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.
Did the MSM reporter follow up and ask if bible-burning was not allowed under the 1st Amendment?
This is just nuts. It’s a book, a particularly evil book. I can burn any book I own. I can burn a science book. I can burn an encyclopedia. I can burn a dictionary. I can burn a book about Stalin, Che, Castro, whatever.
If I can’t burn my own book, we need a second revolution because private property rights are nonexistant.
So the constitutionality of our amendments is based on how many foreigners it pisses off...great;
Exactly what he is stating. Its the reaction that he seems to find pertinent and not the act itself. Therefore burning a bible,a flag are okay because the people that respect and love those things won’t riot over their desecration. This is not simply liberalism but capitulation as well.
Wow on the Breyer reasoning. Because Muslims have shown that they go ape-s**t about the Koran, burning it is the equivalent of the old “fire in a crowded theater” line? So the effect is that practitioners of religions that aren’t as ultra-violent don’t get the same protection of their sacred text from desecration. And THAT wouldn’t implicate other Constitutional protections as interpreted by his Court? Does he realize how his pithy line plays out?
Ha ha ha ha ha.
Geeez. The list on the bottom one. LOL.
Breyer, why don’t you stick to ice cream!
The Supreme Court ruled that the American flag can be burned, yet a Koran cannot be burned, because it incites people????
Breyer is what you feared, a politically correct judge that changes with the winds. Whatever is in vogue.
That explains why Israel building in ‘disputed’ territories is a threat to the peace process, but Palestinians killing Israelis is not.
How could I have been so naive? </sarc>
No member of congress has the cajones to take on a sitting Supreme, much less getting a majority in the House to impeach and 2/3 of the Senate to convict.
What if the Judge that was impeached is the Chief Justice, who presides over the Senate proceedings? Hmmm......
In fact, the court goes a LONG WAY in narrowing (almost to the point of reversing perhaps even a de facto reversal) Schenck in Brandenburg v. Ohio, 395 U.S. 444 (1969), which essentially said it is constitutional to advocate for violence, just not incite violence. Breyer's entire interview can be found here. But, it's clear from watching it, he is laying some foundation to limit speech if that speech could be met with violence from dissenters. That is a deeply, deeply troubling position and a position I wouldn't think would be popular even in liberal circles.
It's amazing Breyer would comment on this at all, and even more amazing that he said what he said - quoting a case that has been, for all practical purposes, undone almost to the point of reversal.
You are being sarcastic, but too many elitists think exactly along those lines. And they wonder why we can’t be as “reasonable” as they are!
I'm thinking the Liberals in our Government and State Controlled Media are showing Christians what it takes to get their respect.
So just wait till the next so-called artist wants to display a crucifix in urine at the public library.
We should riot, call for the death of the artist, burn a bunch of replicas of Emmy's,Tony's or whatever their false god is they worship.
/sarcasm
“Burning flags is first amendment, burning Korans is a hate crime.”
Apparently, if people react violenetly to buring of a flag, it would no longer be protected.
Nice incentive you are creating there, Breyer.
This guy is an idiot.
oppressive censorship is bad when it is applied to libtards but good when applied to conservatives
“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?”
Burnt korans, bombed mosques, etc.
I see ... but it’s okay to BURN the BIBLE and BURN the American Flag - that’s fine ... but NOT the vile Koran!
Just one, Samuel Chase from the 19th century. He was later acquitted in the Senate.
There was another AJ in the middle of last century, William O Douglas, that there were some impeachment noises made, but it never really got off the ground. I'm not sure if it even made it out of committee - it may have, I just don't remember.
What happens if one calls “Fraud!” in the Supreme Court Room?
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