzing liability tort under the knowing falsity disregard for the reckless See, e.g., Dun & Brad- First Amendment. CACI, truth. See 536 F.3d 294-300. street, 2939; 472 U.S. at 105 S.Ct. Levin- Stores, Inc., sky’s, Inc. v. Wal-Mart (1st 1997). Cir. CACI, analysis under- dards to its of the Defendants’ but rather would facts about contentions, fatally in- First Amendment it “exaggerated rhetoric them as stand by allowing jury erred to decide rele- about the wis- spark the debate tended legal vant issues. Instruction No. Iraq.” in Id. the use of contractors dom of carefully objected Defendants at tri- which men- The radio host had twice at 301-02. al, jury to the that certain explained working individuals for tioned that certain speech, including “vulgar, that which is Iraq fought apartheid contractors offensive, shocking,” is not entitled to Those state- Africa. See id. South protection.” “absolute constitutional J.A. reasonably be inter- ments also could explained protec- It also about stating as actual facts CACI: preted tions accorded under the First Amend- they properly understood as refer- were vary subject ment with the “nature and of the con- ring employees to individual speech,” matter of the and the instruction tractors, to the contractors opposed as that, when suggested matters of themselves, simply and the host had used private private fig- concern is directed at press terms” to her hyperbolic “loose and ures, the First Amendment “must be bal- mili- government’s use of against case against” pro- anced state’s interest tary contractors. Id. at tecting its citizens. Id. 3114. B. The district court thus decided that it jury proceeding, Snyder In was awarded was for the the court—to assess —not preliminary on three issue the nature of the judgment against the Defendants involved, speech and to then decide wheth claims in the Amended of the tort asserted seclusion, speech protected by er such was the Free Complaint: upon intrusion Thus, jury erro IIED, Speech Clause. was conspiracy. By civil these neously deciding tasked whether the claims, injuries Snyder sought damages for speech specifi Defendants’ was “directed only, and not for to his state mind and, so, cally Snyder family,” at the if Thus, in favor pecuniary loss. the verdict shocking whether it was so “offensive and if it is Snyder can be sustained as to not be entitled to First Amendment with the Defendants’ First consistent (“You 3114; protection.” J.A. see also id. Lion, guarantees. Amendment See Food expression must balance the Defendants’ (foreclosing any attempt 194 F.3d at 522 to religious belief with another citizen’s damages “non-reputational recover under right privacy right and his or her to be claims, satisfying stricter tort without intentional, reckless, free from or extreme (First Amendment) of a defama- standards outrageous causing conduct him or her claim”). below, explained tion As the De- distress.”). least, severe At the emotional correctly fendants contend that the district therefore, judgment must be vacated jury permitting court erred to de- awarded, in and a new trial that Instruc court, and legal cide issues reserved to the jury tion 21 authorized the to deter No. by denying request then the Defendants’ issue, purely legal namely, mine a judgment as matter of law. scope protection speech un afforded der the First Amendment.16 1. noted, however, a

Assuming previously the district court As new unnecessary can applied proper legal stan- trial is if the Defendants otherwise tion, signs, Opinion additional which could [certain] 16. The Post-Trial confirms being Snyder jury legal interpreted as directed at the assessed issues that were reserved be fact.”). Snyder, F.Supp.2d family, created for the finder of to the court. See 533 at issues Thus, ("While permitted jury signs expressing general points the district court (i.e., speech protec- of the as are First Amendment determine the nature of view afforded jury) Snyder concluded that and his son matter of law after our inde- as a prevail a conclu- “public figures,” were not such of the whole record. pendent examination dispose sion alone did not of the Defen- Milkovich, at 110 S.Ct. 497 U.S. See First Amendment contentions. In dants’ obliged apply the 2695. We are thus solely Sny- focusing on the status legal framework to the Defen- applicable funeral, legal and not on the ders and protest signs various and written dants’ concerning issue the nature of the if the Defendants are Epic, and decide issue, the court failed to assess whether a matter of law. judgment entitled to as reasonably pertinent statements could interpreted asserting be as “actual facts” individual, they in- about an or whether court also erred when district merely hyper- stead contained rhetorical legal it standard in its utilized incorrect Milkovich, bole. See U.S. Opinion. assessing Post-Trial the De CACI, 2695; F.3d at S.Ct. contentions, fendants’ First Amendment reasonably a statement can be Whether exclusively on the the court focused almost interpreted stating as actual facts about an Gertz, it Supreme opinion Court’s which question individual is a of law for the pro read to limit the First Amendment’s court, CACI, 293-94, see 536 F.3d at “speech by private tections for directed the district court failed to consider against private individuals other individu Opinion. issue its Post-Trial Conse- Snyder F.Supp.2d als.” Phelps, we must quently, assess the content of (D.Md.2008). 567, 577 The court therefore protest signs Defendants’ as well as the a “public assessed whether was Epic, speech and determine whether such figure” under Gertz and whether Mat is entitled to protection. constitutional “public thew’s funeral was a event.” See id.17 a. Supreme The Court has created a following signs displayed by The

