In a recent interview with ABC News, Justice Breyer questioned whether burning a Koran would necessarily be protected by the First Amendment. Some excerpts:
“Holmes said [the First Amendment] 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?” . . .
“It will be answered over time in a series of cases which force people to think carefully.”
I’ll defer to Eugene on this question, but I’m particularly skeptical of the idea that the First Amendment would protect flag burning but not Koran burning (not that I’d recommend either, save burning a flag for proper disposal).
[Thanks to "Volokh Groupie" for the pointer.]
krs says:
I’m skeptical — the linked ABC blog entry provides almost zero context.
It seems like it would be very simple to quote the question SGB was asked and the answer he gave. Instead, there’s this: “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,” followed by the quote above that’s innocuous standing on its own.
It has a very “local news” flavor to it–a weaselly-worded teaser set up to entice viewers to tune in to a non-story. Despite his awful book, Justice Breyer is very smart and is probably familiar with the concept of the heckler’s veto, and with the flag burning cases. I’d be disappointed to learn that he thought that the idea of burning the Koran was a difficult question raised by the “internet age.”
September 14, 2010, 11:37 amtroll_dc2 says:
The Court would need to invent a new exception to uphold prosecution or even a civil action for burning a Koran. It probably would rely on past decisions discussing so-called secondary effects.
September 14, 2010, 11:37 amJohn Burgess says:
There could be a special circumstance–a would-be Quran-burner entering a mosque on a Friday–where a specific action might be banned, but other than that, it seems that burning a Quran enjoys the same protection as any other expressive act protected by the 1st Amendment.
September 14, 2010, 11:42 amuh_clem says:
I see no difference between Flag burning and Koran burning, other than the object of the perpetrator’s ire. If the first amendment is supposed to be content neutral, then neither one can be outlawed without the other. And we have seen that flag burning is protected as symbolic speech, so burning the Koran or any other “sacred” text would be too.
The other important parallel between flag burning and Koran burning is that if we ignore the yahoos who do it, they stop bothering. That would be a good lesson for the media to learn, instead of empowering attention-whores as they have done recently.
September 14, 2010, 11:44 amMJH21 says:
Any recent graduate that conducts the analysis that Justice Breyer just did on a 1st Amendment hypo on the next bar exam would likely not pass that portion. How could it possibly be the case that the fact that the internet and modern media may broadcast your message more widely have ANY relevance as to whether or not it deserves 1st Amendment protection.
Wow. Just, wow.
September 14, 2010, 11:44 amLarryA says:
If there was a situation where my burning the Koran prevented you from studying it you could make a case that Freedom of Religion conflicts with Freedom of Speech. Can the First Amendment trump the First Amendment?
Otherwise the primary arguments are:
1. “Our flag is sacred. Their book isn’t.”
2. “They burned our flag, so we’re justified in burning their book.”
Unfortunately too many people will buy into that.
(PS: I really miss Preview.)
September 14, 2010, 11:47 amSmooth, like a Rhapsody says:
Query to Justice Breyer:
Can you show a film depicting a Koran burning in a crowded theater?
September 14, 2010, 11:48 amSteve says:
Sounds like Breyer simply decided to reserve judgment on a case that hasn’t come before him yet. Having said that, none of the recognized exceptions to First Amendment protection seem particularly close to being implicated, and this would have been a good time to stick up for the values of the First Amendment.
September 14, 2010, 11:49 amRicardo says:
Given krs’s comments, I would also have to ask whether or not Breyer would misstate Holmes’ quote: the First Amendment does not protect falsely shouting fire in a crowded theater. For that reason, it is a lousy analogy.
Moreover, it’s not clear to me why people take the Holmes quote that seriously to begin with. He invoked that dubious analogy in order to argue that the Secretary of the Socialist Party should go to prison for six months for distributing pamphlets telling men subject to the WWI draft that the draft was a violation of the Thirteenth Amendment. Is that really a crowning moment in First Amendment jurisprudence?
September 14, 2010, 11:50 amiconoclast says:
So if Americans were to assault and kill flag burners, then flag burning could be banned? Or if Americans were to assault and kill 9/11 truthers or those who maintain that the USA somehow deserved 9/11 like Rev Wright, then voicing that opinion in public could be banned as well?
Of course not. The heckler’s veto–or the radical islamist’s fatwa veto in this case–has no right to stop free speech. People who voice the opinion the USA deserved 9/11 are vile morons–but even vile morons deserve the right to free speech in America. After all, how else would we know they are morons?
September 14, 2010, 11:53 amuh_clem says:
What Breyer actually said:
This reads to me like a lawyer cagily avoiding coming down on one side or the other. As John Burgess suggests above, there could be special circumstances that would render the simple approach (i.e. of course it’s protected speech) too simplistic.
September 14, 2010, 11:54 amRicardo says:
And under-appreciated point. This loser along with Fred Phelps each have congregations of about 50 people each (in Phelps’ case, they are almost exclusively members of his extended family). And yet they attract attention far out of proportion to the number of followers or degree of actual influence they have. Why do they make the news in the first place?
September 14, 2010, 11:55 amAnderson says:
That is soooooooooooooo Breyer.
“Fundamental liberties, eh? All right, put those in THIS end of the scale — ooh, that didn’t tilt very much, did it? Okay, now, Mr. President, put your thumb here, on this scale — that’s the national-security interest — wow! do you do thumb exercises, sir? Decision looks pretty clear to me!”
September 14, 2010, 11:59 amtroll_dc2 says:
Because the story practically writes itself. It has all of the elements: non-routine issue, conflict, passion, and outsized personalities.
September 14, 2010, 12:00 pmcboldt says:
– I see no difference between Flag burning and Koran burning, other than the object of the perpetrator’s ire. If the first amendment is supposed to be content neutral, then neither one can be outlawed without the other. –
September 14, 2010, 12:01 pmBreyer’s example is a parallel to incitement of a commotion in a theater, a false “FIRE!” alarm.
Fighting words are likewise not protected speech. I take it that Breyer is opining or speculating that some actions, like burning a Koran, may incite violence, and hence NOT be a form of protected speech.
The flip of side of that is his approach invites resort to violence for other forms of currently protected “speech,” such a burning the American flag.
My point, I think, is that there might be a difference between flag burning and koran burning. There is a difference, if more defenders of the Koran will resort to violence in retribution for the desecration, than will defenders of the flag.
Ryan says:
Maybe he was thinking about the fighting words exception. After all, when was the last time you heard of someone getting their head cut off because the burnt a flag or a bible?
September 14, 2010, 12:02 pmCalderon says:
I agree with some other commenters that we’d really want to see the context of this question. That said, I’d think a Supreme Court justice being answered a question about a potential future case should just decline. Breyer’s answer would seem to contradict the Supreme Court’s well-established precedents against a “heckler’s veto.”
Also, I always find the use of Holmes’ statement odd, at when done by civil libertarians. I sort of doubt anything agrees with the result in that case today.
(Also, I know EV has explained Holmes’ statements as false statements of fact not being protected, which is quite different than what Breyer seems to be using it for)
September 14, 2010, 12:07 pmChrisHo says:
Guess this is Breyer’s indirect method of saying, point your guns and sabers at that other guy. Free speech does tend to get the short end of stick at the end of the barrel.
September 14, 2010, 12:10 pmPerpetua says:
The problem is we don’t want to use concern for public safety in a way that privileges bullies. Since no one thinks there will be violent repercussions to burning bibles, then it would be protected by the 1st Amendment. But since we recognize that there will be violent repercussions to burning qurans, then it wouldn’t be protected. This just encourages people to react violently so as to have their particular sensibilities trump the 1st Amendment.
We understand why there would be a stampede in a crowded theater when someone yells “Fire”. People are reacting to an immediate threat to their lives. But what is happening with the violence around Quran burning is very different. People are not taking responsibility for controlling their anger in a case of a threat to the honor of their religion. Notice how Imam Rauf used the phrase “anger will explode in the Muslim world” rather than “Muslims will explode with anger.” His phrasing takes away the agency and personal responsibility of the particular people who will explode with anger (and the imams at the mosques who foment it).
September 14, 2010, 12:10 pmSteveMG says:
Like the other posters, I’ll await a further, more detailed report on these comments but on first blush you have to scratch your head.
Is he arguing that, in the “age of the internet”, that possible violence in Afghanistan (or anywhere in the world) is sufficient (or should even be considered) to stop a act of free speech in the US?
My understanding is that speech may be stopped if there’s imminent danger of violence at the scene of the act. And not anywhere in the world.
Yes, he’s thinking out loud here but sometimes Justices should be read and not listened to. This might be one of those examples.
September 14, 2010, 12:11 pmuh_clem says:
The problem with this approach, i.e. determining whether speech is protected based on how many of those offended will resort to violence, is that it encourages those that threaten violent behavior.
For instance, if you decide that Harley-Davidson motorcycles aren’t very good and that Honda makes a better bike, is it reasonable for the government to ban that opinion because Harley riders are more prone to violence than Honda riders?
September 14, 2010, 12:17 pmDan Weber says:
Sometimes ignoring them does make them go away.
September 14, 2010, 12:19 pmJ. Aldridge says:
First Amendment just protects citizens from seditious libel and doesn’t advance any rights to be seen or heard. Great explanation of its meaning here.
September 14, 2010, 12:19 pmNeo says:
Muslims burn old Qurans, much the same way old flags are burned.
September 14, 2010, 12:22 pmI don’t see the difference.
Ted says:
Does anyone know when the last time the “fighting words” exception has been applied by a court to actual case?
Or maybe he was worried about quacks misinterpreting his words to mean that Muslims would literally “explode” suicide-bomber-style if a Koran was burned. Of course, that’s just stupid of him, the quacks will intentionally misinterpret what he says no matter how he phrases it.
September 14, 2010, 12:25 pmSteverino says:
Apparently the prop. 8 crowd was remiss in not reacting violently enough to the interfence of the courts.
It seems the numbers of people you have on your team who are willing to torch a city is intimately related to the odds the government is going to see things your way.
I’m curious; is this really the way we want to business?
September 14, 2010, 12:26 pmN. Friedman says:
cboldt,
You write:
Well, if that is what Breyer intends, he is traveling into dangerous territory. After all, we also know that publishing books disliked by Islamists leads to people being killed (e.g. Rushdie’s Satanic Verses), that publishing cartoons that Islamists dislike leads to violence and death, that advocating for the rights of Muslim women leads to violence and death (e.g. the Theo van Gogh incident), that converting from Islam leads to violence and death (with incidents to common in occurrence to bother mentioning any single one), that speaking ill of Islam leads to violence and death (e.g. the Pope’s discussion), etc., etc.
This is clearly one slippery slope that we can certainly hope our Courts will avoid. Otherwise, we shall find ourselves re-introducing blasphemy laws by Court ruling.
September 14, 2010, 12:29 pmAndy McGill says:
You would also have to analogize “shouting fire in a crowded theater” to publishing cartoons of Mohammad, women not wearing veils, uttering the word “crusade”, and many other actions that the press reports as inciting violence.
September 14, 2010, 12:31 pmReinhold says:
If someone shouts “fire” in a crowded theater, most people’s reaction would be to run for safety. Those people don’t premeditate trampling on other people. They just react. But a violent reaction to Quran burning would be premeditated violence, or at least just violence. It’s in a different category than trying to protect yourself from harm.
September 14, 2010, 12:34 pmFormer Army MP says:
I love liberals who are smart. He picked an argument for why it is okay to put a Christ icon in a jar of urine, but not okay to insult the Prophet, that can be written down without a second grader saying “That’s stupid”.
I expect the Breyer court to ban churches and require public prayers to Mecca in 3….2….
September 14, 2010, 12:34 pmJack Burton says:
If only we had that option with politicians and certain Justices.
September 14, 2010, 12:35 pmRicardo says:
But how many previously insignificant nobodies get international media coverage and personal phone calls from the Defense Secretary of the United States just by being passionate, outsized personalities? I have to believe at a minimum that these people are stoking the flames of media attention by making regular phone calls to media outlets if not hiring PR consultants to feed statements and press releases to journalists.
If Fred Phelps didn’t have a couple million dollars at his disposal, he would be an anonymous nobody shouting and hollering in some public park somewhere with passersby wondering when he will kick the booze and the crystal meth.
September 14, 2010, 12:36 pmRedman says:
What if someone wanted to burn ALL copies of the Koran. Still protected?
September 14, 2010, 12:36 pmduh says:
but I’m particularly skeptical of the idea that the First Amendment would protect flag burning but not Koran burning
There is not even a comparison between the two. The American flag is part of American culture, obviously, and actually carries legal meaning with it, even though liberals like to argue that it is nothing but cloth and ink for their court cases. I wonder what liberals would say about burning the American flags that soldiers wear on their uniforms, thereby changing their status as per the asinine Geneva Conventions? The koran, on the other hand, not only carries no legal meaning for us, but has never been part of American culture (contrary to the blatant lies that The Precedent likes to tell about islam having always been part of America – a total joke – and muslims having contributed so much to America – another total joke) and is representative of an aggressive, violent, expansionist political ideology that has been at war with America and the West for a very, very long time.
September 14, 2010, 12:40 pmneurodoc says:
“…I’m particularly skeptical of the idea that the First Amendment would protect flag burning but not Koran burning…”
You are merely skeptical about this? I am absolutely disbelieving even if a great legal mind like Breyer might entertain the possibility. If it were the case that the First Amendment did not protect symbolic speech of this sort, that is flag burning and burning of the Koran, then what, anti-blasphemy laws would pass muster?
September 14, 2010, 12:41 pmSteveMG says:
Hmm, the threat of violence – of people being trampled to death – came from abroad and not in the US.
Is Breyer suggesting that because of the “age of the internet” that threats of violence in Afghanistan can (should?) be considered when deciding the speech rights of Americans here?
Very odd.
E.g., I wish to burn an American flag here. But a group of Italians watching it on Youtube will riot in Rome. Therefore the state can stop me from burning the flag?
Doesn’t work for me.
