Following up on my earlier post about the $10.9 million jury verdict against Fred Phelps and the Westboro Baptist Church, I wanted to point our readers in the direction of some excellent commentary on the topic by Eugene Volokh at the Volokh Conspiracy. In a series of posts collected in a single thread, Volokh argues that the intentional infliction of emotional distress and intrusion torts, which are the claims that the jury found liability on, are unconstitutionally overbroad and vague when applied to speech. (More precisely, he argues that these torts, as applied to speech, are unconstitutional unless narrowed by courts to cover only constitutionally unprotected speech like "fighting words," incitement to imminent lawless action, or statements of fact made with the requisite degree of fault, which did not happen in the Phelps case.)

Intrusion is a tort that we've paid particular attention to because of its implication in the newsgathering process. Volokh captures well the constitutional infirmity looming in application of the intrusion tort to Westboro's picketing activities:

The intrusion upon seclusion tort generally focuses on conduct that is offensive regardless of the message it expresses (the Restatement of Torts illustrations are entering a patient's hospital room to take a photograph over the patient's objection, photographing through someone's bedroom window through a telescope, tapping someone's phone, getting someone's bank records using a court order, and calling someone every day for a month at inconvenient times). The tort is constitutional precisely because it's content-neutral. Here, though, the intrusion stemmed not just from the proximity of the picketing to the funeral -- there must have been a good deal of speech within 1000 feet of the church at which the funeral service was being conducted, and surely one wouldn't call all of it "highly offensive intrusion upon seclusion" -- but also from the message of the picketing.

Indeed, I would say that the intrusion tort normally does not apply to the conveyance of a message at all. It bars physical incursion into a place where a plaintiff has a reasonable expectation of privacy, if that invasion would be "highly offensive to a reasonable person." Restatement (Second) of Torts § 652B. It also commonly applies to non-physical intrusion in the form of a defendant using his/her senses, with or without the aid of mechanical devices such as a telephoto lens or recording equipment, to oversee or overhear a plaintiff's private affairs. See id. cmt. b.

For someone accustomed to thinking of the intrusion tort in the context of newsgathering, it is jarring to see it applied to speech activity like protesting or picketing. Volokh is plainly right that imposing liability on speech based on a "highly offensive to a reasonable person" standard coupled with a tenuous proximity requirement (remember, 1000 feet!) potentially penalizes protected speech and thus violates the First Amendment.