separate prece line of First Amendment Defendants, which are similar in both dent that specifically is concerned with the message syntax, their can readily and be protections constitutional afforded to cer Doomed,” together: “America is assessed types speech, tain of and that does 9/11,” “God Hates the God for USA/Thank depend upon public private or status of Hell,” “Pope “Fag Troops,” “Semper Fi Milkovich, target. the speech’s See Soldiers,” Fags,” “Thank God for Dead 16, 2695; at Maga U.S. S.Ct. Hustler USA,” Pray “Don’t for the “Thank God for zine, 50, Thus, IEDs,” 485 U.S. 108 S.Ct. 876. Rape Boys,” “Priests and “God (as matter, even if district opposed Fags.”18 court to the Hates As a threshold as containing specifical- specifically assertions of actual fact 18. The district court did not dis- ly concerning Snyders), directed at and ("Don’t signs Pray cuss four of these for the jury and indicated that should decide USA,” IEDs,” Rape "Thank God for "Priests signs whether the should be afforded First Boys,” Fags”) and "God Hates in its Post- protection. Amendment Opinion. Trial It did also not mention other signs displayed reading at the funeral —those distinguish 17. The district court failed to be- Taliban,” Nations,” "Fags “Maryland Doom Snyder pur- tween and his deceased son for and Blessed Cursed”—that further "Not Just poses "public figure” analysis. See signs support our con- conclusion Snyder, F.Supp.2d at 577. Because the reasonably generally hyper- tained at issue cannot be inter- directed rhetorical preted stating any bole, actual, as actual facts about indi- provable and not about facts vidual, we need not decide whether the court Snyder or his son. should have drawn a distinction. are, only object signs they their is Matthew and as these utterly distasteful concern, includ- public matters of involve not the thousands of other soldiers who mili- in the of homosexuals ing the issue Iraq Afghanistan, have died often within the sex-abuse scandal tary, as a result of IEDs. Church, political and mor- and the Catholic if language signs Even of these and its of the United States

al conduct reasonably imply be read to an could as- subjects are not issues citizens. Such son, Snyder or sertion about the state- concern,” Dun Brad- private & “purely protected by ments are the Constitution street, 105 S.Ct. but 472 U.S. they for reasons: two additional do not social, political, or rather issues are individual, see, provable assert facts about an community, e.g., other interest to the Montgomery they clearly imaginative contain v. Bd. Educ. Acanfora (4th County, 491 F.2d 500-01 Cir. hyperbolic rhetoric spark intended to de- 1974) ho- (holding speech concerning bate about issues with which the Defen- concern). mosexuality public matter of was CACI, dants are concerned. See in one of the amicus submis- explained As at 301. hates” the Whether “God United sions, example, firestorm particular group, States or a or whether prominent in 2001 after two reli- erupted “doomed,” pure- America is are matters of Jerry Falwell and Pat Rob- gious figures, ly subjective opinion put cannot be ertson, 11th alleged September objective verification. statement punish- represented terrorist attacks God’s God,” “Thank an impera- whether taken as country’s regarding attitudes ment for our exclamatory phrase expression, tive John F. homosexuality and abortion. See similarly incapable objective verifica- Harris, De- “God Gave U.S. ‘What We And, explained, tion. as heretofore a rea- Post, serve,’ Says,” Sept. Falwell Wash. interpret sonable reader would not 2001, at C3. signs perceived including could be as Additionally, no reasonable reader could facts, “Fag Troops” verifiable such as any signs asserting as interpret of these Rape Boys,” asserting “Priests as actual objectively actual and verifiable facts about Snyder facts about or his son. To the Snyder signs reading or son. The his statements, contrary, these latter as well for “God Hates the God USA/Thank 9/11” category, as others in this consist of offen- USA,” Pray “Don’t for the for exam- and hyperbolic designed rhetoric to sive individual, ple, any are not concerned with spark controversy By and debate. em- nation a but rather with the as whole. God, “hate,” ploying strong verb (those “fags,” signs referring Other to attacks, graphic references to terrorist soldiers”) “troops,” plu- and “dead use the “loose, figura- Defendants used the sort of form, ral which would lead a reasonable tive, hyperbolic language” seriously or speaker is reader to conclude negates any impression speaker is referring group to a rather than an indi- asserting actual facts about an individual. signs Additional are concerned vidual. Milkovich, 21, 110 497 U.S. at S.Ct. 2695. individuals, Pope, with such as the who are agree Accordingly, we are constrained to son, Snyder and entirely distinct from Doomed,” signs these is —“America groups, priests, such as to which or 9/11,” Hates the God for “God USA/Thank Snyder belong. Final- neither nor his son Hell,” “Semper Fi “Pope “Fag Troops,” “Thank for ly, signs stating those God Soldiers,” Fags,” “Thank God for Dead and “Thank God for IEDs” Dead Soldiers” USA,” “Thank Pray “Don’t for the God Snyder’s only constitute a reference to son IEDs,” Rape Boys,” “Priests “God assumption if reader makes the speech proceed- to First eral context of the Fags” entitled Hates —are (and impassioned highly of- protection. ing is one of Amendment fensive) protest, with the at issue b. conveyed placards. on handheld A dis- hotly protest sign regarding tasteful de- reader’s reaction The reasonable concern, bated matters of such as Going to Hell” signs to two other —“You’re homosexuality religion, or is not the medi- spe and “God Hates You”—also must be addressed, through um which a reasonable reader cifically signs as these two expect speaker con would a to communicate present question. a closer We must addition, clude, however, objectively signs that these two can verifiable facts. rude, reasonably interpreted stating as on these signs figu- not be words were rative, any actual facts about individual. The incapable being objectively meaning signs ambiguous of these be proven disproven. or Given the context “you” can pronoun cause the be used to signs, and tenor of these two a reasonable person singular indicate either the second interpret reader would not them as assert- plural form.19A reasonable reader could ing Snyder actual facts about either or his therefore, interpret signs, these as refer son. or, Snyder only,

