Josh Gerstein (Politico) has transcripts of Breyer’s Good Morning America remarks, which seemed to suggest that Koran-burning might be constitutionally unprotected, but also his more recent Larry King Live remarks, which pretty strongly suggest that Koran-burning is indeed constitutionally protected.
To recap, the earlier remarks were ambiguous. Stephanopoulos asked whether globalization and the Internet, and the greater risk that expression in the U.S. may lead to killings overseas, should “change the nature .. of what we can allow and protect.” Breyer responded: “Well in a sense, yes. In a sense, no…. [Y]ou can say, with the internet, you can say this. Holmes said, it doesn’t mean you can shout fire in a crowded theater. Well what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is being trampled to death? … Well perhaps that will be answered by, if it’s answered by our court. It will be answered over time, in a series of cases, which force people to think carefully. That’s the virtue of cases.” That might mean that he’s suggesting Koran-burning might be unprotected (“in a sense, yes,” the Internet should change what we protect, and that remains to be “answered over time, in a series of cases”). Or these might be, as Ann Althouse thought, just “the usual platitudes about how judges interpret law and decide cases in the context of ever-changing real world facts and let’s have a fine day in the classroom cogitating about the elaborateness of all that.
In any case, the new remarks seem to pretty strongly come out in favor of the constitutional protection of Koran-burning:
CNN’s Larry King: There’s no doubt that Pastor Jones, little church in Florida, had the right, he has the right to burn the Quran, doesn’t he?Breyer: Yeah, I said it depends on what analogy you use, but the most one analogous case is that there was — you have the right to burn an American flag as a symbol….
King: … Does [the flagburning decision] make us a great country?
Breyer: It helps. It helps…. [W]hat we’re saying is we protect expression that we hate. And protecting expression that we hate is not the only good thing in the world, but it is one good thing in the world. And when you have a country of 300 million different people who think different things, it is helpful. It is helpful to tell everyone, you can think what you want.
King: Hard for other people to comprehend why Nazis can march —
Breyer: There they are. You know, it’s so often I hear people say — and particularly this is a college students, sir. Well, that’s just so terrible what he’s saying. I say, oh, you think that free speech is only for people who don’t say things that are terrible….
I’m glad to hear Justice Breyer say that.
Debrah says:
A great illustration—in bold relief—how deliberate obfuscation, ambiguity, and double-speak waste valuable time.
Engaging in such should not be constitutionally protected!
September 16, 2010, 7:19 pmOwen H. says:
So much for those looking for reasons to complain about him.
September 16, 2010, 7:26 pmSteve says:
What about Koran burning on government property?
September 16, 2010, 8:05 pmhedberg says:
Is it obvious that Koran burning is more like flag burning (Texas v. Johnson) than it is like cross burning (Virginia v. Black)? Burning sacred objects for the purpose of intimidating members of religious groups is not without precedent. Could a statute forbidding the desecration of religious objects for the purpose of intimidation and when reasonably perceived as a precursor to actual violence withstand a constitutional challenge? If so, could such a statute be applied to Koran burning with the questions of intimidation and reasonable fear of violence being left as questions of fact to be determined at trial?
September 16, 2010, 8:06 pmOrder of the Coif says:
A great example of Living Constitutionalism — the interpretation changes with what’s for breakfast.
September 16, 2010, 8:10 pmConstantin says:
Good.
(When can we expect the FBI to advise him to go into hiding with the ‘Draw Mohammad’ lady?)
September 16, 2010, 8:18 pmgross says:
breyer’s comments on fresh air this week are consistent with his clarification on king’s show. http://www.npr.org/templates/rundowns/rundown.php?prgId=13&prgDate=9-14-2010
September 16, 2010, 8:24 pmfred from des moines says:
But what about the carbon emissions? If the courts won’t ban the burning, we can probably count on the the EPA to decree it verboten.
September 16, 2010, 8:24 pmbailey says:
OOTC has it right. What a stand. What will his position be during the next interview (and what if a Muslim calls him out on it).
September 16, 2010, 8:29 pmSteveMG says:
The Justice is rowing a bit back on this one, I think.
Again from the ABC interview:
Stephanopoulos: The conversation is now global.
Breyer: Well indeed. And you can say, with the internet, you can say this. Holmes (PH) said, it doesn’t mean you can shout fire in a crowded theater. Well what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is being trampled to death?
Again, he is suggesting (mulling? considering? thinking?) that the internet somehow expands the “crowded theater” and makes it global. And from that that if the shouting affects a “crowded theater” elsewhere (again, because of the internet) that the current limits may be re-considered.
Never mind.
September 16, 2010, 8:32 pmSarcastro says:
Because if there is one thing Breyer HATES it is hypothetical questions – everything he says you’d better take at face value. Especially if it lets you complain about him!
September 16, 2010, 8:39 pmSteveMG says:
Because if there is one thing Breyer HATES it is hypothetical questions — everything he says you’d better take at face value. Especially if it lets you complain about him!
When Justices opine on controversial matters concerning free speech, people listen.
Carefully.
Knowing that, Justices should similarly be careful in what they say.
Nothing more, nothing less.
September 16, 2010, 8:45 pmOrder of the Coif says:
No one seem to remember the context of the Holmes quote.
September 16, 2010, 8:51 pmYou can’t shout “Fire!!!” in a crowded theater but only IF THERE IS NO FIRE.
Sarcastro says:
…You can Burn the Koran, BUT ONLY IF MUSLIMS ARE EVIL!
September 16, 2010, 9:21 pmRicardo says:
It may not be obvious but it is the state that has the burden to prove an attempt to intimidate. Where is there proof of any intent to intimidate here?
September 16, 2010, 9:39 pmq says:
Breyer’s pragmatism is showing in these remarks. Clearly he thinks Quran burning is constitutional, but he’s willing to consider that perhaps the costs outweigh the benefits. Hence, his characterization that protecting “speech we hate” is a good thing, but not the only good thing in the world, and often it’s a matter of trade-offs.
September 16, 2010, 10:03 pmRandolph says:
If you didn’t see this coming you really need to check the tint on your ideology glasses. Of course Breyer thinks that burning a Koran is protected, he was just trying to avoid statements about future rulings in his previous comments and left enough ambiguity for conservatives to make it sound sinister.
September 16, 2010, 10:23 pmBel says:
Freedom is the right to tell people what they do not want to hear.
