Justice Breyer: No right to burn Korans in First Amendment?

posted at 12:55 pm on September 14, 2010 by Ed Morrissey

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.


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allowed Hitler to rise to power in Germany.

Hitler was a Christan so maybe since not all Christians are Nazis then maybe you think not all Muslims are terrorist?

Perhaps if you hear the truth from a woman who has first-hand experience of how Islam and the Koran affected her

HalJordan on September 14, 2010 at 3:37 PM
When Qur’an was written women had no rights and could be stoned to death for just looking like a slut. Baby girls where killed a pone birth. The Muslims gave Women minimum rights that didn’t happen in west for another 1300 years. Sharia law that is put into effect in many now backwards countries are not supported in Qur’an or Islamic but of tradition and stupid thinking. Only recently did women get equal inheritance, and at time of Qur’an about 600AD the first born male got it all. Qur’an made it law that minimum standards need to be given and allowed for Womens rights to progress to equal of men. It is just that some countries have perverted the Qur’an and made it something it isn’t not to mention all the hate speech that never read the Qur’an on the other side. Women was given equal partnership in marriage, need four direct witness to adultery and she could swear four time and once to Allah (God not Mohammed) that it’s untrue and be off the hook. If convicted then she was to be locked up into a room not stoned and if repented was forgiven. Every thing a Woman brings to marriage and make during marriage is hers alone and not for household or husband. The Husband must give her money and if he divorces her she gets to keep it. He cannot just say three times I divorce you it has to go though family arbitration and yes a woman can start a divorce called breaking up. Guess what Sex isn’t sin in Islam just cheating on your mate is. You have to remember when the Qur’an was written and stop quoting something about Qur’an unless you have read it. I know many Muslim Women who are very happy and equal partners just like Christians. The Lies on both sides is horrific. We need to understand each other.

Ed Laskie on September 15, 2010 at 12:33 PM

Hitler was a Christan so maybe since not all Christians are Nazis then maybe you think not all Muslims are terrorist?

Ed Laskie on September 15, 2010 at 12:33 PM

He was as devout a Christian as Obama is. It’s a political tool.

Esthier on September 15, 2010 at 12:36 PM

They wasn’t burning the Qur’an anyway it was translation of Qur’an. Many Muslim love America and think it would be great place to be a Muslim and be free to practice there religion as they read it in Qur’an and not from some stupid backwards idiot who is power hungry and not following true Islamic ways. Freedom of religion is best point. American justice system is Islamic compliant as it is written in Qur’an.
People who only want to sell books are vomiting lies about something they know nothing about.
Qur’an is not Bible of Devil if it is then it is doing poor job because out of 6242 verses only 7 talk about fighting and only in self defense when your land is being invaded. Fighting is always proceeded by in self defense and followed by and if they are inclined to peace you be also. But you won’t hear that from hate mongers who lie if they have read the Qur’an and evil in any case. Both side need to understand each other then we would have a problem like we do. Terrorists lie to them and we feed them ammo for the lies. Vast majority of Muslims do not support terrorism, they do support self defense. Word a question the right way and you get the answer you want to show all of them are alike. Do you believe in self defense? Do you believe in one God? If you answered yes just to 2nd one you are already 90% Muslim. Do you believe sex is not a sin? Christan teaching says it is so answer careful other wise you may not be Christan anymore like you think. DO you Believe Jesus was the Messiah? Both are yes then you have Muslim thinking. DO you think that Jesus was also God? This one you are Muslim if you answer no just Messiah. Do you believe Mohammed should be worshiped? IF you answered no it could be ether Christan or Muslim because both agree here. Why did Jesus say right before dieing ” Lord why has thou forsaken me?” pretty strange if your God. You have to go one more step to become a Muslim, in that it was Judas who changed into likeness of Jesus who was taken and crucified. Even if I don’t agree with all I find a lot I do agree and could have as a friend. Being a believer means only one God and that is 90% and Muslims can associate with you. If you worship Devil then your not suppose to hang out with you.

