Can anyone explain what Supreme Court Justice Stephen Breyer is trying to say?
Last week we saw a Florida Pastor – with 30 members in his church – threaten to burn Korans which lead to riots and killings in Afghanistan. We also saw Democrats and Republicans alike assume that Pastor Jones had a Constitutional right to burn those Korans. But Supreme Court Justice Stephen Breyer told me [George Stephanopoulos] on “GMA” that he’s not prepared to conclude that — in the internet age — the First Amendment condones Koran burning.
“Holmes said it doesn’t mean you can shout ‘fire’ in a crowded theater,” Breyer told me. “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?”
[. . .]
For Breyer, that right is not a foregone conclusion.
“It will be answered over time in a series of cases which force people to think carefully. That’s the virtue of cases,” Breyer told me. “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.”
Maybe I’m misunderstanding the analogy, but it seems like Breyer is implying that since burning a Quran would incite Muslims to violence, the act would not be protected by the First Amendment. Can that really be what he’s saying? If so, would that lead to a dual standard for religious texts since no one is going to riot if a Bible or Book of Mormon is burned?
(Via: Hot Air)
September 14th, 2010 | 4:37 pm
Selective enforcement of the 1st amendment, Christians need not apply.
September 14th, 2010 | 4:58 pm
This would seem to contradict the Courts ruling on flag burning as well.
Though I have to admit I have been critical of the flag burning ruling.
September 14th, 2010 | 5:06 pm
Hmmm. Justice Breyer seems to be engaging in some Blackmunite “penumbras” here but (despite disagreeing (vehemently) with Mr. Justice Breyer) I will give it a shot. I think his analogy is an attempt to say that an act/speech which incites others to the point where they become a danger to public safety is not necessarily protected by the 1st amendment?
Of course that is not really Holme’s point. Yelling “fire” in a crowded theater is only problematic in free speech terms if said shout is false. In other words a deliberate provocation with the intent of causing harm, or at least mayhem. Thus it is a matter of both fact and intent. Here I think the analogy breaks down (as do most analogies that classify behavior (eg. ___ burning) as “speech”). What was Pastor Jones’ intent? What is the “truth value” of Qu’ran burning?
Two other questions. If Justice Breyer is right, how is provocative Qu’ran burning wrong, but provocative mosque building permissible? And does this mean that previously protected flag burning is now (in Breyer’s view) ripe for reconsideration?
September 14th, 2010 | 5:18 pm
I actually thought this was a novel argument when I first heard it this morning and I was willing to consider it a bit.
I’ve considered it a bit. I think the dual standard Joe is alluding to is one aspect wrong with it. Another is that the legitimacy of a law is being judged by how a particular group of people react to it. That’s not how a law is to be evaluated.
September 14th, 2010 | 5:19 pm
Justice Breyer makes two false statements (at least) in this short story. I will discuss the first in this comment.
If Jones had gone ahead and burned the books and the police in Florida had been inclined to charge him, they most likely would have charged him with disorderly conduct. This is what the Florida Supreme Court says about the intersection of the disorderly conduct statute and the First Amendment:
“[W]e now limit the application of [the disorderly conduct statute] so that it shall hereafter only apply either to words which by their very utterance . . . inflict injury or tend to incite an immediate breach of the peace . . . or to words, known to be false, reporting some physical hazard in circumstances where such a report creates a clear and present danger of bodily harm to others. We construe the statute so that no words except ‘fighting words’ or words like shouts of ‘fire’ in a crowded theatre fall within its proscription, in order to avoid the constitutional problem of overbreadth, and ‘the danger that a citizen will be punished as a criminal for exercising his right of free speech.” State v. Saunders, 339 So.2d 641, 644 (Fla. 1976).
The purpose of the “fire in crowded theater” doctrine is to prevent, in the court’s words, acts that create a clear and present danger of bodily harm to others. Koran burning does not meet this test. Consider an analogous case, flag burning. The flag is an important symbol, and flag burning is highly offensive to a large segment of the population. Conceivably, upon hearing of a particular flag burning, some elements of the population might react violently. But the Supreme Court has held that flag burning is constitutionally protected expressive activity. Texas v. Johnson, 491 U.S. 397(1989). Thus, the court has already excluded flag burning (and, by logical extension, Koran burning) from the “fire in crowded theater” category. This is what the Supreme Court in Johnson said:
“The State’s position, therefore, amounts to a claim that an audience that takes serious offense at particular expression is necessarily likely to disturb the peace and that the expression may be prohibited on this basis. Our precedents do not countenance such a presumption. On the contrary, they recognize that a principal ‘function of free speech under our system of government is to invite dispute. 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.’”