September 16, 2010, 10:44 pmGeorge Orwell
Tim J. says:
I’m sure it will come as quite a surprise to George Stephanopoulos that he’s a conservative. He was, after all, the one who first reported “For Breyer, that right is not a foregone conclusion.”
September 16, 2010, 11:08 pmD.O. says:
Maybe Breyer is a fine judge, but he is one lousy public speaker. Even when it is clear what he wants to say, it is plain painful to listen how he is saying it.
September 16, 2010, 11:27 pmBob Stump says:
The difference between fire in a real theater and a global theater connected to a stage by electronic technology is you aren’t going to burn to death momentarily in the latter. Now, if some jihadist pours acid (that’s in vogue) on you three days after for something you put on Facebook or youtube, that is well beyond the heat of blood standard and indicative somebody else has a mental problem that goes beyond just being pissed off. Stephanopoulos is off the mark suggesting restraint of First Amendment freedom out of consideration for possible consequences.
September 16, 2010, 11:31 pmMichael says:
Yes. Burning a book or pages from a book is not intimidating in the way that burning a cross is intimidating. There just isn’t the same history there, and the history of cross burning is crucial to understanding why burning a cross is treated differently from burning a flag. Burning a Koran, or a Bible, or a flag, or ripping a picture of the Pope in half on TV, are all roughly equivalent. It’s an insult and an expression of strong disapproval. Insults and expressions of strong disapproval of ideas are both protected.
And in Virginia v. Black the Supreme Court struck down the part of the law that treated the act of burning a cross as prima facie evidence of intent to intimidate. So even if burning a Koran were more analogous to burning a cross, you would still have to prove that the intent was to intimidate rather than merely to express disapproval of its contents or of Islam in general. That would be possible to prove in a mob setting, particularly if it’s a mob burning a pile of Korans in public (but even that would be protected on private property). If we’re talking about some skinny dork burning a Koran on youtube, or even in public, well that’s just not intimidating at all to any reasonable person. So most Koran burnings would still be protected.
September 16, 2010, 11:59 pmJohn T. Bennett says:
You forget that the new standard in America is the unreasonable Muslim, not the reasonable person.
September 17, 2010, 1:45 amKazinski says:
He can be pragmatic when he is deciding whether to exercise his own free speech rights. I don’t want him pragmatically deciding when I can exercise mine.
September 17, 2010, 2:02 amJohn T. Bennett says:
Randolph, you schmendrick, Breyer’s ambiguity left enough open for a liberal Rhodes Scholar to make it sound sinister.
The liberal Rhodes Scholar George Stephanopoulos reported that “Supreme Court Justice Stephen Breyer told me on [Good Morning America] that he’s not prepared to conclude that — in the internet age — the First Amendment condones Koran burning…. For Breyer, that right is not a foregone conclusion.“
September 17, 2010, 2:07 amJ. Aldridge says:
All this protection made possible 60 years after the 14A was adopted through its due process clause. Simply amazing.
September 17, 2010, 2:09 amRandolph says:
Ok, “enough ambiguity to allow someone trying to make it sound sinister to do so.” I assume Stephanopoulos did it for a headline. People spin things for all sorts or reasons, my point was that given Breyer’s (extensive and public) record it’s hard for me to imagine that a reasonable observer would really think he might conclude that burning a holy book is not protected speech. Maybe I’m falling into Orin’s “the other side is arguing in bad faith” fallacy, but I really don’t think so.
[edit] oh, and “schmendrick”? Really? Have ad hominems become some sort of requirement for the conservative VC commentators?
September 17, 2010, 2:14 am1040 says:
in the alternate reality of this comment, it’s as if there has been no brouhaha about rights when it comes to the supposedly sinister “ground zero mosque”.
September 17, 2010, 2:46 amLitigator London says:
As a Muslim living in a democratic and pluralist society, I must recognise that my freedom to practice and indeed to proclaim my own faith depends on protecting the freedom of others to do the same. England has had its experience of the state interfering in matters of conscience: (i) the compulsory Universal Church until Henry VIII broke with Rome, Reformation under Edward VI, Catholicism again under Mary, Protestantism again under Elizabeth I and so forth and so on. I think there was enough of book burning, people burning and barbaric executions back then. No doubt your Founding Fathers thought so too.
I was pleased to see that at the start of the visit of His Holiness Pope Benedict XVI to the UK yesterday, he met at Holyrood Palace, representatives of all the faiths: Protestant, Jewish, Sikh and Hindu. It is rumoured that Prince Charles has it in mind to change the Coronation Oath and his titles so that he is “Defender of Faiths” rather than “Defender of the faith”. That too would be symbolic progress.
I personally regard the intentional burning of any holy book, not just the Holy Quran, as sinful, but I am content to leave the punishment of sin to the Almighty.
But in British English we have the expression ”sacred cow” and it comes from the days of the British Raj when colonial administrators had to learn that they interfered with Indian religious custom at the peril of public order. I have little doubt that if one went into the main square of any predominantly Muslim city and started burning the Holy Quran, one would do so at the peril of one’s life and if done by a foreigner, that might put at risk the lives and property of co-nationals in that city.
Now that the USA is engaged around the world, that US citizens live and have property around the world and that communications are world wide, perhaps the factual situation has changed from anything your Founding Fathers could have envisaged.
In other words, while the classical view is that holy book burning is protected symbolic free speech, can it not also be regarded as an incitement to riot? Is this a case of the tree of liberty needing to be nourished with a little blood from time to time?
September 17, 2010, 5:14 amStephen Lathrop says:
Lawyers love to reason by analogy. That puts a lot of weight on the quality of the analogies. When the analogy is between burning the flag and burning a sacred text, the analogy is pretty weak.
A law against burning the flag is essentially a law enforcing loyalty, and it could be loyalty to anything. In one sense, what the flag stands for depends on what its protagonists and antagonists focus on at the time. But the flag always stands for the government, and the government could be tyrannical.
A law against burning a sacred text is a law against intimidation and silencing. Loyalty never gets into it. The text in question is itself protected speech. Americans have long held that the remedy for unwanted speech is more speech, not an attempt to silence opponents. Burning a sacred text is a symbolic silencing of opponents, against the spirit of the First Amendment.
I would oppose any law against flag burning, but would have no trouble with a law against symbolically burning books of any kind, including sacred books. The cases are simply different.
