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.

Comments

[Jaybird]

Breyer said similarly on the Flag Burning case, didn't he?

God knows why "consistency" is considered a virtue given that it's possible to be consistently wrong...

But, at least, he's consistent.

[Jaybird]

No, wait. That was Stevens.

Breyer wasn't there for Texas v. Johnson.

QUICK! ASK BREYER ABOUT TEXAS V. JOHNSON, STAT!

[Pop Culture Pedant]

not prepared to conclude that...the First Amendment condones Koran burning

"Condones"? That's an odd choice of words. Discuss.

[Sam Kennison]

I don't condone it, BUT I UNDERSTAND IT!

[Anonymous]

"I understand you're an idiot, but I don't condone it." N

Not directed at you or anyone in particular.

[Barely Suppressed Rage]

Let me be the first to say fuck Justice Breyer and his "Active Liberty" bullshit.

The dude's con law jurisprudence is mostly, "I know better than your elected legislators what the law should be."

[Your Mommy]

fuck Justice Breyer and his "Active Liberty" bullshit

That doesn't sound "barely suppressed" to me, Rage. Here's a bar of soap. You know the drill.

[DADIODADDY]

shove the soap up Breyers ass???

[Barry Loberfeld]

Let me be the first to say fuck Justice Breyer and his "Active Liberty" bullshit.

The dude's con law jurisprudence is mostly, "I know better than your elected legislators what the law should be."

This is more an illusory sighting of "liberal judicial activism" than what Breyer's views really are.

[Barely Suppressed Rage]

Jesus Christ, find me a page that doesn't destroy my retinas trying to read it. That fucking wreck is awful. The content might be wonderful and brilliant, but tiny font, wall-to-wall, orange text on a black background? Shit, now I need to call my eye doctor.

[Barry Loberfeld]

BSR ? love it! Quit your day job and go on to fame and fortune ...

[Joe R.]

Orange text on black background? Am I really supposed to read that?

[Joe R.]

I had not seen BSR's comment when I made mine. That shit is unreadable. Or, more accurately, not worth fucking with.

[Jeff P]

Can I still slam my 'nads in an oversized leather-bound Book of Mormon?

[Abdul]

I think it's required if you want to be married in the Temple.

[Spoonman.]

What a scumbag. That's a huge part of the point of First Amendment.

[Paul]

This whole thing is confusing and vague. Breyer seemed uncommitted. I can't find anywhere in the linked stories where he suggested it would he unconstitutional.

I mean: "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,"

I don't really get a feel for anything controversial here.

[Spoonman.]

How is the internet even relevant here? Does Breyer even know what the internet is?

"OOOOH WERE IN THE INTERNET AGE BETTER OUTLAW AN ANCIENT PRACTICE"

[Paul]

The internet is always relevant to a "living document" jurist.

[robc]

And you dont see anything controversial?

[Paul]

Yes, I think its controversial when ANY jurist suggests that a type of speech is more constitutional than another. But his position is hardly unprecedented. (see my post below). I can name about 4 or 5 jurists that explicitly feel this way. We know it, we've known it for a long time, we've been screaming it at the tops of our lungs for as far back as I can remember. So in light of that, Breyer's statements seem to fall kind of flat. He didn't say anything new or concrete about the constitutionality of Koran burning, except that it would have to be wheedled out in future court cases.

[Greer]

I think the fact that he even considers that it would NOT be condoned by the 1st Amendment is what is scary. This seems like a guy who would consider the result of speech before deciding whether it's OK or not. The reductio ad asurdum is that if you say "fuck you" and I don't like that, it is not protected speech.

I would hope that a a member os SCOTUS would unequivically say that it would be protected speech.

[Paul]

I agree, and it is Breyer so all caveats should be considered. I think that it's pretty clear he does consider the type of speech to be a determining factor in its constitutionality, but ditto for about 4 or 5 other jurists. I mean, this stupid old canard about "Fire in a crowded theater" is itself, a type of speech not protected by the constitution. I was looking for something more concrete, something that would have explicitly suggesting that constitutionality would be determined by scaryness the group most offended.