On what possible ground could Breyer distinguish this passage from the Koran burning facts?
September 14th, 2010 | 5:30 pm
Now I will discuss the Breyer’s second false statement. He says that court opinions (presumably including Supreme Court opinions) must be based on reason. Piffle. Justice White dispensed with this canard once and for all when, in his Roe v. Wade dissent, he called the court’s actions an exercise of “raw judicial power.” White meant that the court’s decision in Roe had absolutely no grounding in the text, history or structure of the Constitution. If by “based on reason” Breyer means that the Court must present a reasoned defense of its actions presenting a logical case for how its opinion is tethered to the text, history or structure of the Constitution, as Roe demonstrates, his statement is simply false.
Breyer comes from the wing of the court that relishes the opportunity to impose their policy preferences on the rest of us under a thin veneer of interpreting the constitution.
September 14th, 2010 | 6:23 pm
I don’t agree with this position, but let me take a crack at why I think some might.
We treat people differently because people receive things differently. This happens all the time with parenting. One child you can joke and tease with, but another takes it very personally and would be terribly hurt by the exact same words.
Christians respect their bible as do most other religious groups. But Muslims believe the Koran is holy and to be treated with respect in a fundamentally different way than any other religious group I am aware of. Christians really would not be that upset by someone with dirty hands reading a bible. We (Christians) are more interested in the message of the scripture, than physical presence of the book. But Muslims believe you should always be ritualistically and physically clean to hold the Koran. Many would wear gloves to keep themselves from accidentally desecrating a Koran. Christians that do the same would be considered a bit crazy.
The law currently takes into account motivation (difference between manslaughter and murder) would it be inappropriate to take into account the receipt of the action as well.
September 14th, 2010 | 6:37 pm
Too bad, nobody here can read.
Here’s all that Breyer is saying:
He sits on the Supreme Court. He doesn’t prejudge or issue advisory opinions. There is an orderly way to present matters to the Supreme Court. That way involves giving all sides an opportunity to make their best case. The judges, contrary to opinions expressed above, actually read the briefs and listen to the arguments before making a decision.
Despite our intense need to get instant analysis from supreme court judges or our intense need to ignorantly pre-criticize those judges, we will not get an instant decision from the supreme court or individual judges. The court is deliberative, the antithesis of “soundbite.”
All Breyer is saying is: “If the issue is presented, the court will fully hear all sides then deliberate and render an opinion. Until then, I keep an open mind.”
Don’t read too much more into Breyer’s comments.
September 14th, 2010 | 6:42 pm
It’s telling, that Isalm’s defenders blithely operate on the belief that its adherents are by nature an incitable mob.
September 14th, 2010 | 7:20 pm
Joe McFaul He doesn’t prejudge or issue advisory opinions.
I thought you had a good point. But then I thought about it further and realized, “Shouldn’t this already be settled law?”
I wasn’t aware that this was an issue that would be decided in the future—I thought it was an issue the Court has already ruled on.
September 14th, 2010 | 7:57 pm
Joe McFaul, I appreciate what you said. Though I am no Breyer fan, it did sound like he was trying to put this into a Constitutional history context. He would have to approach such a situation with judicial precedents like Schenk v. U.S. (the originator of the “clear and present danger” rule) in mind. He seems to be saying that he can’t come at this with a blank slate; he needs to always have previous precedents in mind.
Not that I wasn’t troubled by what he said. And frankly, I always wondered how Schenk v. U.S. ever passed unanimously back in 1919, or why it hasn’t been overturned since then–though I know it’s been “tinkered with” a bit. (I’m not a lawyer or a con law scholar, just a former Westlaw editor, so I may be far off base on this.)
September 14th, 2010 | 8:03 pm
I gets even more complicated if you set a Koran on fire in a crowed theater!
September 14th, 2010 | 8:05 pm
And it’s even more complicated when I can’t spell “crowded” properly . . . Yikes.
September 14th, 2010 | 10:06 pm
Rushing out of a theater you believe is on fire is rational behavior. Rioting and committing murder because someone damaged your favorite book is not; it is criminal behavior. When will our leaders start laying blame on the murderous bullying so common in the Muslim world, instead of themselves bullying innocent Americans?
