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.
Their “reasoning” is about as useful as their “tolerance.”
“Talk like that will only get more Qurans burned in the future. Give me a break. So you can burn a bible because Christians won’t cut off your head for doing it?”
the logical conclusions that can be drawn from this line of reasoning are disturbing...so, should people start cutting the heads off of flag-burners, in order to defend the flag?
But you can burn the American flag!
“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.”
Thank you for your reply.
I can only hope the good folks of Iowa win.
It could be the next jump to clean out the Supreme Court.
It can be done and needs to be done if we win both houses.
My best regards.
How can she go wrong when she has supporters willing to give SNL a veto over their vote?
Oh... THAT's how.
That could change. Probably ought to anyway. Be fewer “talking” heads to worry about.
It’s as if he doesn’t realize that the First Amendment has several rights. Freedom of Speech might allow you to burn an American flag without getting arrested, but how on earth is the Establishment Clause not implicated if you can get arrested for burning a Koran but not a Bible or Torah scroll? November 2010 and 2012 can’t come fast enough for me. I don’t think this Republic can survive a second term of ObamaNation.
I can dream can I not?
If we get 2/3 of the Senate, we can force it. If not, it won’t happen. As you indicate, that’s reality.
My best regards to you.
P.S.
Maybe the Chief Justice will just have to look for a real
job. We can handle the rest.
Any openings at McDonalds?
The left takes our tax money and finances these people who put the cross in urine....
I don't care if people would do such a thing BUT without OUR TAX MONEY they would NEVER gain fame. We PAY the MUSEUMS and the Arts to pay these scum artists so they don't fall back into obscurity.
We need to get our tax money out of NPR, museums and Sesame Street...all government-run brainwashing organizations. We need to have public schools back under local control and the rights of parents to homeschool with vouchers...or go to religious schools or whatever they choose if we keep schools public.
If the stuff is good ...it won't need a government subsidy anyhow. It will be successful on it's own.
We are one Supreme Court Justice from Civil War.
His head should be the first in the guillotine.
The whole “fire in a crowded theater” standard is itself an affront to the plain wording of the 1st amendment.
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
Apparently “no law” according to Federal government’s own self-appointed “courts” doesn’t mean “no law” but only spesfic laws
Sure you can regulate speech on the airwaves, in the theaters, and even in political campaigns according to the Federal court choose by congress and the president.
Interestingly enough with regard to the States (who don’t appoint the Federal injustices) at least. “Speech” includes arbitrarily chosen actions that the Federal Injustices likes, such as setting fires to arbitrarily chosen items, like Flags.
If the Federal court can carve out such unenumerated exceptions they can do anything just as they Have done anything.
I’d burn it all day long and Justice Breyer won’t do $hit to stop it. =.=
If Brey says we cannot burn the koran, what’s next ? Speech against foreign dictators such as Chavez, Iran’s dictator and North Korea’s dictator would bring punishment ?
Just consider what Pat Robertson said about assassinating Chavez and the furor from the left side even to the point of demanding and supporting his extradition to Venezuela ! And these people are running our government ! The younger leftist crowd will be more willing to violate rights than the older leftists.
The same people who oppose the right to burn Korans defend the burning of Bibles. Doublethink.
Precisely, but perhaps two or more. In these days, insanity is everywhere.
Would burning a judge be okay if nobody gets violent before, during and after?
So offensive speech that violates a university's speech code is not necessarily protected.
I believe a burning Koran is a thing of bueaty, therefore it is art.
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