Justice Breyer’s Dangerous 1st Amendment Standard

From Hot Air, we learn that Supreme Court Justice Stephen Breyer is not convinced the 1st Amendment would permit the Florida whack-job preacher to burn the Quran to make a point:

“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?”

My interpretation of this comment is that the modern “being trampled to death” is Islamic terrorism. 

This is a very dangerous way to view the 1st Amendment.  That is because it puts free speech rights — and government control over them — under the thumb of those who would seek to suppress speech with violence. 

Flag burning does not cause riots and bloodshed.  Neither does placing a crucifix in a vat of urine, or insulting the Pope.  Therefore, according to Breyer’s statement, the government cannot prevent people from engaging in such noxious acts.

On the other hand, drawing a cartoon of Mohammed inevitably leads to violence.  Likewise, burning the Quran, or imagined dunkings of the sacred text in a  toilet, spawns riots and bloodshed.  Therefore, according to Breyer, the government might be able to prevent people from doing such things.

But think about which speech is more important and more in need of protection.  Other than outliers on the left, no one really thinks we are in danger of becoming a Christian theocracy.  Pissing on a depiction of Jesus is obnoxious, offensive, and reprehensible, but it is not particularly brave or provocative.  No one has been stabbed, stoned, or blown up for such stupidity as far as I know.

Not so for Mohammed and other Islamic symbols.  It is a brave (or crazy) man indeed who openly defaces a symbol of Islam. 

The 1st Amendment’s role is to protect the speaker of unpopular opinions.  It should not be pushed aside because of the possibility that the subjects of an important debate — here, Muslims — may be offended or that some of them may lash out. 

Although I think it is stupid and offensive to offend Muslims by burning their holy text — just as I believe it is stupid and offensive to burn the American flag or Christian Bible — our government should be on the side of protecting those who are engaged in such speech from violent retaliation.  The government has no business siding with those who threaten violence against them.

It is astounding that a sitting Supreme Court Justice does not understand that reflexively.

Published in: on September 14, 2010 at 12:27 pm  Leave a Comment  

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