September 15th, 2010 | 8:53 am
Adam Shields, mike – During the ‘crackergate’ affair (easily Googled), people definitely did receive death threats and threats of violence at the planned desecration of an (allegedly) consecrated Host. I’d suggest that as a Christian, or at least Catholic, analogy to the way Muslims revere the Koran.
September 15th, 2010 | 9:38 am
‘Adam Shields, mike – During the ‘crackergate’ affair (easily Googled), people definitely did receive death threats and threats of violence at the planned desecration of an (allegedly) consecrated Host. I’d suggest that as a Christian, or at least Catholic, analogy to the way Muslims revere the Koran.’
I am amazed that you can seriously consider this analogous to what happens in the Muslim world.
No Christian leader publicly (or privately, I’m sure) called for the assassination of this atheist.
No atheists were randomly murdered in the street after news of this desecration got out.
Atheist businesses and meeting places were not burned to the ground in reprisal for this blasphemy.
Our top political and military leaders did not contact this atheist, urging him to return the host, in fear of global catholic reprisals.
The comparison is laughable.
September 15th, 2010 | 11:28 am
mike –
Not this century, sure. ( http://en.wikipedia.org/wiki/Host_desecration#Medieval_accusations_against_Jews ) Give Islam a few centuries to catch up, and I’m sure that this, too, shall pass.
I didn’t intend to compare the levels of violence. I was trying to compare reverence for the Host among Catholics to the Muslim reverence for the Koran, though I admit my phrasing was ambiguous. The fact that some did threaten violence, though, does underscore my point.
Compare the treatment of the Koran that Shields described with the Catholic care for consecrated Hosts; the parallels are striking, at least to me. Don’t Catholics believe one should be “ritualistically and physically clean to” receive the Host? That was how it was at the Catholic school I attended…
September 15th, 2010 | 2:36 pm
It’s true that it’s an overstatement to say that no one publicly or privately called for assassination over the “crackergate” thing, but crackpot e-mails and blog comments by people who never carry anything out don’t really compare to rioters by the thousands and actual deaths.
And while it may be arguable that given a few centuries or millennia Muslim conceptions of holiness might become less violent, we’re not living centuries from now, and neither are they.
September 15th, 2010 | 3:05 pm
[...] By Joe Carter Maybe I’m misunderstanding the analogy, but it seems like Breyer is implying that since burning a … [...]
September 15th, 2010 | 3:21 pm
““Shouldn’t this already be settled law?”
To exand on my point, Breyer apparently
answered a differnt question. He doesn’t mention either “Koran” or “burning.” It appears he was asked a broader querstion regaridgn free speech itneh ienternet age. Now his answer makes much mroe sense:
“IT (emphasis added) will be answered over time in a series of cases which force people to think carefully… Cases produce briefs, briefs produce thought. Arguments are made.”
That said I can imagine a numebr of scenarios where burning a Koran is a crime. here’s one:
Koran is drenched in a slow burning accelerant and hidden in a pile of flammable material in a mosque and is ignited. Later, the entire mosque burns down. Despite the burning of the Koran, arson was committed.
There is no “blanket rule.” That is Breyer’s point: Facts matter.
September 15th, 2010 | 3:46 pm
The “crackergate” episode is very amusing to me.
Here is the exact incident and a photograph of the desecrated Host. The Host was desecrated along with two books wishipped by followers: The Koran and The God Delusion.
http://scienceblogs.com/pharyngula/2008/07/the_great_desecration.php
How many Catholcis sent in death threats: many
How many asked his university to fire him? many
The Catholic uproar and howls of outrage were heard around the internet.
How many muslims reacted to the desecration of the Koran?
not a peep.
Now, I happen to think that Myers is well within protected free speech and that destruction of holy texts to make a point about the claimed senselessness of religion in general or a particualr religion is protected.
However, there is a grey area where certain conduct changes from “free speech” to “intimidation.” Cross burning is a good example of intimidation. Despite the First Amedment, certain speech is, in fact, criminal. Extortion, implied threats and intimdation can all be criminalized.
That’s why the praticular circumstances are important. Facts do matter.
September 15th, 2010 | 3:51 pm
mcfaul,
not sure why you are carrying brief for Breyer without ever (apparently) having listened to the conversation? Just click on the link provided and you can remedy that. If you do so you will hear Justice Breyer raise the “fire in a crowded theater” analogy in direct response to a question about “global conversation via the internet” and specifically about Pastor Jones and the burning of the Qu’ran.