ring to or his son c. (or hand, other to a collective audience whole). the nation as a even Finally, Epic publish the written ed on the website of the Church is also question We need resolve this Amendment, protected the First in that however, usage, because reasonable a reasonable reader would understand it to interpret reader would not the statements hyperbole, contain rhetorical and not actu signs on these asserting two as actual and al, provable Snyder facts about and his provable facts. an individual is Whether son. The First Amendment issue concern “Going approves to Hell” or whether God ing Epic presents a somewhat more possibly someone’s character could not however, subject objective Thus, question, be to difficult verification. because it is if the even reasonable reader understood entitled “The Burden of Marine Lance “you” signs in these refer Cpl. Snyder.” Matthew A. J.A. 3788. son, or his no such reader would under- Such a title could lead reasonable reader (“You’re stand Going those statements initially Epic conclude that the asserts You”) Hell” and “God Hates to assert particular facts about this soldier. The provable facts about either of them. subtitle, Epic’s however, immediately con nects its contents to the pro Defendants’ Additionally, signs, as with the other there; signs displayed test and the various signs both of these contain strong ele- Baptist “The Visit of Westboro Church to hyperbole figura- ments of rhetorical Help Maryland the Inhabitants of Connect expression. recognized, tive As we have Epic the Dots! This Adventure Took Place the “context and tenor” of at Friday, Epic March 2006.” issue, Id. The speaker’s as well as the use of “ir- a photograph protest has of the funeral reverent language,” and indefinite can title, immediately below its negate any impression serve to followed he is nearly pages actual two asserting facts about an individual. verbatim Bible verses. Biospherics, gen- 151 F.3d at 184-85. The Id. at 3788-89. Historically, pronoun “you” Dictionary was used Third New 2380-81 International form; plural (1976). in the the word “thou” was single person. refer a used to to See Webster’s Indeed, protest. life: text of the funeral it is then discusses Matthew’s Epic