September 14, 2010, 12:44 pmepluribus says:
How does burning a cross on a black family’s front lawn fit into this analysis? The flag, the Koran, and the cross are all symbols. Seems to me, though, that the intention behind the burning is not the same in all cases.
September 14, 2010, 12:46 pmMichael Ejercito says:
Texas v. Johnson, 491 U.S. 397
That same court case was cited in the district court decision Phelps-Roper v. Bruning.
The second
Of course not.
So, to sustain a ban on flag burning in light of the Johnson case, all we need to do is gun down people who burn American flags.
I can certainly predict the implications of accepting such a jurisprudence.
This could be a justification for the complete exclusion of homosexuals from military service.
Why limit the scope?
If we are to accept that violent reaction from Muslims is sufficient to justify banning the burning of Qurans, then surely banning same-sex “marriage” is likewise justified for that reason alone.
September 14, 2010, 12:48 pmMichael Ejercito says:
It depends on if the black family gave consent.
Same as the issue of burning Qurans inside a mosque, or an American flag in a VFW office.
September 14, 2010, 12:49 pmbuddyglass says:
Is it relevant that prohibiting “yelling fire in a theater” isn’t done for ideological reasons, but prohibiting burning {insert sacred symbol} probably would be?
Fire-in-a-theater isn’t speech that’s intended to communicate some deeper concept. It’s not “making a point”. Burning {insert sacred symbol} is. It seems like the spirit of the 1st amendment was to protect speech intended to “make a point”.
September 14, 2010, 12:50 pmDebrah says:
Of course Koran-burning is protected by the First Amendment.
If this isn’t protected, then nothing else is.
Finito!
September 14, 2010, 12:55 pmAvery Burns says:
I favor the impulse but oppose the act. Book burning is bad no matter how foolish the subject of the book. On the other hand I love to gig the Islamists. They started it and we can darn sure finish it. I would wipe Mecca from the map and from memory.
September 14, 2010, 12:57 pmOrenWithAnE says:
Only until us gay marriage advocates start firebombing city halls that won’t register gay marriages …
September 14, 2010, 1:00 pmalkali says:
To make krs’s point a slightly different way: can anyone point me to an actual sentence uttered by Justice Breyer that contains the word “Koran”? If not, there’s nothing to see here yet.
September 14, 2010, 1:00 pmSteveMG says:
Of course Koran-burning is protected by the First Amendment.
Well, like all rights, there are limits. E.g., public safety, et cetera. If there’s a danger of violence occurring at the scene of the burning, the government may ban that burning (“extremists veto” so to speak).
But Breyer seems to be arguing is that his public safety standard applies worldwide. And not just here.
That is, if imminent violence may take place in Pakistan that the government may prevent the burning here.
That can’t be right.
September 14, 2010, 1:02 pmSwan Trumpet says:
Judge Bork had it right when he stated the First Amendment protects speech, not expression. He was correct in claiming that acts like flag-burning are – at best – incoherent speech. One knows the flag-burner is angry, but at what? A policy, a president or member of congress, or what?
Expanding the protection to expressive acts puts us in the preposterous position of upholding one person’s “right” to burn a flag, but denying another person the “right” to express his anger by burning a cross. It also creates the absurd situation where there are places it is acceptable to burn flags, but not to fly them.
September 14, 2010, 1:05 pmwfjag says:
Virginia v. Black, 538 U.S. 343 (2003), held that Virginia’s prohibition on cross burning with intent to intimidate did not violate the First Amendment. The Court reasoned that under the First Amendment permissible restrictions upon the content of speech are allowed in a few limited areas, which areas are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by social interest in order and morality. Accordingly, a state may punish those words or symbolic actions which by their very utterance or act inflict injury or tend to incite immediate breach of peace.
However, it wasn’t at all clear that Justice Breyer had this in mind when interviewed.
Further, it isn’t clear that Black isn’t distinguishable on the grounds that there the Klan intended to intimidate and possibly incite a breach of the peace by its members by the cross-burning, whereas with Quran burnings the perps are not the people doing the burnings. Rather, it is argued that because the burnings apparently incite other to do violence, the First Amendment does not protect the symbolic free speech of Quran burnings. So, if Black governs and who is incited to violence by the symbolic free speech act is immaterial to the limitation on the protections of the First Amendment, then it would appear that if you want to shut up someone, all you have to do is allege that if they are allowed to speak, you’ll be incited to violence.
September 14, 2010, 1:05 pmNeo says:
http://blogs.abcnews.com/george/2010/09/justice-stephen-breyer-is-burning-koran-shouting-fire-in-a-crowded-theater.html#tp
Starts around 4:40
September 14, 2010, 1:06 pmMichael Ejercito says:
That applies whether it is a Quran, a Bible, or Dianetics being burned.
September 14, 2010, 1:06 pmMichael Ejercito says:
America.
It is just incoherent hate speech.
This would effectively limit the scope of Texas v. Johnson.
It is important to remember that Black struck down a portion of the cross-burning law that considered burning a cross prima facie evidence of the intent to intimidate.
September 14, 2010, 1:12 pmSteveMG says:
That applies whether it is a Quran, a Bible, or Dianetics being burned. Of course. But to simply say “Speech X is protected by the FA” is too, not to be rude, simplistic. It may be or it may not be.
Again, where Breyer seems to be on shaky ground, at least for me, is that he extends the “crowded theater” (or environment) to the entire world. That is, if violence occurs or public safety is threatened in Afghanistan, that can be considered when limiting the burning of a Koran in the US.
He can’t be making that argument, I think.
September 14, 2010, 1:17 pmJustice Breyer Questions The Constitutionality Of Koran Burning says:
[...] as Jonathan Adler notes at The Volokh Conspiracy, we’ve already got a case out there that says that flag burning is Constitutionally protected [...]
September 14, 2010, 1:20 pmTed says:
Sorry to be picky, but what implied premises am I missing in this otherwise perfectly drafted conclusion? How is what you say different than:
“Of course kiddie-porn is protected by the First Amendment.
If this isn’t protected, then nothing else is.”
Any additional information you’d like to share to make your position more logical?
September 14, 2010, 1:20 pmA. Criminal says:
And who will be doing the hypothetical “trampling”? (Note Breyer’s passive phrasing, which often indicates misdirection, in this case purposeful confusion between tramplers and the trampled).
Not very odd, but very standard-issue-modern-liberal, dishonest, “Euro-style” and very dhimmi, since Breyer considered – at least – enforcing sharia law over Constitutional law, obviously due to threats of muslim violence.
September 14, 2010, 1:22 pmTom says:
So, all I have to do to silence speech I don’t like is act like a thug and threaten violence? Pretty sweet!
September 14, 2010, 1:26 pmDissenting Reason says:
Anything to sell a book.
September 14, 2010, 1:29 pmSmooth, like a Rhapsody says:
Swan Trumpet:
The person who is angry at a person who burns a flag (there is no such thing as THE flag, except in Platonic metaphysics) that belongs to the person doing the burning, is angry at…what?: the possibility of forest fire; that fact that he forgot his marshmallows and long stick?
September 14, 2010, 1:29 pmPerpetua says:
Hi Redman,
Burning one’s own book is very different than burning public property or other people’s property. The Nazi youth movement pillaged and confiscated books from public libraries and burned them in an attempt to silence the ideas in the community. That is very different than someone burning their own possessions as a symbolic statement of rejection of the ideas.
Also, wanting to is very different than trying to. While morally, some may argue that thinking it is the same as doing (e.g. Jimmy Carter’s lust in his heart), in the experience of the others, there is a world of difference. Consider the case of a man who fantasizes raping a woman versus actually doing it.
September 14, 2010, 1:33 pmbuddyglass says:
Also something to consider:
In the fire-in-a-theater situation, the possible resulting violence isn’t intended to squelch the speech in question to punish the speaker. So prohibiting fire-in-a-theater speech isn’t deferring to intimidation or threats of reprisal.
Prohibiting Koran burning, however, on the basis that it might result in violence, is deferring to intimidation or threats of reprisal (either against the burner or the United States in general).
This basis could be potentially be used to prohibit all manner of speech. For instance, any criticism of Islam. Or anything that a group willing to resort to violence might find offensive.
September 14, 2010, 1:33 pmNeo says:
“kiddie-porn” is considered exploitation.
September 14, 2010, 1:35 pmIs burn a Quran exploiting Muslims ? Burning a flag exploiting Americans ?
Or is it merely sending a message.
Ted says:
It’s been a while since Con Law, but aren’t the “fighting words” exceptions and the “fire in a theater” exceptions separate kinds of exceptions? Or are they both included under a comprehensive “incitement” exception”
Or perhaps her meant “theater of war,” which includes “the entire land, sea, and air area that is or may become involved directly in war operations and includes the theater of operations and the zone of the interior.” Eh, eh? Have you ever yelled “fire” or burned a Koran in the tribal regions of Afghanistan? Same result.
September 14, 2010, 1:35 pmM. says:
uh_clem said:
This reads to me like a lawyer cagily avoiding coming down on one side or the other.
Problem is, this is a situation where not coming down on a particular side is wrong. If I start talking about how I want to murder all the Jews, and you ask Mr. Breyer for his opinion, and he “cagily avoids coming down on one side or the other,” he would be a monster. This situation is similar: even entertaining the idea, for one single second, that any random psychopath anywhere in the world should be able to put the United States of America under blasphemy laws, is definitive proof that he is not fit to serve on the Court.
September 14, 2010, 1:38 pmMichael Ejercito says:
Burning a Quran in Afghanistan would not be protected by the First Amendment, for obvious reasons.
September 14, 2010, 1:42 pmVoice of Reason says:
This is an open and shut case for this very reason, and this lack of precision with regard to facts is precisely why Breyer is regularly ridiculed for his legal opinions. (I will assume Breyer was quoted correctly because surely he’d recognize how flat the analogy was if he had quoted Holmes correctly.)
September 14, 2010, 1:49 pmTRE says:
Statements like this make me want to burn a big pile of various holy books
September 14, 2010, 1:49 pmSteveMG says:
Eh, eh? Have you ever yelled “fire” or burned a Koran in the tribal regions of Afghanistan? Same result.
Sure, but as Michael states above, that’s not protected under the Afghan constitution. Or our’s either IF the burning was here and there was a threat to public safety here.
Again (sorry to be repetitive), if Breyer is extending a sort of “heckler’s veto” to the entire world, that means our speech here can be limited or banned if someone somewhere in the world threatens the public safety where they reside.
A worldwide veto of our speech?
Nope.
I can’t understand, even in the age of the internet, why existing case law isn’t sufficient to guide us on this matter. What is he arguing here?
September 14, 2010, 1:52 pmepluribus says:
.
September 14, 2010, 1:53 pmHuh?
Smooth, like a Rhapsody says:
ditto
I am at a loss when confronted with the atavistic idiocy that derives (joy?, relief?, comfort?) from the incineration of any material object? Where does it come from?
September 14, 2010, 1:55 pmAlessandra says:
So far homosexuality zealots have only denied students the right to an education because of latter’s beliefs, and the zealots have denied other citizens their rights to a job. They have in addition exercised all kinds of viewpoint discrimination and implemented speech codes that also restrain debate and speech.
Since homosexuality zealots have been allowed to trample freely on the civil rights of others, they haven’t yet chosen to use violence to silence others.
September 14, 2010, 1:55 pmPetB says:
What about author’s rights? Any book should be protected by IP laws and author should approve the use of the book for burning.
September 14, 2010, 1:58 pmCan't find a good name says:
How would he get “ALL” copies of the Koran? There must be millions of them and they would be located in practically every country in the world. Besides, new copies of the Koran are being printed all the time.
September 14, 2010, 2:02 pmB.D. says:
Um, what? Yelling “fire” in a crowded theater isn’t speech at all. It serves no purpose but to create havoc.
September 14, 2010, 2:03 pmSteveMG says:
Not to belabor this, but I can perhaps imagine an argument that public safety in the US is threatened by burning the Koran. That is, the act increases the danger of terrorism taking place here (e.g., it helps terror recruitment and inflames them) and that the state has a compelling interest to ban that action.
That’s pretty weak since the threat to public safety is not imminent.
Perhaps national security is the better argument than public safety.
September 14, 2010, 2:04 pmPaulMcman says:
Kiddie porn is only unprotected on the
rationale that its production involves physical exploitation of actual children. If there is not exploitation of actual children, the expression is stil protected under the First Amendment unless it falls within the obscenity exception.
The possible justification for banning quran burning is not that the burning constitutes a call to violence against Muslims, but the act being offensive will provoke Muslims to violence against the speaker and third parties.
But that can’t pass muster under the Brandenburg test, since the formulation of the imminence test both require intend, imminence and likelihood. In most cases, the speaker would lack the requisite intend to incite violence by his act of burning the quran..
To fit quran burning within any incitement exception, the Brandenburg test must be substantially extended by gutting the intend and imminence requirement and by extending incitement itself to provocation.
September 14, 2010, 2:07 pmOrenWithAnE says:
Indeed. In this respect it was much like Chaplinksy — it places on the government the burden of proving to the jury that the speech was a directed to intimidate or to cause an immediate breach of peace.
September 14, 2010, 2:08 pmAlessandra says:
Actually Phelps is pretty tame compared to the virulent and grotesquely debasing attitudes that we find in many different types of pornography, which are produced and consumed by millions of people, including a great many liberals. A large number of people spend a great deal of energy imagining how they will sexually torture, humiliate, and harm others, for their own pleasure. Compared to this profoundly psychologically diseased American society, Phelps looks like a boy scout.
Given the epidemic rates of sexual harassment and assault, you would think it would dawn on Americans their sexuality culture is profoundly diseased, but evidently many people prefer instead to beat their ideological chests.
September 14, 2010, 2:08 pmduh says:
Obvious? We are mirandizing non-American terrorists in Afghanistan.
Nothing is obvious, given the insane way our courts and administration act. Non-American terrorists in a foreign war zone are read “their Constitutional rights” (LOL) so I would venture to say that the obvious assumption would be that other parts of our Constitution apply equally well to that area, as stupid and ridiculous as that sounds to any normal person.
