Must we? Even the Supreme Court sounds like it’s not sure. Via McClatchy, a report on this morning’s oral arguments in the hotly anticipated Snyder v. Westboro Baptist Church case. Does a scumbag have a right to be a scumbag on the street outside a fallen hero’s funeral?

Supreme Court justices seemed both troubled and divided Wednesday as they questioned whether a small Kansas church could be punished for an outrageous protest outside a military funeral…

“If he simply buries his son, is he a public figure open to this protest or not?” Chief Justice John Roberts, Jr. asked, receiving an equivocal answer.

The question is crucial, because speech about public persons and public affairs typically wins the most protection from courts.

“What case stands for the proposition that public speech or speech on a public matter directed toward a private person should be treated differently depending upon the recipient of the speech?” Justice Sonia Sotomayor asked, without getting a clear answer.

In a 1988 case pitting the Rev. Jerry Falwell versus Hustler magazine, the Supreme Court unanimously decided a public figure like Falwell could not win damages for emotional distress caused, in that case, by a harsh magazine satire. Sean Summers, the lawyer representing Snyder, repeatedly cited the Falwell case, arguing it was different because his client is a private individual.

The legal question, apparently, is whether the Court should extend the two-tiered approach in defamation cases to cases involving intentional infliction of emotional distress. In defamation law, whether you’re a public or private figure determines the legal standard to which someone who libels you is held; soon we’ll find out if that’s also true of “outrageous” speech aimed at hurting people, with public figures fair game but private figures presumably off limits. More on the privacy angle from Doug Gansler, attorney general of Maryland, who’s on Snyder’s side in this one:

Most Americans, myself included, believe in the First Amendment’s vital role in our democracy and are willing to tolerate noxious expressions of free speech in its defense. But even if this right allows one to spread hate through speech, it does not alter the wrongfulness of targeting a particular individual with that speech, whether by intentionally inflicting emotional distress on a grieving parent or by criminally invading a person’s privacy during his most intimate moments…

The Constitution creates an impressive framework of rights that should be robustly defended. But these rights were created by the people, for the people, and when they are invoked to evade responsibility for wrongs committed against the people, their value is diminished. In deciding Snyder, the Supreme Court should be careful not to let the boundaries of our rights be set purely by those who wish to abuse them. To do otherwise would bring dishonor to those, like Lance Cpl. Matthew Snyder, who fought to protect them.

That’s a nice try but I’m with Beck. In fact, it’s a testament to Fred Phelps’s diabolical imagination that this case is as close as it is, that he’s managed to come up with a form of picketing so loathsome that even lawyers and judges are straining for ways to make it actionable. Case in point, behold this obtuse formulation of the issue at hand from counsel at the American Jewish Committee: “Free speech encompasses hate speech but this church is off the wall. They’re not just saying things, they’re shoving it down people’s throats.” I look forward to our judiciary trying to articulate the “shoved down people’s throats” standard of free speech. I’m also curious to hear more about the idea proposed by Beck’s colleague in the clip by which speech would be actionable if uttering it put the speaker at risk for violent retaliation (call it the “for their own safety” standard). We already have a version of that doctrine in free speech law, but to extend it now — when burning a Koran can attract the attention of the president of the United States and cause people like Stephen Breyer to launch into “fire in a crowded theater” analogies — strikes me as a singularly bad idea. If Phelps owes damages here, would Terry Jones owe damages to a Muslim spectator had he gone through with his stunt? Serious question. Why not? Click the image to watch.