The Snyder patterned hyperbolic figura- after the years ago, little Matthew “Twenty language signs. him tive used on the various world.... God created came into the Again, assessing the First him to Albert and in Amendment and loaned/entrusted issue, must Epic 3790. The we evaluate reasonable read- Snyder.” J.A. Julie in Snyders Epic, light “had a DUTY to er’s reaction to the of its states general Biospher- serve the LORD his context and tenor. See that child to prepare ics, context, In THE 151 F.3d at 184-85. You did JUST GOD—PERIOD! Epic recap protest him for the devil. is a of the and was you raised OPPOSITE — website, through him was a liar.” Id. distributed the Church taught You that God also focuses on Mat- which would not lead the reasonable read- Epic at 3791. The expect that “Albert er to actual facts about upbringing, asserting thew’s defy son to be therein. taught ... Matthew to his his asserted and Julie divorce, Creator, and to commit adul- general Epic tenor of the also They taught support him how to tery. negate any impression it serves history machine in the largest pedophile any actual was the source facts. world, mon- the entire the Roman Catholic it, preparing interspersed the Defendants also, They supporting ... in strosity. language strong, figurative with verses Catholicism, taught Matthew to be satanic They from the Bible. utilized distasteful interspersing Id. After addi- idolater.” words, atypical capitaliza- and offensive Bible, excerpts Epic from the tional tion, exaggerated punctuation, all of military, to Matthew’s service refers suggest hysterical which the work of a noting fought that he objective protestor report- rather than an Sodom, filthy States of United referring Sny- facts. to the Despite er of evil, country step that is in lock with his name, family by Epic primarily der life, wicked[,] put- sinful manner of strongly with the concerned Defendants’ of a ting him the cross hairs God held views on matters of concern. coming mad He has smoke from his is so Indeed, Epic explains that Matthew’s mouth! nostrils and fire from his How Iraq gave the Defendants the death dumb was that? preach words to “opportunity [God’s] then links Matthew’s death to Epic Id. The Academy Annapolis Naval at the U.S. activities, stating: protest the Defendants’ Legislature,” Maryland J.A. [and] up very pur- they protested very rose Matthew for the where on the God down, Finally, pose striking day him so that God’s of Matthew’s funeral. might throughout picketing declared all Defendants’ extensive funeral ac- name be predated the earth. He killed Matthew so that tivities Matthew’s funeral and opportunity day throughout His servants would have an continue to this the coun- try, many signs displayed His words to the U.S. Naval preach displayed in Academy Annapolis, Maryland being Matthew’s funeral also Legislature, protests. and the whorehouse called other at St. John Catholic Church Westmin- Thus, Snyders are men- even when the Snyder Matthew fulfilled his ster where Epic, tioned in the a reasonable reader calling. pri- understand its contents to be would Id. at 3973. general mes- marily focused on the more protests to which their are directed.

Notwithstanding foregoing, Epic sage the the Epic, in for Defendants assert the general divorced from the con- The cannot be (4th Cir.1993) Skyrm, incurred Snyders the had example, omitted). (internal a by raising quotation wrath Matthew as Cath marks God’s mili him to in the allowing olic and serve Nonetheless, the various states reasonable reader tary —assertions localities, families, grieving and as well as on the Defendants’ would take as focused sanctity may yet protect of solemn of policies and activities concerns with the occasions such as funerals and memorials. mili and the the Roman Catholic Church Indeed, governmental bodies are entitled Furthermore, a reader tary. reasonable place to reasonable and content-neutral rhetorically hyperbolic a would take as time, place, and manner restrictions on describing text the “United States Sod activities that are otherwise constitutional “filthy” country, labelling om” as ly protected. “breathing space” Some machine,” a “pedophile Church as Catholic essential, however, contentious is equating Maryland Legislature and Speech the Free New under Clause. See context, In that with the Taliban. Times, at York 376 U.S. 84 S.Ct. 710. reasonable reader would understand the long ago emphasized: As the Court Sny Epic other assertions of the —that persuade point To others to his own devil,” son “for the and ders raised their view, know, times, Creator, divorce, pleader, as we “defy him taught his to “loose, adultery”- exaggeration, resorts to to vilification of simply and to commit —-as been, are, figurative, hyperbolic language” prominent not men who have or state, connoting actual facts about Matthew or in church or and even to false Milkovich, parents. U.S. people statement. But the of this nation Thus, a reasonable S.Ct. 2695. reader light history, have ordained Epic would not understand the to assert that, in spite probability of the of excess- actual facts about either or his abuses, are, es these liberties son.20 view, long essential to enlightened opin- right ion part conduct on the C. democracy. citizens of a Notwithstanding the distasteful Connecticut, 296, 310, Cantwell v. 310 U.S. repugnant being nature of the words (1940). 60 S.Ct. 84 L.Ed. 1213 Be- challenged proceedings, in these are we judgment liability cause the attaches tort constrained to conclude that the Defen constitutionally protected speech, signs Epic constitutionally dants’ are in declining district court erred to award protected. paraphrase To our distin judgment as a matter of law. Hall, guished colleague Judge judges de fending the Constitution “must sometimes IV. [their] share foxhole with scoundrels of foregoing, judgment Pursuant to the sort, every post but to abandon the be court district is reversed and the poor company cause of the is to sell free appeal hereby various bonds are dis- dom It a fair cheaply. summary charged. history say safeguards of liber ty forged have often AND been controversies JUDGMENT REVERSED involving very people.” Kopf nice v. BONDS DISCHARGED recognized "essentially 20. The district court re- [the Defendants’] nonfactu- therein were Epic Sny- ligious opinion realistically al basis of the when it dismissed and would not ruling, expose Snyder der's defamation claim. In so tend to hatred or Snyder, F.Supp.2d at court observed that the statements found scorn.” 572-73.

