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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.

By Charles Lane  | September 14, 2010; 4:44 PM ET
Categories:  Lane  | Tags:  Charles Lane  
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Comments

Burning the flag or dipping the Christian cross in urine is ok but burning the Koran is not ok.

Progressive "logic" at work.

Posted by: Vituperator | September 14, 2010 6:50 PM | Report abuse

I think you are being unfair to Justice Breyer. I don't think anyone is contemplating banning Koran burning. There is a big difference between someone getting mad and rioting and someone through natural fear stampedes in a theater thinking there is a fire.

Posted by: rjma1 | September 14, 2010 7:51 PM | Report abuse

I don't see Bryer's musing as anything but first thoughts of how the First Amendment can be applied to the whole wide world.

Like Google caving to China over internet censorship. Should Google have begun demanding "First Amendment" protections for internet in China?

But on the internet can we demand that obvious untruths be taken down whenever they can be identified? Since the internet is supposed to be such a sacred source for everything, can we demand that untruth not appear, or were it appears it always be labeled as untruth?

Of all the rights we seek to get the world to acknowledge, First Amendment rights are perhaps THE most important thing we can export.

ALL first amendment rights, to the whole world.

Posted by: ceflynline | September 14, 2010 8:10 PM | Report abuse

Breyer is explaining that free speech restrictions are only for Christians and Jews. The rioters can dictate how we run our country because everytime they put on a big riot for the cameras, burning our flags, the liberals in D.C. apologize to the rioters.

Someone, please send in the adults.

Posted by: Cornell1984 | September 14, 2010 8:18 PM | Report abuse

Breyer was likely reacting to the riots in Kashmir and Afghanistan. Makes you think twice or even thrice about the first amendment. By the same token, we cannot allow events in other countries to suppress the rights of Americans to speak their piece.

Posted by: Martial | September 14, 2010 10:00 PM | Report abuse

Stephen Breyer is 72 years old. We should begin to re-think the retirement age for Supreme Court justices, and indeed, federal judges in general.

They had to literally pry an 85-year-old federal judge named David Edelstein off an IBM anti-trust case first brought when IBM's main business was still punch-card technology. The demented Edelstein tormented IBM for 43 years, until his eccentricities became too much of an embarrassment even for the US justice system.

They make airline pilots retire at 65. Legal questions can affect millions - far more than the passengers on a typical airline flight. We need federal judicial retirement reform NOW.

Posted by: pwel | September 14, 2010 10:19 PM | Report abuse

We should be loyal to our first amendment and not start down the road of amending it. If we are not careful then we will descend toward the way totalitarians behave instead of them learning from us how civilized people should behave.

Posted by: abrahamhab1 | September 14, 2010 11:51 PM | Report abuse

It's a good thing that Sonia Sotomayor was confirmed as a Supreme Court Justice.

Now Breyer doesn't have to bear the label of "stupidest SCOTUS justice in history."

But it's still a pretty close race.

Talking - even intimating - about burning the Koran not being protected by the 1st Amendment in this country. What idiocy.

Hey, I hear they need some new judges over in Iran, Mr. Breyer. Maybe that's better suited to your judicial philosophy.

Buffoon.

Posted by: etpietro | September 15, 2010 12:41 AM | Report abuse

Peace be with you brothers and sisters,
Assalam alekum
First of all, 9/11 incident is not yet proved that it’s done by Muslim. Media tells Al Qaeda "PRIME SUSPECT". There are many movies on 9/11 made by Christians that proves its INSIDE JOB. Muslims should not feel guilty which they have not done. Before the battle field; battle starts in hearts and mind of the people on both the side. So! Leaders, Ministers and media have already achieved that state. This is the sign of last battle, which will be fought between the truth and evil. Fundamentalism is rising in the west. Westerner invent new new things to hurt Muslim feeling.