So yes I CAN read (and listen too) and my conclusion is that Breyer is in fact making the analogy you say he is not.
BTW — the whole interview is something of a case study in the difference between conservative and liberal judicial philosophy. It is clear that Breyer sees the role of Supreme Court Justice as inextricable from politics, and believes that is to the good. I could not disagree more.
September 15th, 2010 | 3:52 pm
In trying to understand the Muslim beliefs concerning the Koran and any legal precedents that should arise from them, we’re forced to ask questions about Truth and about what is, or should be, normative.
In the example of Catholic reverence for the consecrated Host, the person(s) who threatened death are a fringe minority. That behavior is not normative, because the vast majority of Catholics understand that to hurt someone over what they do to the Host would be to assault Jesus Christ himself (“whatsoever you do to the least of my brothers or sisters you do unto me”).
Between the merely threatened Koran-burning, the Danish Mohammedan cartoons, and other instances, it’s become clear to anyone with “eyes to see and ears to hear” that violence IS normative for far too many in the Muslim world. We can predict and count on it, and that must change if there is to be peaceful coexistence with Islamic culture.
BTW, I think its a pretty damning indictment of our culture that we give more care, concern, and prospective legal protection to a book (sacred or otherwise) than to a baby in the womb.
September 15th, 2010 | 5:37 pm
“So yes I CAN read (and listen too) and my conclusion is that Breyer is in fact making the analogy you say he is not.
That’s a shame because he specifically refrained from making that analogy. He referred to Holmes “fire in a crowded theater” statement merely to demonstate to non-lawyers that the First Amendment is not a “blanket protection” of speech. He made no reference to burning of Korans and was addressing a question pointed out novel challenges raised by widespread access to the internet. (5 min. into the interview)
That said, the actual Holmes quote is “falsely” shouting fire in a theater, so Breyer misapplied the principle. Even truthfully shouting fire may result in people beign trampled, so his point isn’t well taken. Again, his error demonstrates the wisdom of his main point–don’t make off the cuff, rash, or ideologically driven decisions. Take time to think about it–read the briefs.
He then went on to make the point that although law is “settled” as Joe Carter points out, the facts in individual cases make a difference.
He also made the unremarkable observation that the internet puts a new spin on things and the law will need to adjust. One way for the law to adjust is to have some legislature pass laws regulating internet use or have an international regulatory body. These would be political so yes, law and politics are interrelated, like it or not.
Even if you are an originalist (or a Roberts “balls and strikes” guy) as I am, application of Constitutional principles to technologies never imagined by the Constitutional drafters can present challenges. That’s the thrust of Breyer’s comments. He won’t predict the outcome of unanticapted facts based on rapidly evolving technologies.
There’s nothing invidious about Breyer’s comments. Joe Carter wonders if Breyer is suggesting that “[S]ince burning a Quran would incite Muslims to violence, the act would not be protected by the First Amendment…If so, would that lead to a dual standard for religious texts since no one is going to riot if a Bible or Book of Mormon is burned?”
The answer is unequivocally, “No.” Breyer is not saying that. In a long winded and inelegant way, he is saying, “I don’t know and I won’t make up my mind until(if) the matter is properly and thoughtfully presented to the Supreme Court for a decision.”
I know his answer is very disappointing in a sound bite culture war world. I don’t think we need to worry about differential treatment of ignition of holy texts by the Supreme Court.
September 15th, 2010 | 8:17 pm
I scanned through roughly two dozen comments and it seemed to me they all missed an extremely key point. What the honorable justice implied is that a new standard may exist; ie: if an act by an individual occurring in this country’s jurisdiction but due to the reach of the internet causes a unwanted reaction of others outside the US, then the action is challengeable. Not being a lawyer I’m only guessing this might be new law, but it seems almost Orwellian. Please correct me if I’m wrong.
September 16th, 2010 | 1:01 pm
“if an act by an individual occurring in this country’s jurisdiction but due to the reach of the internet causes a unwanted reaction of others outside the US, then the action is challengeable.”
He’s not implying that at all. His comments are intended to be exactly the opposite. He confirms the American ideal of free speech as a general rule, notes a few limitations, and recognizes a new technology that affects free speech in ways never imagined. That’s all. There is no chance the Supreme Court will recognize some form of extraterritorial jurisdiction over Americans for exercise of free speech.
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