The First Amendment doesn’t exist for easy cases — and the Supreme Court will hear one of its toughest in its next session.  Does freedom of speech extend to the despicable practice of protesting at military funerals?  And even if it does, does the First Amendment hold speakers without any liability whatsoever for their actions?  The court will hear an appeal from the Westboro Church, based in Topeka, of a $5 million judgment against the congregation for emotional distress due to the invasion of privacy committed by followers of the group founded by Fred Phelps:

The U.S. Supreme Court on Monday agreed to hear a case involving Fred Phelps and his Topeka congregation, whose protests at military funerals have angered families across the country.

The court said it would consider an appeal from the father of a slain Marine who hopes to reinstate a $5 million verdict against the Topeka-based Westboro Baptist Church.

Albert Snyder of York, Pa., successfully sued the church in a Maryland federal court in 2007 arguing its funeral protest was an invasion of privacy that caused his family emotional distress.

But last fall an appeals court reversed the $5 million verdict, ruling the church’s protests were protected by the First Amendment. The Supreme Court will hear Snyder’s appeal this fall. …

Westboro, an unaffiliated church with fewer than 100 members, went from local curiosity to national notoriety after it began protesting military funerals. Church members believe the deaths of military personnel — as well as tsunamis, Hurricane Katrina and the 2006 Amish school shooting — are God’s punishment for the tolerance of homosexuality.

It’s a theology summed up on their hand-painted protest signs: Thank God for 9/11; America is Doomed; and Thank God for Dead Troops.

Let’s start out by stipulating that the Phelps congregation is simply despicable.  Regardless of whether one supports war or America’s foreign or domestic policies, we can all agree that our soldiers, sailors, Marines, or airmen don’t make those decisions.  They carry out the lawful orders of their chain of command.  If Phelps’ flock wants to protest politicians, well, more power to them.  Harassing the families of fallen heroes is nothing more than a cheap political stunt and a symptom of a profound poverty of the soul.  Their families should be ashamed of them.

However, with that said, Americans do have the right to speak publicly about politics and religion, even when that speech is obnoxious, bigoted, rude, and mindless.  If they conduct those protests on public property, then the First Amendment protects them, at the very least from prior restraint.  If the First Amendment doesn’t protect wrong-headed speech, then it’s not really much use to anyone.  Politically-correct speech doesn’t get challenged, after all.  Freedom of speech exists explicitly to protect political action that isn’t widely accepted or approved.  Otherwise it wouldn’t need any protection at all.

This case raises another question, though, and one that isn’t so easy to dismiss.  The Snyders didn’t attempt a prior restraint or demand a criminal sanction, but instead sued Westboro for infliction of emotional distress and invasion of privacy.  The latter would seem to be a rather difficult argument to make for a funeral that took place in public view, but certainly we can agree that the emotional distress is a reasonable product of the hateful Westboro protests.  Indeed, it’s hard to argue that the Westboro gang didn’t maliciously intend to inflict emotional distress through their speech and actions, and that it wasn’t explicitly directed at the Snyder family.  If that can be proven to a jury’s satisfaction, should the Westboro gang get a pass on being held responsible for their actions?

That’s a tough question.  Emotionally, one would like to see groups like Westboro bankrupted for their ghoulish behavior.  However, such lawsuits against political speech could set dangerous precedents.  How long before people start suing Tea Party organizers for frightening progressives in their communities, for “invasion of privacy” connected with public protests, and infliction of “emotional distress”?   The First Amendment is too valuable to a free people to allow civil lawsuits to render it meaningless through the threat of big awards and huge legal costs to those who wish to speak.   The ghouls at Westboro may have to be the burden we carry to keep political speech free of such encumbrances.

Update: I left the “don’t” out of a sentence about soldiers, sailors, Marines, and airmen, which stated the opposite of my intent. It’s fixed now. Thanks to Rusty P for the heads-up.