[DADIODADDY]

Can I yell "FIRE" in a theatre full of muslims...esp if they're on fire?

[Paul]

Approx 4 out of 9 jurists say "no".

[ChrisO]

The "fire in the theater" test for incitement speech, as I understand it, has always revolved around the threat of IMMINENT harm. Moreover, the speech has to actually incite harm, not merely provoke it.

Which is a long way from saying that speech is constitutionally unprotected if it might inflame a bunch of irrational fucktards somewhere in the world to commit violence. If that's the test, then the First Amendment truly means nothing.

[Tom]

This.

[TrickyVic]

""The "fire in the theater" test for incitement speech, as I understand it, has always revolved around the threat of IMMINENT harm.""

Personally I've never understood it. I get the idea imminent harm but the person yelling fire isn't causing harm, he may be inciting morons that won't look around to start trampling people because they simply heard a phrase. It's not like someone shouts fire and people are harmed as a result of the word or phrase. People may or may not be depending on whether or not they assess their surroundings.

[Jason]

Personally I've never understood it.

Think of it as pulling the fire alarm instead and people being injured in the rush to the doors.

[Barely Suppressed Rage]

Part of the problem is that people always quote Holmes incorrectly.

The actual quote is:

"The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic."

Key elements: "falsely" shouting fire AND "causing a panic."

[DJF]

But the case he used it in (Schenck v. United States) had nothing to do with imminent danger, falsity or panic. It was about protesting US involvement in WW1

[Paul]

The "fire in the theater" test for incitement speech, as I understand it, has always revolved around the threat of IMMINENT harm.

Exactly, but now you get into nebulous definitions of "imminent". The "fire in a crowded theater" canard has been used to describe music lyrics which "incited violence", hence "imminent harm".

Barely Suppressed Rage:

Thanks, it always helps to have a better historical perspective, like the "I know pornography when I see it" being debunked.

I think we can all agree that Breyer is full of shit, I just don't see any more or new uncharted stupidity based on this blog post.

I mean, we all know how almost half the supreme court feels about speech in the form of a campaign contribution.

[Paul]

I mean, we all know how almost half the supreme court feels about speech in the form of a campaign contribution.

Sorry, I fucked up.

Let me rephrase:

I mean, we all know how almost half the supreme court feels about documentaries and books released near-to election time which is defined as an in-kind campaign contribution.

You'd think that would shock people more, but yet a startling number of people have no problem with banning this exact type of speech.

[Tulpa]

IIRC, the standard for imminent danger is that there is no opportunity for the speech to be refuted before the danger is realized.

[Cyto]

" The reductio ad asurdum is that if you say "fuck you" and I don't like that, it is not protected speech."

Interestingly, although you present this as absurd, this is precisely the state of affairs in workplace law. Sexual harassment is entirely in the eyes of the beholder, so if you tell someone that you like their new haircut and they take offense, you are guilty of harassment.

[Bee Tagger]

When Senor Breyer's comments lead to an increasingly tyrannical government cracking down on previously protected speech like the elderly's legs beneath a mob fleeing an imaginary fire, I'm hoping he'll get his crowded theater comeuppance

[TFG]

How can he say that burning the Koran is not protected speech? Doesn't he know that some crazy right wing constitutional fundamentalist might be incited to violence by those words?

There ought to be a law against saying stuff like this.

[Geotpf]

There actually is an interesting constitutional issue here.

Let's assume that burning the Koran will cause crazy Muslims somewhere to riot and rape and pillage and murder, and this is a predictable outcome.

I can comprehend an argument that that is equivalent to "yelling fire in a crowded theater". I'm not sure that's a valid argument, but it might be a close call. What do you all think?

[Greer]

Nah. There is lots of speech that could incite SOMETHING. If we consider that that something is bad, let's outlaw the speech. If KKK whitey says kill some blacks, is that speech that could incite something? It's still protected until it becomes conspiracy or some such.

[Cyto]

Actually, "kill some blacks" would very likely fall outside of protected speech, particularly when uttered to a group of white supremacists.