227 brief, opening raise an issue in its SHEDD, concurring in fails to Judge, Circuit the issue to be waived. See judgment: we deem the 1150, Enterprise, 100 F.3d Cavallo v. Star majority that with the agree I Although (4th Cir.1996). Moreover, n. 2 where 1152 reversed, I must be below judgment the brief, is raised in an amicus an issue As I grounds. so on different would do decline to consider it. See generally we below, that I hold would explain Buculei, 322, States v. 262 F.3d 333 trial sufficient evidence United prove failed (4th Cir.2001). any However, of his jury verdict on that the n. 11 rule is support can appeal be claims. Because absolute, tort I and believe it is within our basis, I on this non-constitutional decided an issue not raised authority consider Amendment is- not reach the First would by parties. by majority.

sue addressed judicial a case is power Our to decide arguments and actions not limited

I. Moreover, parties. while we “nor- A. mally” decline to decide an issue not raised im- parties, “normally” necessarily of constitutional the doctrine Under avoidance, plies precluded doing that we are not from are to avoid constitutional we grounds when other exist determinations so under certain circumstances. See Car- (4th Cir.2002) of the case. See Ash disposition Lee, 240, ter v. 283 F.3d 252 Auth, Valley 297 U.S. wander v. Tenn. (noting normally that “this views Court (1936) 466, 288, 347, L.Ed. 688 80 S.Ct. opening not raised in an brief contentions (“It (Brandeis, J., not the concurring) waived”) added); (emphasis to be see also questions to decide habit of the court Corp., v. Trans 246 F.3d Cousin Union absolutely nec constitutional nature unless Cir.2001) (5th 359, (noting n. 22 case.”) (internal essary to a decision of the although issues not raised in initial brief omitted); quotations marks citation and waived, normally the court has discre- are Md., Inc. v. Prince also Bell Atl. see issue); City v. Bridges tion to decide the (4th 863, 212 F.3d George’s County, (5th Bossier, 329, 92 F.3d 335 n. 8 Cir. Cir.2000) “by (holding deciding 1996) legal is- (electing purely to examine in question preemption constitutional brief, by party opening sue not raised ques state law considering advance of by amicus curiae in its initial but raised upon might the case have been tions which brief); CIR, Estate Lisle v. of, the court committed disposed district (5th Cir.2003) 364, (holding that error”). viability reversible Because the may in decline we our discretion “[w]hile as a dispositive non of the state torts is vel issues not raised an initial to consider on which to de ground nonconstitutional brief, we choose to address the issue case, proceed this I would to consider cide here”). Indeed, Supreme Court has first instance. To do issue practice. Teague See approved principle turn the of con otherwise would Lane, 288, 300, 489 U.S. 109 S.Ct. head; on its rather stitutional avoidance (1989) (plurality opinion); L.Ed.2d 334 avoiding unnecessary constitutional than States, 512 see also Davis v. United U.S. issues, parties allow the to structure we 457 n. 114 S.Ct. 129 L.Ed.2d to reach case in order to force us (1994). constitutional issues. Court of A case from the United States Snyder argue Phelps nor Neither Cir- Appeals for the District Columbia as a the torts are deficient appeal point. on this See Inde- Ordinarily, party cuit is instructive of law. where matter America, power Inc. v. should exercise that under certain Agents Ins. pendent of (D.C.Cir.1992) (dis- Clarke, F.2d 731 circumstances. by not advanced posing of a case on a basis Here, moreover, dispositive the noncon- grounds on sub parties), the rev’d other ground already stitutional before us as Oregon v. Inde- nom. Nat. Bank U.S. of Thomas Pro- the Jefferson Center for the America, Inc., 508 pendent Agents Ins. of (“the Expression tection for Free Cen- 439, 445-47, S.Ct. U.S. ter”), permitted which we to file an amicus (1993). denying rehearing L.Ed.2d 402 brief, argues underlying curiae banc, judge a of that court noted en legally state law torts are deficient. See “judicial colleagues question the Our of Brief the Thomas Jefferson Center an power” of a federal court to decide Expression, the Protection of Free at 15- concededly dispositive of law issue Specifically, the Center contends that parties case where have not raised the Snyder Phelps failed to establish that the I apparent issue. think it most upon intruded his seclusion or that possess power. courts do federal Phelps’ outrageous activities are under parties The alternative is that the could Maryland law. court render an advi- force federal Thus, persuaded I am that we should sory opinion. What the dissenters in by consider the issues raised the Center argue parties stipu- effect is that the can First, Phelps for several reasons. law; underlying late to the state of clearly challenged legal sufficiency suit, assuming stipula- frame a law by the state law in torts the district court tion; and obtain from the a ruling court way summary judgment of a motion for as to what the dispositive otherwise law post-trial and later their motions. Sec- if stipulated would be case were ond, Snyder directly has responded in this Indeed, precisely fact the law. that is appeal to the issues that the Center raises. what would have occurred this case Third, importantly, principle and most not, panel had sponte, sua raised the requires constitutional avoidance us to question.... avoid constitutional determinations when America, Independent Agents Ins. Inc. grounds other exist for disposition (D.C.Cir. Clarke, Here, the case. because the state law 1992) (Sentelle, J., concurring)(emphasis supported by torts are not the evidence added). Following rehearing the denial of trial, presented at I would reverse under banc, en the Supreme granted Court state law and not under the First Amend- specifically writ of certiorari and noted ment. that the circuit court did have the authori- ty to raise and decide an issue not raised B. by parties. Independent See Ins. One, jury Under Count found the America,