September 17, 2010, 6:19 amExternality says:
@Litigator London:
Limiting Americans’ rights in their own country to avoid upsetting people in other countries is a slippery slope. One of the arguments used to stifle antiwar sentiment is that it offends our allies, insults our soldiers, and encourages the enemy to keep fighting, thereby endangering our troops. Would you have supported President Bush or Prime Minister Blair emulating their World War I counterparts and arresting everyone who criticized the war in Iraq to avoid causing problems abroad? The American constitution should protect the rights of Americans. Other countries can and should have the right to define the rights of their citizens and visitors differently.
The Founding Fathers were well aware of the need to maintain good relations with foreign countries. The existence of international law was recognized in Article I, Section 8, which specifically refers to “the law of nations.” Several provisions of the Constitution were specifically included to reassure foreign creditors that debts owed by the pre-Constitution American government would be honored and that states could not annul debts owed by themselves or individual citizens. (The latter two were addressed by the Contract Clause.) They were unwilling however, to tolerate the constant demands by Muslim pirates that we pay tribute and allow the pirates to seize our ships. Their response was to create the Marine Corps, and send them and the Navy to deal with the problem.
Another problem is that many, many things in Western culture seem to offend Muslims. I recently read in the British press how Muslim medical students are demanding that they be excused, on religious grounds, from learning about alcoholism or sexually transmitted diseases. Other students refused to treat opposite sex patients. http://www.timesonline.co.uk/tol/news/uk/health/article2603966.ece http://blog.thehumanist.com/?p=157 I have also read about Muslim cabdrivers in Minnesota, who beginning in 2005, refused to pick up passengers who had alcohol in their luggage, were blind and using a seeing eye dog, or were transgendered. http://www.startribune.com/local/11585696.html Here in the US, I have had Muslim medical and dental students refuse to treat me, citing their religious beliefs about LGBTs. Some even angrily threw my chart down, yelled “I don’t treat homosexuals,” and stormed out. Complaining got me accused of Islamophobia.
How long until the government is forced to decide, in response to complaints from Muslims here and abroad, whether STDs should be discussed on television or the Internet? Or whether to ban advertising for alcohol? Or whether to ban any reference to homosexuality on the television and the Internet? We are already seeing Muslims and other religious groups developing special search engines that, for example, respond to a query about gay marriage by only showing sites that oppose it. http://www.npr.org/templates/story/story.php?storyId=129709336
September 17, 2010, 6:44 amcboldt says:
– Burning a sacred text is a symbolic silencing of opponents –
September 17, 2010, 7:08 amI suppose. Retribution by decapitation is relatively quiet.
– I would … have no trouble with a law against symbolically burning books of any kind … –
What about other forms of desecration? Piss Christ, for example. Obnoxious oral public speech? Blog comments that are derogatory of a religious faith? Why is “burning the text” more worthy of criminal or civil penalties, under force of law?
ruuffles says:
Actually Brennan wrote both majorities, and Breyer does not appear to correct him. But is Larry King asking if Scalia did write such an opinion, that would make us a great country?
September 17, 2010, 8:10 amgo vols says:
Order of the coif:
While I give you credit for properly correcting what must be the most misquoted quote in Constitutional Law, perhaps you could explain how the First Amendment jurisprudence of the last 100 years is anything but “Living Constitutionalism.” Do you really think, for example, that the original meaning of the Free Speech clause would have permitted burning holy texts? Given that the same Founding Fathers that passed the First Amendment threw each other in jail for criticizing the President just a few years after its passage, I don’t think you would be too happy with an originalist take on the clause.
September 17, 2010, 8:44 ammemomachine says:
Hmmmm.
@ Sarcastro
“…You can Burn the Koran, BUT ONLY IF MUSLIMS ARE EVIL! ”
You mean by murdering thousands of innocent people every year? Threatening people’s lives to the point where they have to completely change their identities?
Who knew.
September 17, 2010, 8:59 ammemomachine says:
Hmmmm.
@ Litigator London
“Now that the USA is engaged around the world, that US citizens live and have property around the world and that communications are world wide, perhaps the factual situation has changed from anything your Founding Fathers could have envisaged.”
No.
Because such a system would reward those that are in fact easily incited to murder. I think you can easily see the downside of that. With the system rewarding over the top and excessive responses such responses would enter into a vicious cycle where each successive response would thus be greater.
Any other religions that were not necessarily so inclined would see themselves as either oppressed or enter themselves into that same vicious cycle as a means of defending their faith. In effect you’d have a race to the bottom with the final culmination of either a complete ban on free speech with regards to religion or perhaps even a religious war.
Frankly what I thought was interesting, and par for the course, is your description of Christian political thought over the past 1,000 years without any mentioning that “democratic and pluralist society” doesn’t describe *any* muslim majority country on planet Earth.
September 17, 2010, 9:08 amDarkHelmet says:
“I would oppose any law against flag burning, but would have no trouble with a law against symbolically burning books of any kind, including sacred books. The cases are simply different”
Whoa! Are you serious? A law that says I can’t burn any book is okay with you? And you think it’s okay with the Constitution? I can’t burn “Mein Kampf” as a symbolic act because it might offend and intimidate Nazis? I can’t burn “Das Kapital” because it might offend and intimidate Marxists? I can’t burn the New York Times because it might offend and intimidate effete East Coast urban progressives? I can’t burn “Dianetics” because it might offend and intimidate Scientologists?
You want to be a dhimmi? Your choice, I suppose. I will burn, desecrate, mock, ridicule, criticize, fold, spindle and mutilate any text I please, “sacred” or not. I will even remove tags from mattresses. With gusto. In public places.
I will not submit.
September 17, 2010, 9:43 amCR says:
Full. Stop. This was an incorrect answer. The only answer to the idiotic question of “what we can allow and protect” is “The First Amendment clearly says ‘Congress shall make no law…’”. What we have here in Breyers’ last statement is a clear walking back from his indefensible fence-sitting because of popular backlash.
The Unwashed Masses: 1
September 17, 2010, 9:47 amThe Pretentious Judiciary: 0
Esteban says:
Burning a sacred text is a symbolic silencing of opponents, against the spirit of the First Amendment.
