The Root: In Scott Vs. Phelps, Policy Gone Wrong

Wilmer J. Leon III is the host of the nationally broadcast, call-in radio talk program Inside the Issues With Wilmer Leon. He also teaches political science at Howard University in Washington, D.C.

The Supreme Court has ruled that the Westboro Baptist Church's First Amendment right of free speech outweighs a grieving family's right to privacy when they bury a loved one. Chief Justice John Roberts, writing for the 8-1 majority in Snyder v. Phelps, said last week that the First Amendment protects "even hurtful speech on public issues to ensure that we do not stifle public debate."

The Supreme Court is wrong on the law and wrong on the policy. The laying to rest of a loved one is a private act, not a public issue.

The First Amendment prohibits Congress from making law abridging the freedom of speech, but this protection is not absolute. In 1919, Justice Oliver Wendell Holmes Jr. wrote, "Free speech would not protect a man falsely shouting fire in a theater and causing a panic." It is always necessary to balance the content or nature of what is being said against the location where a particular statement is being made. In the theater, as at the grave site, causing panic and possible injury outweighs an individual's right to speak freely.

Justice Hugo Black correctly wrote that free speech is at the heart of democracy. Free speech helps individuals participate in democracy by facilitating the free flow of ideas. But not all speech is protected. Fighting words and hate speech may not be constitutionally protected. Fighting words are words that, when spoken face-to-face, prompt listeners to retaliate with a punch.

Any reasonably prudent person understands that human emotion is in its rawest state at a funeral when a loved one is being laid to rest. For members of the Westboro Baptist Church to picket the funeral of a fallen soldier with signs stating, "Thank God for Dead Soldiers," and "You're Going to Hell," could strike such a raw nerve that a member of the grieving family could be prompted to retaliate with a punch — or worse.

Even if the content of the Westboro Church's speech were redeeming in any way, the timing and place of expression cannot be justified. Historically, the court has placed restrictions on the content of some speech and the manner of speech, as well. If individuals are prohibited from protesting on private property, private funeral services should also be protected.

Hate speech is another form of speech that may not receive constitutional protection. Hate speech is derogatory in nature and is racial, religious or directed at a person's sexual preference. It usually assigns stereotypical group characteristics to an individual.

For members of the Westboro Baptist Church to picket the funeral of a fallen soldier with signs that combine the U.S. Marine Corps motto, "Semper Fi," with a slur against gay men is demeaning to individuals for innate characteristics over which they have no control. This type of speech, in this setting, has no redeeming political or social value and is usually intended to cause emotional or psychological harm.

If the Ku Klux Klan is prohibited from burning a cross in a public space because of the intimidating and frightening nature of this particular form of speech, why should members of a church be allowed to picket a private funeral?

This is not the type of public policy that the First Amendment was intended to promote. This has nothing to do with political correctness or stifling political debate. It has everything to do with protecting an individual's right to privacy. The court's privacy doctrine, as explained by Justice Louis Brandeis, is "the right to be let alone." The Supreme Court has failed to protect that right — a family's right to a peaceful space in which to lay a loved one to rest.