Agents 508 U.S. Phelps liable for the state law tort of “in- (noting S.Ct. 2173 contrary con- “[t]he privacy by vasion of upon intrusion seclu- permit clusion would litigants, agreeing Phelps sion” because the invaded Albert legal presented, issue to extract the Snyder’s privacy during opinion of a his time of ber- hypothetical court on Acts of jury eavement. The was Congress or dubious constitutional instructed that princi- “(1) ples, opinion the elements of this claim An that would be difficult to are: (2) (3) anything advisory”). prying upon characterize as but intentional intrusion or Thus, I believe power something we have the to de- which is and is entitled to be (4) parties private cide issues not raised in a highly manner which is Furman, private In a club member who person.” J.A. to a reasonable offensive in a in an earlier lawsuit plaintiff had been an intru- claims Snyder apparently 3110. injured, brought to be which he claimed of occurred because seclusion upon sion private investigator a who against suit the televi- protest funeral and Phelps’ in that the defense counsel worked for thereof, because of the coverage and sion trespassed private and who into a lawsuit on the Internet sev- he found “epic” which sailing videotape plaintiff on his club to funeral. after the eral weeks Furman, at The 744 A.2d yacht. law, oc- an “intrusion” Maryland Under by security a fence was surrounded club act that has been some when there curs “Trespassers conspicuously posted the inva- private place a or interferes “into Mary- The signs. Prosecuted” Id. will be plaintiff seclusion that private of a sion held that Special Appeals of land Court person or affairs.” about his has thrown observing liability is no [the “[t]here Md.App. Sheppard, v. Furman public places in since he is not plaintiff] (2000) (internal citation and A.2d in Id. at 586. Even then seclusion.” omitted). Expounding marks quotation club, private he was in a the court though Maryland law rec- “intrusion” types in plaintiff public that the was concluded Appeals Maryland Court of ognizes, by exposed “public view because he was has stated: passers by.” Id. at 587. neighbors his upon the of intrusion tort] consists [this the court ruled that there was Accordingly, seclusion, or physical solitude plaintiffs into seclusion. Id. no intrusion his quar- home or other invading his by as Hollander, plaintiff In sued several shopping ters, illegal of his or an search revealing a their individuals and bank for has, how- principle The bag in a store. partner was a plaintiff the fact ever, beyond physical such carried been Hollander, firm. 351 A.2d mortgage intrusion, eaves- extended this, plaintiff brought claim 422. For conversations dropping upon private privacy by upon intrusion for invasion microphones; tapping and means of wire seclusion, among other claims. Id. indicating that it are decisions and there that there Maryland Appeals held Court into the win- applied peering is to be and, there- private no facts revealed were home, persistent well as of a as dows fore, upon was no intrusion seclu- there calls. The tort telephone unwanted The court elaborated: sion. Id. case of unautho- found has been when an plaintiff complain cannot [t]he bank ac- plaintiffs into the prying rized publicly engages in which he occupation count, has been principle and the same attention, or when public called to is subpoena invalidate a blanket used to given to matters such as the publicity is requiring production tecum duces marriage, or or his date of birth documents, and an all his books and record, which are a mat- military service test. illegal compulsory blood record, open public public ter however, clear, there must It be is generally It seems to be inspection. prying nature of something in a agreed anything visible intrusion.... given circula- can be recorded and place Lubow, A.2d 277 Md. Hollander v. to the photograph, of a tion means (1976) (internal citations and description, 425-26 aby extent as written same omitted). nothing Several cases more than marks this amounts to quotation since already public which consti- type giving publicity of conduct to what illustrate free would be anyone present under and what upon “intrusion seclusion” tutes an when an The contention that to see. Maryland law. singled upon Maryland individual is thus out seclusion under law. Id. from public scene and undue attention is at 1023-24. fo- him, there upon cused is an invasion of Corp., Pemberton Bethlehem Steel private rights, his has not been borne (1986), Md.App. 66 502 A.2d 1101 a by out the decisions. On the other president local union filed suit for intrusion hand, picture it is clear that when a is upon upon seclusion based types various in plaintiffs taken without the consent a surveillance the defendants on conducted private place, already or one made is him. Maryland Special The Ap- Court stolen, by bribery or obtained or other that peals placing held a surveillance mi- trust, plain- inducement of breach of crophone on a hotel door order to hear appearance tiffs which is thus made private conversations inside a hotel room public private thing, is still a and there may be actionable as an upon intrusion private right, is an invasion of a for However, seclusion. the court further which an action will lie. surveillance, stated that other such as (internal quotation Id. citation and marks watching plaintiffs home from the omitted) added). (emphasis street is not actionable as an intrusion upon seclusion because “there is no liabili-