Per Geotpf's point, in his example we know the outcome is predictably that people will be killed in riots. Therefore the fire in a crowded theater argument is a direct parallel. The fact that the riots are outside the US puts a different spin on it, but if it were here in the US, you'd have a hard time parsing the difference between the two scenarios.

[EscapedWestOfTheBigMuddy]

I don't the panicd crowd is fleeing in fear and causes harm without intent or malice. Accordingly if (and I would like to emphasize that word) there is any fault it lies with someone intentionally arranging that state of affairs.

On the other hand, the rioting mob acts with intention and malice. The fault lies with them.

Mens rea for the win.

[robc]

I would think you would need to round up a bunch of crazy Muslims and arrest them.

Burning a koran outside a mosque in service **might** be an incitement to riot. But doing it in general isnt.

[mr simple]

It's not and I'll tell you why by paraphrasing Rothbard. The "fire in a crowded theatre" thing is a property rights issue. When you yell "fire" in a crowded theatre, you infringe upon the rights of the people who rented the hall to put on a play (or film or what-have-you), the patrons who payed to watch the performance, and the owners of the property who don't want chaos or destruction on their property.
Whomever is insulted or aggrieved by the Koran burning have no such claim, unless the Korans were stolen from them.

[Mainer]

I've always disliked the lazy way the "fire...theatre" canard get's tossed around. So thank you for this analysis.

[Mongo]

Yelling "fire" in the theater is akin to telephoned bomb threats: it's intentionally relaying false info that will have immediate and probable harm or negative impact.

[Azathoth]

Don't be so thankful. The word 'falsely' always gets left out of this thing.

It's perfectly fine to yell 'fire' in a burning theatre. You're just liable for the damage you cause if you yell it in a theatre that's not burning*

*it's not the 'yelling' that gets you in trouble, it's the damage caused by that yelling

[TrickyVic]

""*it's not the 'yelling' that gets you in trouble, it's the damage caused by that yelling""

You mean the damaged cause by others. It's not your yelling that actually causes damage unless you can yell loud enough to cause ear damage. It the actions of others that your yelling motivated them to act.

[Mongo]

Yeah - I think that the presumption is yelling "fire" when there is no fire.

Otherwise, if there actually is a fire, I'd want somebody to yell as I'm watchin' Jessica Alba set the craft of acting back 175 years.

[Citizen Nothing]

I'm willing to concede that one probably doesn't have the right to burn a Koran inside a crowded theater.

[Citizen Nothing]

I see I was beaten to the punch below thread. Mea culpa.

[Corduroy]

Given the unlimited number and type of hysterical morons present in the world, that would sure outlaw a hell of a lot of speech and encourage the nuttery.

[DEM]

Let's try this "interesting constitutional issue" out in another context. Our health care system, we are told, is in a crisis of spiraling costs and restricted access to care. Many feel quite passionately that the government should fix these problems by becoming a single payer. Advocating against single-payer might incite some of them to violence. In that way, just as Muslims might riot in response to the buring of the Quarn, health care is a "burining building." Obamacare is step 1 towards single payer, and so advocating its repeal is not unlike shouitng "fire" inthe burning building of health care. I am therefore not certain that speech supporting the repeal of Obamacare is constitutional. No, not certain at all.

[Tom]

Well, if a woman gets raped because she dressed provocatively, is she guilty of inciting rape?

[ChrisO]

It's the difference between "inciting" violence and "provoking" it.

Incitement is if I tell Muslims to go commit violent acts.

Merely saying that I hate Islam, or committing an equivalent expressive action (such as burning a Quran), is not inciting Muslims to do anything.

The test is focused on the content (and admittedly the context) of what I say, not on the rationality of the recipient.

There is always going to be some irrational idiot out there that can be incited to violence by a careless or offensive comment. But the comment is still constitutionally protected!!

[ola]

the crazy muslums rioted and killed just because of the news of the threat to burn, not actually burn. what about the threat to make a threat to burn. where does it end breyer?

