Supreme Court Justice Questions the Right to Burn a Koran

by Charles Platt

On Good Morning America, Breyer compares burning a Koran to shouting “Fire!” in a crowded theater. I guess this must mean that if you do anything at all which upsets delusional wackos, you are not protected by the First Amendment. That’s good to know.

9 Responses to Supreme Court Justice Questions the Right to Burn a Koran

  1. Robert says:

    I purchased — and have read — Breyer’s latest book. Pages 127 through 130 describe his thought processes regarding issues of interstate commerce. I find his general outlook rather troubling for a variety of reasons: if “decisions” are interstate commerce and can therefore be regulated, what is it that cannot be regulated? By his reasoning, deciding NOT to yell “Fire!” is an issue of federal concern.

    To use an extreme example, what about masturbation? By self-gratifying, one refrains from interstate commerce (condoms, medical care for STDs, etc.) and thereby subjects oneself to direct federal regulation.

  2. Bad Monkey says:

    I honestly wondered if perhaps he was being taken out of context, or being misconstrued. But no, he really seems to be sending a message that is not at all in keeping with the logic of the fire in a crowded theater.

    If anything the Justice is using the meaning of Holmes comment (can’t tell a lie in such a manner that it is very likely to cause harm) to try and say something else entirely (can’t express an opinion if others may react violently to it).

  3. jfischer1975 says:

    …always comforting to know our highest, unelected, unimpeachable officials are so concerned about our wellbeing that they’re prepared to toss out the constitution to keep us safe.  thank FSM!

  4. Rogier says:

    I’m as ready to be outraged at First Amendment restrictions as you guys are, but I don’t see anything particularly worrisome here. And Breyer does not “compare” burning a Koran to yelling fire in a crowded theater. He invokes the Holmes analogy as one school of thought, one scenario to be weighed. He asks whether it’s the same thing. Nothing wrong with that, and not an indication, I think, of him leaning one way or the other. Stephanopoulos cut Breyer off and moved on to another topic. But Breyer still (almost) completed his point: that he can’t address the question publicly unless and until there’s a case before him and the other eight justices. At that point there will be briefs and an opportunity for debate.

    He made this point a little more elaborately in his interview with Terry Gross of NPR a couple of days ago. The transcript is here:

    What creeped me out about THAT interview was Gross’ question, not Breyer’s answer. The question she asked was, “But what about the rights of Muslims who would be offended to the core, outraged by that act?” WTF? In whose world is there a right not be offended? Maybe she was playing devil’s advocate. One can hope.

    • Charles Platt says:

      No, any self-respecting jurist would have laughed at the question and dismissed it immediately. “Of course there is a right to burn the book. Or to burn any book. What else do you have to ask me?”

      All this waffling about Holmes is just a way to leave the door open for further restrictions on speech if the court feels like it.

  5. Rogier says:

    Would-be Koran-burners are douches, but it’d be interesting to see how the legal system would deal with an actual burning of some holy book — THAT holy book in particular. One part of me wishes that someone would make a neat pile of Korans, Bibles, Torahs, maybe throw in some Vedic texts and Mein Kampf for good measure. Top off the pyre with, let’s say, The Book of Mormon, Dianetics, the Origin of Species, Das Kapital, Grimm’s Fairy Tales, and The Adventures of Mickey Mouse.

    Douse it all in gasoline, and strike a match.

    Invite the media. Roast some marshmallows over the flames. Make s’mores.

    Then let the courts sort it out: The burning of which book(s) is constitutionally permissible? The incineration of which book(s) violates the law? Inquiring minds want to know.

  6. I say we burn every copy of every publication espousing the monotheistic sky god religions (the Hindus and other eastern religion followers could keep their books unless they wanted to buck up). An Internet virus could then be released to kill the online sky god content and wipe individual hard-drives. Then we could employ some satellite weaponry gadget to remotely wipe the memory of the sky god fairy tales and immorality lessons from the minds of the religion people. Other measures would have to be employed too I am sure. Just a thought.

  7. charles platt says:

    I would be more in favor of a biological-type virus designed to suppress low-level right-brain function and enhance left-brain function in the hope of giving rationality an edge over superstition. But no doubt the law of unintended consequences would kick in somehow.

  8. […] leading First Amendment blog is the Legal Satyricon, where Charles Platt notes that U.S. Supreme Court Justice “Breyer compares burning a Koran […]

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