The Koran and Justice Breyer
Rioting in Muslim regions over threatened Koran-burning in Florida is just the latest instance of a violent pattern stretching from Ayatollah Khomeini's 1989 death threat against novelist Salman Rushdie, through the attacks on Danish embassies stirred by a Danish cartoonist's satirical images of Muhammad in 2005 -- and, alas, beyond.
By now it should be abundantly clear that violent Islamist politics -- as distinguished from the Islamic faith -- confronts free societies with a basic test: Will we continue to speak, write, and demonstrate, or will we censor ourselves for fear of "provoking" violence around the world? Will we export liberty, or import mob rule?
Over at ABC News, George Stephanopolous is admirably interested in this issue, though he seems mainly impressed with freedom's downside. "You have to deal with the fallout," he asked President Obama the other day, apropos of Terry Jones. "And he's a pastor who's got 30 followers in his church. Does it make you feel helpless or angry?"
Today, Stephanopoulos asked Supreme Court Justice Stephen G. Breyer this remarkable question:
When you think about the Internet, and when you think about the fact that a pastor in Florida, with a flock of 30, can threaten to burn the Koran and that leads to riots and killings in Afghanistan, does that pose a challenge to the First Amendment and how you interpret it? Does it change the nature of what we can allow and protect?
Breyer began his answer well enough, with a defense of free speech. "People can express their views in debate, no matter how awful those views are," he said. "In debate. A conversation. People exchanging ideas -- that's the model. So that we are better informed when we cast that ballot. Those core values remain."
At this point, Breyer could have concluded, "And whatever we might decide in any individual case, we must never sacrifice our values in the face of threats or intimidation."
Instead, referring to "those core values," the justice added, "How they apply can change." What might that mean?
"The conversation is now global," Stephanopoulos prompted.
"Indeed," Breyer agreed:
And you can say -- with the Internet, you can say this. You can't shout fire in a crowded theater. Holmes said it doesn't mean you can shout 'fire' in a crowded theater. 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.
Now, you have to discount the justice's musings a bit -- he tries to avoid seeming to take sides on issues that might come before the court, and he was thinking out loud on TV.
Still, I don’t think Stephanopoulos was unfair to write later that Breyer "is not prepared to conclude that -- in the Internet age -- the First Amendment condones Koran burning."
I find it striking that a Supreme Court justice would contemplate, however tentatively and hypothetically, reassessing American free speech because the audience for it has gone global and might include people who will react with violence.
To be sure, public safety limits liberty; as Justice Robert H. Jackson memorably put it, the Bill of Rights is not "a suicide pact." But it doesn’t contain a rioter's veto, either.
American free expression -- artistic, cultural and political -- has always had an international audience. In 1852, British readers bought 200,000 copies of Uncle Tom's Cabin. There is a clear distinction between the political act of burning a Koran in protest -- even in a global village seething with religious tension -- and the purely mischievous act of falsely shouting "fire" in a crowded theater.
Justice Oliver Wendell Holmes coined the crowded theater analogy in 1919 to explain why the federal government could imprison socialists during World War I for publishing pamphlets urging draft-age men to sign a petition against conscription. The First Amendment protects free speech, Holmes argued, except where it constitutes a "clear and present danger" to public safety. And the danger to public safety depends, in turn, on circumstances. In Holmes' view, "many things that might be said in time of peace" could be suppressed in time of war.
Holmes soon regretted this formulation and backed away from it in later opinions -- as did the rest of the Supreme Court. Over time, the court developed today's standard, which allows even the advocacy of illegal conduct unless it is both intended, and likely, to incite "imminent lawless action."
Indeed, in 1949 the court allowed a Chicago demagogue to make a racist speech in a packed theater, even though police said it would cause an opposing crowd outside to riot: "A function of free speech under our system of government is to invite dispute," the court opined. "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." And, of course, in 1989 the court upheld a constitutional right to burn the American flag, despite arguments by proponents of a ban that flag-burning might trigger riots by offended patriots.
Under this doctrine, burning Korans to make a political point, as Terry Jones proposed to do -- though deeply offensive to many, including many non-Muslims -- is clearly constitutional.
The Supreme Court, in short, has evolved from an enabler of censorship to a guardian of expressive freedom. This has invigorated our democracy. To trim free speech now in the face of threatened violence -- even out of wartime concerns such as those that President Obama (like Holmes before him) has voiced -- would be to embark down a very dangerous road. I think Justice Breyer understands and agrees with that. I just wish he had taken the opportunity to say so.
| September 14, 2010; 4:44 PM ET
Categories: Lane | Tags: Charles Lane
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