Litigation

Breyer Ponders Koran-Burning and Free Speech

By Peter Hardin

Justice Stephen Breyer is getting out in public to promote his new book, “Making Our Democracy Work: A Judge’s View,” and one TV interview confronted him with some dicey questions about burning the Koran.

In an interview on ABC’s Good Morning America with George Stephanopoulos, Justice Breyer was asked, “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?”

The justice answered in part, according to a Washington Post article:

“[W]ith 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.”

His remarks have sparked varying interpretations. According to a CBS News blog, Justice Breyer said he “he wasn’t convinced the First Amendment would protect such an action if the case were brought to the court in the future.” Stephanopoulos wrote that the justice “told me…that he’s not prepared to conclude that — in the internet age — the First Amendment condones Koran burning.”

But  Washington PostPartisan blog author Charles Lane, after describing legal standards that have evolved since Justice Oliver Wendell Holmes made the crowded theater analogy, wrote, “burning Korans to make a political point … though deeply offensive to many, including many non-Muslims — is clearly constitutional.” Lane added, “I think Justice Breyer understands and agrees with that. I just wish he had taken the opportunity to say so.”

In an interview with NPR, Justice Breyer talked about his book. Addressing an audience at the National Archives, according to the Associated Press, he said the greatest barrier to understanding the high court is the opinion “that what’s important to us is political and that this is nine junior varsity politicians.” He added, “That isn’t what goes on.”

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