[cynical]

I think incitement should only be considered relative to a normal, reasonable person in society. You can't really base anything on what crazy people do, since it's so unpredictable. Since murdering people over religion is not reasonable or normal behavior in our society, even among religious hardliners, burning a Koran is legit. Moreover, there's an equal protection issue if less violent, murderous belief systems don't receive the same protection as the others. Unless SCOTUS is also prepared to outlaw pissing off Christians, that won't fly.

[Sean]

No, it's not even close. Applying Holmes's dictum in this case would mean that one loses his right to speech because another party may be offended and and choose to commit violent crimes in retaliation for the content of that speech. Your right to speech would be restricted by other people's sensitivity and propensity to violence.

[Michael Ejercito]

No, it's not even close. Applying Holmes's dictum in this case would mean that one loses his right to speech because another party may be offended and and choose to commit violent crimes in retaliation for the content of that speech. Your right to speech would be restricted by other people's sensitivity and propensity to violence.

I could see where this leads.

[Tulpa]

Predictable danger /= imminent danger.

The damage from a shout of "Fire" in a crowded theater happens so quickly that there is no chance for opposing speech to argue against it. That's not the case for burning a Koran or other offensive speech.

[Barely Suppressed Rage]

Wondering what his take would be if it were someone burning Bibles instead... or copies of Ray Bradbury's "Fahrenheit 451".

[Geotpf]

The thing is, Christians don't tend to get all stupid and riot-y when you burn Bibles. Muslims do when you burn the Koran. (Personally, I think they need to grow up and deal with life, but meh.)

[Brett L]

So their rights are different? I think I'm going to start rioting when I get pissed off, too.

[doomboy]

Don't know what Breyer would say but it would probably make that cute, cleavagey literary afficianado in the youtube video very, very sad.

[JW]

Hey Steven, if the theater's on fire, I can yell "FIRE."

But, we don't want anyone to get trampled, so I'm keeping my mouth shut and quietly slipping out.

[Bender Bending Rodriguez]

As Murray Rothbard said:

"Furthermore, the view that the shout of "fire" causes a panic is deterministic and is another version of the "incitement to riot" fallacy... It is up to the people in the theater to assess information coming to them. If this were not so, why wouldn't correctly warning people of an actual fire in a theater be a crime, since it too might incite a panic?"

[mr simple]

Oh sure, use an actual quote, why don't you. Show off.

[Tulpa]

I've long considered Rothbard an idiot, and this quote doesn't change that opinion.

The fact that it's up to the jury to reach a verdict in a trial doesn't excuse perjury.

And the negative consequences for truthfully yelling "fire" -- perhaps a few people get trampled to death -- are less negative than the consequences of NOT yelling "fire" when there is one: everyone in the theater dying of smoke inhalation.

[troy]

I never bought into the "crowded theatre" analogy. If someone did yell that, I'd think tort law is a better place to solve the problem than 1st amendment jurisprudence.
And if this stupid cocksucker did say this, then I'd like to ask him at what point did the internet amend the constitution.
I am amazed that Boner knows the difference between right, the adjective, and right, the noun. Good for Boner.

[ChrisO]

The analogy is probably a bad one, and there are better examples of incitement speech.

I think the idea is that there is a level of speech that is so intentionally designed to cause harm that it amounts to "implied incitement", even if it does not expressly tell theater-goers to trample each other to death.

I pretty much agree with you, in that this level of legal ambiguity is better reserved for tort law than in constitutional law. However, in the theater analogy, it's more likely that the First Amendment would be asserted as a defense in a criminal trial.

[ChrisO]

By the way, it's not hard to imagine a judicial activist like Breyer trying to apply the idea of "implied incitement" to Quran burning. Doing so, however, merely shows what a bad idea it is to have such a vague and ambiguous test applied to the First Amendment.

[DJF]

You should not buy it because the case that Justice Holmes used it in (Schenck v. United States) had nothing to do with lying, theaters, shouting or fire. Justice Holmes used it to put someone in jail for protesting WW1. The person convicted was handing out flyers.

