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.
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Honestly I was wondering what a SCOTUS judge was doing commenting on something that might actually come up exactly in that way, a 1st Amendment case on buring a book some group deems holy.
I thought that's why he was at first being so vague, and professor like, answering a question with a heap of "we all have to think about such things in various ways, yada-yada"
But he hasn't been that bad, outside of Citizen's United.
But it sin't really safe for SCOTUS judges to say much at all, as they will only be pilloried by onme side or another or both.
Thanks Jason
Just being controversial enough to anger people to action is not enough to ban speech, it must pass the Brandenburg test. The proper way to deal with expressions that do not rise to this level is with more speech. You do not get to ban speech just because you are not smart enough to counter it with more speech.
Justice Breyer has actually said that koran burning would qualify as free speech, let's do our part, to correct this error, which is leading to attacks on Justice Breyer nation-wide.
http://volokh.com/2010/09/16/justice-breyer-clarifies-earlier-remarks-suggests-koran-burning-is-constitutionally-protected-after-all/
This is a matter where HuffPo itself could take a leadership position on the need to check sources and facts be considered, before we attack others
Huff po with it's liberal readership is in an excellant position to reach out to america, and media outlets.
Thank you for your comment. Justice Breyer has clarified, but not entirely refuted his earlier remarks. Please see my update to the original post above.
Please see my update to the original post above.
Breyer obviously has not been reading the opinions produced by his partners on the SCOTUS, especially C. Thomas! Reason?!!? Yeah Right!
I hope that Mr Harden will write us a short piece apologizing to Justice Breyer, and about the importance of fact checking, and that readers who commented, also write in, to comment that they have learned a lesson: "Do not believe what you read, check the sources, check the facts".
A teachable moment, even HP could use this as a constructive guideline example to it's contributing writers; The Facts Are More Important Than The Story.
http://articles.cnn.com/2010-09-15/us/US-Breyer-LKL_1_qurans-supreme-court-justices-american-flag?_s=PM:US
and
http://volokh.com/2010/09/16/justice-breyer-clarifies-earlier-remarks-suggests-koran-burning-is-constitutionally-protected-after-all/
That would make the article and the remarks castigating Justice Breyer mistaken, and comments agreeing with Justice Breyer mistaken
I suppose it shows we have to do our own searches on the Net to confirm citations
Hope this is cleared up quickly
Thank you for your comments. I must say you are vigorous in your defense of Justice Breyer here! I'm not sure Breyer has completely refuted his earlier statements, as you seem to believe. And there is no indication that the Stephanopoulos transcript is in error. Please see my update to the post above. Perhaps I will have addressed some of your concerns. And thanks again for being an active reader.
but I found his first interview to be vague enough to sound like a law prof in front of his class. It was hard to know what side he was on, and perhaps he was suggesting that there was still an issue of context... though I wondered what context would make it unlawful speech..
Personally, I'm for all the speech that offends me, as people can muster
Thank you for your answer
Justice Breyer merely stated that some might argue that burning the Quran would fail the "clear and present danger" test and thus be considered unprotected speech. He neither defended nor refuted the argument, as it is his responsibility as a Justice to remain neutral until the issue is brought before the Court. So, what is one of the greatest legal scholars in the U.S. to do, since he can't take sides -- not even acknowledge the viewpoint that exist? I think we miss out on a great educational opportunity when we lambaste judges for engaging the public and try to restrict them from saying, "Listen, these are the issues at play here, the big questions regarding the meaning of our Constitution, and such-and-such an argument might be right, but it might also be wrong. I'll let *you* think about that."
It is the speech of the dissenting, disagreeable view that is protected.
Think about it....does speech that is agreeable need protecting? If we all agree the First Amendment isn't necessary.
Besides who determines what is hateful? What standards are used to determine it?
The swastika is an ancient symbol of air,sun,good luck, change and dynamic power. The ancient world used this symbol all over their temples. It was used by many cultures a symbol of good luck.
