Please tell us Supreme Court Justice Stephen Breyer is not equating burning of the Koran with yelling "fire" in a crowded theater.
Last week we saw a Florida Pastor – with 30 members in his church – threaten to burn Korans which lead to riots and killings in Afghanistan. We also saw Democrats and Republicans alike assume that Pastor Jones had a Constitutional right to burn those Korans. 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.
“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. “And not just cases. Cases produce briefs, briefs produce thought. Arguments are made. The judges sit back and think. And most importantly, when they decide, they have to write an opinion, and that opinion has to be based on reason. It isn’t a fake.”
"Condones" is an awfully strange word to be used in the context of the 1st amendment. The 1st amendment is negative in nature in that it guarantees that Congress shall make no law prohibiting freedom of speech. "Condones" implies that there are types of speech which the 1st amendment endorses or favors over other types of speech when a straight-up interpretation of the 1st amendment suggests nothing of the sort.
Besides, if he is attempting to equate the potential negative outcomes of the two acts then he is talking apples and oranges. The possibility of getting trampled or doing the trampling in response to someone yelling "fire" would be the result of an entirely instinctive act of self-preservation and there can be no other reason to yell "fire" were there no actual fire than to deliberately wish to cause panic and bodily harm.
However, going on a murderous rampage because someone burned the Koran is a completely conscious decision you took upon yourself. The burning of the Koran put you in no immediate danger and the provocation caused by burning a Koran is in no way equatable to the reflexive mayhem produced by yelling "fire" in a crowded theater.
Oh, you may be plenty mad that someone burned the Koran but at the end of the day, you and you alone own those dead bodies - no one forced you to do it.
Also, as Jonah Goldberg points out, by Breyer's logic, banning the burning of the American flag is simply a matter of getting enough people violent about it.
That a Supreme Court Justice cannot make these distinctions is troubling.