[PR]

is it OK to piss on a Koran that is on fire in a crowded theater?

[Greer]

Well, I'm a big 1st amendment guy, but THAT is going too far. Now, swap shit for piss and it may be OK

[Pope Jimbo]

Only if you have a NEA grant to do so.

[fresnodan]

Say you have a dozen girls from Stormsquirters II, and they...

[troy]

i like where this is going... more, please.

[Pro Libertate]

I can't recall the exact language, but to restrict such speech, I think it has to directly incite imminent lawless action. While burning the Koran may be offensive, it's not a direct call to violence. In fact, those doing the burning are in direct opposition to those likely to do violence. Also, our jurisprudence tends to disfavor giving hecklers veto rights over speech.

[Vern]

Thankfully, the crowded fire test aka "clear and present danger" was overruled by Brandenburg.

http://en.wikipedia.org/wiki/Brandenburg_v._Ohio

[bgates]

It's too bad that we can't get nine people on the Supreme Court who have as much knowledge of Supreme Court precedent as a guy named Vern commenting on a blog, but on the bright side, his Brandenburg link did lead me back to the source of the "fire in a theater" quote, which turned out to be a 9-0 decision (since overruled) that the government can lock you up for protesting against the draft.

http://en.wikipedia.org/wiki/Schenck_v._United_States

So that's nice.

[Paul]

Speech is protected only depending on who said it, what is being said, and when it's said. Four out of Five Justices agree!

[Paul]

Actually, four out of nine justices agree! But who's counting?!

[Highway]

Hmm, I think a 'crowded theater' today would be... a crowded theater! And being trampled to death? That's the same thing. So why try to equate 'burning a book' with 'yelling fire in a crowded theater'? Maybe if the crowd was in the theater to see you burn the book he'd have a point...

[Paul]

That 'fire in a crowded theater' analogy works with so many things.

[DrAwkward]

I downloaded a copy of the Koran, then deleted it. After that I emptied the Recycle Bin.

Constitutionally protected?

[DADIODADDY]

virtual fire...you're under arrest, hands up against the screen

[albo]

Let's Ask the Imam:

Is it permissable to eat the meat of a shop run by Qadianies?

Answer:
In the name of All?h, Most Gracious, Most Merciful

No, it is not permissible.

There's your answer. Wait...what?

[Vern]

Crazy! I mean, by Breyer's reasoning, handing out leaflets opposed to the draft is shouting fire in a crowded theater.

Oh wait...
http://en.wikipedia.org/wiki/S.....ted_States

*crap*

[Mainer]

..and that's the tastiest irony of using this old canard...the great Holmes was full of shit.

[Mo]

OFFS. Really Breyer? This is idiotic.

[Tman]

Correct me if I'm wrong, but the 1st amendment doesn't mention anything about crowded theaters or fire.

Technically, there is nothing unconstitutional about yelling fire in a crowded theater, and this whole stupid argument is wrong to begin with.

[Geotpf]

There's nothing specifically in the constitution about requiring abortion to be legal either (for instance), but the Supremes say it's in there, so that's all that matters.

[SugarFree]

So when another batch of solons decide it's not there, you won't squawk, right?

[Cunctator]

Wrong. In order for the Federal Government to enact a law, it must find the power to do so in the Constitution (in theory, anyway). There is nothing in the Constitution that grants the Federal Government the power to regulate abortion, among other things.

I don't have to find the "right" in the Constitution, The Government must find the authority.

Amendment 9 - Construction of Constitution. Ratified 12/15/1791.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

--------------------------------------------------------------------------------

Amendment 10 - Powers of the States and People. Ratified 12/15/1791. Note

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

[Cyto]

How quaint. A group of folks who understand the constitutional authority of the government. It looks like there might even be 20 or 30 of them still milling about.

[Geotpf]

The guys who get to decide what the constitution says (I mentioned them before) disagree with you on what these words mean. 😛

[Democrats]

You must be new at this. The commerce clause gives the Federal Government the right to regulate abortion. In our view, that means override any state laws restricting access to abortion.