September 14, 2010, 2:08 pmneurodoc says:
If we were to riot here, might it inhibit some of what we find offensive conduct in other countries? If it would, please let me know what to bring and where to assemble, because there is a lot going on abroad that I find offensive, especially in the Islamic world, and I would like to do more to discourage it.
September 14, 2010, 2:11 pmduh says:
IP is a bad road to go down to support the koran in any way, since mo plagiarized parts of the Old and New Testament, changed the stories, and then accused Jews and Christians of being liars because the ORIGINAL stories differed from mo’s pilfered and perverted versions – attacking the original writers to cover for mo’s theft.
Anyone who cherished the concept of intellectual property would be totally against the koran from that angle and very much in favor of burning the plagiarized works.
September 14, 2010, 2:14 pmDonald says:
Go to the video; the question and answer begins around 4:35. Justice Breyer isn’t specifically addressing the issue of Koran-burning. Stephenopolous asked a question about the proper interpretation and application of the First Amendment in the age of globalization (Breyer says that interpretation doesn’t change, but that application might.) The interviewer mentions Koran-burning in the middle of the question, but the question began and ended with general principles. And the excerpted quote was in response to Stephenopolous saying “the conversation is now global.”
September 14, 2010, 2:15 pmDennis N says:
Leaving out the obvious offense of trespassing, if a cross burning was nothing more than the destruction of a religious icon, or going back to its origins, a quaint Scottish religious tradition, it would not be prohibited.
It is the association of cross burning with KKK raids and lynchings that give it its intimidating quality that makes it prohibitable as a form of assault.
September 14, 2010, 2:16 pmrmd says:
Well, I think it has to at least be a credible threat. That is, Justice Breyer has to know you really mean it. The following is from memory so the quotes are probably not exactly right but close enough. (And hoping it formats right w/o the benefit of preview.)
Fortunately for the radical Muslims, they’re good to go.
September 14, 2010, 2:17 pmduh says:
BTW, for the “falsely yelling ‘fire’ in a crowded theater” argument, what is inherently more dangerous to crowded theater patrons, someone yelling “fire” when there is none or someone not yelling “fire” when someone sees one starting that no one else notices?
It is disingenuous for people to argue that it is the consequences that are really the most important, since the person NOT warning the theater of a real fire is FAR more dangerous than the person falsely yelling “fire” – which usually results in no serious injury.
September 14, 2010, 2:21 pmalkali says:
What happens there is that Stephanopoulos asks a broad question about the impact of the Internet on the First Amendment, and cites the recent worldwide coverage of the planned Koran burning as an example. Justice Breyer responds generally that first and foremost expression of opinions will be protected and then says that the impact of the Internet on the First Amendment will await development in the case law. Justice Breyer never uses the word “Koran” and does not appear to address the Koran example directly. It’s hard to see what this is all about.
September 14, 2010, 2:22 pmPaulMcman says:
In Holder v. Humanitarian Law Project the embarassment caused by American citizens providing training to foreign organizations were sufficient to sustain a textbbbook ban on even talking to terrorists. In Holder, the court applied intermediate scrutiny, but what if the Pakistani government argued that the Taliban is going to take over unless we ban quran burning.
How would such a content based restriction fare under strict scrutiny: Compelling interest in preventing violence and retaliation against friendly governments and US citizens abroad; minimizing the pressure on the government of nuclear armed Pakistan and complying with international obligations, assuming that we signed a treaty with Pakistan; narrowly tailored restriction only targeting the most offensive forms of public desecration; and there being no less restrictive means to outlawing public ridicule and provocation.
September 14, 2010, 2:25 pmManju says:
This is what I was afraid of.
I don’t think the mosque near ground 0 is a deliberate provocation, but if it is, its frankly brilliant…as the best warrior gets his enemy to defeat himself. this could be a reverse cartoon-controversy.
in that case, the cartoonists brilliantly said: lets trick the Muslim community and the left into revealing their true colors. presto, the Pavlovian idiots took the bait. Violence and death threats ensued, some imans pulled a tawana brawley (inserting bigoted cartoons), while others on the left decided to destroy free speech by honoring the heckler’s veto. They made Daniel Pipes case for him.
Now, various idiotic comments from the unhinged Rick Lazio, Newt Gingrich, Sarah Palin, Marty Peretz, and others substantiates the arguments of their enemies: that their use of the free-speech principle is really a ruse. this makes the case for censroship.
and thats what a good chunk of the left and the muslim community want: censorshiip in the name of sensitivity and victimhood. Now, with the right jumping on the cult of victimiztion bandwagon the likes of the UN have more ammo. If the opinon of 911 familes get prividged in regards to mosque building, its unclear why victims of racism shouldn’t get to censor too.
Justivce Breyer, who believes political speech during an election by non-monied individuals oppossed to hillary clinton is unprotected, now sees his opening.
A good chunk of the right is on wrong side, both on principle and tactically. if this is indeed a provocation then we should call their bluff, allow the mosque and praise it as an example of American values….freedom of religion and just as importantly, individualism, since we don’t blame the group for the actions of the individusal. by opposing the mosque we’re revealing ourselves to be the way the way the terrorists say we are.
then justice breyer wins.
September 14, 2010, 2:25 pmOrenWithAnE says:
The main difference is that those individuals consume pornography by their own free choice, whereas Phelps makes a point to protest in a public space with unwilling targets. Such a protest is his undeniable right but it also makes him a jackass of epic proportions. Meanwhile those consuming porn privately in their own homes might not be paragons of morality, but at least they are not imposing on others.
Moreover, I would bet my balls that no court would uphold the public display of the most foul (but perfectly legal) torture porn in a protest the way they routinely uphold Phelps’ right to protest. And rightly so, in my estimation of best policy.
September 14, 2010, 2:31 pmMichael Ejercito says:
I can see this exact argument applying to a ban on gay pride parades.
That is interesting.
Ernst Zundel was imprisoned for Holocaust denial.
If the First Amendment had a universal reach…
In a similar vein, burning an American flag to intimidate people at a Veteran’s Day Parade will fall out of the scope of Texas v. Johnson.
September 14, 2010, 2:34 pmPaulMcman says:
No mmainstream opponent of the mosque project argue that building a mosque at ground zero is or should be illegal, whereas most Muslims and euro-leftists were either in favor of banning the cartoons or applying existing hate speech laws to desecration of Islam.
September 14, 2010, 2:36 pmThe equivalence is absent, precisely because only the side supporting the Muslim outrage has the power and will to get defamation of religion resolutions and hate speech laws enacted in other nations.
alkali says:
Query:
If ABC News yells, “Breyer!” in a crowded Internet, is that protected by the First Amendment?
September 14, 2010, 2:37 pmProf. IT Moe Hammond says:
You can’t falsely yell “fire” in a theater because you INTEND to start a trample, or imminent danger.
September 14, 2010, 2:38 pmOne can burn a book without intending to incite violence.
I think one can presume the intent in a theater, as humans will flee to preserve their life.
But you can’t reasonably presume the intent to inflame observers of a book burning.
loki13 says:
Briefly addressing the substance of the post:
As pointed out by the context of the the full quote, Breyer is giving a typical non-answer; that is to say, that there may be case-specific facts which render burning a Qu’ran not protected by the First Amendment (it runs afoul of a law that is not content-based, like a fire code, or the burning is done in such a way that (I forget the term- it has been a while) it is speech/action, like walking into a mosque and burning it during Friday services, which might be considered incitement — in addition to trespassing). Seems reasonable to me. As for the internet comment, I have no idea, but since the Court has recently grappled with the possible changes in the First Amendment in the era of the internet (notably, for example, privacy- see Alito in the Washington petition case) it might have been on his mind as a case-specific factor that the Court was looking at in general. Who knows- I would expect no less than 200 pages from him. :)
But I would also like to add this:
I’ve seen a lot of this recently. I’ve refrained from posting on this topic for a while, but… c’mon. Have we always been at war with Oceania? Look, this is no more accurate (or true) than AQ saying that “The West” ha always been at war with Islam, and lumping together modern Europe, the United States, Israel, and Vatican City, as well as all their predecessors since time immemorial. It’s fun to talk about some monolithic “them” as the enemy/ But different enemies have different strategies, and different desires, and different outcomes. The Sunni in Iraq were our enemies… well, until the surge, and then they were our friends. The Shia in Iraq are our frenemies, except when they’re too friendly with Iran, when they’re just enemies (except when we’re dealing with Sunni Al Qaeda, when they’re our friends). You could keep going down the list- Morocco, Tunisia, Oman, the UAE, Qatar, Bangladesh, Turkey… different countries have different outloks and political desires, and the body politic (and the composition of “Islam”) within them is different.
I think the saddest thing is that before anyone educated themselves about Islam they they had a relatively benignview. Now, of course, most of their outlook is what they *know* to be true from a hit piece they read on the web or a book that was put out by a *serious scholar* (ahem… yeah, right). It would be like the following:
1. Someone in Saudi Arabia who knew everything there was to know about Judaism from the teachings of the local Wahhabi muttawa.
2. Someone in Uganda knowing everything there was to know about gay people from the blog postings of Alessandra.
So, if you really want to know, find an actual copy of the Qu’ran (good translation, unless you want to learn Arabic). Speak to a moderate muslim in your community about how be practices. Compare to what you’re writing. See if there are any differences.
Or, you know, follow blogging protocol 101- use volume and vitriol to make for your lack of knowledge. Works for most of us!
September 14, 2010, 2:43 pmRowerinVA says:
Public officials — of which a Justice certainly is one — should be more careful about the context of their comments. Scalia gets criticized for this, sometimes appropriately. Breyer, here, ought to be criticized.
By failing to preface this comment with a strong statement in favor of free expression — that holy book burning is presumptively protected speech, regardless of the book or the hecklers involved — Breyer has played into the hands of a wide variety of nuts who will feel empowered, either that they have a legal case to force state censorship, or that their violent actions can scare even a Justice of the United States, or their own countries’ anti-speech laws are not fundamentally different from America’s. “But they didn’t listen closely enough to me” is not an excuse for a public figure who makes as confusing a statement as the Justice just did.
I have no doubt that Justice Breyer would, in fact, uphold free expression here, even aggressively. And does Justice Breyer have every right to make this statement? Sure. But as a prominent public figure — in fact, a particularly prominent Justice, and even a publicity seeking one (as opposed to, for example, Thomas) — he should remember that the world is watching and he would advance the cause of good law and individual freedom much better if he were more careful about context.
September 14, 2010, 2:44 pmAlessandra says:
I agree with this first part.
You’re talking about the same media which has erected a financial empire out of empowering attention-whores from the entertainment and reality-TV show business and making them into “celebrities?”
September 14, 2010, 2:46 pmDilan Esper says:
Breyer’s never been so great on free speech. He’s a law and economics guy, a pragmatist, just like Posner. The best free speech judges tend to be the libertarians on either the left (Brennan) or the right (Kozinski).
September 14, 2010, 2:51 pmConstantin says:
Yes.
September 14, 2010, 2:54 pmiconoclast says:
heh, the descent into the profoundly politically incorrect is quick and merciless, is it not? All this does is put the differences between a tolerant and civilized post-Enlightenment society and a nearly medieval culture into stark contrast.
September 14, 2010, 2:59 pmduh says:
Oceania (islam) has always been at war with us. They have taken breaks now and again but that aggression against the West (and all infidels, frankly) has never ceased. It is part of the political ideology that is islam. If you want to know more about this and the nature of islam, I suggest that you take a close look at the muslim nation that most people like to point to as the best that islam has brought forward – Turkey – and how the Turks had to deal with islam. Ataturk understood that islam was political in nature and would not cease to try and grab the powers of state and to destroy anything Western. Because of this, the secular military was given supreme power in Turkey and charged with keeping an eye on islam and its encroachments and threats.
Interestingly, the EU decided to mess around with Turkey and forced them to amend their Constitution to take supreme power from the military and give it to the civilian government in order to be considered for EU membership (which the EU never intended to extend to Turkey, anyway). That was in 2003. What has happened since then? Turkey has been on another islamist run, has broken with its traditional Western allies, and is moving very quickly into the opposite camp. That is islam.
Yes, there are many different threats that emanate from the arab/persian/muslim world, some islamic, some cultural, but the fact is that there were always threats emanating from them, and islam has been the foundation of most of it. They are at war with us, whether we consider ourselves at war with them, or not. It might take two to tango, but it only takes one to war.
September 14, 2010, 2:59 pmDebrah says:
Oh, you’re not sorry, “Ted”.
You’re always ready for discord.
I suppose I assumed—which one should never do (slap my wrist!)—that we were all on the same page that did not include harming other people.
Expressions of outrage or anything else that doesn’t include actual human beings as the targets was what I had in mind.
Although, if you want to get into the subject you brought up we can.
The Frank Lombard case illustrates how such an example as yours can escalate into an animalistic crime.
He’d gone from kiddie porn to web camming as he molested a male child (black, btw) that he adopted. Rimming along with the entire gay male menu. Then offering up the child to other men on the internet.
Your example would also serve to impede gay male adoption it would seem.
Ooops!
Maybe you want to slap me with a less controversial example.
In the end, “Ted”, you are so right and I was so wrong.
Society must keep perverts who masquerade as normal people on a short leash!
September 14, 2010, 3:01 pmepluribus says:
Thanks for the valuable info. I never heard that before. I thought maybe the KKK did that because they were cold. But my question was how the analysis of flag burning, Koran burning, and cross-burning by the KKK fit together. I guess this would entail some comparison of these different burnings and their legal significance.
September 14, 2010, 3:08 pmwm tanksley says:
I don’t think so.
I think it turns on the fact that the damage done as a plausible consequence of yelling “fire” in a crowded theater is done by innocent people trapped in a damaging situation, and the only thing that put them in the damaging situation was your act: if your act was either negligent or fraudulent, you’re liable.
After burning a Koran, Bible, or flag, although innocent people may foreseeably be put into in a dangerous situation, that danger will happen because of other people acting illegally.
-Wm
September 14, 2010, 3:13 pmThales says:
“Judge Bork had it right when he stated the First Amendment protects speech, not expression. He was correct in claiming that acts like flag-burning are — at best — incoherent speech. One knows the flag-burner is angry, but at what? A policy, a president or member of congress, or what?”
