Earlier this week, Justice Stephen Breyer suggested that the Supreme Court might apply a “heckler’s veto” to those who burn the Koran while insisting on a different standard for those who burn the American flag. After a widespread outcry — and the obvious deduction that Breyer would essentially be endorsing terrorism as a means of managing debate — the Supreme Court Justice hit reverse last night on CNN’s Larry King show. King gently nudged Breyer into an implicit admission that he had botched his earlier answer to George Stephanopoulos (via Volokh Conspiracy, transcript by Politico):
CNN’s Larry King: There’s no doubt that Pastor Jones, little church in Florida, had the right, he has the right to burn the Quran, doesn’t he?
Breyer: Yeah, I said it depends on what analogy you use, but the most one analogous case is that there was — you have the right to burn an American flag as a symbol.
King: Oh, it’s a 5-4 ruling though.
Breyer: I wasn’t there.
King: Scalia wrote I think the majority — he did. Does that make us a great country?
Breyer: It helps. It helps. It says that in this respect, I understand the — it’s awful. I once saw a flag being burned during that Vietnam period. Do you remember?
Breyer: And I didn’t know I would have this physical reaction. I had a physical reaction of revulsion. I couldn’t stand it. We were talking earlier, I’d been in the army though only for six months. But when I saw that, I couldn’t stand it, all right? Now, what we’re saying is we protect expression that we hate. And protecting expression that we hate is not the only good thing in the world, but it is one good thing in the world. And when you have a country of 300 million different people who think different things, it is helpful. It is helpful to tell everyone, you can think what you want.
King: Hard for other people to comprehend why Nazis can march —
Breyer: There they are. You know, it’s so often I hear people say — and particularly this is a college students, sir. Well, that’s just so terrible what he’s saying. I say, oh, you think that free speech is only for people who don’t say things that are terrible.
Well, to be fair, Justice Breyer, you came down on that side yourself earlier this week. By endorsing a heckler’s veto, Breyer suggested that threats of violence by people other than the speaker would be enough for government to intervene to prevent political speech. That would have kept the Nazis from marching in Skokie in the late 1970s, as well as many instances of flag-burning. And had that standard been constructed, it would have led to an explosion of violent threats, pun most certainly intended.
After some due consideration, Breyer has reconsidered his position, but the embarrassment of his original impulse remains.