[Keyboard Commando]

I can't remember the last time I was even in a crowded theater. It may be time for a new metaphor.

[Wesley]

"Shouting fire in a crowded living room where illegally downloaded movies are shown" doesn't exactly work.

[Tulpa]

How bout, shouting "Cop!" in a crowded opera house men's restroom.

[albo]

I believe it is unconstitutional if your intent is to cause panic If you call fire because you think there's a fire and turns out there isn't, that's fine.

[Mainer]

and even then, it's not a 1st Amendment issue.

[Tman]

Exactly. Eugene Volokh -"And in fact the line from Justice Holmes in Schenck v. U.S. is "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." That "falsely" is what's doing the work, both in Justice Holmes's hypothetical, and in how such a false shout would be treated by First Amendment law today: Knowingly false statements of fact are usually constitutionally unprotected, whether because they constitute libel, fraud, perjury, and false light invasion of privacy; that would presumably apply to knowing falsehoods that cause a panic."

[Barely Suppressed Rage]

The question is not whether it is unconstitutional to falsely yell fire in a crowded theater and thereby incite a panic. The question Holmes was getting at was whether a person could be held liable for violating an ordinance that prohibited a kind of speech.

In general, of course, speech is protected by the First Amendment against government regulation prohibiting it. Holmes's point was that you can't use speech in a way that you know or reasonably should know would immediately incite a panic situation in which people could become injured and property could be damaged - i.e., an ordinance outlawing the false yelling of "Fire" in a theater would not run afoul of the First Amendment, because that pretty clearly is not the "speech" that the First Amendment was intended to protect.

I actually don't see too much of an issue with that SPECIFIC example. If some shmuck-a-puck jumps up and yells "Fire" for shits and giggles to watch people claw over each other to get out of the place, he should not be able to say, "Ah-ah, First Amendment!" when he gets charged with creating a disturbance (or whatever the appropriate charge would be) or sued by the injured people.

Just as defamatory speech is is not protected.

The problem, of course, is always in defining exactly when language is sufficiently "inciteful" that it loses its First Amendment protection.

I've always thought it's pretty ironic that the SCOTUS rules in California v. Cohen that you can walk through the courthouse wearing a jacket that says "Fuck the Draft" on the back, and expose wimmin and chilluns to it against their will, but you can't say it on TV, which people watch voluntarily.

[Corduroy]

I was listening (and simultaneously gagging) to NPR give the old massive suck-up to Breyer yesterday morning on the way to work. It was a promo piece for the living constitution.

Breyer never seems to mention that even though the Founders couldn't have predicted modern society and teh series of toobs, they did leave a way to modify the damn document instead of relying on the Court, Legislative, and Executive to make it up as they go along.

[Cyto]

We seem to have abandoned this notion with FDR. The last embers died out with the ERA thirty years ago. Now we just look to the court to allow anything (unless they disagree with the policy).

You know the war is lost when you have Justices on the Supreme Court citing policy implications in their decisions. This line of reasoning can be reduced to "but it is really, really important, so it must be constitutional".

[Geotpf]

Part of the issue is that it is neigh impossible to amend the constitution.

If the definition of "arms" only included devices invented when the constitution was written, even the strongest gun control advocate would probably be okay with that, for instance.

[Heckler]

VETO!

[CoyoteBlue]

Wouldn't it be a "Jihadi Veto"?

[MP]

The real hypothetical should be this...if a terrorist threatens to shoot a bystander if a Pastor burns the Koran, and the Pastor, fully aware of the threat, chooses to burn the Koran anyhow, thus leading to the immediate death of the bystander, is the Pastor's action criminal?

[Corduroy]

I would say no. Responsibility for a criminal action cannot be transferred to a third party.

[Slut Bunwalla]

I don't think so, but the victim's family could probably sue the pastor and have a very strong chance of winning.

[Michael Ejercito]

I don't think so, but the victim's family could probably sue the pastor and have a very strong chance of winning.

And what if someone threatens to shoot a bystander if the state of Vermont refuses to revoke legal recognition of same-sex "marriage" by next week, the state of Vermont fails to do so, hus leading to the immediate death of the bystander.