Except, dude, the first amendment prohibition against “silencing” speech, symobolic or otherwise, physically silenced or “symbollically silenced,” applies only against THE GOVERNMENT, not individual citizens. As such, this Florida preacher is not proscribed by the first amendment from “symbolically silencing” anyone, including Koran adherents, whether it is “against the spirit of the First Amendment” or not. Tell us how this Florida preacher is an agent of the government and we can then discuss whether his actions are a “symbolic silencing” (whatever the hell that is) subject to the first amendment.
I any case, there are millions of other copies of that text available for anyone who wants one (that preacher couldn’t burn them all if he tried), so please explain how adherents to the ideas of that text have been “silenced” in any way, shape or form if a few copies get burned.
September 17, 2010, 9:47 amDWPittelli says:
Yelling “fire” in a crowded theater that is not actually burning, is not analogous to burning a Koran (or, for that matter, to opposing the draft in WWI, as Holmes would have it). “Fire” is a lie which a crowd cannot properly evaluate before deciding whether to panic. Burning a Koran is analogous to yelling “Islam sucks” — or to yelling “this play sucks” in a theater. These are subjective opinions, not lies, and they do not cause mortal panic, at least not in sane individuals.
Burning a Koran is also generally not similar to burning a cross, as actually practiced and punished in this country. It would be similar, if some Klan-like group started burning Korans on the front yards of Muslims, in order to intimidate them, especially if the Klan-like group had a history of lynching Muslims.
Note that while I would strongly oppose Sharia laws against blasphemy, etc., such as against Koran burning, I am not actually in favor of protesters burning the Koran (or the flag).
September 17, 2010, 9:48 amArthur Kirkland says:
Is that Iraq, or Afghanistan? So many innocents are dying that it is easy to lose track.
This thread is a vivid example of what occurs when smart people (such as Justice Breyer) talk and certain other people attempt to process the information, culminating in the now-standard “my fairy tale can beat up your fairy tale” argument.
September 17, 2010, 9:49 amMDT says:
Litigator London,
I was pleased to see that at the start of the visit of His Holiness Pope Benedict XVI to the UK yesterday, he met at Holyrood Palace, representatives of all the faiths: Protestant, Jewish, Sikh and Hindu.
I think there may be a few missing there. Including your own, as I understand it.
It is rumoured that Prince Charles has it in mind to change the Coronation Oath and his titles so that he is “Defender of Faiths” rather than “Defender of the faith”. That too would be symbolic progress.
That would be symbolic nonsense. If Prince Charles wants disestablishment, he ought to say so; but even if he doesn’t, he ought not to set himself up to “defend” simultaneously umpteen different conceptions of ultimate reality. God knows defending the Anglican Church is labor enough for one man.
September 17, 2010, 10:07 amMDT says:
memomachine,
“democratic and pluralist society” doesn’t describe *any* muslim majority country on planet Earth.
Indonesia comes to mind. Just sayin’.
September 17, 2010, 10:09 amuh_clem says:
I suppose you’d also consider telling someone to “Shut up!” is against the spirit of the First Amendment.
One of the paradoxes of our free society is that the First Amendment protects speech that is “against it’s spirit”, for instance one could advocate it’s repeal and that would be protected speech. As it should be.
September 17, 2010, 10:10 amSteve. says:
What if I bought my Koran that had been salvaged from a theater that had been burned to the ground for showing Passion of the Christ?
September 17, 2010, 10:18 amCalderon says:
Stephen Lathrop says:
Liberals / progressives calling conservatives and libertarians racist or fascist is meant to end conversations and force conservatives and libertarians into silence. This is against the spirit of the First Amendment. Therefore, all accusations of racism and fascism should be banned and punishable by up to 5 years in prison. (Look on the bright side progressives, at least Jonah Goldberg won’t be allowed to appear on TV anymore)
September 17, 2010, 10:22 amuh_clem says:
Only if you wrap it in the American flag and burn it at Ground Zero while dancing naked.
September 17, 2010, 10:22 amSarge says:
Is it just me, or does Justice Breyer seem to have a great deal of difficulty articulating a single clear thought?
Disturbing, considering that clarity of thought and articulation of same are exactly the jobs we’re paying him to do.
September 17, 2010, 10:26 amStan says:
Burning a Koran is intimidating? For whom?! Why is it intimidating? Any Koran burner knows full well he/she is risking life and security by doing so. I do in fact believe many muslims find the act intimidating in that it makes there religion equal to all others. It is a direct challenge to their worldview that their religion is supreme over all others, and is deserving of priveledge above all others. Poor babies. It is also dishonest to characterize all Koran burning as hate speech. Hate could be a motive ( & still constitutionally protected ) however there are many motivations other than hate that can drive Koran burning. It could be defiance of islamic supremacy, defiance of the governments sliding acceptance of an agenda hostile to our freedoms, rejection of religion altogether, etc. The blanket labeling of Koran burning as hate speech is dishonest, and ironically true hate speech in itself, in that it purposely tries to silence views by intimidating someone with the stigma of being a “hater” ( pot meet kettle ). Playing the “hater” card relentlessly, without examing or addressing the real motives behind the speech is dishonest and casts the agenda of the accuser into question in my opinion. ( even Obama is quilty of this) Can anyone link an article interviewing the kooky Florida pastor where he explains his motivation? All I ever heard was he was a fundamentalist hater. Like the fact he was a fundamentalist Christian automatically makes every political view he holds be rooted in hate. It was just put out ther as a “Given”. Even if it is hate that is the motivation, it still doesn’t make it bad speech. Apartheid was universally hated, murderous nazis are hated, communinists are hated for all their murders & injustice. Many peoples in the world have grievances against islam and muslims. I often wonder why more people the world over aren’t burning korans, islam has killed enough and inflicted enought grief throughout the world to incite many people to hate it, or oppose it in other very meaningful ways.
September 17, 2010, 10:26 amMichael says:
Really? Sure, it’s a democracy, but it is becoming increasingly less pluralistic and secular.
Maybe not a great example. I think Turkey is the closest to a pluralistic society. Of course, the trend does not appear to be upward there, either.
September 17, 2010, 10:29 amUrso says:
*standing ovation*
September 17, 2010, 10:37 am*crowd roars*
ak47pundit says:
They might be missing as some of the Religion of Peace seemed to be planning a terrorist act to coincide with the Pope’s visit and possibly to attack the pope himself.
