Justice Stephen Breyer Says He Would Think About Whether Koran Burning Can Be Banned By The Government As "Shouting Fire In A Crowded Theater"

ABC News reports that 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 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, 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.”

This is a ridiculous notion that goes against clear Supreme Court precedent on the freedom of speech guaranteed by the First Amendment. In Texas v. Johnson in 1989 the Supreme Court specifically ruled that free speech overpowered any concerns about public safety or offensiveness raised by burning the American flag. In that case the Supreme Court specifically said that the "State’s position … 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.” If Breyer were to create a special exception for the Koran it seems that he would have to advocate overruling Johnson if here to remain intellectually and legally honest. To create an exception for the Koran not afforded to the American flag actually seems obscene.

In fact, Breyer is a man who struck down a ban on burning a cross on the grounds that cross-burning is a valuable part of the First Amendment. For him to now hesitate on Koran burning seems like inexcusable and unprincipled. Tweet