Ed Laskie on September 15, 2010 at 1:00 PM

Just as terrorist say they are Islamic but don’t think right about Islam. Hitler believed he was a good Christan.

Ed Laskie on September 15, 2010 at 1:02 PM

Obama is Nothing he said “my faith leads me to doubt” he spoke the truth once at least.

Ed Laskie on September 15, 2010 at 1:04 PM

crr6 on September 15, 2010 at 9:09 AM

I don’t give a rat’s a$$ about spelling.
Typing fast, you get errors.
So your nitpicking is really worthless.
From what I’ve seen from you in the past, I really see you pointing out my seplling errors as an intellectual superiority thing & really a stupid waste of time.

That’s not a particularly useful or meaningful question. It’s both, I guess. The ideas and concepts are static but their applications are dynamic.

crr6 on September 15, 2010 at 9:09 AM

The ? evidently is not useful or meaningful to YOU.
It is to ME & many OTHERS.
I understand the Const is dynamic in that you can add & subtract ammendments.
But the main body of any ammendment should not go against anything in the Const.
So the CONST. is STATIC.
Give me a break.
This stupid kibbitzing is where people go wrong on ‘interpretation’ of law.
Once again, pointing out the obvious to an educational elitist, proves that it is NOT synonymous with COMMON SENSE.

Badger40 on September 15, 2010 at 2:26 PM

But the application shouldn’t be dynamic.
Huh? It absolutely should be. For example, we routinely take static principles from the 4th amendment regarding privacy and reasonableness, and apply them to new technology. If we didn’t do so the amendment would be virtually meaningless in contemporary society.

crr6 on September 15, 2010 at 10:38 AM

Well I guess if you mean by technology taking over what ‘papers’ are.
Again, common sense dictates that if something’s on your iPOD or cel phone, it’s part of your ” persons, houses, papers, and effects”.
There is no reason to adjust the meaning of anything in this regard, regardless of the technology used to store information.
If something’s in your car, it’s the same thing as your ‘effects’.
There is no alternative meaning to be had from this new technology.
It’s still your ” persons, houses, papers, and effects”.

Badger40 on September 15, 2010 at 2:33 PM

And crr6 you may also notice that the 6th Ammendment is repeatedly violated in Family Law.
But since it’s in the interest of a ‘child’, we just evidently have to put up with being arrested or having our kids taken away from us bcs someone has accused someone of molestation without going through the regular legal process.
Much of what happens in the family law courts violates the Const rights of citizens.
So why is it allowed to continue?
Legal Precedent?
Some unwritten code concerning children?
I want to know why lawyers get to twist the law to violate our Const rights.

Badger40 on September 15, 2010 at 2:36 PM

I don’t give a rat’s a$$ about spelling.
Typing fast, you get errors.

You didn’t misspell the word or make a typo. You used the wrong word. You’re right, it doesn’t matter. It’s just sort of funny.

The ? evidently is not useful or meaningful to YOU.
It is to ME & many OTHERS.

Yeah, apparently it’ meaningful to you and others who know little to nothing about the law. And to you and many others who form their legal opinions based on wingnut blogs?

I understand the Const is dynamic in that you can add & subtract ammendments.

…right.

But the main body of any ammendment should not go against anything in the Const.

huh? Not sure what you’re getting at here. Probably because you’re not a very good writer and you don’t really know what you’re talking about.

Give me a break.

Oh, I am.

This stupid kibbitzing is where people go wrong on ‘interpretation’ of law.
Once again, pointing out the obvious to an educational elitist, proves that it is NOT synonymous with COMMON SENSE.