Either that or Algeria has gone militantly protestant recently.
September 17, 2010, 10:38 amWhadonna More says:
Your standard would indict every religious group on earth, plus every race, major political ideology and many nationalities. Perhaps you should step away from the computer and go chat up an actual Muslim. I’m certain you’ll find much more in common that you imagine.
September 17, 2010, 10:41 amJam says:
Re: Cross burning
Is cross burning really illegal?
I thought that the cross burning crossed into intimidation because the hooded guys would tresspass into another’s private property (the target of the intimidation) and do their deed.
The KKK can burn crosses in their private property, can’t they? I suppose, as long as there is no outside fires moratorium due to drought conditions.
September 17, 2010, 10:48 amMichael says:
A prosecutor would have to prove intent to intimidate in order to convict someone of a crime for burning a cross. The act of burning a cross may not be treated as prima facie evidence of intent to intimidate. So yes, you can burn crosses all day on private property (as long as you don’t violate any content-neutral burning ordinances that serve a compelling state interest).
September 17, 2010, 11:02 amak47pundit says:
Argh, quote system didn’t work.
Meant to quote MDT: MDT says:
“Litigator London,
I was pleased to see that at the start of the visit of His Holiness Pope Benedict XVI to the UK yesterday, he met at Holyrood Palace, representatives of all the faiths: Protestant, Jewish, Sikh and Hindu.
I think there may be a few missing there. Including your own, as I understand it.”
September 17, 2010, 11:15 amDavid M. Nieporent says:
Actually, it’s essentially a law against offending people. “Disloyalty” is not in any way an element of the crime.
No, they’re identical. A law against burning a sacred text is a law against offending people also. With an establishment of religion thrown in.
There’s no such thing as “symbolic silencing”; it’s word soup. You can silence someone by hitting him over the head with a brick or putting him in prison or confiscating his printing press. You can silence someone by threatening to do those things. You can’t silence him by burning a book (unless you’ve gathered the books by stealing all the copies from the library and bookstores.)
September 17, 2010, 11:24 amKa La says:
What about burning $1,001 worth of Korans, in support of (or against) a candidate, within 30 days of an election? Wouldn’t that be a felony?
September 17, 2010, 11:24 amDavid M. Nieporent says:
Okay, I’ll bite: what “progress” exactly would it “symbolize”? It would change the oath from something of an anachronism to meaningless pablum. (Who or what exactly would he be defending “faiths” from?)
September 17, 2010, 11:27 amAllahu Akbarista says:
Can a brother get an NEA grant to create an artistic work analogous to Piss Christ – say, for example, a figurine of Mohammed and a Koran soaked in bodily fluids obtained from homosexual men?
That is a public work of art that is worth funding and putting prominently on display in a Federal museum, IMO.
September 17, 2010, 11:38 ambobby b says:
“Breyer’s pragmatism is showing in these remarks.”
No, Breyer’s LACK of pragmatism is showing. He really ought not be out there on the talk show circuit giving rambling, off-the-cuff responses to surprise questions that touch on controversial, unsettled areas of the law that may well come before him soon. How long until we see this in someone’s USSC brief:
“And, as Justice Breyer so forcefully stated in “Hon. Breyer v. King”, 35 FNC 14:75 (9/12/2010), “It might be that such conduct could easily fail to lie outside of those protections . . . but possibly not . . . or, yes, in fact . . . but that’s not to say that they might . . .” . . . .
September 17, 2010, 11:50 amTed says:
Shame on you.
September 17, 2010, 11:51 amMark Field says:
Richard Dawkins?
The oath today is NOT meaningless pablum?
Good point. Maybe it’s best to leave it up to God alone (or his trinitarian comrades, but you know what I mean).
September 17, 2010, 11:58 amSteveMG says:
Well, I think we can all conclude that after this bit of a kerfuffle (that is, if you think that a ‘ker was fuffled) that the chances of Justice Breyer voting to approve live-TV coverage of Court proceedings has probably dropped a bit.
September 17, 2010, 12:05 pmwalt dukehart says:
Breyer is as confused as ever ! Probably Alzheimers.
September 17, 2010, 12:40 pmRead the Constitution says:
This is a deliberate back pedal by a lefty judge who was caught out on public opinion and quickly changed his tune. He is pro-1st Amendment when it suits leftist causes like burning flags or putting Christian symbols in jars of urine. Yet, when an American wants to use those same rights to protest a Koran he has issues with it. What a creep.
September 17, 2010, 12:42 pmJam says:
For things I have read in the news in the past it seems to me that he Chruch of England has has taken the “many paths to God” line. So, I would say that it is still be “Defender of the Faith” for him. Just that it will not be Christianity and considering the origins of the Anglican Church that may just be all the same.
Does Prince Charles have the authority to change the Coronation Oath?
September 17, 2010, 12:49 pmAmos says:
Then the animists and Gaia-worshipers walked in and all construction and commerce was put on hold.
September 17, 2010, 12:51 pmHot Air » Breyer: On second thought … says:
[...] into an implicit admission that he had botched his earlier answer to George Stephanopoulos (via Volokh Conspiracy, transcript by Politico): CNN’s Larry King: There’s no doubt that Pastor Jones, little [...]
September 17, 2010, 12:57 pmBrianna says:
“Could a statute forbidding the desecration of religious objects for the purpose of intimidation and when reasonably perceived as a precursor to actual violence withstand a constitutional challenge? If so, could such a statute be applied to Koran burning with the questions of intimidation and reasonable fear of violence being left as questions of fact to be determined at trial?”
NO
Burning a Koran is not an incitement to violence. It is not telling people to get violent, and it is not giving them any legit reason to exercise violence. The very fact that you think this could apply to the Koran because it would inflame Muslims exposes an incredibly derogatory and condescending view of Muslims, because you assume that Muslims are unable to control their own impulses in ways that you would expect American soldiers, for example, to do without question if you exercised your right to burn the American flag, or Christians if you burned a Bible.
September 17, 2010, 1:07 pmJavems says:
The only people killing Muslims because they are Muslims are Muslims.
September 17, 2010, 1:28 pmMichael says:
I can think of hypothetical situations where burning a Koran would not be protected. For example, an angry group of people burning Korans on a Muslim family’s lawn would probably not be protected by the First Amendment. But short of something like that, you’re right. It’s intended to cause offense, not fear. In this country, we expect people – all people – not to react violently when offended.