Would the bystander's family have a strong chance of winning a wrongful death lawsuit against the state of Vermont?

[Cyto]

No, because states are above that sort of thing.

It would be particularly interesting to see a "wealthy TV preacher" run up against this situation, rather than random redneck wierdo guy. Somebody with deep pockets might get a different reception.

[Michael Ejercito]

No, because states are above that sort of thing.

It would be particularly interesting to see a "wealthy TV preacher" run up against this situation, rather than random redneck wierdo guy. Somebody with deep pockets might get a different reception.

Why would states be above that sort of thing?

Under what legal theory would a pastor be liable for wrongful death who performs, or refuses to perform, a certain action, because a terrorist had threatened to shoot a bystander and carried out the threat due to the performance or refusal to perform that action, but the state would not be liable for wrongful death for enacting or refusing to enact a certain policy, because a terrorist had threatened to shoot a bystander and carried out the threat due to the enactment or refusal to enact a certain policy?

[R C Dean]

Dammit, Heckler.

What Breyer is saying is that First Amendment contains a heckler's veto (presumably in the emanation of one of its penumbras).

Breyer, it should come as no surprise, is showing complete ignorance of the Iron Law:

You get more of what you reward, and less of what you punish.

Every time we reward the Muslim barbarians for jumping around hooting and burning things by caving in to their demenads, we guarantee that they will make more and more demands, with more jumping around and hooting.

The proper response to threats is "Well, now that you've threatened me, we can't even talk about a compromise, and I'm going to have to go right ahead and do whatever it is that pisses you off, just to show that your puny threats are worthless."

[Sean]

Well and concisely put--he is suggesting a heckler's veto. We should also remember that an offensive but expressive act, such as burning the Koran, does not "cause" others to commit violence. They deliberately choose it and are alone responsible for the violence they perpetrate.

[Geotpf]

Good explaination, both of you.

[TrickyVic]

""Every time we reward the Muslim barbarians crybabies for jumping around hooting and burning things by caving in to their demenads, we guarantee that they will make more and more demands, with more jumping around and hooting.""

[alan]

So, if the words of a massively obtuse Supreme Court justice caused Americans to be violently outraged at his lack of fidelity to the First Amendment where they then go about raiding a courthouse or two, killing some officials in the process, would not we have to conclude by Breyer's on logic that his own words were illegal?

[Tom Walls]

Yeah, but can you yell "Fire!" at a crowded Crazy World of Arthur Brown concert? I would think so.

[Azathoth]

I really don't see what everyone's upset about. Justice Breyer just seems to be saying that we should codify our Islamic Appeasement practices into law. What's the problem?

[troy]

Wait. I've been watching news and there have some been deaths and violence just because that crazy nut in florida was talking about burning the Koran, much less actually doing it.
So where would this fuckhead Breyer draw the line? It seems that his concern is what idiots might do in response to the burning. Since no one had to actually burn a Koran to get some crazy muslim fucks to kill each other, would merely taking about thinking about doing cross the line?

[Bob Smith]

The "crazy Muslim fucks" aren't killing each other, they're killing Christians and Buddhists. The non-Muslim populations are essentially hostages who will be beaten, raped, or killed unless we submit to the whims of their Muslim masters.

[Geotpf]

They kill each other more often than they kill Christians or Buddhists.

[Bob Smith]

That may be, but that's irrelevant, because they aren't killing other Muslims in response to threats of burning a Quran, they're killing Christians and Buddhists in response to a threat of burning a Quran.

[Spencer Smith]

He had an interview on NPR HERE

He actually says something different here, but with similar words.

[TrickyVic]

I think there's a jurisdictional issue here. It's irrelevent from a legal standpoint what happens in another country. They should not be covered by the US Constitution. So if they riot over there, people under US jurisdiction are not harmed. So the harm test shouldn't apply.

[Cyto]

Unless they are a class favored by lefties. Then it is OK to regulate the speech.