Additionally, Maryland where courts ty observing person] public for places, [a action, recognized have this cause of I find since he is not then seclusion.” Id. at nothing analogous Snyder’s to claim. For (internal quotation 1116-17 marks omit- Co., example, in Mitchell v. Baltimore Sun ted). (2005), 164 Md.App. 883 A.2d 1008 a congressman former brought a cause of cases, In light of these it is clear that privacy action for invasion of by intrusion there was type any no of “intrusion” under upon seclusion. His claim was based on First, that Snyder bases asserts. as two newspaper reporters who came to his itself, protest to the funeral Phelps did nursing home room uninvited purport- “pry” not “intrude” or upon any private edly investigate unpaid some of his bills. seclusion. Phelps The never intruded

Id. at 1012. reporters were aware upon private place protest because their that elderly Mitchell was and in failing occurred all times in a public place that health, nursing and the sign home had a designated was by the police and located that stated “NO TRESPASSING NO 1,000 approximately feet from the funeral. reporters SOLICITING.” Id. The asked Further, Phelps Sny never confronted him a series of questions, and when he der, admits he could not see leave, asked repeatedly they them re- protest. Finally, there was no intru Finally, fused. Id. at 1012. congress- sion because the undisputed evidence is man “that asserted one of the reporters that the church service disrupt was never through looked some that files he had in a Phelps church, ed. The never entered the cabinet, filing box, or on a desk near they his stopped protesting when the bed.” Id. In deciding 1012-13. sum, reverse church began. service In I would summary judgment, the court held that hold the protest funeral did not intrude these actions could constitute an upon Snyder’s intrusion seclusion.1 Snyder's 1. To the extent claim is based on given can be recorded and circulation television, viewing Phelps' pro-test I photograph, means of to the same extent as coverage public would find television of a description, a written since this amounts to protest that occurred in a area is not nothing giving publicity more than to what is Hollander, an “intrusion.” A.2d 351 Cf. already public anyone present and what (noting generally “[i]t seems to be see”). would be free to agreed anything public place visible in a Likewise, tional of emotional Phelps’ I infliction distress would hold viable, rarely sparingly on their church Inter- and is to be used “epic” posting law, not, a matter an website is as in opprobrious net behavior that Snyder’s upon Albert seclusion intrusion truly outrageous Bagwell cludes conduct.” Maryland posting law. Center, under Regional Peninsula Medical anything do did not “epic,” Phelps (1995) Md.App. 665 A.2d attention, it to such as Snyder’s direct (internal quotation citation marks Hollander, him. or transmit it to email omitted).2 Maryland Cf. A cases review (noting repeated A.2d at exacting illustrates the burden of this ele may give calls rise to intrusion phone ment. claim). Instead, Snyder upon seclusion Nickel, Figueiredo-Torres In v. Md. 321 during the “epic” of Internet learned (1991), 642, Maryland 584 69 A.2d the search, it he upon finding and chose to of claim upheld Court a for inten- Appeals so, By any doing read it. interference tional infliction of emotional distress Snyder’s purported interest in seclu- plaintiff psychologist whose had sexual re- Snyder himself rather sion was caused plaintiffs lations with the wife. The court Phelps. than the concluded that there was of ex- evidence short, I In conclude verdict on treme outrageous and conduct “where a One cannot stand. The evidence is Count psychologist improve who is retained to law Maryland insufficient under for the marital relationship implements a course Phelps the jury to have found that commit- injurious of which is extreme conduct to upon act any Snyder’s ted that intruded patient designed the and facilitate a to right to seclusion. romantic, relationship the sexual between therapist patient’s spouse.” and the Id. at C. 75. Two, Phelps Count the were held Under K.K., 135, In B.N. Md. v. 312 538 A.2d of for intentional infliction emotional liable 1175, (1988), Maryland of 1177 Court jury, As ele- charged distress. to Appeals a claim for in- upheld intentional (1) Phelps’ for this are: ments tort fliction of emotional distress where (2) reckless; was conduct intentional plaintiff defendant failed to disclose to the outrageous; the conduct extreme and was sexually that he had a transmitted disease (3) the emotional conduct caused distress prior having sexual with her. relations (4) Snyder; and the emotional distress plaintiff The this dis- thereafter contracted severe. was J.A. 3111. ease. Id. court noted that the ele- The law, Maryland Under second ele- outrageous ment of and conduct extreme requires “so extreme in de- ment conduct was of supported because the risks all go beyond possible as to bounds gree, plaintiff side effects of the disease the decency, regarded to be as atro- of from the defendant. Id. at contracted cious, in a utterly intolerable civilized 1180. Pemberton, community.” 502 A.2d at 1115 (internal Maryland In a final case where the quotation marks citation omitted). upheld of Appeals Court has a claim of Maryland Special Court distress, has tort of inten- intentional infliction emotional Appeals “[t]he held that Maryland Spe- began recognizing tort in See Pen- A case Court of 1977. Appeals County, cial that the tort intentional Md.App. noted hollow v. Cecil up- (1997). distress had infliction emotional been A.2d Maryland since held on three occasions plaintiff physical plaintiff had suffered and The alleged that the defendants being emotional trauma from assaulted at him defamed and committed the tort of Young work. See Accident & intentional infliction of emotional distress. Hartford Co., Indent. 303 Md. 492 A.2d Id. at 1195. The upheld court the defama- (1985). making disability pay- After tion claim but held that even though the ments, the defendant refused pay cer- defendant’s conduct defamatory, was it “in tain bills and insisted plaintiff doctor’s way exacting no satisfies our standard for ” undergo psychological another evaluation ‘extreme and outrageous conduct.’ Id. at despite warning fragile a doctor’s of her condition. Id. The court held that “[i]f case, asserts that plaintiff] proves that the purpose [the sole protest outrageous was extreme and be psychologist’s] examination [the was to cause the funeral disrupted by having was harass the Plaintiff abandoning into her re-routed; procession grieving pro his claim, suicide,” or into committing the be- cess disrupted by was having worry outrageous. havior would be extreme and daughters about his observing Phelps’ (internal quotation Id. at 1278 marks omit- protest; Phelps’ and the messages on their ted). protest signs family. were focused on his hand, Maryland On other has re- noted, As earlier protest was confined uphold fused to the tort the context of to a supervision area under types other of egregious conduct. In regulation of local law enforcement and did Mitchell, the reporters two entered a for- disrupt the church Although service. mer congressman’s nursing home un- room people reasonable may disagree about the invited, and looked through his files with- appropriateness Phelps’ protest, this permission. out See 883 A.2d at 1012-13. conduct simply satisfy heavy does not though congressman Even was in fail- required burden for the tort of intentional ing reporters health and the had been infliction of emotional distress Ma under leave, asked to the court held that these Further, ryland law. to the extent facts did not show extreme and outrageous asserts the “epic” tort, as a basis for this I conduct and stated that per- “[w]e are not would “epic,” find the which the district suaded the reporters’ questioning of court found to be non-defamatory as a Mitchell, even if conducted while trespass- law, matter of is not support sufficient to ing, possible exceeded all bounds of decen- finding of extreme outrageous con cy, regarded atrocious, as to be as Therefore, duct. I believe the verdict on utterly intolerable society.” civilized Count Two must be reversed.3 (internal Id. quotation citation and omitted). marks II.

