The cat, in this case, is Topeka minister Fred Phelps whose family’s protests at the funerals of dead soldiers have been met with massive public revulsion, special efforts to shield mourners from Phelps messages (basically that American soldiers are dying in combat because God is punishing the nation for tolerating homosexuality), and fears that the demonstrations could lead to a violent incident.

The United States Supreme Court has agreed to decide whether a soldier’s family can sue Phelps and his group. It’s a case in which the family of a Maryland soldier has sued Phelps for invasion of privacy and intentional infliction of emotional distress. The family won almost $11 million dollars in a judgment against Phelps. But a federal appeals court has thrown out that verdict saying that Phelps’ protest is protected by the First Amendment guarantee of free speech.

Missouri has fought this battle with Phelps. Missouri lost.

Missouri’s law limited access to the immediate funeral area by protesters. It was passed after Phelps’ group protested at a 2005 funeral of a soldier in St. Joseph. The state law forbade picketing “in front or about” a funeral location or procession and said demonstrations could not occur within a football field’s distance of the procession or location. Shirley Phelps-Rooper, the daughter of Fred Phelps, filed a lawsuit challenging the law. The suit reached the U. S. Supreme court last June and the court refused to hold a hearing on a lower court ruling that the United States government has “no compelling interest” in protecting people from unwanted messages in public areas. That ruling quoted a 1999 decision from the federal circuit court of appeals for this district:

“We recognize that lines have to be drawn, and we choose to draw the line in such a way as to give the maximum possible protection to speech, which is protected by the express words of the Constitution.”

Missouri’s law has not been declared unconstitutional. But the court’s decision means it cannot be enforced unless its constitutionality is upheld.

“The public is served by the preservation of constitutional rights,” said the appeals court decision that was allowed to stand by the U. S. Supreme Court.

The federal court in Richmond, Virginia has ruled in the Maryland case that the messages put forth by the Phelps family is “highly offensive” and “repugnant,” but is protected by the First Amendment because it “intended to spark debate about issues.”

One factor in the Maryland case is a posting on the Phelps church website that attacked the father of the Maryland soldier for raising his son a Catholic and supporting his military career. The website claimed the father, Albert Synder, raised his son “for the devil,” and taught his son “to defy his creator.”

Courts over time have ruled that free speech does have its limits. The most famous phrase, often quoted, that “shouting ‘FIRE;’ in a crowded theater” is cited as an example of speech that does not deserve protection.

The First Amendment is not about protecting popular speech, for it needs no protection. History gives us numerous examples of unpopular speech that changed our country because those who spoke were protected by that First Amendment. Courts have been called up on to draw the line between unpopular speech and irresponsible speech. Libel and slander laws, which themselves call for court interpretation from time to time, are considered a citizen’s protection against irresponsible speech.

But what happens when a church personally attacks the father of a dead soldier and disrupts the family’s ability to mourn its loss?

That’s for the United States Supreme Court to consider.

We’ll be watching to see if the ruling gives any new life to the Missouri law.