Justice Breyer on the Unconstitutionality of Koran Burning


The Volokh Conspiracy's Jonathan Adler highlights a pretty interesting exchange between George Stephanopoulos of ABC News and Supreme Court Justice Stephen Breyer. Here's Stephanopoulos:

Breyer told me on "GMA" that he's not prepared to conclude that—in the internet age—the First Amendment condones Koran burning.

"Holmes said it doesn't mean you can shout 'fire' in a crowded theater," Breyer told me. "Well, what is it?  Why?  Because people will be trampled to death.  And what is the crowded theater today?  What is the being trampled to death?"

Last week President Obama told me that Pastor Jones could be cited for public burning – but that was "the extent of the laws that we have available to us."  Rep. John Boehner said on "GMA" that "just because you have a right to do something in America does not mean it is the right thing to do."

For Breyer, that right is not a foregone conclusion.

"It will be answered over time in a series of cases which force people to think carefully.  That's the virtue of cases," Breyer told me.