No, he didn’t. As Justice Scalia noted at oral argument for Texas v. Johnson (in which he voted contrary to the views of the often like-minded Bork), the message of flag-burning is perfectly apparent: I hate the United States. In any case, the First Amendment says nothing about how particular the (speech, press, free exercise) expression must be, and Bork’s view reflects a (deliberate?) failure to think abstractly. I’m not sure why we should care what Bork thinks of these matters–his views are gratuitously constraining of civil liberties (note that if his views were taken seriously, non-written art would have absolutely no First Amendment protection whatsoever), and he also thinks that the plainly printed Ninth Amendment ought to be read as an ink blot.
September 14, 2010, 3:13 pmThales says:
Also, Holmes’s analogy was exceedingly poor in the case in which it first appeared, and in any case he shifted his views about what actually constituted a clear and present danger soon thereafter.
September 14, 2010, 3:16 pmloki13 says:
I suggest reading a book on Turkish history, or a biography of Ataturk. For starters, he was not against Islam, but he was against the entanglement of Islam and politics, for he understood that the two are not the same- he believed in power deriving from the consent of the governed (although his actual practice of this was, well, a little weak). You know, sort of how, for a long time, Christianity viewed religion and politics inseparably (divine right of Kings?)… the fault lies not with the religion, which can be twisted by believers (and, as we can see on these threads, non-believers), but in people. Heck, you can find violent Buddhists, and it’s a short step from immolating yourself to taking a few people with you (all justified, I am sure, somewhere). A few threads ago, someone commented about Shinto- read some old propaganda about that “political death cult” from WW2.
*shrug* Plus ca change. But you know, whatever gets you through the night.
September 14, 2010, 3:25 pmOrenWithAnE says:
In line with the restriction in Chaplisnky and RAV v. St Paul — that the law cannot restrict speech that neither intimidates with the threat of violence nor is likely to incite an immediate breach of peace.
‘Burning’ is not a distinct legal category.
September 14, 2010, 3:31 pmFederal Farmer says:
Unless, of course, there is a fire.
September 14, 2010, 3:31 pmAlessandra says:
And did you see that the media tried to cover up that Lombard is a homosexual monster?
The normalization of homosexuality requires the cover up and denial of every single case involving a homosexual or bisexual perpetrator.
Given that the FBI only catches a tiny minority of such abusers, and liberals are only too happy in shrugging off any other efficient measure of investigation, the result is the life-long trauma for countless innocent, defenseless victims.
But what do liberals care, right? They prefer to spend their energy making little snide remarks about “my views on homosexuality and Uganda,” instead of facing how many sexuality crimes and harmful behaviors are perpetrated in a liberal society, thanks to how they promote and maintain a deformed sexuality culture.
Furthermore, it appears by Mike Adams’ list that these are materials espousing much more the views of loki13 than mine. Are we surprised?
==================
September 14, 2010, 3:34 pmloki13 – September 14, 2010, 2:43 pm
2. Someone in Uganda knowing everything there was to know about gay people from the blog postings of Alessandra.
ShelbyC says:
“Holmes said [the First Amendment] doesn’t mean you can shout ‘fire’ in a crowded theater,” so it’s cool to punish people for criticizing the draft.
He also said that three generations of imbiciles are enough, so we can forcibily sterilize women.
Sombody tell me why we listen to this guy again?
September 14, 2010, 3:45 pmloki13 says:
Alessandra,
Well, by your view, young women never have to worry, since only *evil gay men* are really a problem. And there was no sexual abuse before the libertine 60s. No incest. No child abuse.
Well, none that was talked about. Which, of course, made it better. Stiff upper lip and all that. (Although I’m on the fence about Jerry Springer).
The one thing I think we can agree on (such as it is) is that it’s those gosh darn men that seem to cause a lot of the problems. Straight men, gay men, men in collars who flee to the Vatican for protection from the law. But, you know, hard to get rid of men and all that.
Anyway, I’m going back to my librul not caring. You go back to your “think that you know better than everyone else, but pass off your deep insecurities with affected arrogance” thing. Good luck with that!
September 14, 2010, 3:45 pmShelbyC says:
Wouldn’t the whole “on a black family’s lawn” part change the analysis quite a bit?
September 14, 2010, 3:51 pmDennis N says:
I suppose you could make that argument, but who would find it credible? Burning a flag to attempt to intimidate veterans would more likely get you stamped into a thing red gruel. Suppositions aside, I know of no history of attempting to intimidate veterans by burning the flag. We have a lengthy and unfortunate history of intimidating Blacks by cross burnings, lynchings, and burnings. The threat is much more credible.
September 14, 2010, 4:05 pmAlessandra says:
That’s your severely distorted, absurd strawman of “my” views, you mean.
No, we cannot agree on that, because that is a terribly misinformed statement as well. Women perpetrate and indirectly participate in a large number of crimes and harmful behaviors concerning sexuality and other forms of abuse. And that certainly applies to homosexual and bisexual women, but you know, not something you liberals like to talk about. It ruins your silly myths.
September 14, 2010, 4:05 pmDennis N says:
The difference is that they are different kinds of acts, and thus can be allowed or prohibited separately. Cross burning is an act of intimidation. Neither flag burning nor Koran burning are. They are political or religious statements of disagreement. They are speech. Cross burning is assault.
September 14, 2010, 4:15 pmTed says:
True.
True.
Yeah. I also made a bad assumption in using that example. I assumed that “kiddie porn” would be interpreted as as the possession of kiddie porn, not the creation of kiddie porn. I was wrong. So, I agree that the creation of kiddie porn is not and should not, in anyway, be protected by the 1st Amendment.
The only subject I intended to bring up was that your comment contained only a conclusion, without any premises to agree or disagree with. You said if Koran burning was protected, nothing is. But you didn’t say why and I couldn’t decipher any implied reasons. Apparently, the implied premises included the assertion that “burning a Koran doesn’t hurt anyone,” and “all expression which doesn’t harm other people is protected by the 1st Amendment.”
As for my hypothetical, it was to focus on the above issue, not to raise kiddie porn as a legitimate counter example for why burning a Koran should be unprotected. I suppose I could have used a less controversial hypo. But, for what it’s for worth, I don’t see how burning a Koran harms people more or less than someone possessing kiddie porn, other than it might catch something on fire.
September 14, 2010, 4:17 pmduh says:
Find me the quote where I said anything of the sort.
Thank you for just repeating what I said, after you made a claim that I needed to read up on Ataturk for something that I never mentioned.
Not really true. Ataturk believed that the only way to Westernize Turkey (that he was creating) was to keep the natural political meddling and anti-Western stance of islam (which is a political ideology) at bay – by strong and ruthless means. The secular military was charged with this task. It’s funny how people are aghast at France banning head scarves but they have nothing to say about Turkey’s clear prohibition of any such islamic dress in schools and governmental areas.
But, you skipped over my whole point: if you want to know how the best islamic nation treats islam, then Turkey is what you need to look at. They know islam better than any Westerner and they know the threat that islam ALWAYS presents to any non-islamic and especially secular governance. As I wrote, we see this disintegrating before our eyes as the EU forced Turkey to abandon this important pressure valve and set Turkey on another run towards islamism that the military is no longer Constitutionally charged to stop. Westerners were, rightfully, repulsed by the idea of supreme military rule, but Turkey is not the West and islam is not just a religion like Judaism or Christianity.
September 14, 2010, 4:21 pmloki13 says:
Alessandra, earlier:
“But what do liberals care, right? They prefer to spend their energy making little snide remarks about “my views on homosexuality and Uganda,” instead of facing how many sexuality crimes and harmful behaviors are perpetrated in a liberal society, thanks to how they promote and maintain a deformed sexuality culture.”
heh ;)
I’d love to engage with you, but your ideas fly right over my head. I’m off to promote and maintain my deformed sexualized culture. As opposed to showing off my great wit and intellect on blog comments.
But remember- if you just keep saying the same thing on the intertubez long enough, the Great InterTubez Truck will pull up and bleat, “I JUDGE YOU TO BE CORRECT!”
Keep at it!
September 14, 2010, 4:22 pmDennis N says:
Not really. Move it across the street and you’ve only removed the issue of trespassing. Intimidation is still intimidation.
September 14, 2010, 4:22 pmloki13 says:
September 14, 2010, 4:24 pmyankee says:
My personal view would be to put cross burning in the category of unprotected true threats.
September 14, 2010, 4:24 pmTMIL says:
Might have been said before… but… Burning a Koran is actually yelling fire in a burning theater.
September 14, 2010, 4:28 pmloki13 says:
“Ataturk understood that islam was political in nature and would not cease to try and grab the powers of state and to destroy anything Western. Because of this, the secular military was given supreme power in Turkey and charged with keeping an eye on islam and its encroachments and threats.”
Ummm……
Anyway, you again don’t understand the history. Ataturk came from the military. He did not charge it with the guradianship; he created a one-party state (the military connection came from his own background and how he derived power). The modern incarnation of military power has more to do with the post 60s Turkish state. But when you understand history through the prism of the present, you miss the details. I am also not sure what you mean by the “best” Islamic state; first, Turkey is not an Islamic state. Secondly, how would you compare the other countries I mention? There are richer countries with (many) freedoms, such as Qatar. There are other democratic countries, such as Indonesia and Malaysia. There are other tolerant countries, such as Morocco and Tunisia.
But this is the problem; when all you have is a hammer, every problem looks like a nail. And that way lies madness (or, in more realpolitik terms, a really stupid and shortsighted foreign policy).
September 14, 2010, 4:31 pmDennis N says:
I won’t quibble, there. I think threats fit pretty much under the broad rubric of assaults.
September 14, 2010, 4:32 pmxx says:
This all sounds like Breyer got way too wordy trying to say “I’m not going to answer that question,” and it came out sounding ominous.
September 14, 2010, 4:34 pmTed says:
Ewww, gross liberal…
September 14, 2010, 4:34 pmHarry Eagar says:
Could a strict constructionist, in principle, consider the existence of the Internet? The Founders didn’t know it.
September 14, 2010, 4:40 pmShelbyC says:
Move it across the street and you have to show a constitutional purpose for the law other than to silence constutionally protected expression. Given the history of cross burning, that’s much easier to do with cross burning than with burning other things. But even in Black there was the requirement of an intent to intimidate.
September 14, 2010, 4:48 pmRandolph says:
Well he got wordy enough that a journalist was able to spin it to sound ominous.
September 14, 2010, 5:02 pmDennis N says:
Move it across town, and I’ll agree with you. I’d argue that across the street is still close enough to be direct intimidation, but now we have to argue how near is near enough. Somewhere between burning the cross on the property line, and burning the cross on the Moon, the act would transition from intimidation to speech.
September 14, 2010, 5:03 pmyankev says:
What happens if someone shouts “theater” in a crowded foyer?
September 14, 2010, 5:04 pmPlugInMonster says:
So we’re gonna decide Constitution law on the basis of which aggrieved group is more likely to conduct violence? Ben Franklin is spinning in his grave right now!
September 14, 2010, 5:05 pmSeamus says:
Well, not actually. It’s possible to allow a ban on “symbolic” speech (such as flag, cross, and Koran burnings), while holding that actual speech is protected.
September 14, 2010, 5:05 pmJoe says:
http://www.tnr.com/blog/the-spine/77544/get-injunction
Marty Peretz is somewhat confused on this issue.
But, as to Supreme Court precedent, Virginia v. Black struck down an assumption that cross burning, which Justice Thomas showed has a special history as a “true threat” (he was so concerned, he actually asked a question at oral argument, though it was more of a statement), was prima facie a threat that could be penalized. If so, I don’t see how a Koran being burned would not be similarly protected.
Breyer — as is the wont of justices — was loathe to state a final opinion, particularly because — as that very case suggests — a certain context might be imagined where the burning could be targeted (rightly or wrongly, the case would at least be debatable), a specific matter not dealt directly by the Court. As someone else noted, this might make what he said more ominous than it deserves to be taken to be.
September 14, 2010, 5:13 pmBlue says:
It’s would only be theoretically possible if the restriction is somehow content neutral.
September 14, 2010, 5:14 pmJoe says:
It’s possible to allow a ban on “symbolic” speech (such as flag, cross, and Koran burnings), while holding that actual speech is protected.
It is unclear what “symbolic” and “actual” means. Clearly, not just verbal communication is protected. Nonverbal communication is “actual” speech. It is just a different type of speech. The sign of the cross, e.g., is protected religious expression. [Often religious expression is protected as speech, not religious exercise.] It is a type of “speech.” It is “actual speech” in that respect.
We don’t allow every single type of speech. Slander, e.g., is “actual” speech surely, but it can be banned in certain contexts. Ditto perjury or release of certain types of privileged communication. So, banning a certain form of speech doesn’t mean the end of “freedom of speech” either.
September 14, 2010, 5:20 pm1040 says:
how is what breyer said about “it depends” anything different than the holding he voted for in virginia v black which states that cross burning can be criminal if there is a proven intent to intimidate? seems like a mountain being made out of a standard “it depends” statement by a justice.
September 14, 2010, 5:28 pmElliot says:
Who owns the book?
September 14, 2010, 5:30 pmPlugInMonster says:
Pastor Dan owns it.
September 14, 2010, 5:34 pmMichael Ejercito says:
Which means that cross burning would be “acceptable” in a Klan rally, but not always “acceptable” in front of black people.
That is because Ground Zero is inside the U.S..
It all depends on the context.
Just like burning an American flag in front of a VFW office (as opposed to burning an American flag at an I Hate America rally) if intent to intimidate can be proven.
September 14, 2010, 5:34 pmElliot says:
Presuming Breyer actually said that, I wonder if he sees both 1)running from a fire warning in a theater, and 2) killing people over a koran burning ten thousand miles away to both be rational responses to the stimulus.
Isn’t he simply defending an idiot’s veto? Free speech becomes hostage to the world’s nutcases?
September 14, 2010, 5:38 pmDebrah says:
Oh really?
Thanks for pointing that out.
Life is never as simple as it should be.
