THE BLOG
09/17/2010 02:03 pm ET | Updated May 25, 2011

Justice Stephen Breyer: Enemy of Free Speech

Happy Constitution Day! This Friday marks the two hundred and twenty-third anniversary of the signing of our nation's founding document. The Constitution fulfilled the hope and promise of the American Revolution, ensuring that the rights and liberties the Founding Fathers fought and died for would be secure forever. Too bad Justice Stephen Breyer doesn't see it that way.

In the wake of the no-name, would-be Quran-burning Florida pastor's fifteen minutes of ridiculous fame, Breyer suggested to Good Morning America's George Stephanopoulos that it might be time to tear up the first amendment.

Breyer said he does not know whether Quran burning qualifies as constitutionally protected free speech. He compared Quran burning to shouting "Fire!" in a crowded theater, and inciting a deadly stampede. "What is the crowded theater today?" Breyer asked. "What is the being trampled to death?

Actually, the only thing being trampled here is the first amendment. Breyer is one of only nine individuals in this nation ultimately responsible for protecting our constitutional rights. The fact that he, as a sitting Justice of the Supreme Court, cannot understand the difference between controversial speech on one hand, and deliberate incitement to riot on the other, is truly appalling.

For Breyer, the freedom of speech -- arguably the most fundamental right we have in a free society -- is subject to the whims of his own supposed legal genius. He told Stephanopoulos that whether burning the Quran is protected under the constitution is an open question:

It will be answered over time in a series of cases which force people to think carefully. That's the virtue of cases, 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.

In Breyer's case, it would be more accurate to say: Cases produce briefs, briefs produce thoughts, and those thoughts are total tripe.

Remember a few years back when a bunch of Republicans wanted to make it illegal to burn the American flag? I don't think Breyer considered joining their cause, even for a moment (although Senator Hillary Rodham Clinton, true to her triangulating, power-mongering ways, was happy to co-sponsor the bill). Breyer believes (correctly) that burning the flag, however pernicious an act that might be, is still something anyone should have the right to do in America. The constitution protects all kinds of idiotic and distasteful speech. So why is Quran burning any different?

Freedom can be dangerous. But it is still worth protecting. Burning a Quran is a stupid thing to do. But declaring universal Jihad because someone burned a Quran is even stupider. Ultimately, we must not allow the illiberality of our enemies to infect us.

Is Breyer so infatuated with security that he is willing trade in our basic freedoms for it? If tomorrow some terrorists decide that they don't like gay rights, will Justice Breyer have to "sit back and think" about whether advocating gay marriage qualifies as protected speech or not?

Free speech applies to all of us, or none of us. Stephen Breyer has shown that he either does not understand the first amendment, or else does not value it highly enough to stand behind it. Instead, he is busy fearfully pondering the consequences of allowing you the rights the constitution is supposed to guarantee.

Take my advice and party hard this Constitution Day. So long as Justice Breyer remains busy pondering the future of your freedoms, you had better enjoy them while you can.

UPDATE
As some comments on this post have pointed out, Justice Breyer attempted to clarify his views on Quran burning and the First Amendment during an interview on Larry King (two days after his initial statements to Stephanopoulos):

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.

To watch a video of King's interview with Breyer, click here.

Readers should be clear that, in his initial interview, Breyer never stated unequivocally that Quran burning was unconstitutional. Nor did this blog accuse him of doing so. Rather, Breyer left open the possibility that burning the Quran might be unconstitutional if judges considered it a threat to public safety.

Breyer compared Quran burning to shouting "Fire" in a crowded building. It is this analogy alone that serves as the basis of my criticism. Comparing controversial speech to deliberate incitement is simply wrong because it allows America's enemies to define the limits of protected speech in this country. If Breyer remains open to this faulty legal interpretation, he poses a threat to the First Amendment.

I should point out that Breyer's interview with King took place in the wake of two days of fairly pointed criticism in the media about his earlier remarks to Stephanopolous. Breyer made it clear that he believes controversial speech is protected under the First Amendment. That's good to hear. But Breyer did not entirely refute his earlier remarks.

Whether Quran burning should be considered constitutional, he said, "depends on what analogy you use." Presumably, if you compare it to flag burning (merely controversial speech), it would be constitutional. If, on the other hand, you compare it to shouting "Fire" in a crowded building (incitement, and deliberate public endangerment), it might not be constitutional. This latter view is completely wrong-headed. As far as I can tell, Breyer has not backed away from it.