September 17, 2010, 1:38 pmLogicalUS says:
This is why you do not let the adolescent leftist influence our nations actions. They simply are incapable of understanding that other people have different motivations than their simplistic ideology. That is why there leaders spouting such nonsense as “of course, Bin Laden is popular, he builds daycare centers and provides healthcare” or the idiot Michael Moore, who reacted to 9-11 by yelling “…why did they attack us in NYC, we didn’t vote for George W. Bush”.
They simply are too dense to understand that by rewarding the violent Muslims by castrating our actions, they are simply saying that in order to get leftists to stop any action the more violent the reaction the bigger the reward by the leftists.
So torching a few museums and beheading a few artists Christians can stop the idiocy of things such as “Piss Christ”. That is the lesson of the Left’s reaction.
September 17, 2010, 1:45 pmStephen Lathrop says:
The principle that protects obnoxious oral speech, derogation of religion, or the display of Piss Christ, is the identical principle that ought to protect books. You have the reasoning backward. It is the people who want to burn books who are similar to those who censor artistic expression, or who suggest that derogation of religion ought to be suppressed. That’s obvious, isn’t it?
Let’s start with the presumption, as may be the case, that some of the adherents reside in the community where the burning takes place. Especially in small communities, the socially acceptable limits of speech and action are signaled by such displays, and by their acceptance among the people who live there. That, of course, is the point of the burning—to rally the community around an expression of rage directed against particular people, who may also be community members. Thus targeted, only a person of unusual fortitude would fail to be intimidated into public circumspection, or silenced altogether.
And if that advocacy were published in a book, my point would be that the book ought to be protected.
September 17, 2010, 1:58 pmJustice Breyer Clarifies Remarks On Koran Burning & The Constitution says:
[...] on Tuesday that some interpreted as saying that Koran burning might not be protected speech. As Eugene Volokh notes, Breyer spoken again on the issue on Larry King Live the other night and seemed to clarify [...]
September 17, 2010, 2:08 pmJackson says:
Does Justice Breyer know that “Adams” was not a “Framer”? He taught at Harvard Law and doesn’t know that John Adams was not a Framer? I am not surprised that he now has to walk back his Koran comments.
September 17, 2010, 2:19 pmDaProf says:
So just put it in a jar with effluent….no need to burn it then…
September 17, 2010, 2:22 pmAlessandra says:
This is similar to endorsing texts promoting sexual violence (like so much of pornography), given that this sexual violence can certainly be targeted against members of any community.
If reinforcement of violent attitudes has a significant impact on behavior, when taken into account as to the effects on a large population, it is clear that there is more harm in permitting and endorsing materials promoting violence than there is in book burning. Either that or they are equally harmful. The intimidation factor is not the major problem here. The real issue is whether anyone is going to perpetrate violence or harm against others because of the spreading of ideas that incite it, whether they are in book form or through a public or private group ritual.
September 17, 2010, 2:39 pmTed says:
Is burning or destroying something symbolic, e.g., a flag, picture, draft card, ever a form of expression covered by the First Amendment? If you agree that it is, then burning a holy book should also be protected. Why? Because it is speech, and even speech that attempts to silence other speech is protected speech.
Moreover, the speech that you claim is being silenced, isn’t even the speech that is being burned. You’re not seriously suggesting that burning a holy book should not be protected under the 1st Amendment because it impermissibly censors God, right? Rather, I understand that you are concerned about the burning’s “silencing” effect on other people’s speech, people who might agree with or adhere to the speech contained in the book. In this sense, burning the book is no different that saying, “You shouldn’t agree with or adhere to what this book says.” And I think we both agree that this kind of attempt to “silence” speech with speech is protected.
Out of curiosity, are you a librarian?
September 17, 2010, 2:42 pmPhillep Harding says:
Let’s see if I have this right. If the “Rabid Right” was ready to riot and murder a bunch of people because the flag got burned, then burning the flag would no longer be regarded as Constitutionally protected free speech?
September 17, 2010, 2:55 pmnovaculus says:
We protect “expression that we hate” not because of its hatefulness, but despite it. What we protect is the right to freedom of expression, and that is the “good thing”.
This man sits on the highest court in the land, and when he is finished speaking, he has confused rather than enlightened.
September 17, 2010, 3:00 pmTed says:
Do you suggest that we should attribute legal liability to a speaker if one of his listeners decides to “perpetrate violence or harm against others because of the [speaker's] ideas that incite it?” Granted I don’t know what you mean by “incite it.” Maybe you mean speech that is so inflammatory and immediate that the specific action articulated or commanded by the speaker is reasonably expected to result from the speech. In that case, you seem to be invoking the “incitement” exceptions to First Amendment protection. Of course, I don’t know if that exception has never been applied to written works or depictions; it would certainly be a unique case. As such, I don’t know what relevance your statement has to pornography or burning a Koran.
OTOH, if by “incite” you mean to cause-in-fact an act in accordance with or imitate general ideas or concepts contained in various forms of expressive media, well, no, that’s not “really the issue.” The purpose of the First Amendment is not to prevent harm. The purpose of the First Amendment is to protect the free flow of ideas, because such protection yields greater good than harm.
September 17, 2010, 3:03 pmADF Alliance Alert » Breyer clarifies earlier remarks, suggests Koran-burning is constitutional says:
[...] The Volokh Conspiracy: “CNN’s Larry King: ‘There’s no doubt that Pastor Jones, little church in Florida, had the right, he has the right to burn the Quran, doesn’t he?’ Breyer: ‘Yeah, I said it depends on what analogy you use, but the most one analogous case is that there was — you have the right to burn an American flag as a symbol . . .’” [...]
September 17, 2010, 3:18 pmrmd says:
I sense the makings of a future LSAT question. “Which of the following is most like shouting fire in a crowded theater?” Or maybe a Sesame Street game. “One of these things is not like the others…”
September 17, 2010, 3:28 pmDarkHelmet says:
I’ve never in my life had any desire to burn any book. Until now.
September 17, 2010, 3:59 pmAlessandra says:
Me too!