I’m assuming you are an attorney…..(?)
September 14, 2010, 5:39 pmPlugInMonster says:
Burning Korans are Islamphobic. Islamophobia trumps the Constituion in hipster cafes.
September 14, 2010, 5:42 pmDennis N says:
I really can’t argue with that. If the KKK is allowed to gather and meet, then they should be allowed to burn crosses and otherwise express hatred. It’s the Nazis in Skokie thing with fancy dress.
It would be harder to prove intent to intimidate, there, but I agree. Context is important.
September 14, 2010, 5:55 pmDebrah says:
Allessandra–
That topic is one that a very courageous and testosterone-laden blog author could entertain in a post; however, it contains too many hydra-headed elements for this particular thread.
The media, the university, and its archaic professors who are still steeped in long-ago PC meta-narratives didn’t say a word when “one of their own” engaged in the most animalistic behavior known to man—actual repeated rape of a child.
Yet they went after three innocent lacrosse players with fervor who were their own students and whose pricey tuition fees paid their salaries.
Last year when the Lombard case took place gay marriage was up for passage in a few states and even bloggers who had supported the innocent lacrosse players cowardly kept silent about Frank Lombard so as not to reveal anything negative in the gay male environs…..if they, themselves, were gay or were gay advocates.
For any blogger on the lacrosse case, Duke official Lombard’s rape of a child and how differently it was handled by the university would have been the ultimate example of how the university was dictated by horrendous PC rules and proclivities.
Everything was muted.
You can’t allow sexual orientation or anything else to trump the truth.
The Lombard case and the Duke Lacrosse Hoax will always serve as grand examples as to why political correctness is such a cancer on society.
September 14, 2010, 6:00 pmJustice Kennedy says:
I just consulted my emerging awareness and discovered a truly marvelous argument for why Koran burning is not protected speech, unfortunately this comment box is too narrow to contain it.
September 14, 2010, 6:00 pmepluribus says:
September 14, 2010, 6:06 pmThe difference is that they are different kinds of acts, and thus can be allowed or prohibited separately. Cross burning is an act of intimidation. Neither flag burning nor Koran burning are. They are political or religious statements of disagreement. They are speech.Good point. I’m inclined to agree.
Manju says:
Incorrect.
Carl Paladino, a Repub candiate for NY gov, said: “As governor, I will use the power of eminent domain to stop the mosque….”
Rick Lazio another rebpub running for ny gov said: “As governor I will appoint commissioners . . . who, like me, oppose this group’s plan to build a mosque at Ground Zero — and I encourage New Yorkers to call the Public Service commissioners and tell them the same,”
the washington examiner: “The federal’ government has at its disposal dozens of land preservation methods that could delay or even halt development of the Islamic center”
The AFA ’s Bryan Fischer said: “Permits, in my judgment, should not be granted to build even one more mosque in the United States of America. Not one!”
Charles Krauthammer : “time place manner” limits: “America is a free country where you can build whatever you want — but not anywhere”
Tennessee Lt. Gov. Ron Ramsey “Now, you could even argue whether being a Muslim is actually a religion, or is it a nationality, way of life, cult whatever you want to call it. Now certainly we do protect our religions, but at the same time this is something we are going to have to face.”
Newt Gingrich: “Nazi’s don’t have a right to put up a sign next to the Holocaust Museum in Washington,”
And even though the context is differnt, lets toss Sarah Palin under the bus for this (b/c she’s the frontrunner for the nom): “Dr.Laura: don’t retreat … reload! (Steps aside bc her 1st Amend.rights ceased 2exist thx 2activists trying 2silence”isn’t American,not fair”)”
September 14, 2010, 6:10 pmTed says:
How do you distinguish between an “act of intimidation” and a “political or religious statement of disagreement.” The the two mutually exclusive categories? Or is there overlap. Can a burn a Koran as a political or religious statement of disagreement and, at the same time, intend to intimidate Muslims generally?
September 14, 2010, 6:14 pmRoy G. Biv says:
No one ever seems to quote Holmes’s language accurately. He said, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.” Schenck v. United States, 249 U.S. 47, 52 (1919). While people like to add the word “crowded,” they’re just as likely to omit the word “falsely,” as others have pointed out. It may be that it’s fair to infer that the theater is crowded, but even two theater-goers may panic when someone falsely shouts “fire.”
This, of course, is a minor point, except that a lack of precision is what Breyer seemed to be engaged in to begin with.
September 14, 2010, 6:17 pmTed says:
You make me sad. I believed that people were just arguing over whether the GZM was “appropriate,” “rude” or a “bad idea,” rather than trying to use the force of law to prevent it from being built. Thanks for ruining my warm & fuzzy view of the world.
September 14, 2010, 6:19 pmneurodoc says:
Care to tell us what it is that Marty Peretz said or wrote that you view as “idiotic comments” warranting “unhinged”? And if you will, then please give us the entire quote rather than just what a Nicholas Kristoff would excerpt of it for his own purposes.
September 14, 2010, 6:26 pmManju says:
“I wonder whether I need honor these people and pretend they are worthy of the privileges of the First Amendment, which I have in my gut the sense that they will abuse.”
September 14, 2010, 6:32 pmidontgetit says:
If you go that far, then you have arrived at the idea that falsely screaming “fire” is always open to prohibition, in the presence of anyone. From there, there’s no end to the speech that would be open to prohibitions.
But, the word “fire” has an “official” meaning in the context of a fire actually occurring, so people tend to be fine with the idea that one can prohibit free use of the word in other contexts, which take away from its use in “official” situations – i.e. the free and unrestricted use of “fire” can serve to dull people to its actual use in times of fire, as people stop reacting in a specific way to its use (as one can imagine people screaming “fire” in theaters just because they can and getting the old “cry wolf” situation.
But what people tend to miss is that the act of an audience (or two people) panicing in the event of an actual fire is far more dangerous than their panicing in a false alarm. Aside from immediate damage that can result from the false alarm (which is probably pretty minimal, to be honest) there would be much learned by that panic that could help in the events of real fires, when people, more than ever, should not panic. In this respect, the false alarms would be more akin to unannounced fire drills and could serve a very useful purpose.
Just some thoughts on this.
Burning a koran, of course, is unquestionably allowed in our system.
September 14, 2010, 6:32 pmLitigator London says:
Turkey just approved constitutional reforms which, inter alia will reduce the power of the military to interfere in politics. Remember, please that the present constitution of Turkey is neither that of Ataturk nor the democratic will of the people but one drafted by the military to preserve their own privileged position after the last military coup. It is anticipated that an entirely new constitution wil be drafted over the next 2-3 years and it also will go to a referendum.
It’s rather strange to hear someone argue on this site against measures to improve democracy in any state.
Or is it your thesis that democracy is only for Americans and that all other states should be reduced to subservience to the New American Empire ruled by proconsuls nominated by your President with the advice and consent of your Senate? If so, perhaps you should apply for a position at the Heritage Foundation.
Whether Turkey continues with aggressive secularism on the French model, or something more relaxed, such as that which prevails in the UK, will be determined by its duly elected representatives subject only to the requirements of the European Convention on Human Rights to which Convention Turkey subscribes but as to which the jurisprudence of the ECHR leaves quite a margin of appreciation to national states, although, for example, it has recently struck down laws requiring crucifixes to be displayed in all state schools in Italy.
September 14, 2010, 6:37 pmBel says:
broadcast your message more widely have ANY relevance as to whether or not it deserves 1st Amendment protection.
September 14, 2010, 6:38 pmIt has , the community standard is not Cincinnati´s or Frisco´s but the USA
neurodoc says:
Would you be so good as to explain the relevance of pornography to this thread. It comes in because the First Amendment is implicated in the Koran burning question, and pornography also raises First Amendment issues? Is that it, or is there something more substantial to link it that I fail to imagine?
(Yes, I realize you weren’t the one to go off on an anti-porn riff first, and you were only responding to that other poster. Presumably, though, you thought it worth the time and effort to react to what strikes me as pretty off-the-wall, so maybe you see something not wholly irrelevant and irrational to what the other poster had to say about pornography here, albeit you disagree with him/her.)
September 14, 2010, 6:41 pmneurodoc says:
It seems you weren’t paying attention, or is it that you don’t want to play fair, since that doesn’t suite your tendentious ends? I asked you to repeat all that Peretz said/wrote so we might judge what you quoted in its full context rather than just what a Nicholas Kristoff would excerpt of it for his own purposes. Since you chose not to, let me do so by means of links to the entirety of what he originally blogged and his subsequent apology for that one liner:
http://www.tnr.com/blog/77475/the-new-york-times-laments-sadly-wary-misunderstanding-muslim-americans-really-it-sadly-w
http://www.tnr.com/blog/the-spine/77607/martin-peretz-apology
September 14, 2010, 6:55 pmMichael says:
From Texas v. Johnson:
Bolding added. That directly addresses the question at issue with Koran burning. If “our precedents [did] not countenance such a presumption” then, they surely don’t now, either. This is not a close question.
September 14, 2010, 6:56 pmduh says:
I don’t care what sort of government Turks pick. It’s their country, not mine. I was just pointing out the nature of governmental structures that have appeared in the islamic world to illustrate what people can reasonably expect, using Turkey since many people will point to Turkey when they are trying to show that islamic societies can be modern and somewhat democratic.
Loki came back on that position with the idea that Turkey isn’t an islamic state (which means that Turkey had better be thrown out of the Organization of the Islamic Conference, I guess – interesting, on a side note, in that that is where you find 57 states – or … maybe the US should become a member, as we are now considered “one of the largest islamic nations in the world”). And then a list of nice islamic nations:
Qatar – Kingdom
Indonesia, Malaysia – both suffering from islamist encroachments and attacks
Morocco – Kingdom
Tunisia – islamist parties illegal (just like Turkey) and voting of the sort that Westerners are totally unfamiliar with (the President winning over 90% of the vote, stuff like that)
All of which makes my point about governance in the islamic world.
It’s not your choice to make any nation democratic and not all cultures are in sync with what we individualistic Westerners think is “natural”.
September 14, 2010, 6:58 pmneurodoc says:
None of that amounts to rebuttal, let alone refutation of the assertion you were reacting to, “…but Turkey is not the West and islam is not just a religion like Judaism or Christianity.” So, are you agreeing that “Turkey is not the West,” differing as it does in very consequential ways, but arguing that Turkey is moving in ways to be more like the West? And “islam (sic) is not just a religion like Judaism or Christianity,” you’re just letting that one go unchallenged?
September 14, 2010, 7:07 pmloki13 says:
What I love about duh is his beliefs are not falsifiable. I mean, look at the list! No country measures up to his standards!
Just think about it-
1. If you ban Islamic parties (to get rid of the problem he cites) you’re not a “real” Westernized country. Sorry, Turkey and Tunisia!
2. If you’re a Kingdom, even with a prosperous citizenry and expanding liberalism, you’re just SOL. That’s news to most of the countries of Western Europe c. 18th and 19th century. (Sorry Qatar, you don’t meet duh’s standards!)
3. I guess if you’re democratic, muslim, but you’ve got the misfortune of being poor and cyclone-ridden, you don’t even attract duh’s scorn. (Sorry, Bangladesh!)
4. If you’re a democracy/republic, but you’ve had Islamic attacks, you’re not a real Western country (sorry, Malaysia, Indonesia, UK, um, the United States….. /ducks)
Your hammer is working great there. Say hi to all the nails!
September 14, 2010, 7:12 pmduh says:
loki:–>1. If you ban Islamic parties (to get rid of the problem he cites) you’re not a “real” Westernized country. Sorry, Turkey and Tunisia!
My point is that they HAVE to ban those parties and that they realize that they have to ban those parties. And your argument is with the EU, not me. The EU are the ones who forced Turkey to change their Constitution in 2003, to become more “Western”. I had nothing to do with that … really.
loki:–>2. If you’re a Kingdom, even with a prosperous citizenry and expanding liberalism, you’re just SOL. That’s news to most of the countries of Western Europe c. 18th and 19th century. (Sorry Qatar, you don’t meet duh’s standards!)
Well, the idea that a state in the 21st century is matching up to those of the 18th century isn’t really any sort of great praise, is it? It’s better than using dark ages comparisons of Europe and the modern islamic world, but not too much.
loki:–>3. I guess if you’re democratic, muslim, but you’ve got the misfortune of being poor and cyclone-ridden, you don’t even attract duh’s scorn. (Sorry, Bangladesh!)
I didn’t know that Bangladesh was waiting for me to weigh in on them.
loki:–>4. If you’re a democracy/republic, but you’ve had Islamic attacks, you’re not a real Western country (sorry, Malaysia, Indonesia, UK, um, the United States….. /ducks)
It wasn’t just islamic attacks, but islamic encroachment on their political institutions – which is a problem in just about every muslim nation that opens itself up to any sort of free elections. So, most of them must make certain parties illegal, lest those parties win the votes (as happened with Algeria, to name one). Maybe that’s all just pure coincidence? But, some Westerners might want to look at that and take note.
I don’t apologize for having high standards as to what constitutes reasonable governance that I would find acceptable. All Americans should, as our system was the best, by far, and for a very long time. Population flows demonstrated that, quite clearly.
September 14, 2010, 7:46 pmTed says:
Who’s the best now?
September 14, 2010, 7:50 pmA.W. says:
Well, to be fair to Breyer, he only expressed a question on the subject. And given that, who knows? He might be required to actually rule on the subject one day, maybe we shouldn’t interpret his asking the question as really questioning it as much as it would if any other person was talking. He has to pretend he hasn’t made up his mind yet, or else he would have to disqualify himself in a case later if it came up.
But to the substance, bluntly, if I am not free to blaspheme, I do not have freedom of religion.
The syllogism is very simple. Freedom of religion means the right to choose a religion freely (and for these purposes, I count skepticism and disbelief to be “religions” that you have a right to choose). If you have the right to choose, then you have the right to make an informed choice. If you have a right to an informed choice then at the very least the government cannot suppress others from sharing information about each religion, and indeed their opinions about those religions. Those opinions are inevitably going to be blasphemous to one religion or another.
