12
SNYDER v. PHELPS
ALITO, J., dissenting
vulnerable. See National Archives and Records Admin. v. Favish, 541 U. S. 157, 168 (2004). Exploitation of a funeral for the purpose of attracting public attention “intrud[es] upon their . . . grief,” ibid., and may permanently stain their memories of the final moments before a loved one is laid to rest. Allowing family members to have a few hours of peace without harassment does not undermine public debate. I would therefore hold that, in this setting, the First Amendment permits a private figure to recover for the intentional infliction of emotional distress caused by speech on a matter of private concern.
V
In reversing the District Court judgment in favor of petitioner, the Court of Appeals relied on several grounds not discussed in the opinion of this Court or in the separate opinion supporting affirmance. I now turn briefly to those issues.
First, the Court of Appeals held that the District Court erred by allowing the jury to decide whether respondents’ speech was “ ‘directed specifically at the Snyder family.’” 580 F. 3d, at 221. It is not clear whether the Court of Appeals thought that this was a question for the trial judge alone or a question on which the judge had to make a preliminary ruling before sending it to the jury. In either event, however, the submission of this question to the jury was not reversible error because, as explained above, it is clear that respondents’ statements targeted the Snyders.
Second, the Court of Appeals held that the trial judge went astray in allowing the jury to decide whether respondents’ speech was so “ ‘offensive and shocking as to not be entitled to First Amendment protection.’ ” Ibid. This instruction also did respondents no harm. Because their speech did not relate to a matter of public concern, it was not protected from liability by the First Amendment,
