Posted on 09/14/2010 2:20:35 PM PDT by TitansAFC
I’m not sure which is more unsettling — the fact that a Supreme Court justice can get the First Amendment so wrong, or that it is so unclear that George Stephanopoulos thought to ask the question. Until now, I perhaps naïvely thought that everyone understood that the provocateurial pastor in Florida had the right to burn Korans, or any other book he legitimately owned, but that it was a really bad idea for many reasons, most of which Allahpundit argued in his excellent posts on the subject. Silly me:
Last week we saw a Florida Pastor – with 30 members in his church – threaten to burn Korans which lead to riots and killings in Afghanistan. We also saw Democrats and Republicans alike assume that Pastor Jones had a Constitutional right to burn those Korans. But Supreme Court Justice Stephen Breyer told me on “GMA” that he’s not prepared to conclude that — in the internet age — the First Amendment condones Koran burning.
“Holmes said it doesn’t mean you can shout ‘fire’ in a crowded theater,” Breyer told me. “Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?” …
“It will be answered over time in a series of cases which force people to think carefully. That’s the virtue of cases,” Breyer told me. “And not just cases. Cases produce briefs, briefs produce thought. Arguments are made. The judges sit back and think. And most importantly, when they decide, they have to write an opinion, and that opinion has to be based on reason. It isn’t a fake.”
Hopefully, they put more thought into it than Justice Breyer does in this argument. The “fire in a crowded theater” standard is intended to limit government intrusion on free speech, not enable an expansion of it. It means that only when speech that will directly and immediately result in a threat to human life in the proximate setting can the government criminalize it — and it has to contain the element of malicious falsehood as well. After all, no one will prosecute a person who yells “Fire!” in a crowded theater when it’s really on fire, or when the person yelling honestly believes it to be so.
Otherwise, Breyer’s argument would put government in charge of judging the qualitative value of all speech. Would speech urging an invasion of Pakistan be therefore criminalized, too? After all, it might cause Pakistanis somewhere to riot and people to die, even if the argument is largely discredited in contemporary American politics.
Furthermore, the Supreme Court has already ruled on burnings as free speech. In both Texas v Johnson and US v Eichman, the court ruled that free speech trumped any offense and/or concerns about public safety raised by burning the American flag. In Johnson, the court spoke directly to this issue:
The State’s position … amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace and that the expression may be prohibited on this basis. Our precedents do not countenance such a presumption. On the contrary, they recognize that a principal “function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or … even stirs people to anger.”
Now, perhaps Breyer foresees a reversal of Johnson and Eichman, but that doesn’t appear to be where he’s leading. Instead, Breyer seems to want to put the Koran in a separate class for purposes of protest, a dangerous direction that flies in the other First Amendment restriction, the establishment clause regarding religion.
Put simply, Breyer couldn’t have possibly been more wrong in this answer, and one has to wonder just what kind of standard Breyer will apply to future cases of free speech.
I'm so glad this senile d$%%#e is protecting our liberties.
Has a justice ever been impeached?
That is the way I read it. I guess we all have to submit to a pedophile pirate's hallucination and sharia law to keep the Moslems and the judge happy.
I don't FReeping think so!
The thing about the Supreme Court is we have several people on it who are, if there were a bell curve for liberal and conservative, would probably be in the tiny, almost zero level of liberal extremism.
That would also apply to our congress and several presidents. How they are getting elected says a lot about how our system is being manipulated.
But because non-Muslims are not intolerant hotheads who will murder someone at the slightest provocation, the ground zero mosque WOULD be protected. Don’t you see? If ANYTHING ANYONE does even MIGHT make a Muslim angry, then we do not have the right to do it.</sarc>
Remember how we got lectured about the First Amendment most important "for protecting speech that makes us uncomfortable," how if we didn't let pricks like Andres Serrano show their hateful and hurtful drivel our own right to free speech and to protest our government would be next in line. Remember how condescendingly the elites, from their perches on the Sunday morning shows, scolded ordinary Americans for having the temerity to question the right of Serrano, and Mapplethorpe, and others, to produce their shabby crud on the taxpayer's dime?
Now this. I can't believe this. These people are just making it up as they go along, whatever crappola they have to dish out just to stay in power another week, another month. And they are held up as the "elites," they are so superior to average white-bread nobodies like me.
“The “fire in a crowded theater” standard is intended to limit government intrusion on free speech, not enable an expansion of it”
Wrong,,, in the Schneck (sp?)case, the precise issue at hand was whether or not it was legal to encourage people to avoid the draft in WWI. The court ruled that speech opposed to the draft in WWI was akin to yelling “fire in a crowded theater”
So that case was precisely used to support an expansion of government into free political speech. And Breyer isn’t an idiot,,,by referencing that case he is telling you that he does not believe in free speech in all political matters. He is a statist.
Under Justice Breyer’s argument, if ANYONE threatens violence over ANY First Amendment display, then there is no longer a protection for that event.
It is so unfortunate that as opposed to what our Framers believed, a judge has to commit a felony before impeachment is considered.
There is a campaign to remove three Iowa state supreme court justices who recently imposed homo marriage on an unwilling public. It is important that they be removed by voters in November, for it will be a message read by black robes nationwide.
Associate Justice James Wilson 1789-1798: "Impeachments are confined to political characters, to political crimes and misdemeanors, and to political punishments."
Scary. Now any communication that upsets people is like yelling “fire” in a crowded theater? What BS.
I didn’t make the comment you were responding to, but I like what you said anyway.
BS of epic proportions.
A Supreme Court Justice and an Army Commander, this little threatened demonstration in Florida really pulled back the covers on who is who in our government branches.
For sure.
Let them keep talking that way...it will only boost Sarah Palin's popularity; they won't know what hit them in 2012.
I always thought that was a silly argument, the Fire in a theater thing. The theater is private property. If you jump up and yell anything and disturb the patrons, you will get kicked out.
Breyer is using the “fire in crowded theater” as a metophor, because it has only been used by the US government to silence opposing political speech.
He will use that standard if you wish to burn a Koran. He just told us so.
Take away our first amendment, and we will default to the 2nd.
Oh sorry! I was chiming in with one of the odd things I happened to read about somewhere and actually remembered. Sorry i aimed poorly :)
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