LOL
September 17, 2010, 4:13 pmEsteban says:
Stephen Lathrop: Let’s start with the presumption, as may be the case, that some of the adherents reside in the community where the burning takes place. Especially in small communities, the socially acceptable limits of speech and action are signaled by such displays, and by their acceptance among the people who live there. That, of course, is the point of the burning—to rally the community around an expression of rage directed against particular people, who may also be community members. Thus targeted, only a person of unusual fortitude would fail to be intimidated into public circumspection, or silenced altogether.
Lots of assumptions there, dude, the largest of which appear to be that the burning is done as an expression of the majority of the community and that the burning intends to and/or actually does rally the community “around an expression of rage against particular people.” First, even the circumstance you postulate is not sufficient to ban symbolic speech such as burning a Koran, or Bible or flag. Sorry, the fact that others don’t like it, or feel timid in expressing their disapproval of it, is not sufficient to override the grander liberty that is freedom of expression.
But since we’re playing “what if?” Consider the the equally plausible situation that the guy doing the burning is the outlier of the community, and does not make “an expression of rage” but merely expresses a personal opinion of disapproval without harming or threatening to harm anyone. Would you still “have no trouble with a law against symbolically burning books of any kind, including sacred books”?
Ted above asks the pertinent question which you don’t seem to have considered. Can a symbolic expression such as burning a flag or Koran ever be protected speech in your view? If you think not, then I’ll just have to leave it at telling you that you are wrong, and I hope you never have the chance to impose your views on the rest of us. Cheers.
September 17, 2010, 4:17 pmMichael Z. Williamson says:
There are no “socially acceptable” limits on my rights. That’s what makes them rights.
Breyer’s the same Q@#$hole who proposed that because guns had been controlled for a long time, the 2A was now null and void.
The same argument could be made for gay marriage. I’m sure liberals would LOVE that.
September 17, 2010, 4:23 pmPhillep Harding says:
According to the Left, “good” and “evil” are relative. Therefore Moslems (and Hitler)(and Bush) cannot be “evil”.
September 17, 2010, 4:44 pmTed says:
According to the Right, “good” and “evil” are absolute. Therefore all Moslems are “evil.”
September 17, 2010, 4:48 pmStephen Lathrop says:
But Esteban, I said in my initial comment that I oppose any law against flag burning. And I explained there why I thought burning books is different. I’ll say it again here in other words: as you suggest, the flag is a symbol. And I would say a symbol with no fixed meaning, subject to personal interpretation. Destroying a flag may thus be an expressive act, with the content of the expression depending on circumstance and intent.
Contrary to your suggestion, a book is not a symbol. It is speech itself. “Protecting” speech by silencing its use by others is Orwellian. That’s why book burning has long been recognized as a harbinger of totalitarianism. You do know that book burning is what you’re defending, right?
To be clear, I’m not suggesting that I think the present state of the law in the U.S. forbids book burning, of Korans or any other books. I am suggesting that if the law did forbid that, then speech in the U.S. would be better protected, and nothing important would be lost.
September 17, 2010, 5:41 pmTed says:
Is a Bible not symbolic? Does it have no symbolic meaning, only a “fixed meaning” not “subject to personal interpretation?” Does burning a Bible not add unique symbolism to to act of burning in the same manner as burning a flag? Does the symbolism, in any, involved in burning a Bible depend on the circumstances and intent of the actor? Tell me, what would the fixed meaning be if I burned a Bible and a Butter Battle Book in public?
Yes. We are defending book burning as a form of expressive activity protected by the First Amendment. We do not condone it, we are not commenting on the effectiveness of it message, we are only saying that it cannot be banned by law. And wouldn’t it be more correct to say that mandatory book-burning has long been recognized as a harbinger of totalitarianism? What it totalitarian about allowing people to burn books they own? It would totalitarian to disallow burning or mandate burning; permissiveness seems to be the opposite of those.
Oh, well why didn’t you say so? Here I thought we were talking about the validity of a law banning book burning (even a specific book) in the context of current First Amendment jurisprudence. My mistake. I totally agree that a law banning the burning of books would better protect the speech in the to-be-burned books. That’s a rather uninteresting tautology though, isn’t?
September 17, 2010, 6:03 pmJoe T. Guest says:
What if I burn a book that encourages the burning of books, Stephen?
Is that a hate crime that ougght to be banned as a harbinger of totalitarianism? Shouldn’t that be encouraged because I’m discouraging totalitarianism? What about burning Marx’s works. He gave rise to the Baskin Robbins 31 Flavors of Totalitarianism. Shouldn’t we permit that as speech that encourages the rise of totalitarianism? What if I decide that my earlier positions on book burning, committed to paper, were wrong, and I decide to burn that paper? Ought that to be made illegal?
There’s an internal logical inconsistency in your position, akin to “we had to burn the village to save it.” Destroying free speech to preserve free speech is as Orwellian as what you accuse others of doing.
September 17, 2010, 6:04 pmMark Field says:
The distinction I see is that there are lots of copies of books; they’re fungible. If someone tried to destroy ALL copies of a work, that would be censorship. But burning just one is merely symbolic — it expresses distaste for the idea(s) contained in the book. As a symbolic protest, it’s indistinguishable from flag burning IMO.
September 17, 2010, 7:00 pmPendulum says:
Stephen Lathrop,
I’m curious how records and musical works fit into your taxonomy.
I think it’s quite clear that musical works are expressive in the same way books are. For instance, when crowds burned Beatles albums (allegedly in protest of a statement made by John Lennon), , presumably that was contrary to the spirit of the First Amendment by symbolically acting to silence the Beatles and Lennon, and such acts should have been illegal.
September 17, 2010, 7:09 pmShelbyC says:
Sounds like you’re putting form over substance here. Burning a book under circumstances that is not likely to interfere with the ability of others to read the book, for puposes of expressing disagreement with the book’s message, is in no way Orwellian. It is simply symbolic speech.
September 17, 2010, 7:12 pmJustice Breyer’s About Face: Koran-Burning Is Constitutionally Protected After All | Conservatives for America says:
[...] Volokh Conspiracy has this: [...]
September 17, 2010, 7:17 pmPhillep Harding says:
Investigate that. Even though the Indonesians are somewhat “democratic” among themselves, the unbelievers are systematically oppressed.
September 17, 2010, 8:29 pmPhillep Harding says:
“Must die” was not part of my original post.