Badger40 on September 15, 2010 at 2:26 PM

Great. Perfect end to the post there Badger.

crr6 on September 15, 2010 at 2:57 PM

Well I guess if you mean by technology taking over what ‘papers’ are.
Again, common sense dictates that if something’s on your iPOD or cel phone, it’s part of your ” persons, houses, papers, and effects”.
There is no reason to adjust the meaning of anything in this regard, regardless of the technology used to store information.
If something’s in your car, it’s the same thing as your ‘effects’.
There is no alternative meaning to be had from this new technology.
It’s still your ” persons, houses, papers, and effects”.

Badger40 on September 15, 2010 at 2:33 PM

Wow, Con Law is so easy! It’s all just COMMON SENSE!!! Why can’t all the SCOTUS Justices just be as smart as Badger40 here??

crr6 on September 15, 2010 at 3:01 PM

And crr6 you may also notice that the 6th Ammendment is repeatedly violated in Family Law.
But since it’s in the interest of a ‘child’, we just evidently have to put up with being arrested or having our kids taken away from us bcs someone has accused someone of molestation without going through the regular legal process.

Badger40 on September 15, 2010 at 2:36 PM

Yikes. TMI Badger, TMI.

crr6 on September 15, 2010 at 3:02 PM

Of course Breyer’s right. There is no right to burn Koreans. Some of my best friends are from korea

jimw on September 15, 2010 at 3:05 PM

Yikes. TMI Badger, TMI.

crr6 on September 15, 2010 at 3:02 PM

So now you are going to assume I’m talking about MYSELF?
It’s a NATIONAL problem idiot. Not a personal one.
You’d really do best not to assume such things.
It makes you look like a moron.

Badger40 on September 15, 2010 at 3:05 PM

Wow, Con Law is so easy! It’s all just COMMON SENSE!!! Why can’t all the SCOTUS Justices just be as smart as Badger40 here??

crr6 on September 15, 2010 at 3:01 PM

Your condescension still doesn’t address the point I am making in that lawyers have muddled & made complex what was meant to be simple.
So you show yourself to be the elitist turd that we all know you to be here at HA.

Badger40 on September 15, 2010 at 3:08 PM

…one has to wonder just what kind of standard Breyer will apply to future cases of free speech.

Why, the standard set by the United Nations, of course, at the behest of the OIC.

Sayan Neviot on September 15, 2010 at 3:15 PM

Yikes. TMI Badger, TMI.

crr6 on September 15, 2010 at 3:02 PM

So now you are going to assume I’m talking about MYSELF?
It’s a NATIONAL problem idiot. Not a personal one.

Badger40 on September 15, 2010 at 3:05 PM

Of course Badger, of course.

; )

Your condescension still doesn’t address the point I am making in that lawyers have muddled & made complex what was meant to be simple.
So you show yourself to be the elitist turd that we all know you to be here at HA.

Badger40 on September 15, 2010 at 3:08 PM

I’m elitist? You’re the one who thinks that you have some sort of special, unique understanding of Constitutional Law that only a layperson can have. An understanding that allows complex questions of 4th amendment law to be easily answerable based upon your superior “common sense.” I admit that it’s complicated and that I don’t know all the answers. You think you have all the answers. That’s either naive, elitist, or stupid. Pick one.

And please actually make some sort of interesting point rather than “ZOMG THE CONSTITUTION IS EASY” or I’m going to stop responding. Give an example of an issue you feel is “muddled up” by lawyers, and then explain why you think it’s actually simple. How about the ICC? What should the test be for whether an activity is reachable by Congress under the Commerce clause? Please, give me your “obvious, common sense” test. Or why don’t you explain your test for the Necessary and Proper clause? What does “necessary” mean? Is it “strict necessity” or is it “convenient, or useful”? Why? How about the 14th amendment? Does the citizenship clause grant citizenship to the children of illegal immigrants at birth? Why or why not? It should be obvious, right?

