Snyder v. Phelps (Dissenting opinion)


Cite as: 562 U. S. ____ (2011)
ALITO, J., dissenting

and the only question for the jury was whether the elements of the IIED tort were met.

Third, the Court of Appeals appears to have concluded that the First Amendment does not permit an IIED plaintiff to recover for speech that cannot reasonably be interpreted as stating actual facts about an individual.  See id., at 222. In reaching this conclusion, the Court of Appeals relied on two of our cases—Milkovich v. Lorain Journal Co., 497 U. S. 1 (1990), and Hustler, 485 U. S. 46—but neither supports the broad proposition that the Court of Appeals adopted.

Milkovich was a defamation case, and falsity is an element of defamation. Nothing in Milkovich even hints that the First Amendment requires that this defamation element be engrafted onto the IIED tort. 

Hustler did involve an IIED claim, but the plaintiff there was a public figure, and the Court did not suggest that its holding would also apply in a case involving a private figure.  Nor did the Court suggest that its holding applied across the board to all types of IIED claims. Instead, the holding was limited to “publications such as the one here at issue,” namely, a caricature in a magazine. 485 U. S., at 56.  Unless a caricature of a public figure can reasonably be interpreted as stating facts that may be proved to be wrong, the caricature does not have the same potential to wound as a personal verbal assault on a vulnerable private figure.

Because I cannot agree either with the holding of this Court or the other grounds on which the Court of Appeals relied, I would reverse the decision below and remand for further proceedings.17
17 The Court affirms the decision of the Fourth Circuit with respect to petitioner’s claim of intrusion upon seclusion on a ground not addressed by the Fourth Circuit.  I would not reach out to decide that issue but would instead leave it for the Fourth Circuit to decide on remand.  I would likewise allow the Fourth Circuit on remand to decide whether

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