Recently, the U.S. Supreme Court was presented with a case to decide the boundaries within which the constitutional right of free speech can be exercised. But lurking in the shadows of this decision lies a sinister threat that, ironically, if the court opts for compassion and reason, will cloak the threat with the means to erode the Constitution protecting it.

The case pits Albert Snyder — father of a U.S. Marine killed in Iraq — against a fundamentalist church that used the Marine’s 2006 funeral to promote its belief that military deaths are God’s punishment for America’s tolerance of homosexuality and abortion. At the funeral, as a family sought to honor a fallen son, church members — on public property — held up signs with outrageous messages such as “Thank God for Dead Soldiers” and “You’re Going to Hell.” In conflict are church members’ right to free speech and the family’s right to privacy.

As lawyers for both sides argued the case in court, the justices’ questions betrayed a rare sense of sympathy during such proceedings. Justice Ruth Bader Ginsburg conveyed sentiment for the father, stating, “This is a case about exploiting a private family’s grief.”

Legal limits on free speech exist. The most famous limitation, espoused by Justice Oliver Wendell Holmes Jr. in a 1919 case, is that the First Amendment does not allow one to falsely shout “fire” in a crowded theater. As such falsity serves no purpose but to create panic, senselessly causing injury or death to those seeking to escape a non-existent fire, it is unprotected.

The protest at the Marine’s funeral does not fit squarely into the falsely shouting “fire” in a crowded theater scenario. Church members believed their statements — despite how outrageous, unconscionable and insensitive to the grieving family they were — to be truthful.

What is worrisome about this case, however, is the thinking shared by one justice in an interview prior to hearing this matter. Asked about the recent threatened, but aborted, mass burning of Qurans by another religious fundamentalist zealot, Justice Stephen Breyer raised the 1919 Holmes statement. He suggested the global reach of today’s Internet and the potential to inflame Muslim sensitivities by criticizing Islam make the world a “crowded theater.” This logic suggests Breyer might argue against speech that inflames sensitivities, thus barring these military funeral protests. But, despite this logic, a greater threat emerges from the shadows if the court so rules.

The religion that gave birth to Sept. 11 warrants scrutiny and criticism. Yet at a time such scrutiny is warranted, application of Breyer’s reasoning would silence Islam’s critics. It would impose a standard that a reasonable man must accept Muslim intolerance — and the violence it potentially can trigger — thus making criticism of Islam taboo.

We already see such logic being applied in Denmark. A film producer — citing violent Quranic verses followed by footage of imams then spewing this hatred — is on trial for inciting Muslim violence triggered by his film. Unbelievably, truth about Islam’s intolerance, hatred and violence is unavailable as a defense — illegality hinges on whether he knew or should have known his film’s portrayal of Islam would trigger Muslim violence.

Muslim-dominated nations seek to apply this standard internationally. Last year, they pushed through the United Nations a resolution banning all criticism worldwide of Islam founder Muhammad and his teachings. This was 28 years after reversing themselves on the 1948, unanimously passed, U.N. Universal Declaration of Human Rights recognizing equality for all human life, opting to limit application only as permitted by shariah law. Thus Muslim states seek denial of universal individual freedom protections to all humanity, instead seeking limited application only to Islam’s believers.

The court’s decision on the Snyder case is expected by late spring. It is unfortunate but, while the total lack of compassion extended by the outrageous protest of fundamentalist church members to a bereaved father at his son’s funeral may tug at our heartstrings, our nation’s national security interests are best served by not infringing on the First Amendment.

James Zumwalt is a retired Marine infantry officer (lieutenant colonel) who served in the Vietnam War, Panama and Operation Desert Storm. He heads the security consulting firm Admiral Zumwalt & Consultants Inc. in Herndon, Va.

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