Please, enlighten all of us morons, oh wise and superior Badger. Come down from your throne and tell us all the “obvious” answers.

crr6 on September 15, 2010 at 3:17 PM

You think you have all the answers. That’s either naive, elitist, or stupid. Pick one.

crr6 on September 15, 2010 at 3:17 PM

I already gave you an example.
The old dead white guys that gave us the Const wrote it in such a way as to make it easy for a normal person to understand.
I don’t have all the answers.
But I know when I read something in the Const, i.e. the 2nd:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

is really plain & simple.
I never said I was well versed in law bcs I don’t need to be to understand the Const.
The founders wrote it that way on purpose.
They didn’t think it was good that lawyers used legalese to twist & turn things, either.
You have made this about me by insulting me 1st by nitpicking me then assuming I’m some victim of the family law courts with your sanctimonius TMI snark & you have done nothing but out yourself as an intellectualy, ivy tower academic elitist. And that summation of your person is not just from what you’ve said on THIS thread, it’s what you’ve said in the past, constantly crowing about yourself & how you are such a smarty in the college you’re at.
And you under rate Common Sense.
It is not something to be learned.
Only experience &/or a ‘knack’ for it will make it available to you.
Some of the ‘smartest’ people I’ve known cannot figure out something simple to save their own lives.
So don’t you lecture to me about common sense.
You clearly have no grasp of it’s real meaning or it’s application.

Badger40 on September 15, 2010 at 3:45 PM

That doesn’t make it right, unless the Constitution specifically allows for a judgment of reasonableness.

blink on September 15, 2010 at 4:37 PM

LOL.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

crr6 on September 15, 2010 at 4:41 PM

That doesn’t make it right, unless the Constitution specifically allows for a judgment of reasonableness.

There’s a method to amend the Constitution. If a new technology is popular enough, then an amendment will be easy.

For example, if a state’s corporations code doesn’t allow for email voting, then a court shouldn’t allow email voting simply because the law was written prior to email. Lawmakers should be required to change the law.

blink on September 15, 2010 at 4:37 PM

crr6 on September 15, 2010 at 4:41 PM

That’s an example of a reasonableness judgment that I specifically carved out when I stated, “unless the Constitution specifically allows for a judgment of reasonableness.”

So what’s your point?

blink on September 15, 2010 at 4:47 PM

crr6 on September 15, 2010 at 4:41 PM

Notice that the 2nd doesn’t state:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be unreasonably infringed.”

blink on September 15, 2010 at 4:49 PM

Oh, gotcha. So you’d agree that the 2nd amendment doesn’t protect the right of Americans to use modern handguns then, right? And certainly not automatic weapons. I guess we should just amend the Constitution. Should be pretty easy.

crr6 on September 15, 2010 at 4:52 PM

Notice that the 2nd doesn’t state:

“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be unreasonably infringed.”

blink on September 15, 2010 at 4:49 PM

It’s worth noting that courts read a sort of “reasonableness” in there anyway. The majority was clear in Heller that the holding didn’t invalidate all federal regulation of firearms. I think one example they gave is that felons can still be prohibited from owning them, as can the mentally handicapped.

crr6 on September 15, 2010 at 4:56 PM

So you’d agree that the 2nd amendment doesn’t protect the right of Americans to use modern handguns then, right? And certainly not automatic weapons.

crr6 on September 15, 2010 at 4:52 PM

Incredibly weak argument. Handguns and automatic weapons are both considered arms.

blink on September 15, 2010 at 5:05 PM

….by who? You? Did the founders envision them? They’re just as much “arms” as an ipod or computer are “papers.”

It’s worth noting that courts read a sort of “reasonableness” in there anyway.

crr6 on September 15, 2010 at 4:56 PM

Believe me – I know!

So what’s your point?

blink on September 15, 2010 at 5:06 PM

That few (if any) rights are “absolute” and that courts always read in reasonable limitations on them since those rights have been codified. And that makes perfect sense.