I mean for starters many holy beliefs in one faith is blasphemy to another faith. For instance, Muslims hold that Jesus was not the son of God, but was in fact a mere prophet beneath Mohammed. That is blasphemy to me. And my belief that Mohammed was just some guy and not blessed is blasphemy to them. And atheists deny the divinity of all of them. So if freedom of religion is going to mean anything, how can blasphemy be avoided? You would literally have to ban every religion but one.
Or let’s take a particularly ugly example. Imagine I write simply this: Mohammed was a pedophile. Is that insulting? Yep. Blaphemous? Probably. Its also a statement based on fact. According to Islamic tradition, Mohammed’s wife Aisha was six years old when he married her and nine or ten when they consummated the relationship.
So can I be forbidden from saying, “Mohammed was a pedophile!” Can I be forbidden from telling you that Aisha was at most ten years old when he consummated their marriage?
And make no mistake this is valuable information in choosing your religion. I myself stopped being interested in learning about Islam when I was exposed to that little nugget of information. The way I figure is that no God worth worshipping would allow his chief prophet to do such an evil thing. And while I was involved in the everyone draw Mohammed controversy I was contacted by a man in Pakistan. The first time he said he wanted to participate but as a Muslim he really couldn’t draw Mohammed. I wrote back offering some options and he replied telling me that he was no longer a Muslim. He had learned of Mohammed and Aisha and it literally broke his faith.
Now Pakistan is blocking thousands of sites that might share that information with them. This in a nation that claims to have freedom of religion in its constitution. But how can anyone be free to choose their religion when people cannot tell them the truth about the conduct of their own prophet?
Now you might draw a distinction between a substantive criticism, like “your chief prophet’s behavior was so evil as to call into question any claims of divinity” versus just burning a Koran, but bluntly the issue in allowing the Koran to be burnt the fear of violence as a result, it’s the same problem. And who is to say whether burning is a necessary element of that pastor’s message. Surely that minister down in Florida wasn’t JUST planning to burn a pile of Korans. He surely was going to say something about the book, maybe even give a chapter and verse critique. More than likely the burning was going to serve as an exclamation point in his presentation—it wasn’t going to be the whole presentation.
And finally what it would do is institutionalize by official censorship the perverse incentives we have already set up privately with self-censorship. Need I remind you that my faith, Christianity, has not only been repeatedly blasphemed but in the case of the “P-ss Christ” I had to pay for the privilege of being insulted. And while I believe it was actually unconstitutional to subsidize the blasphemy of my faith, aside from withholding government money I didn’t want to its creator to face any consequences greater than angry words: no violence, private or government instituted (counting incarceration as violence). And indeed the law wouldn’t allow the government to shut it down… unless apparently Christian terrorists decided to murder people over it. If you reward something you get more of it. And if you reward terrorism with appeasement, you will get more terrorism, and demands for greater appeasement.
I hope Breyer didn’t mean to imply that blasphemy could be banned. But if he did, it was a pernicious thing to say. Hopefully his colleagues will not reach the same conclusion.
September 14, 2010, 7:54 pmduh says:
Good point. We’re still the best, but only barely, these days, and we’re losing that. The US used to be in a class of its own. Too many Americans didn’t like that, though.
September 14, 2010, 7:59 pmFormer Army MP says:
If you are right and that does become the rule…
I am going to move further out away from people because it will be hitting the fan in a big way once public policy becomes a practice of bowing to the most violent groups.
September 14, 2010, 7:59 pmlurker says:
neurodoc, i know manju from other blogs he is on and he is anything but tendentious. your victim mentality about everybody trying to get you and your nasty tone to anybody whose opinion you disagree with is quite disgusting.
September 14, 2010, 7:59 pm1040 says:
why is there any reason to believe that this is what he implied? a post based on stephanopoulos’ eagerness to get talked about has just served as fodder for the paranoid/frothing part of the volokh commentariat.
September 14, 2010, 8:03 pmknarledcedar says:
Here is a pro banning (of koran burning) analysis from a legal scholar. It is a sad conclusion. Note, however, the analyst does not agree with possible banning, he is merely taking a pragmatic view that indeed DOJ lawyers could make a case – on national security grounds – for banning the koran burning. It is an unfortunate conclusion that koran burning would not be protected like flag burning, but the guy is a free speech expert and a lawyer. It is also sad to think that flag burning was upheld on only a 5 to 4 decision. Wish it was more like a 9 to 0. Anyway, here’s the column (<<-linked).
September 14, 2010, 8:23 pmNeo says:
If Person A burns a Quran, and person B attacks person A, therefore person A has incited person B, person A is committing a possible crime, and person B is then attempting to stop a possible crime.
Guilt by being attacked.
Yeah. That’s the picture.
September 14, 2010, 8:23 pmJohn Herbison says:
What matters here is not that the object burned is a copy of the Koran; it is the context in which the burning occurs.
For example, those who burned construction equipment at the site of a proposed mosque in Middle Tennessee may well have been trying to convey a religious or ideological message.
http://www.tennessean.com/article/20100904/NEWS01/9040321/-20-000-reward-offered-in-arson-at-Murfreesboro-mosque-site
While their conduct may have an expressive component, thus (arguably) constituting symbolic speech, I doubt that any court would deem that conduct to be protected speech so as to provide a First Amendment based defense to an arson charge.
OTOH, I have argued before (unsuccessfully to this point) that a jail inmate’s soliciting another inmate to commit premeditated murder is protected speech according to Judge Learned Hand’s formulation of the “clear and present danger” test: “whether the gravity of the ‘evil,’ discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” In that case, the person whom the accused allegedly solicited was another inmate who was acting under police direction as a stooge, who had no intent to actually carry out the killing. While the gravity of the violence advocated–premeditated murder–is indeed great, the improbability of the murder actually occurring under the peculiar facts of that case, however, was absolute.
September 14, 2010, 8:47 pmUpon Further Review says:
If the legality of Koran burning depends on how violently Muslims react to it, how is that appreciably different from arguing that “Mr. Jones beat his wife senseless because she changed the channel during the football game. Therefore, judges should start interpreting domestic abuse laws in a way that prohibits channel changing during football games.”
September 14, 2010, 8:53 pmCarl N. Brown says:
Thanks to Roy G. Biv for bothering to read original sources. (BTW love your spectrum.)
September 14, 2010, 9:01 pmHolmes did say the most stringent reading of the first amendment would would not extend to falsely shouting fire in a theater and causing a panic.
Not shouting fire in a “crowded” theater. “Falsely” shouting fire in a theater and “causing a panic”.
People who add “crowded” and leave out “falsely” and “causing a panic” irk me as much as people who spell Edgar Allan Poe’s middle name as “Allen” or “Alan”.
neurodoc says:
“(My) victim mentality about everybody trying to get (me)“???
tendentious: (adjective) Expressing or intending to promote a particular cause or point of view, esp. a controversial one: “a tendentious reading of history”.
“your nasty tone to anybody whose opinion you disagree with is quite disgusting” – I suspect you are smarting from something sharp I said in response to you in a former thread, not reacting to what I said to anyone else in particular. You’ll have to remind me, though, of what it is that offended you, since I don’t know what it is. In the meantime, you are welcome to whatever it is that you feel for whatever reason(s) you feel it. I don’t/can’t engage with your “feelings;” I can only do so with reasoned arguments.
September 14, 2010, 9:26 pmneurodoc says:
Gee, how surprising that that argument failed to persuade the court. But one can be convicted of attempted murder if all the elements are present, though what the accused thought was a loaded gun when he pulled the “trigger” was in fact a cigarette lighter, right? So absolute impossibility of accomplishing the intended harm would not seem to be an excuse one could rely on.
September 14, 2010, 9:38 pmlurker says:
i don’t know why you feel the need to deflect. i haven’t engaged with you before, and probably will not again. i just felt compelled to comment given your sharp edged tone in this thread and unnecessary nastiness.
September 14, 2010, 9:58 pmSolon says:
I should point that here in Canada burning a Koran may well not be protected speech (it would probably be considered “hate speech”). I wouldn’t be surprised if Breyer had a sympathy to this approach to speech.
September 14, 2010, 10:04 pmRandolph says:
I’m not sure if writing something crazy in a major publication and then disowning it a week later is an argument against being “unhinged.” Someone who has a bad day and decides that his political opponents ought not be protected by the constitution doesn’t exactly sound like a voice of reason to me. The apology is a bit confusing also, he doesn’t really explain why he said it, just that he didn’t really mean it and it “misrepresents” him.
September 14, 2010, 10:06 pmA.W. says:
1040
I have read his actual words. ordinary people like that would be said to imply it might be legal. But like i said, as a SC justice, you might have to interpret it differently.
September 14, 2010, 10:53 pmA.W. says:
1040 and honestly i wouldn’t think it was possible, but breyer seemed did dissent in citizen’s united. that costs him serious first amendment cred in my book.
So instead i am ambiguous about it.
September 14, 2010, 10:59 pmDennis N says:
I don’t think the two are necessarily mutually exclusive, but once intimidation is established it may trump simple disagreement. The actions must be viewed in context.
“I dislike Muslims and want to infuriate and insult them, so I’m burning their holy book and blaspheming their prophet,” is religious disagreement and therefore protected.
“As I burn this Koran, so will we burn the mosques in this town,” is intimidation.
Burning a cross in front of someone’s house has so much history attached to it that intent to intimidate can be inferred. There’s not much history in this country attached to the burning of holy books as intimidation, so more evidence would need to be argued.
September 14, 2010, 11:03 pmJohn Herbison says:
Under your hypothetical, if the accused had the intent to kill and actually believed that the cigarette lighter was a loaded gun, I can see where that might constitute an attempt. In my actual case, however, the gravamen of the crime was pure speech, thus giving rise to the clear and present danger formulation as to whether the advocacy of violent conduct was in fact First Amendment protected. If the intended harm is great–say, 98 on a scale of 100–but the improbability of that specific harm actually occurring is 100 on a scale of 100, the improbability exceeds the gravity.
(My client there was not charged with attempt to commit murder, and a solicitation to commit an attempt would be an inchoate offense designed to culminate in another inchoate offense. The object of an inchoate offense must be a substantive offense.)
September 14, 2010, 11:14 pmneurodoc says:
Definition of DEFLECT
transitive verb: to turn aside especially from a straight course or fixed direction; intransitive verb: to turn aside, deviate.
You felt free to tell me, “(Y)our victim mentality about everybody trying to get you and your nasty tone to anybody whose opinion you disagree with is quite disgusting,” but you think it wrong of me to reply (“deflect”)? Perhaps stupidities like yours are best ignored, but I think it my prerogative to respond, and that I was rather gentle in doing so, the first time that is.
Now can you adduce anything at all in support of your contention that I have a “victim mentality about everybody trying to get (me)“? I’m sure I don’t see myself as a victim, or inclined to paranoia, so I be interested to know what I have said in any of my posts that would support what you say about me. What do you have, even a pair of deuces?
As for “a nasty tone to anybody whose opinion you disagree with,” the logical implication of that is “everybody whose opinion you (I) disagree with. So, if I come back with an example when I have disagreed with someone and not adopted “a nasty tone” (are you, lurker, who seems not to know the meaning of “tendentious,” but the judge of what is and isn’t “a nasty tone”), then you will be proven wrong. But since it is you leveling this accusation of nastiness at me, the burden of proof, including that of production, is yours, and only after you have done your part will it shift to me. So, do come forward with all the examples of “a nasty tone to anybody whose opinion you (I) disagree with,” and when you have served them up, we can have a look at them to see whether they are what you claim them to be, and should it be necessary, I will then undertake to show that I don’t undertake “a nasty tone” with everyone with whom I disagree.
Whether you do or don’t is up to you.
I don’t see any “nastiness” in what I said to your bud manju, who you say you know from other blogs to be non-tendentious, especially not by blogging standards generally, or here in particular. I do, though, have professional experience treating those with tic disorders, like Tourette’s, in which the sufferer feels “compelled” to do something, e.g., coprolalic outbursts. So, be assured that I understand how it is that your utterance might have “felt compelled.”
[BTW, do you mean to imitate e.e. cummings, or do you just find it difficult or inconvenient to use the shift keys?]
September 14, 2010, 11:17 pmlurker says:
i pointed out your poor attitude, and without evidence, you posit that my reaction is because i was hurt by you???
personal experience too, it looks like. my sympathies to you. and i am sorry to fault you for an inescapable medical condition that you seem to suffer from.
September 14, 2010, 11:22 pmwhit says:
there is also ample history as the cross burning case pointed out of people who burned the cross immediately following that act with violent crimes against blacks. there is no such history i am aware of of people burning a koran as a prelude to to lynching muslims or any such thing.
the fact that muslims may get pissed off and commit violence if somebody burns a koran is an entirely different thing, since in the cross case it is the actual burner (or lighter as they like to say) of the cross that does the crime , not the person “intimidated by it”
this ultimatly comes down to whether we allow the heckler’s veto or not.
unlike the whole falsely shouting fire in a crowded theatre thing (and i realize schenck was superseded by brandenburg btw), burning a koran is a pure political statement, first and foremost, to contrast with yelling “fire”.
there is no way in my mind that the same logic that said that flag burning laws are unconstitutional (and i agree with that ruling) can say that koran burning is not. or bible burning for that matter.
iirc, when serrano did piss christ (and would dipping a koran in urine get the same response? i would guess so) people were incensed, and that’s where it ended.
September 14, 2010, 11:23 pmRandolph says:
Quite the little soap opera we have going here.
September 14, 2010, 11:23 pmAlessandra says:
Given the ignorance that’s required to state that sexuality and abuse problems only involve men, that’s not surprising. When you have your head stuck so far down in the sand, just about anything passes way over your head.
It takes a really intentionally distorted strawman to state that if we refer to how liberals promote and maintain sexual violence in society, we are automatically making statements about all other groups in history.
You can’t imagine how well you were doing with the lame strawman above…
September 14, 2010, 11:36 pmneurodoc says:
Thank you for that further clarification. I do know what an inchoate crime is, but when we are talking “an inchoate offense designed to culminate in another inchoate offense,” that is inchoateness compounded by inchoateness, or inchoateness squared, I find it difficult to keep up. Too much inchoateness for me to get my arms around.
