“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?”So what happened to justices not publicly discussing a case which could come before them in Court. Admittedly, there isn't such a case now, but what if a community passed an ordinance against acts offensive to a religion and then arrested a Koran-burner? Such a case might well come before the Court.
Last week President Obama told me that Pastor Jones could be cited for public burning – but that was “the extent of the laws that we have available to us.” Rep. John Boehner said on "GMA" that “just because you have a right to do something in America does not mean it is the right thing to do.”
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.”
But think about what Breyer is saying - when he cites the limits on freedom of speech in Justice Holmes' criteria of not being able to shout fire in a crowded theater, he's raising the issue of whether imminent threats to others is enough of a reason to curtail freedom of speech. His question "what is the crowded theater today? What is the being trampled to death?" raises the issue of whether prospective violence in response to a Koran-burning incident would be enough to justify laws against burning a Koran.
That is giving the perpetrators of violence the final say over whether speech is free or not. His musings encourage violence as a method of stopping odious conduct. It is the ultimate heckler's veto. And the Supreme Court, with Breyer's vote, has said that laws limiting speech merely because of the fear of what might happen are unconstitutional. They have rejected the hecker's veto. And now Breyer is just wondering on public television if burning a Koran might qualify as such an endangerment that it would justify bypassing the First Amendment.
Strangely enough, the Court has not had the same attitude towards burning a cross. With Breyer's vote, they struck down in 2003 a Virginia cross-burning statute that banned cross burning. All they upheld was the banning of cross-burning if it was meant to intimidate. In an earlier 1992 case, they also struck down a St. Paul bias-motivated crime ordinance that was being used to prosecute teenagers who had burned a cross in the yard of an African-American family. And, of course, in 1989, in Texas v. Johnson, the Court struck down the Texas law against flag-burning.
So now we know what people offended by cross and flag burnings must do. If they'd only wreak some havoc and violence, they might be able to win Breyer's vote to uphold laws banning those activities. Their only mistake was simply being offended instead of violent.
Stephen Breyer should learn to keep his mouth shut.