The fighting words doctrine states that when freedom of speech is used in a way to harm a target and runs the risk of immediately disrupting peace, violating the first amendment (Chaplinsky v. New Hampshire, N.D.). While freedom of speech is protected by the Constitution, even when hurtful speech is utilized on public issues, public debate must be allowed and not stifled (Snyder v. Phelps, 462 US 443 (2011)).
The Scalia discussion mentioned the court having the power to curb the expression of free speech in order to maintain order and morality. However, morals are subjective. The constitution lays out the basic rights of American Citizens and the outline of how our country is run. One could argue that morals are included in these basic rights, but there is much that is not in the constitution that applies to what individuals consider morality to be. Laws often cover topics that would apply to morals and what is or is not allowed, but the constitution doesn’t necessarily cover all moral topics. In my opinion, the Snyder v Phelps case should have been judged with moral considerations. While the type of free speech used was deemed constitutional, I believe a court could have ruled that the way it was carried out and in the setting that it was – a funeral, was not moral behavior. I think things can get dicey, especially when you start to tie in subjective values for what is or isn’t moral, but the fighting words doctrine could have been applied in this case.
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