[Doc Merlin]

So now our free speech depends on how willing others are to commit violence?

How much an ideology is mocked will depend on how willing its adherents are to commit random violence?

This is bullshit.

[Michael Ejercito]

How much an ideology is mocked will depend on how willing its adherents are to commit random violence?

Could the state ban homosexuality because homosexuality has incited people to commit violence?

[Kevin]

Could the state ban the building of mosques if protesters promise/threaten to commit violence if and when mosques are being built?

[Federal Judge with Life Tenure]

It's good to be da king.

[Fist of Etiquette]

I was reading the Koran and my Kindle exploded. Am I going to jail or just hell?

[Bob Smith]

More encroachment of Sharia law. If I want to burn a Quran, the offended sensibilities of Muslims should be irrelevant.

[TeamBarstool]

Sometimes yelling FIRE should be encouraged

[TeamBarstool]

Sometimes yelling FIRE should be encouraged

[Paul]

You can say that again.

[Brandon]

Look, I don't condone book-burning of any kind. It's stupid, hateful and pointless. However, IT'S JUST A BOOK! A book is merely a bunch of printed words on paper stuck together in a coherent fashion (or at least they try)!

How anyone could say this is the equivalent of yelling "fire" is beyond me. This clearly is NOT, and for a Supreme Court justice to say something so STUPID and utterly politically correct just shows how ridiculous that institution has become. It also shows how little they actually care about the Constitution. Sure, 5 justices are pro-2nd amendment, but apparently they HATE the 5th and property rights. They think it's ok to be strip-searched in the name of the idiotic drug war. They're not HUGE friends of medical marijuana, either.

FUCK em. And fuck the so-called "originalists" who are nothing but conservative judicial activists in disguise. You want a REAL originalist? Put Randy Barnett, a smart libertarian law professor, in the SCOTUS!

[Sandi Trixx]

Breyer's comment equates fleeing from (what you think is) a fire to save your life with killing someone you disagree with. The situations are incompatible.

[Tony]

I've always thought it should be protected to say "fire" in a crowded theater. You just should be held responsible if a trampling occurs.

[Barely Suppressed Rage]

This is oozing with stupid.

That's the whole point. If you are held liable if a trampling occurs as a result of your speech, then your speech is not "protected" now, is it?

[Tony]

Causing a riot is not speech. I'm just saying, if you say fire and nothing happens, meh. It's a slippery slope to banning high school students from yelling 'penis' in a crowded cafeteria. Do they still do that or am I dating myself?

[Tulpa]

You're dating yourself...and probably going upstairs for a nightcap with yourself too.

[Paul]

What if there actually is a fire?

[TrickyVic]

Then it's ok if you are trampled.

[Brandon]

When are we gonna get a LIBERTARIAN justice on the Supreme Court for a change??? I'm tired of LIBERAL or CONSERVATIVE ones who only focus on "the Constitution" when it fits their narrow views of constitutionality and liberty. The liberty movement has been active for quite some time now and is getting more popular by the day, yet for some reason we STILL have not nominated a single libertarian justice in the last several decades.

It's insane! Draft Judge Andrew Napolitano for Chief Justice

[Anonymous Coward]

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

I'm more interested to know what Breyer Rabbit thinks DEM TUBES have to do with the disposal of private property and the First Amendment.

[AndyH]

Seems as if Breyer's parallel between Koran burning and "shouting 'fire' in a crowded theatre" is weak.

Even if you accept the 'crowded-theater'/'whole-world-in-the-internet-age' analogy (which is pretty strained), surely the whole point of the "shouting fire" thing is that it makes people believe that they are in imminent risk of their lives and therefore inclined to panic. Some people may react violently to the burning of the Koran, but that's their choice and their lives are not in danger.

Breyer's logic implies that anything that could provoke violence, however extreme and irrational that reaction may be, risks losing 1st Amendment protections.

[Ms Kelly]

They all go back to that " yelling fire in a crowded theater" argument. These activist judges will use "yelling fire in a crowded theater" like the US government has used the commerce clause.

It can cover anything and everything they want it to cover.