As a respected New York judge, Judith Kaye, described it, "The tort is as limitless as the human capacity for cruelty." Inasmuch as IIED claims are made based on all manner of insults, rudeness, name-calling and petty affronts, the claim is often alleged, but rarely satisfied.
But if a group of lunatics standing outside the funeral of a fallen American serviceman with hateful signs about the deceased does not constitute intentional infliction of emotional distress, then there is no such tort recognizable in America anymore.
The protesters weren't publishing their views in a magazine, announcing them on a "Morning Zoo" radio program, proclaiming them on some fringe outlet like "Countdown With Keith Olbermann" -- or even standing on a random street corner. Their protest was held outside a funeral for the specific purpose of causing pain to the deceased's loved ones.
But the 4th Circuit Court of Appeals noticed that the cult's malicious signs contained words, and that words are "speech" ... which is protected by the First Amendment! (Or was it the Seventh?) Anyway, that was basically the end of the court's analysis.
True, speech will often be involved in inflicting emotional distress on someone, say, for example, standing outside a funeral with signs that say "God Hates You!"
Similarly, words are used in committing treason ("The Americans are over here!"), robbery ("Your money or your life!") and sexual harassment ("Have sex with me or you're fired."). Copyright law prohibits speech that uses someone else's words, and insider trading and trade-secrets laws prohibit the use of words revealing insider information or trade secrets.
The fact that "speech" was involved in the Fred Phelps cult's assault on Matthew Snyder's funeral is a mundane and irrelevant fact. The question is: Did that speech constitute intentional infliction of emotional distress? Hey, look! That reasonable man over there is nodding his head "yes." If so, the First Amendment is as irrelevant as it is to a copyright law violation.
The Supreme Court has upheld shockingly restrictive bans on speech outside of abortion clinics: content-based restrictions on the speech of pro-lifers singing, "Jesus loves the little children, all the children of the world, red and yellow, black and white, they are precious in His sight, Jesus loves the little children of the world."
Is abortion more sacrosanct than a son's funeral? Is singing "Jesus loves the little children" deserving of less First Amendment protection than placards saying, "God Loves Dead Soldiers"? Hey, reasonable man over there -- got a minute?
Even the Fred Phelps cult's "epic" posted online and accusing the Snyders of raising their son badly, which would seem to have the strongest claim to First Amendment protection, would not be protected in other contexts. Last week in Massachusetts, nine teenagers were criminally charged with cyberbullying, based in part on malicious postings about the victim on their Facebook pages.
Thanks to idiot lawyers, who think it makes them sound smart to say "Black is white" and "Up is down," one of the biggest problems in society today is the refusal to draw lines. Here's a nice bright line: Holding malevolent signs outside the funeral of an American serviceman who died defending his country constitutes intentional infliction of emotional distress.