But really you didn’t expect the court to buy your theory (or that of the cuckold Learned Hand?), did you? You were giving a hopeless case your best shot, right? If your client got off on that basis, then inmates would have less reason to fear that the fellow inmate they were asking to commit murder for them was in fact a snitch who would immediately turn around and rat him out. Not at all an uncommon jailhouse phenomenon, and I think these must be pretty easy cases for prosecutors.
September 14, 2010, 11:40 pmPlugInMonster says:
Islamophobia is the greatest evil of our times!
September 14, 2010, 11:50 pmneurodoc says:
What is this, Fatal Attraction? Or am I just giving evidence of my “victim mentality about everybody trying to get (me),” compounded by a “poor attitude”? (And, how the hell did you get hold of my high school report card?)
September 15, 2010, 12:25 amGaryC says:
One approach would be to emulate Caliph Uthman ibn Affan, the son-in-law of Muhammad, who ordered the creation of a small number of master copies of the manuscript kept by Hafsah, one of the prophet’s wives. These copies were then sent out to all of the provinces in the empire, with orders to destroy all other Koranic materials, whether complete or fragmentary.
So President Obama could declare himself the Caliph, order the creation of a version of the Koran without all of the Sword verses, and then order all other copies to be destroyed. Who knows, it might work.
September 15, 2010, 12:27 amneurodoc says:
FWIW, it wasn’t written “in a major publication,” but rather in a blog post. And Dorothy Rabinowitz wrote something not too different in the WSJ 10 days ago http://online.wsj.com/article/SB10001424052748703545604575407160266158170.html, as did Charles Lane in the WaPo this week http://voices.washingtonpost.com/postpartisan/2010/09/obama_and_the_right_to_burn_th.html, so are they “unhinged” too? What Peretz wrote caused me no heartburn, when read in its entirety rather than in selected snippets. It did give Nicholas Kristoff his opportunity to wax still more righteous, though. Peretz quickly backpedalled, but you seem to think insufficiently. Not mitigating?
September 15, 2010, 12:41 amneurodoc says:
The link for that Charles Lane piece in the WaPo I mentioned above didn’t make it in: http://voices.washingtonpost.com/postpartisan/2010/09/obama_and_the_right_to_burn_th.html
September 15, 2010, 12:47 am1040 says:
jack shafer has a comprehensive piece on the insanity of peretz: http://www.slate.com/id/2267273/
September 15, 2010, 2:51 amLitigator London says:
Naturally this discussion has focused on US law because the acts threatened were to task place in the USA. But the legislative context may be diffeent elsewhere. See for example Amendments to the Public Order Act introduced by the Racial and Religious Hatred Act 2006
Note the offences created by Section 29 – but note also the exception created by section 29J:
“Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.”
There have been few prosecutions so the way our Court will apply this law remains to be seen but I would have though that KKK cross burning would have clearly been an offence, while Quran or Bible burning (while offensive) would clearly not be caught unless accompanied by speech clearly demonstrating an intention to stir up hatred.
September 15, 2010, 5:02 amDavid Schwartz says:
It would be nearly impossible to do that. There are millions of copies. And, of course, as soon as you tried to steal one or take one by force, it would be obvious that your conduct would not be protected.
If somehow, you managed to lawfully acquire every single copy and begin burning them, then you would have an interesting question. Say the government seized one of your copies (compensating you, of course) to prevent the loss of a “document of major historical interest” and then made lots of copies. Would that be an unconstitutional establishment of religion?
But this is purely of academic interest. There are copies on computers, copies that many people would never part with, and so on. There is no conceivable way you could get anywhere near accomplishing this solely with conduct that could even arguably be protected.
September 15, 2010, 7:25 amLitigator-London says:
I would not have thought it necessary on a blog for rational people to refute your ridiculous assertion that Islam is not a religion just like Judaism or Christianity. I would add that for the adherents of all three religions, they also should be reflected in one’s way of life. Religion is not something one puts on to go to one’s synagogue/church/mosque to take it off and put aside once one has left.
As to Turkey, it is in association with the EU and a candidate for admission. I look forward to the day when the frontier with the EU will be found at the Harbur river crssing into Iraqi Kurdistan.
Whether that makes it western or eastern depends on the part of the globe where one is standing.
And before you start looking to defects in Turkey’s constitutional arrangements, I could observe that those of the USA are not beyond criticism either. One might say that the US Constition badly needs revision to reflect the fact that society has moved on somewhat since the days of the European Enlightenment.
September 15, 2010, 7:33 amA.W. says:
1040, btw, since you were asking me what he said, i would go to althouse, here: http://althouse.blogspot.com/2010/09/did-justice-breyer-actually-say.html
like i said, if he was not a SC justice he is sure as hell implying that it might be constitutional to ban koran burning based on the theory of a thug’s veto. but because he IS a SC justice, you might give him a little more leeway.
but let’s not forget the pinched reading he would have given the free press clause in citizen’s united. according to stevens, the free press only applies to corporations known as The Press. A regular blogger like volokh, for instance, probably wouldn’t count. And breyer wanted that view to win.
but does that make sense. Go back to 1789 and if you had to talk about famous examples of the freedom of the press being exercised, you would almost HAVE TO mention Thomas Paine’s Common Sense. that is exactly the kind of thing the founders would have imagined. But Thomas Paine looks more like a blogger in his pajamas than the NYT. He just happened to write one of the earliest viral memes we can think of.
Btw, the other view, the kagan view, was that corporations were not protected by the first amendment at all. Which i suppose means that NYT v. Sullivan was wrongly decided. i look forward to her alienating her colleagues with her idiot ideas in the future.
So where if Scalia had said this, i would have completely dismissed it as lip-flapping and at least pretending to reserve judgment, i am not as confident with breyer. And bluntly, i have enough of a line into leftward thought to know that alot of liberals, since 9-11, have been VERY interested in anti-blashemy laws. Which is funny because they weren’t when my savior’s image was being submersed in urine; they wanted that subsidized by the government, despite the serious establishment clause concerns when you do that. The whole thing stinks of cowardice.
September 15, 2010, 9:10 amneurodoc says:
Since you are both a native English speaker and an attorney, indeed a litigator (barrister?), one would expect you to recognize the nuanced difference between what duh wrote
(“(I)slam is not just a religion like Judaism or Christianity”) and your rendering of what he wrote (“Islam is not a religion just like Judaism or Christianity”). The plain implication of his words, especially in the context of all that he wrote, is that Islam, unlike Judaism and Christian, is not only (just) a religion, it is more, namely a political ideology, one that when ascendant would effectively fill all spaces, since many of its clergy and adherents believe pluralism and civil law to be antithetical to their faith. Your little sleight of hand, reordering duh‘s statement to read “Islam is not a religion just like Judaism or Christianity” as you have, changes his meaning. So if you wish to harrumph, do it over the ridiculousness of your own strawman. But you still refuse to engage with duh‘s contention, and certainly haven’t refuted it.
To be sure, the ultra-orthodox in Israel are not great pluralists and they fight to deny the benefits of civil law to their countryman in certain areas, e.g., marriage. But even in their fevered dreams they don’t imagine imposing halachic law on non-believers, and Israel is far from a theocracy and not headed toward one however much some of the ultra-orthodox might like it to be. Christian churches have not always contented themselves with their own and their lives. They have at various times, those ever more receding into the past, and in various places (where now?), enjoyed great temporal power, especially the Catholic Church. But it’s hard to make the case that their religion requires of them that they never stop trying to take political control either on the basis of their holy text or on the basis of how things have developed in predominantly Christian countries. Can these same things be said of Islam based on either their holy texts or on the basis of how things have developed in predominantly Islamic countries? What did the “Islamic Revolution” bring in Iran 30 years ago, when it supplanted the Shah and his Iran, transforming the country into the Islamic Republic of Iran? The “religious” and “political” components are clearly separable where Islam is concerned? Or duh is correct in maintaining that “Islam is not just a religion like Judaism or Christianity”? (Litigator-London you are free to your different contention (“Islam is a religion just like Judaism or Christianity”), which amounts to an indisputable tautology.
September 15, 2010, 9:28 amOrenWithAnE says:
I was responding to the quoted bit asserting that Fred Phelps (or burning the Koran) is more tame than extreme pornography.
In one sense, he is — you cannot display graphic torture porn in public during a protest. In another sense, he isn’t, since the pornography is consumed in private by consenting adults.
September 15, 2010, 9:37 amDanube of Thought says:
In rendering his decision, will Breyer take account of any difference in the likelihood that those offended by flag-burning will resort to violence, as opposed to those offended by Koran-burning?
September 15, 2010, 9:57 amneurodoc says:
Yes, I understand that. I wondered why you would engage with the other poster about that (pornography) which is in my opinion so utterly irrelevant here. Libel law implicates the First Amendment too, but I don’t think we need take that subject up here.
September 15, 2010, 10:12 am1040 says:
the point is – he is a SC justice. and i don’t see how what he said is any different than the majority holding in virginia v black with which he and a majority of SC justices concurred that “cross burning can be criminal if it is an intimidation” while holding that the virginia law banning it was unconstitutional. so, if i was a justice and was asked if “koran burning can be criminal/banned?”, i would say “it depends” while saying that there is a right to freedom of speech. in fact, in context, his remarks are completely non incendiary except to the paranoid and reflexively liberal (or, rather, their caricature of the idea in their fevered imagination) hating wing of the commentariat.
September 15, 2010, 10:23 amLitigator-London says:
I quite understand that you and others would like to characterise Islam as a political ideology. That proposition is, of course, untrue.
Do some Muslims also have their political ideologies – of course they do. Many would advocate the complete separation of religion and state. That happens to be my position. Others wish a state which recognises Islam as the faith of the majority. That is also true of many states where Christians (nominally) form the majority – such as England and Scotland and many other places around the world. That does not meen that citizens who are not of that faith need be disadvantaged. I certainly do not feel under any disadvantage.
There are a number of states which call themselves “the Islamic Republic of…” just as there were once many which used the formula “Republique…Democratique et Populaire” which rather mistranslates as Peoples’ Democratic Republic of…”. We all know that such “republics” were in fact neither popular, nor domocratic but one party states. I’m afraid one also has to exercise a certain degree of scepticism about states which self-describe themselves as “Islamic” all too often they fail to live up to the principles of Islam.
September 15, 2010, 10:30 amA.W. says:
1040
that is DEFINITELY not what he is saying. The cross burning was special, almost sui generis. it is very uniquely associated with the message “n—-r get out, or else” or something to the effect, meaning a threat that you will be killed if you stay. In that context banning cross burning is no different banning the erection of a sign that says the same words. That symbol is taken to mean that thought.
No one can reasonably say that the pastor intended to use the burning as a threat to any muslim. He planned to do it on his property, without any reference to any specific person. The only argument to be made, and breyer was clearly alluding to it, is that the theory that if you burning the koran causes terrorists to kill others, you can be stopped.
And, btw, Texas v. Johnson (the flag burning case) spoke to that very point:
> The State’s position, therefore, 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. [note 5] 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 [409] even stirs people to anger.” Terminiello v. Chicago, 337 U.S. 1, 4 (1949). See also Cox v. Louisiana, 379 U.S. 536, 551 (1965); Tinker v. Des Moines Independent Community School Dist., 393 U.S., at 508-509; Coates v. Cincinnati, 402 U.S. 611, 615 (1971); Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55-56 (1988). It would be odd indeed to conclude both that “if it is the speaker’s opinion that gives offense, that consequence is a reason for according it constitutional protection,” FCC v. Pacifica Foundation, 438 U.S. 726, 745 (1978) (opinion of Stevens, J.), and that the government may ban the expression of certain disagreeable ideas on the unsupported presumption that their very disagreeableness will provoke violence.
> Thus, we have not permitted the government to assume that every expression of a provocative idea will incite a riot, but have instead required careful consideration of the actual circumstances surrounding such expression, asking whether the expression “is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (reviewing circumstances surrounding rally and speeches by Ku Klux Klan). To accept Texas’ arguments that it need only demonstrate “the potential for a breach of the peace,” Brief for Petitioner 37, and that every flag burning necessarily possesses that potential, would be to eviscerate our holding in Brandenburg. This we decline to do.
If followed, that reasoning should end the matter. I forgive breyer for potentially being too cautious in refusing to close off the possibility, but in terms of result, i see absolutely no basis for saying suddenly we can ban the burning of the koran.
That being said, i do agree very much with rule that burning can only be done for useful reasons like cooking, and not merely expression, as long as the rule is applied evenly.
September 15, 2010, 10:38 am1040 says:
that’s big of you. but the point is there are times when it is ok and times when it isn’t, just like it was in the case of cross burning, or as it is in the case of hate speech. so, breyer predicts that this will require careful thinking in a series of cases over time. that is all he said.
(i, personally, am in favor of the freedom to burn although that is irrelevant to this discussion. as an aside, i suspect that many, though certainly not all, commenters here who are so supportive of the pastor will see in a decade or more that the same freedoms they now espouse will be directed at their favorite symbols, much like these same people’s commitment to the expansion of the freedom to religion to allow christian expression in a large number of public spheres in the last couple of decades is now being tested by requests for accommodation by muslims. constitutional principles are kind of inconvenient, that way).
September 15, 2010, 11:02 amDennis N says:
Indeed, given the history of Muslim threats and assassinations to the likes of Rushdie, Van Gogh, Westergaard, etc., it can be argued that the only credible threat was to the Koran burned.
It’s a statement that, “You barbarians claim you will kill anyone who insults your religion. Well come and get me. I am Spartacus.”
A practical argument can be made that the social value of being Spartacus outweighs the practical value of avoiding additional danger to our forces deployed overseas.
September 15, 2010, 12:12 pmDennis N says:
Dammit! Learn to read! I should have said “it can be argued that the only credible threat was to the Koran burnER.”
September 15, 2010, 12:19 pmAlessandra says:
Which then reaffirms for a good part of these adults (and minors) their perverse sexual thoughts and desires for sexually harassing and abusing non-consenting children and adults.