September 17, 2010, 8:32 pmStephen Lathrop says:
A consensus here says I’m mistaken. Nevertheless, it seems to me the comments favoring a liberty to burn books assume a certain sanitizing distance between the commenters and the burners. I wonder how the pro-liberty side looks if the 50 people gathering to burn your religious text are in fact co-residents in your cooperative apartment building, with a few of the board members taking the lead?
I don’t want to be tiresome. I’ll leave it at that.
September 17, 2010, 9:19 pmMark Field says:
I think we all agree that the circumstances of the case could take us into cross burning territory. Your original comment seemed to suggest that all book burning should be banned.
September 17, 2010, 9:32 pmMegalodon says:
Well, Mr. Lathrop, under that reasoning, we would only have a right to burn the flag of our own country, or whatever jurisdiction to which we supposedly owe loyalty. If we are not subject to another country, why would burning its flag demonstrate “disloyalty” on our parts? Americans have the right to burn American flags, but could be prosecuted for burning a Canadian, Mexican or British flag? Talk about a deferential country.
If this “intimidation and silencing” is proscribable, why would you “oppose any law against flag burning”? If I burn a Mexican flag at an anti-immigration rally, can that be construed as intimidation against Mexican people?
And what about flags that include religious symbols and trappings? If I burn an Israeli flag with the Star of David on it, can that be construed as intimidation against Jews? What if I burn a flag with the Muslim crescent moon symbol on it? Is that intimidating to Muslims?
What if I burned the Gadsden flag or the Culpeper Minutemen flag which both feature the words, “Don’t Tread on Me”? Those flags contain speech, explicit text which conveys early America’s resistance to oppression. Does this convert the flag from a symbol into a sacrosanct item of “speech itself” like a book? Is there a minimum amount of words before the flag could qualify as “speech itself” like the book does?
Or more closer to the subject at hand, how about burning the flag of Saudi Arabia, which contains the Arabic text of the Muslim declaration of faith, “There is no God but Allah and Muhammad is the messenger of Allah”? It is not the whole Koran, but it is the succinct creed of Islam. Is it okay to burn it, or is this flag sacrosanct because its text raises it from being a mere symbol?
September 17, 2010, 10:33 pmGuy says:
Was there any real doubt about this, given Breyer’s vote in Virginia v. Black? I don’t get it.
September 18, 2010, 1:41 amDennis says:
Hell, I was just impressed by how quickly King managed to Godwin the conversation. (See Godwin’s Law)
September 18, 2010, 3:57 amManju says:
Starting from now, I’m going to replace every impulse to use Hitler with Mao. This will quickly catch on because every Hitler reference is neutralized by charges of godwinism, so there’s an opening in the market.
Mao will now be the most evilist person of all time, or at least it’ll be 1a 1b like Ali and Sugar Ray Robinson. Van Jones will be considered David Duke and Markos will write a book called Conservative Communism, which will trace the advent of Maoism back to Abraham Lincoln. Nixon will be unveiled as a secret Red, finally explaining detente.
Its unclear how this will affect Sarcastro.
September 18, 2010, 6:40 amEsteban says:
Stepen Lathrop: That’s why book burning has long been recognized as a harbinger of totalitarianism. You do know that book burning is what you’re defending, right?
No, I am not defending book burning. But yes, people do have the right to burn their own books if that is what they want to do in order to make their point, and the government is prohibited by the first amendment from telling them they can’t. I couldn’t care less if that Florida preacher burns it, reads it aloud or eats it page by page in the town square. All could be legitimate ways to express his views, and all equally protected against government injunction. The book burning you are describing as a harbinger of totalitarianism is official book burning, by the government, prohibiting the citizenry from reading certain texts. That is unconstitutional. It also has absolutely nothing to do with the case of an individual burning a copy of book in order to express him/herself and make a point.
September 18, 2010, 10:09 amJoe says:
Was there any real doubt about this, given Breyer’s vote in Virginia v. Black? I don’t get it
It was a somewhat lazy was to troll for finding something wrong in his comments. One person, apparently a law professor, even said it proved justices shouldn’t talk to the public. His way of talking does confuse some people, aka above the fray professor, but some people should know better.
September 18, 2010, 12:58 pmMichael B says:
“So much for those looking for reasons to complain about him.” Owen H.
Why? A complaint, a suspicion, a speculative concern, etc., those are all reasonable responses to Breyer’s original analogy, which reflects how he tends to think. The analogy was patently absurd, it reflected a leap of logic – a politically correct leap of logic – so extraordinary that it could be used to justify virtually any PC repressive measure, administrative “oversight,” etc.
That a Justice of the U.S. Supreme Court would indulge such a line of thinking, such a rationale, warrants concern, plain and simple. Further and more broadly, it reflects a certain propensity of those who indulge the concept of a “living” Constitution.
September 18, 2010, 2:23 pmmoe hammed says:
An American is free to say that they do not respect islam / qur’an by burning it 24/7. Many people have sacrificed everything for America to have freedom of speech. If others do no like their freedom of speech too effin bad. Until others are able to FORCE their will upon Americans then they just need to deal with it. Losers
September 18, 2010, 2:39 pmManju says:
You know what’s a harbinger of totaliarianism? Writing books. Mein Kampf gets written…Poof! Nazism ensues. Das Kapital, Communism. Dreams From my Father…
Lets try burning ‘em for a change.
September 18, 2010, 3:32 pmAlessandra says:
I was specifically thinking about the issue of threat that Stephen raised:
If this expression of rage is not going to make these people behave in any harmful or violent way towards the Muslims in their community, there is no threat. On the other hand, if it is intended to intimidate them, as others have mentioned, then it’s like cross burning. And this is where racism can get pernicious: if their real intent was to intimidate and threaten, while claiming it was only an issue of freedom of expression.
On the other hand, it is possible for someone to express rage or anger at you or anything related to you without threatening you. It’s not because someone expresses anger towards someone else that they are obligatorily threatening others or trying to intimidate them.
September 18, 2010, 6:35 pmHarley2002 says:
So much blather. Dhimmi central here. Maybe the next time someone puts a Crucifix in Urine a Christian should kill them in the street. Then maybe you all will blather on and on about whether that is right or not. The Islamists are winning.
September 18, 2010, 7:35 pmSarcastro says:
I know I’m terrified and lashing out! Are you as frightened and angry as you should be?
September 19, 2010, 2:00 amPalm says:
Obama would (Should) say: Breyer talked “Stupidly”
September 19, 2010, 7:58 am