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.

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.

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.

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.

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.

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.

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.

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.

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 am amazed that you can seriously consider this analogous to what happens in the Muslim world.

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…