The U.S. Supreme Court recently heard arguments about whether obnoxious speech directed by members of a fringe religious group to the family of a fallen Marine at the time of his funeral is constitutionally protected. As appalling as the group's behavior is, their right to make off-kilter and distressing arguments should be preserved.

A group of seven protesters from a radical religious group from Kansas, called the Westboro Baptist Church and led by the Rev. Fred Phelps, protested near the 2006 Maryland funeral of Marine Lance Cpl.

Matthew Snyder, who died in Iraq. His father, Albert Snyder, filed suit against the protesters and the church.

The church's members are opponents of homosexuality and believe the death of American soldiers in foreign wars somehow illustrates God's judgment on America for tolerating homosexuality. They use the funerals of soldiers to spread their message.

But certain facts in this case are essential: The protesters were kept 1,000 feet away from the funeral by local ordinances. The father did not see their signs until he watched news coverage after the funeral was over. And he did not read the group's hateful diatribe against his family — saying they had raised their son "for the Devil" — on the church's website until weeks after the funeral.

So this is not a case in which the site of a family funeral was disrupted.

Because this hateful group has engaged in this behavior over the years, the vast majority of states have adopted laws or ordinances regulating picketing and creating buffer zones around funerals.

Nevertheless, a local federal court allowed the suit and awarded damages on the grounds that the Westboro church's speech is so "outrageous" as to allow for damages for intrusion on privacy and intentional or reckless infliction of emotional harm. The original award of $11 million was reduced by the trial court to $5 million, and ultimately reversed by a federal appellate court on free speech grounds.

This month the U.S. Supreme Court was asked to reinstate the damage award.

Doing so would severely weaken First Amendment rights of free speech. Whether or not speech is so "outrageous" as to allow for multimillion-dollar civil tort damages is a wholly subjective standard. As the Supreme Court has held in previous cases of this kind, all kinds of speech on political or religious matters could be found to be outrageous by some juries or judges. And no one would know in advance which speech would be determined to be so outrageous as to be liable for damages for infliction of emotional harm.

The father's attorney attempted to create a distinction from previous Supreme Court rulings by noting that the plaintiffs in this case were private persons, not public figures. But as Justice Sonia Sotomayor noted during the Supreme Court hearing this month, the court has never held that speech loses its constitutional protection because it distresses private persons.

The way to deal with the contemptible behavior by this small group is not to weaken all Americans' free speech rights, but to maintain and enforce ordinances that keep any protest group a certain distance away from funerals. This is wholly consistent with the well-established principle that governments may regulate the "time, place and manner" of expression, but not its content.

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