Legal Commentary

Justice Breyer Clarifies Earlier Remarks, Suggests Koran-Burning Is Constitutionally Protected After All

By Eugene Volokh

Josh Gerstein (Politico) has transcripts of Breyer?s Good Morning America remarks, which seemed to suggest that Koran-burning might be constitutionally unprotected, but also his more recent Larry King Live remarks, which pretty strongly suggest that Koran-burning is indeed constitutionally protected.

To recap, the earlier remarks were ambiguous. Stephanopoulos asked whether globalization and the Internet, and the greater risk that expression in the U.S. may lead to killings overseas, should ?change the nature .. of what we can allow and protect.? Breyer responded: ?Well in a sense, yes. In a sense, no.... [Y]ou can say, with the internet, you can say this. 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 being trampled to death? ... Well perhaps that will be answered by, if it?s answered by our court. It will be answered over time, in a series of cases, which force people to think carefully. That?s the virtue of cases.? That might mean that he?s suggesting Koran-burning might be unprotected (?in a sense, yes,? the Internet should change what we protect, and that remains to be ?answered over time, in a series of cases?). Or these might be, as Ann Althouse thought, just ?the usual platitudes about how judges interpret law and decide cases in the context of ever-changing real world facts and let?s have a fine day in the classroom cogitating about the elaborateness of all that.

In any case, the new remarks seem to pretty strongly come out in favor of the constitutional protection of Koran-burning:

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....

I?m glad to hear Justice Breyer say that.

Full post as published by The Volokh Conspiracy on September 16, 2010 (boomark / email).