If George Stephanopoulos is quoting accurately, the most thoughtful of the Supreme Court’s liberal Justices isn’t sure that the First Amendment protects burning copies of the Koran.
“Holmes said it doesn’t mean you can shout ‘fire’ in a crowded theater,” [Stephen] 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?”
Justice Breyer’s analogy assumes that restrictions on speech can be justified by the need to appease Moslem supremacists, who might otherwise respond to “blasphemy” with mass murder. I’m sure that he would not grant any other group that sort of power over public discourse. Free speech is meaningless if threats of violence can shut it down.
Why, then, does this eminent liberal entertain the possibility that a heckler’s veto for Islam might conceivably be in order? Is it simply a matter of naked fear? Or is there, despite all the obvious surface differences, an inner harmony between progressivism and Islamofascism? Neither explanation fills one with confidence for the future of our liberties?
Update (9/17/10): In a later interview, Justice Breyer changes course and says, “the most one analogous case is that there was — you have the right to burn an American flag as a symbol”, implying that Koran burning is Constitutionally protected, too.
The Supreme Court’s flag burning jurisprudence is, I realize, buried in obscurity — in the back cupboard with the admiralty and ERISA cases — so one can’t blame a sitting Justice for needing a day or two to recall it. Let’s dismiss out of hand the notion that this eminent progressive’s first instinct was to find a way to accommodate Islamic supremacism.
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