For example, the first amendment doesn’t need “reasonable” in there for us to know that shouting fire in a crowded theatre isn’t protected speech. Just like the 2nd amendment doesn’t need “reasonable” in there for us to know that the government can preclude you from owning an AK-47 or a nuclear weapon. Courts are always going to develop, perfect and clarify rights as society itself develops. It’s how our common law system works, and how it’s always worked.

crr6 on September 15, 2010 at 5:17 PM

That few (if any) rights are “absolute” and that courts always read in reasonable limitations on them since those rights have been codified. And that makes perfect sense.

For example, the first amendment doesn’t need “reasonable” in there for us to know that shouting fire in a crowded theatre isn’t protected speech. Just like the 2nd amendment doesn’t need “reasonable” in there for us to know that the government can preclude you from owning an AK-47 or a nuclear weapon. Courts are always going to develop, perfect and clarify rights as society itself develops. It’s how our common law system works, and how it’s always worked.

crr6 on September 15, 2010 at 5:17 PM

I find it odd you disagree with that, blink. Do you think that the fed. government (and now after, McDonald, states) should be unable to prevent the mentally handicapped, children, or felons from purchasing firearms. Do you think the government should be unable to ban the sale of automatic weapons? How about nuclear weapons?

crr6 on September 15, 2010 at 5:21 PM

….by who? You? Did the founders envision them? They’re just as much “arms” as an ipod or computer are “papers.”

crr6 on September 15, 2010 at 5:17 PM

A handgun is no more an “arm” than an ipod?

Are you trying to sound stupid?

Read the sentence again, dimwit. You’re trying my patience now.

Actually, it doesn’t. If the people want to carve our heavy arms and nuclear weapons from the 2nd amendment, then the Constitution should be amended. I don’t think the amendment process is too difficult to accomplish this.

Now that’s stupid.

1) It is very difficult to amend the Constitution, and the Founders made the process difficult on purpose.
2) Do you think the Founders intended (or even contemplated) nuclear weapons or “heavy arms” when they drafted the amendment? Of course not. Aren’t you guys supposed to be all about “original intent”

Our common law system shouldn’t grant judges the ability to insert the word “reasonable” into the Constitution if the word “reasonable” isn’t used. That’s what the amendment process is for.

What if the word was intended to be read into the amendment anyway? There were already practical limitations on rights ingrained in the common law, and I doubt the Founders felt they had to specifically codify each one.

Notice that the 2nd amendment doesn’t use the term “all people.” It uses the term “people.” I think the term “people” can be open to interpretation based on criminal convictions, etc., but not by state or city of residence.

blink on September 15, 2010 at 5:39 PM

How in the world does that paragraph not invalidate everything you just said? You’re “reading in” your own interpretation based on what you think is reasonable. It surely isn’t right there in the text.

crr6 on September 15, 2010 at 6:42 PM

Of course, the end result of “blink’s” theory would be a Constitution with amendment after amendment after amendment after amendment. It would resemble a 1000 page criminal code, not a Constitution.

Our Constitution is notably brief. I don’t think it’s brevity is an accident.

crr6 on September 15, 2010 at 6:50 PM

Just as terrorist say they are Islamic but don’t think right about Islam. Hitler believed he was a good Christan.

Ed Laskie on September 15, 2010 at 1:02 PM

And you believe this based on what exactly? The fact that he said so in public when it was politically helpful for him to do so? Why is this politician more believable than any other?

He may have used Christianity to justify his policies, but many politicians do that without knowing a thing about the religion other than it’s popular with the masses and therefore useful. We’ve “never” elected an atheist as president, but that doesn’t mean we actually know their true feelings on the subject.

Esthier on September 16, 2010 at 3:47 PM

blink on September 15, 2010 at 9:31 PM

Good job.
Falls on deaf ears.
Like the AGW scientist who lives & breathes his own bias.
This is why we are in the pickle in America today.

Badger40 on September 16, 2010 at 3:57 PM

Three words:

Duh. Rinse. Repeat.

hillbillyjim on September 17, 2010 at 2:04 PM

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