It is a serious question and one I am admittedly bothered by.  Let me explain, but first I want to make it clear that I abhor Phelps and his protests at Soldiers funerals, and his entire anti gay campaign.

To be double clear, Phelps and his church are among the most vile extremists to ever call themselves Christians.  For those who are not in the loop, Phelps and his church are on a campaign against gay people.  In their infinite insanity, they decided that God hates gays, and there for anything bad in American is God punishing America for tolerating gays.  This includes the war in Iraq, so they put 2 and 2 together, split it 6 ways till Tuesday then multiply the result by the number reasons they think God hates fags, and they take to the streets.  Their goal?  Military funerals for soldiers killed in Iraq.

Now would someone tell me how it makes sense to protest a funeral of a dead straight Marine and claim that God hates fags, and that's why the Marine died.

Needless to say no one really likes them much.  See what happened to them at one such event here.  In another of my blogs, Free Speech? Not at a friggin funeral, for crying out loud, I noted that:

I  am easily a huge believer in free speech, both in using it, and in defending others rights to use it in ways I find outrageous.   But there are a few types that push me to limits and make me want to slap the daylights out of the people.

One of those is taking advantage of an event like a funeral to make a political statement.  It kills me that people can disregard the feelings of grieving families and think they are morally justified in making their politics override good manners and sensitivity.  Someone died, show some respect.

The problem is, you cannot expect people to show respect when they think they can make a PR splash.  States have tried to ban them, only to have the bans challenged in court.

The ACLU naturally.

Congress passed and Bush Signed into law H.R. 5037, the  Respect for America's Fallen Heroes Act.  So far that one still prohibits this foolishness at National Cemeteries.

And this week, a jury sent Phelps a clear message:  Pay up.  To the tune of 10.9 million dollars for the distress cause to one family.

Fallen Marine’s father takes a cool $2.9 mil from the Phelps clan

The sweetest part? The punitive damages, which is where the real money is, are still to come.

Albert Snyder of York, Pa., the father of a Westminster Marine who was killed in Iraq, today won his case in a Baltimore federal court against members of Topeka, Kan.-based Westboro Baptist Church who protested at his son’s funeral last year.

The jury of five women and four men awarded Snyder $2.9 million in compensatory damages.

..

It returned later in the afternoon with its decision to award $6 million in punitive damages for invasion of privacy and $2 million for causing emotional distress.

 Of course now we are going to be in appeal land.

The question on appeal will be whether the First Amendment protects Phelps from the IIED claim, with the Falwell case, which also involved IIED, sure to be cited as precedent. In that case Larry Flynt’s editorial cartoon about Falwell was ruled to be protected speech, but only because Falwell was a “public figure” for First Amendment purposes, which the Snyder family likely is not. The Court’s reasoning was that people have to be free to criticize public figures in order to engage in public debate; otherwise they’d live in fear of being hit with an IIED suit every time they said something harsh. Whether they need the same freedom to criticize the war by holding “God Hates Fags” signs outside a soldier’s funeral is another matter. Phelps will point to this language in the opinion in his defense:

“Outrageousness” in the area of political and social discourse has an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the jurors’ tastes or views, or perhaps on the basis of their dislike of a particular expression. An “outrageousness” standard thus runs afoul of our longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience.

And it pains me to say so, but that may be difficult to answer.  I can understand the sympathy of the jury.  I personally would have been pissed.

But is this an indictment of what is still essentially free speech, and in another sense is this an indictment of their religion, which is also a 1st Amendment protection?

I feel the heel for even suggesting it, but free speech is something I don't want to see restricted lightly.

The bans and lawsuits (I am sure this will provide the fuel for several more) are toeing a dangerous line.

Hot Air notes something I wasn't sure of:

It’s my understanding that the Phelps people followed the law and kept their statutorily mandated distance from the funeral itself. I wonder if that’s going to affect these damages on appeal.

So the law was in place, they abided by it but the emotional distress overcame that.

And that is a serious matter to continue.  If they protested in a law abiding fashion, is this a just verdict or is it overstepping the line between free speech and offense?

I don't like the answer either way I go.  If I buy off on the verdict, I am agreeing with overt suppression of free speech, but if I agree with Phelps, I am ignoring the consequences of free speech, which is something else I take seriously.

One other consideration is that to the fanatic, this is not punishment, this is simply being subjected to trials and convictions for ones faith.  You see, Christians are taught that they may suffer attacks for their faith and that they should be proud to suffer.

To Phelps, I have no doubt he sees this not as prosecution, but as righteous persecution.

The Jury has allowed Phelps to be martyr for his perverted faith.  He may emerge even stronger in the eyes of his congregation.

My final word:  I'm glad he got slapped, and if that makes me a hypocrite for violating my absolute stance on free speech, so be it.  Free speech is never free of consequence.  I think there is a sensibility on speech that should also be considered.

But I am concerned about the precedent.  Will it be abused?

Captain Ed shares my quandry, but manages a more firm resolution:

The Phelps clan and their morally stunted followers have always presented a difficult free-speech dilemma. On one hand, sympathy belongs — rightly — with the families of the fallen defenders of our nation and their families. Loud protests outside their funerals that interfere with the grieving process are positively ghoulish, even without the strident homophobic rants that are the hallmark of Phelps and his gang of idiots. People who engage in such protests have no human compassion whatsoever and represent the most egregious of political cheap-shot artists.

However, as Minnesota's Becky Lourey insisted last year, Phelps has the right to engage in political speech in public venues. Lourey, who lost a son in Iraq in 2005 and had supported Cindy Sheehan in her summer protest in the same year, considers Phelps as detestable as anyone else — but she voted against a law that made funeral protests illegal. In fact, she cast the only vote against the law, telling the state Senate that it went against the Constitution for which her son sacrificed his life.

Ouch.

Of course, that doesn't apply to tort law. Free speech doesn't absolve people of responsibility for the damage they do, and most reasonable people would consider what Westboro's minstrels of misery do very painful and completely inappropriate. Perhaps this might convince a few other victims to follow suit, pun intended, and ensure that Phelps' moral bankruptcy gets matched by his financial bankruptcy.

I am still not totally convinced but I stand by my instincts.

The truly sad irony is that in the end, the net gain will be nothing.  He will be back, filled with righteous indignation, more convinced then ever that God hates America.

Your thoughts?