Breyer backs away from suggestion of Koran burning ban

This past week, in an interview with George Stephanopoulos, Justice Stephen Breyer clearly implied that just as government can outlaw the act of shouting fire in a theater, in order to prevent people from being crushed to death by a panicked mob, it could outlaw the burning of a Koran, in order to prevent Muslims from rioting and killing people on the other side of the world. In an intelligent and well reasoned editorial on September 14, the Washington Times took apart Breyer’s poorly thought-out analogy. (See editorial below.)

Two days later, after much criticism of his statement, Breyer, appearing on the Larry King program, seemed to take back what he had said on ABC and stated that just as government cannot outlaw a flag burning, it cannot outlaw a Koran burning. I must say that on neither occasion was he very articulate.

EDITORIAL: Save the Koran, burn the Constitution
Justice Breyer sacrifices the First Amendment to placate Islam
By THE WASHINGTON TIMES
6:39 p.m., Tuesday, September 14, 2010

You can’t burn a Koran in a crowded theater, and Supreme CourtJustice Stephen Breyer suggests that to placate foreign extremists, Koran burning might be banned everywhere else in America too.

In an interview aired Tuesday on ABC’s “Good Morning America,”Justice Breyer, who is on tour promoting his new book, averred that in the Internet age, speech traditionally protected by the First Amendment may have to be weighed against its global impact. George Stephanopoulos asked the justice about the canceled Sept. 11 Koran burning proposed by Pastor Terry Jones, and whether the fact that people riot in Afghanistan over what happens in the United States poses a challenge to the First Amendment or could “change the nature of what we can allow and protect.”

Justice Breyer’s largely rhetorical answer invoked the late Justice Oliver Wendell Holmes. “Holmes said [free speech] doesn’t mean you can shout ‘fire’ in a crowded theater,” Justice Breyer said. “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?” The implication, which Mr. Stephanopoulos reinforced, was that today the crowded theater is the entire world, and any speech that foments violence by anyone for any reason could fall outside First Amendment protections.

The analogy is extremely poor. Shouting fire in a crowded theater doesn’t incite an angry riot but a chaotic every-person-for-themselves scramble for safety. The potential danger is understood by everyone present, all of whom are threatened. The darkness of the theater, the confined and ungainly space and the likelihood of the quick spread of fire make quick action imperative. In only one context does shouting fire in a crowded theater make sense: when there actually is a fire.

Holmes’ “clear and present danger” test doesn’t apply to Koran burning because there is no imminent danger. The world is not a small, dark, crowded room with few exits. Safely burning a Koran does not physically threaten anyone, not even those who think the book reflects the word of God. There is no need for immediate action. There is no potential for the same type of close-quarters chaos. The violence that may arise in response to it is calculated and directed, and such a riot is as much political theater as the Koran burning itself.

It’s troubling that a member of the Supreme Court would imply that anything that happens abroad in response to the exercise of free speech in this country should somehow inform the high court in assessing the boundaries of the First Amendment. This is symptomatic of creeping internationalism in the thinking of some justices. In this case, though, the suggestion is not simply to follow the lead of foreign courts, but to take into consideration the violent actions of foreign radicals when weighing American freedoms. Justice Breyer seems open to such a balancing test, in which acts should be banned if they offend a small minority of anti-American extremists who respond with irrational violence.

By this thinking, the best opposition response to any provocative speech is to protest violently. If a rent-a-mob riot in Afghanistan can cause a member of the Supreme Court to begin to question the value of First Amendment protections, the message to opponents of free speech is to ramp up the fighting. Make danger both clear and present.

Justice Breyer hedged that constitutional protection for Muslim books to pander to the sensitivities of radical Islamists abroad is not a foregone conclusion. “It will be answered over time in a series of cases which force people to think carefully,” he said. “The judges sit back and think.” Clearly on this question, Justice Breyer needs to follow his own counsel.

[end of editorial]

- end of initial entry -

Paul K. writes:

Though I agree with the thrust of the Washington Times editorial, I think it misses an important point when it focuses on the threat outside our borders, as in “people riot in Afghanistan,” “the violent actions of foreign radicals,” “a rent-a-mob riot in Afghanistan,” and “radical Islamists abroad.” Of course, the main reason we feel threatened is that every anti-American group on earth, be they Muslims or Mexicans, has a large fifth column within this country that increases daily through immigration. As you have said many times, including earlier today, “The only way to be free from Muslim intimidation and violence in our society is to reduce the Muslim presence to the point where Muslims have no power to affect our society.”

LA replies:

The question of the Muslim jihad threat in America was not relevant here, because the Times was referring to Breyer’s remarks, which had to do with rioting mobs in Afghanistan and the deaths they had caused or might cause. There were rioting mobs in Afghanistan over the Terry Jones planned Koran burning. There weren’t rioting mobs in the U.S.

Our own top priority issue isn’t always the relevant issue in a given discussion.

Posted by Lawrence Auster at September 18, 2010 07:23 PM | Send