September 15, 2010, 1:04 pmElliot says:
Anyone have a problem with the James Earl Ray Klub building a new HQ across the street from where MLK was shot? I would presume the JERKs have the same constitutional rights as the mosque developers.
September 15, 2010, 1:25 pmadam says:
That’s exactly right. Why not riot in response to any speech with which you disagree. If I were to write, for example, that Obama’s a socialist or Bush is a racist, and mayhem results (or may be thought to result), are my pronoucements then to be deemed restricted speech?
September 15, 2010, 1:40 pmSmooth, like a Rhapsody says:
Lots of people would have a problem with it; but, all other things being equal, the club would be built. Same goes for the (so-called) GZM. (Why we don’t call the nearby strip club the “Ground Zero Strip Club” is a pzzle to me, but, whatever.)
September 15, 2010, 2:06 pmA.W. says:
Dennis N
> A practical argument can be made that the social value of being Spartacus outweighs the practical value of avoiding additional danger to our forces deployed overseas.
Dude, we are so in agreement on that point its not funny. I was a fairly big participant in the everyone draw mohammed day a few months back, and Spartacus was one of my favorite metaphors. See, e.g.:
http://everyonedrawmohammed.blogspot.com/search/label/spartacus
Or:
http://everyonedrawmohammed.blogspot.com/2010/04/i-am-sparticus_27.html
(yes, I originally misspelled Spartacus)
If this Koran thing keeps, um, catching fire, I think we might need to give the muslim world another object lesson that we will not be intimidated.
1040
> that’s big of you. but the point is there are times when it is ok and times when it isn’t, just like it was in the case of cross burning, or as it is in the case of hate speech. so, breyer predicts that this will require careful thinking in a series of cases over time. that is all he said.
This is a fine point, but I think he was more ambiguous than that. frankly more ambiguous than justified. I think he could have said, “read Texas v. Johnson. I think that answers the question.”
And please tell me you know that hate speech cannot be banned in america in and of itself. Of course hate crime is another matter.
> will see in a decade or more that the same freedoms they now espouse will be directed at their favorite symbols
Will? Have you been asleep. Christianity has been repeatedly defiled in the name of art. Hell, Comedy Central, which won’t even dare mention the name mohammed, will have a weekly show making fun of jesus next season. Christians are used to seeing their religion mocked, desecrated and so on. It’s the hypocrisy that is galling.
Even in the story of the guy who smoked a few pages from the Koran, they barely mention he also smoked a bible in the same video. Because insulting Christians is everyday and without consequences.
September 15, 2010, 2:11 pmDennis N says:
{Passing out torches}
Let’s get them!
September 15, 2010, 2:16 pmA.W. says:
Dennis N
Here’s a few links to what comedy central is planning to do. the most galling thing is that they were portraying themselves as brave. Ed Morrissey calls them a bunch of p—-s.
http://everyonedrawmohammed.blogspot.com/2010/05/un-fraking-believable.html
September 15, 2010, 2:28 pmGreat Intertubez Truck says:
Alessandra,
You have WON! Yes, you have unlocked the secret internet combo for successfully pointing out the most strawmen while never once employing one. Truly, you are the master of the little picture, and no tree will be mistaken or a forest. The certificate of ultimate pwnage can be downloaded to your printer by typing ↑ ↑ ↓ ↓ ← → ← → B A.
Note that this certificate will allow you to be as charming and gracious in meatspace as you are on this blog. Please use wisely!
September 15, 2010, 2:28 pmA.W. says:
Great
Gosh, i am enough of a nerd to recognize that as the konami code.
September 15, 2010, 2:49 pmHypatia says:
Justice Kennedy says: “I just consulted my emerging awareness and discovered a truly marvelous argument for why Koran burning is not protected speech, unfortunately this comment box is too narrow to contain it.”
That one had me laughing out loud. “My emerging awareness is named Mohammed and the marvelous argument is currently pressed against my carotid artery.”
September 15, 2010, 4:46 pmJam says:
I cannot yell “fire” in a crowded theater even if I spot a fire or reasonably think that there is a fire?
September 15, 2010, 5:00 pmneurodoc says:
“I quite understand that you and others would like to characterise Islam as a political ideology.” If we make that “religion cum political ideology,” you would be right, many thing that an apt characterization of Islam, one that distinguishes it from the other two major monotheistic religions, Judaism and Christianity.
“That proposition is, of course, untrue.” And, of course, your pronouncing that proposition “untrue” doesn’t make it so. But you are doing better than before, when you attempted that sleight of hand business, rendering duh‘s “(I)slam is not just a religion like Judaism or Christianity” as “Islam is not a religion just like Judaism or Christianity,” something very different. You did that so you could declare your own substitution a “ridiculous assertion,” which we can agree it would be had duh in fact made it.
“Do some Muslims also have their political ideologies — of course they do.” Are you being purposely obtuse, or do you think these dodges are going to convince others? The question isn’t whether some adherents of Islam, Judaism, Christianity or any faith “also have their political ideologies;” the question is whether their respective religions prescribe a very particular one for its faithful, such that the religion allows little or no room for a truly secular government.
“Many would advocate the complete separation of religion and state. That happens to be my position.” Perhaps many Muslims would, like you advocate “complete separation of religion and state.” If that is wholly consistent with Islam, then tell us where in the Koran is to be found something like “Render unto Caesar the things which are Caesar’s, and unto God the things that are God’s,” which is understood to be a prescription for the relationship between Christianity and secular authority.” Is anything of the sort to be found in the Koran, or does the Koran contemplate nothing but the rule of Muslims over themselves and others, that according to sharia? (I have already acknowledged that some Orthodox Jews in Israel would prefer to have something more like a theocracy under halachic law there, but other Orthodox Jews and the great majority of the rest of the citizenry want no such thing. And how historically Christian churches have exercised great temporal powers, but that isn’t the case now. That, along with the fact that Jews and Christians go in a great many divergent directions politically, argues against Judaism and Christianity being seen as “religions cum political ideologies” in any way comparable to Islam.”
“Others wish a state which recognises Islam as the faith of the majority. That is also true of many states where Christians (nominally) form the majority — such as England and Scotland and many other places around the world. That does not meen (sic) that citizens who are not of that faith need be disadvantaged. I certainly do not feel under any disadvantage.” You say that citizens who are not of the majoritarian faith need not be disadvantaged with respect to those who are of the majoritarian faith. I think it the case that the more entrenched Islam is in any given country, the more disadvantage non-Muslims are, but give us your counter-examples so we can consider them. Or take the country I cited, the Islamic Republic of Iran, in which the mullahs effectively rule and allow so little space for non-Muslims and civil society, and the one you cited, the United Kingdom, where the Church of England is the official state church, and compare and contrast them if you will on the extent of religious freedom in each, tolerance of minority religions, power vested in the clergy of their respective state religions, etc. I think you will have a very hard time with how they are likely, and a trivially easy one with how they differ.
“There are a number of states which call themselves “the Islamic Republic of…” just as there were once many which used the formula “Republique…Democratique et Populaire” which rather mistranslates as Peoples’ Democratic Republic of…”. We all know that such “republics” were in fact neither popular, nor domocratic but one party states. I’m afraid one also has to exercise a certain degree of scepticism about states which self-describe themselves as “Islamic” all too often they fail to live up to the principles of Islam.” And now you serve up a variant of the no-true-Scotsman fallacy. When young men encouraged by Muslim clergy like al-Awalaki and a good many others telling them Heaven awaits them if they will blow themselves up in the name of their religion, those Muslims who want to distance themselves from the Islamofascists (do you prefer another term for these sorts?) jump up to say they shouldn’t be seen as authentic Muslims. You would maintain that the Islamic Republic of Islam brought into being by the late Ayatollah Khomeni who urged the murder of Salman Rushdie among other things and the Shia clergy and faithful is not an expression of Islam, “fail(ing) to live up to the principles of Islam,” that is according to Litigator-London‘s understanding of Islam? Call it credentialism on my part, but I expect all of those Iranian clergy, along with the Saudi and Pakistani clergy, al Awalaki and other clergy backers of the Islamofascists, Osama bin Laden, Zawihiri, etc. are all more knowledgeable about Islam than you, and devote a great deal more of their lives to religious observance than you.
September 15, 2010, 6:49 pmDoc Merlin says:
Judicial conservatives don’t understand judicial liberalism. Judicial liberalism is completely and utterly consequentialist. The consequences that are desired are those of ethics as held by the same social circle as the liberal justices.
September 15, 2010, 8:19 pmDoc Merlin says:
How so? It is not a statement that has a truth value whatsoever.
September 15, 2010, 8:20 pmBel says:
A public meeting which, from the conduct of those engaged in it, as, for example, through their marching together in arms, or through their intention to excite a breach of the peace on the part of opponents,6 fills peaceable citizens with reasonable fear that the peace will be broken, is an unlawful assembly. But a meeting which in not otherwise illegal does not7 become an unlawful assembly solely because it will excite violent and unlawful opposition, and thus may indirectly lead to a breach of the peace. Suppose, for example, that the members of the Salvation Army propose to hold a meeting at Oxford, suppose that a so-called Skeleton Army announce that they will attack the Salvationists and disperse them by force, suppose, lastly, that thereupon peaceable citizens who do not like the quiet of the town to be disturbed and who dread riots, urge the magistrates to stop the meeting of the Salvationists. This may seem at first sight a reasonable request, but the magistrates cannot, it is submitted,8 legally take the course suggested to them. That under the present state of the law this must be so is on reflection pretty dear. The right of A to walk down the High Street is not, as a rule,9 taken away by the threat of X to knock A down if A takes his proposed walk. It is true that A’s going into the High Street may lead to a breach of the peace, but A no more causes the breach of the peace than a man whose pocket is picked causes the theft by wearing a watch. A is the victim, not the author of a breach of the law. Now, if the right of A to walk down the High Street is not affected by the threats of X, the right of A, B, and C to march down the High Street together is not diminished by the proclamation of X, Y, and Z that they will not suffer A, B, and C to take their walk. Nor does it make any difference that A, B, and C call themselves the Salvation Army, or that X, Y, and Z call themselves the Skeleton Army. The plain principle is that A’s right to do a lawful act, namely, walk down the High Street, cannot be diminished by X’s threat to do an unlawful act, namely, to knock A down. This is the principle established, or rather illustrated, by the case of Beatty v. Gillbanks.10 The Salvation Army met together at Weston-super-Mare with the knowledge that they would be opposed by the Skeleton Army. The magistrates had put out a notice intended to forbid the meeting. The Salvationists, however, assembled, were met by the police, and told to obey the notice. X, one of the members, declined to obey and was arrested. He was subsequently, with others, convicted by the magistrates of taking part in an unlawful assembly. It was an undoubted fact that the meeting of the Salvation Army was likely to lead to an attack by the Skeleton Army, and in this sense cause a breach of the peace. The conviction, however, of X by the magistrates was quashed on appeal to the Queen’s Bench Division.
Field, J. says:
What has happened here is that an unlawful organisation [the Skeleton Army] has assumed to itself the right to prevent the appellants and others from lawfully assembling together, and the finding of the justices amounts to this, that a man may be convicted for doing a lawful act if he knows that his doing it may cause another to do an unlawful act. There is no authority for such a proposition.11
September 15, 2010, 8:36 pmAV Dicey
leo marvin says:
When somebody proposes building an Osama bin Laden Center near ground zero, this will be a relevant question.
September 15, 2010, 9:34 pmroguestage says:
Now it seems that Breyer is specifically stating that Koran-burning is protected by the First Amendment. Perhaps this is much ado about nothing?
September 16, 2010, 9:38 amRogue Elephant says:
ISLAMIC SPEECH BOOMERANG: If it is lawful to restrict the speech of Koran-burners, then isn’t it also lawful to restrict the speech of Muslims?
Justice Breyer seemed to suggest that Koran-burning might not enjoy First Amendment free speech protection seemingly because it might incite violence by offended Muslims. But, such a standard would also justify limiting the free speech rights of Muslims, such as criminalizing fatwas or other exhortations to violence.
The rationale for justifying one free speech restriction (Koran-burning or anti-Muslim “hate speech”) also justifies the other free speech restriction (Muslim “hate speech”) – the rationale being that the restrictions are justified because Muslims are easily provoked to violence (however remote in time or place).
September 16, 2010, 4:52 pmChuck Prime says:
Yes, there IS a retribution-dependent difference: the difference between recognition of rights and surrender to cowardice. Under a system of the former, the more peaceful group’s expectations are protected by the law. Under a system of the latter, the more bloodthirsty group’s expectations are protected. If the goal of the legal system is to preserve peace and civilization, there can be no question of whose expectations will be more compatible with that goal. Clearly the more violence-prone group is the one you DON’T want to appease.
And while I’m no lawyer, it seems to me that “incitement” is an explicit urging to action. Jihadists who know of a Koran being burned – hopefully it’s being burned by members of the viral Koran-burning movement I’m starting – they aren’t being URGED by my actions, but rather by their own emotions, which it is up to THEM to keep under control. I have every right and intent to use their reactions against them. Questions of physical space-invasion aside, doesn’t the harassed interviewee lose the case when he punches the cameraman who harrasses him?
Chuck Prime
http://www.BurnTheKoranForFreedom.com
Ah! All you lawyers check your case law about papparazzi who But the whole argument is silly. You can’t go around illegalizing everything that makes somebody mad. Cos that would really piss me off.
September 16, 2010, 9:00 pmhenryCrux says:
All you up there are wrong as usual ! Whats to talk about? Whats to wonder about? Unless it becomes against the law to break statues that you own, or burn pictures that you own, or to burn flags that you own – how can it possibly be against the law to burn a Koran that you own? IN the Fountainhead by Ayn Rand, the hero of the story blows up some apartment buildings because he did not approve of the additions the buyer had added to his designs – he sold them – the man who owned them changed them to suit himself – only a demented witch would think that some one should be punished for treating his own possessions as he or she wishes to treat them! YOu all say that you personally are too good to burn a book – well why not? What about Hitlers book? Would you burn it? OK then.., I have nothing else to say.
September 18, 2010, 2:50 am