There ought to be a law against people like Fred Phelps. His claim that American combat deaths in Iraq are God’s response to America’s tolerance of homosexuals is both offensive and preposterous. His decision to gain publicity for his cause by picketing funerals of Iraq war victims is reprehensible.

Maryland does have a law against picketing funerals — now. But it was enacted only after Fred Phelps and his Kansas-based church chose to desecrate the funeral of Lance Corporal Matthew Snyder in Westminster.

Even without the law, a Maryland jury found that Phelps’ conduct was “highly offensive to a reasonable person,” “extreme or outrageous,” and “intentional or reckless.” Albert Snyder, the dead Marine’s father, received a judgment of $2.9 million in compensatory damages and $8 million in punitive damages, although Phelps and his Westboro Baptist Church may well be judgment-proof.

Before citizens and attorneys begin mutual congratulations, questions should be asked about whether there was a law against Fred Phelps and whether that law is worthy of celebration. American history suggests caution about jury decisions that find hated speakers have violated some law and merit exceptionally severe sanctions.

Juries outraged by speech often make whatever statutory findings are necessary to support a conviction or liability. Juries during World War I and the Red Scare found whatever facts were necessary to convict socialists and other opponents of the military effort. Eugene Debs, the leader of the Socialist Party, was sentenced to 20 years in jail for making an anti-war speech that a jury determined was designed to encourage illegal resistance to the draft.

The jury in the Westboro Baptist Church case may have similarly been more interested in sanctioning an unpopular speaker than determining the precise facts in dispute. Conflicting evidence existed on whether Phelps had intentionally targeted the Snyder family. Determining whether Phelps’ conduct was “highly offensive to a reasonable person” almost calls for the jury to pass judgment on the content of his protest. Whether the same jury in Baltimore would have awarded $10.9 million to the family of a racist bigot whose funeral had been picketed by the local chapter of the NAACP is doubtful.

That $10.9 million ought to be disturbing, even if Phelps did violate the law. One problem with such torts as the intentional infliction of emotional distress is that little basis exists for determining adequate compensatory damages. A high probability exists that any damage award, both compensatory and punitive, will reflect public attitudes toward the political movement, not the actual injury caused. Whether labor picketers at a corporate CEO’s funeral would be sanctioned, and the amount of damages awarded, is more likely to depend on the jury’s attitude toward radical unions than what was actually done and said.

A lesser-known feature of the Supreme Court’s famous decision in New York Times Co. v. Sullivan highlights these problematic features of last week’s verdict against the Westboro Baptist Church. A unanimous court in the New York Times case overturned a defamation verdict against the newspaper and the NAACP on the ground that the plaintiff could recover only if false statements had been made with “actual malice.” False criticisms of public officials, Justice Brennan insisted, were constitutionally protected unless the speaker knew his speech was false or acted with reckless disregard of the truth.

Breaking with normal procedure, the Supreme Court did not remand the decision to the Alabama courts to be retried under the right legal standards. Instead, the justices summarily decreed that the plaintiff could not possibly prove actual malice and dismissed the case. This dismissal was more rooted in a sense that an Alabama jury in the early 1960s was likely to find against the NAACP and New York Times, no matter what the legal standard, than on a fair reading of the evidence. The justices were almost certainly aware that the $500,000 damage award, the largest ever obtained in an Alabama defamation trial, reflected more the political opposition to press coverage of the civil rights movement.

Fred Phelps is no Martin Luther King Jr. Almost every decent impulse in the Westboro Baptist Church case supports Albert Snyder. Still, as the experience of the NAACP and New York Times in the racist South demonstrates, we risk silencing the best social outcasts as well as the worst when we give juries the power to determine whether speech meets constitutional standards and allow them to award unlimited damages. That there ought to be a law against Fred Phelps does not mean that permitting juries to determine liability on the basis of subjective criteria, and determine damages without any standards at all, is the best law.