In Shiflett, Batson v. 325 Md. sum, (1992), A.2d 1191 I find president sup- of a the evidence cannot local continually port union was harassed the de- state torts at issue in appeal and, attempt therefore, fendants an to remove him from I would not reach the First local office and to position. undermine his analysis Amendment majority imp- Phelps (not- 3. The were (1970) also held liable for civil 259 Md. 269 A.2d conspiracy under Count Three. Because the ing conspiracy that "[a] civil is a combination activity required unlawful for this count was persons by two agreement or more the substantive offense of Count 1 or Count understanding accomplish an unlawful this count must also be reversed. See Greenv. act”). Commission, Washington Sanitary Suburban in the I concur Accordingly, lores. reversal majority reaches —the

result judgment below. AND SECURITIES UNITED STATES COMMISSION, EXCHANGE Plaintiff-Appellee, LLC; Frank PIRATE INVESTOR Stansberry, Defendants- Porter

Appellants, Defendant, Agora, Incorporated, Davidson, Dale James Intervenor/Defendant. Corporation; Forbes, LLC; Hearst Company (including Bal- Tribune Sun); Eagle Financial, Incor- timore Media, LLC; porated; Investorplace Society Newspaper Edi- American tors; First Amendment California

Coalition; News Di- Radio-Television Association; Reporters Com- rectors Press; mittee for Freedom of the So- Journalists; ciety of Professional Pro- Thomas Center for the Jefferson Expression, Free Amici tection of Supporting Appellants. 08-1037.

No. Appeals, United States Court Fourth Circuit. Argued Dec. Sept. Decided

Case Details

Case Name: Snyder v. Phelps

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Sep 24, 2009

Citation: 580 F.3d 206

Docket Number: 08-1026

Court Abbreviation: 4th Cir.