My point is that there is no hate speech, there is just free speech. People have the right to express views that others dislike, sometimes vehemently. People have the right to say insulting things.
For a philosophical perspective, see Wikipedia's "free speech" article -- specifically, the section on "limitations on freedom of speech," which gives a brief treatment of the arguments of John Stuart Mill and Joel Feinberg on when and why they think governments should rightfully be able to restrict speech.
(I don't mean to take a position on what should constitute hate speech and whether it should be protected. Just offering some pointers to relevant cases, in case you're interested.)
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: ... Does [the flagburning decision] make us a great country?
Breyer: It helps. It helps.... [W]hat 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....
Thank you for commenting. You are right that Justice Breyer has clarified his earlier statements, but he has not entirely refuted them, as you seem to believe. Please see my update to the original post above. I hope it addresses some of your concerns.
Burning either can be done in protest against the group those symbols represent.
I am not in favor of burning books to prevent the dissemination of information, but the Qu'ran is widely available to all who wish to read it.
Burning it wouldn't prevent that information for reaching the people. Just go buy one. No one is stopping you.
Now tell me how is it our troops or anyone else for that matter would be in more danger? The Qu'ran is the book quoted by the Jihadists who have been attacking us, the West, for nearly 1400 years.
Our speech should never be restricted because someone in the world might not like it or find it offensive.
Just because Muslims react like murderous juveniles over cartoons, pictures, or the burning of a book doesn't mean we should censor ourselves. Let the Muslims behave as they will, they are responsible for their actions, not our speech.
http://articles.cnn.com/2007-06-25/justice/free.speech_1_principal-deborah-morse-banner-case-school-policy?_s=PM:LAW
And gave corporations can have all of the free speech they can buy.
http://www.nytimes.com/2010/01/22/us/politics/22scotus.html
And the granting of freedom of speech to corporations as a Constitutional right is an abomination, because corporations are artificial entities that cannot be thrown in jail for their transgressions. Unfortunately, the SCOTUS has forced this issue to be resolved only through a Constitutional amendment, and that will take a long time but I'm all for it.
"Those who would give up Essential Liberty to purchase a little Temporary Safety, deserve neither Liberty nor Safety."
Richard Jackson*
*Often wrongly attributed to Ben Franklin, who published the words of Richard Jackson.
When I burn a book I destroy my own property. Who is harmed?
Well said. Justice Breyer is dead wrong here. Using the Justice's same argument one could also say that since the Muslim extremists and others chant, shout, destroy property and kill over printing cartoons of Mohammed then it should be stopped as well. Since they kill over movies such as Theo Van Gogh's Submission, then making movies should be limited by Breyer also. Since they, as the Imam has said, will kill over moving the mosque near ground zero then it should be forced to be built.
Every time that we are threatened with violence from extremists we should just carve another piece out of the Constitution. If we do that then we might as well throw it away because the end is very near.
And your logic about Cordoba Center being built at Park51 that is protected by the Constitution, and it is a peaceful activity that does not threaten anyone else's rights. Suggesting that "the Imam" is using Islamist threats to justify that it "be forced to be built" is ludicrous in the extreme. It is allowed to be built because it is the exercise of a Constitutional right and it does not impinge on the Constitutional rights of others.
In equating the Cordoba Center with being "threatened with violence from extremists" you have only revealed your Islamaphobia and hysteria about "the end is very near." This is wing-nut talk.
In an interview on Larry king Live:
"If we move from that location, the story will be the radicals have taken over the discourse. The headlines in the Muslim world will be that Islam is under attack." Rauf framed the issue as a matter of national security, adding, "If we don't do this right, anger will explode in the Muslim world. It could become something very dangerous indeed."
I was simply using this as another example of Breyers logic. You don't need to change the subject by claiming that I am making up threats from Islam.
http://volokh.com/2010/09/16/justice-breyer-clarifies-earlier-remarks-suggests-koran-burning-is-constitutionally-protected-after-all/
Justice Breyer has clarified, but not entirely refuted his earlier remarks. Please see my update to the original post above.