The petitioner's brief has been filed in Snyder v. Phelps. Over at the Volokh Conspiracy, Eugene Volokh has a number of informative posts on the merits of the intentional infliction and privacy claims. According to Mr. Phelps, the Fourth Circuit's principal error was to give "absolute immunity" to a category of hyperbole that does not make factual claims about the target of the speech. The brief also relies heavily on the "captive audience" principle, noting that the Court has applied the doctrine outside the context of the home -- most notably in the abortion clinic protest context.
Not surprisingly, petitioner's brief barely acknowledges that the speakers were lawfully in a public place when they engaged in their offensive protest of the Snyder funeral. For me that is a key factor. One almost gets the impression from the brief that the speech occurred inside the cemetery or church grounds (although the brief does finally mention that the Phelps's were 200-300 feet from the church).
If the jury's verdict is upheld, public protesters may well be chilled from communicating in a manner that the target audience (and the jury) may find "extreme and outrageous." It is true that Mr. Snyder is a private citizen and did not seek the publicity the Phelps's brought to his son's funeral. It is also the case that their speech is highly offensive not only to the Synders but to any reasonable person who might view or hear it. However, to extend the captive audience and privacy doctrines to what is, in essence, a street protest would be a very dangerous precedent. Unfortnately the Supreme Court started down this path in the abortion clinic protest cases, where it balanced the protesters' interests against the public privacy and tranquility interests of the target audience. As reprehensible as the speech in this case may be, upholding million-dollar tort judgments based solely upon public speech activities would be a substantial blow to public protests and to free speech more generally.
One cannot help but have some sympathy for the Snyders and their plea for respect during their time of mourning. However, to create a category of "extreme and outrageous" speech that is subject to civil liability would give too much power to juries to regulate speech based on its offensive content. The same is true for the intrustion upon seclusion claim, which in this case stems almost solely from the speech of the Phelps family rather than any conduct interfering with a recognized privacy interest. The bottom line, for me, is that regulating public speech and contention of this sort should be accomplished under properly drawn content-neutral time, place and manner laws. So long as they are in compliance with such laws, even the most offensive speakers are entitled to convey their messages in public.