Posted by: raashidmr | September 15, 2010 3:57 AM | Report abuse

to raashidmr

We westerners aren't inventing ways to hurt your muslim feelings. Honestly, we just don't care about your stupid feelings or your religion. Our lives are pretty good, and the only reason we ever think about you is because 99% of the terrorist acts in the world are committed by muslims. Believe me, we really don't care about you, your religion, or your koran beyond how it affects us.

Instead of worrying about what westerners do, why don't you do something about the cesspools you live in and quit thinking about us. Or maybe it's just easier to blame someone else because your countries are poor, overpopulated, and constantly in need of western help (which you demand but really don't want).

Oh, and if you don't want your itsy bitsy feelings to get hurt, stop watching news about our country.

Posted by: mmreay | September 15, 2010 7:48 AM | Report abuse

to raashidmr

We westerners aren't inventing ways to hurt your muslim feelings. Honestly, we just don't care about your stupid feelings or your religion. Our lives are pretty good, and the only reason we ever think about you is because 99% of the terrorist acts in the world are committed by muslims. Believe me, we really don't care about you, your religion, or your koran beyond how it affects us.

Instead of worrying about what westerners do, why don't you do something about the cesspools you live in and quit thinking about us. Or maybe it's just easier to blame someone else because your countries are poor, overpopulated, and constantly in need of western help (which you demand but really don't want).

Oh, and if you don't want your itsy bitsy feelings to get hurt, stop watching news about our country.

Posted by: mmreay | September 15, 2010 7:49 AM | Report abuse

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:
============================
It seems that Stephanopoulos is putting words in the Justice's mouth. Breyer did not say that we should ban free speech in America because of possible repercussions abroad. He sort of went along with what Stephanopoulos had suggested...

We should avoid reading too much in Beyer's vague words.

Posted by: rjpal | September 15, 2010 7:56 AM | Report abuse


The demands for words on deadline strikes again. The idea that the Supreme Court might rule that burning a Koran is illegal after ruling the burning an American flag is protected speech is not something a credible person would believe.

Posted by: edbyronadams | September 15, 2010 8:15 AM | Report abuse

"The idea that the Supreme Court might rule that burning a Koran is illegal after ruling the burning an American flag is protected speech is not something a credible person would believe."

Charles Lane didn't suggest that the Supreme Court might rule that burning a Koran is illegal. He wrote about a doddering 72-year-old Supreme Court justice who is apparently confused about the First Amendment.

They make airline pilots retire at 65. Legal questions can affect millions - far more than the passengers on a typical airline flight. We need federal judicial retirement reform NOW.

Posted by: pwel | September 15, 2010 10:17 AM | Report abuse

Koran-burning haiku:

First amendment mire
It is time to retire
For Justice Breyer

Posted by: 4_star_racer | September 15, 2010 1:18 PM | Report abuse

Anyone with two brain cells to rub together knows that we have already imported mob rule and the First Amendment has been de facto repealed. The most glorious garment this country wore has been cast away into the mire of cowardly fear. This happened to this nation because of the righteous judgments of God, who controls all hearts and minds and gives unto everyone their just recompense of reward. You hate His words and His judgments; he takes away that crowning jewel in our Constitution and leaves you naked. Thank God!

Posted by: jonthebaptist | September 15, 2010 8:00 PM | Report abuse

Anyone with two brain cells to rub together knows that we have already imported mob rule and the First Amendment has been de facto repealed. The most glorious garment this country wore has been cast away into the mire of cowardly fear. This happened to this nation because of the righteous judgments of God, who controls all hearts and minds and gives unto everyone their just recompense of reward. You hate His words and His judgments; he takes away that crowning jewel in our Constitution and leaves you naked. Thank God!

Posted by: jonthebaptist | September 15, 2010 8:01 PM | Report abuse

Just because you said it twice doesn't give it any more sense the second time around. Keep your god away from MY first amendment please.

Posted by: 4_star_racer | September 15, 2010 10:51 PM | Report abuse

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