Seems our First Amendment may needs some tweaking, according to Stephen Breyer:
During an appearance on ABC’s Good Morning America this morning, Supreme Court Justice Stephen Breyer addressed the recent controversy over a Florida pastor’s plan to hold a Quran-burning rally on the anniversary of the September 11 terrorist attacks, saying he wasn’t convinced the First Amendment would protect such an action if the case were brought to the court in the future.
“Holmes said it doesn’t mean you can shout ‘fire’ in a crowded theater,” Breyer told George Stephanopoulos during the GMA interview, referring to Supreme Court Justice Oliver Wendell Holmes, Jr., who wrote the opinion in a 1919 Supreme Court decision that addressed Freedom of Speech. “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?”
Breyer, who was on the show to promote his new book, “Making Our Democracy Work: A Judge’s View,” said that questions about the changing definition of free speech in the internet age will “be answered over time in a series of cases which force people to think carefully.”
“That’s the virtue of cases,” he said. “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.”
“It’s a ‘rickety system,’ Breyer added, but it has functioned “fairly well” so far.
Listen carefully to what is being argued here: free speech is being made contingent on how it will be reacted to — not in a fairly specialized case (where shouting a falsehood about a safety concern can cause public panic) but in the more general sense that speech that causes offense is to be equated with speech that causes public harm.
For Breyer, speech that is likely to cause backward barbarians to act backward and barbaric is as problematic as the backward barbarism that it supposedly prompted. Which, it seems to me, is a recipe for promoting as “free speech” only that speech that is sanctioned ultimately by the courts.
The idea of a First Amendment was to promote tolerance in a way that is directly opposed to the “tolerance” promoted by the left. That is, the First Amendment is there to protect unpopular, dissident, and controversial speech — to promote a tolerance of that which is outside the realm of current cultural fashion.
And yet the left is moving to turn tolerance into something wherein the “tolerant” are those who take offense to speech that they disagree with — with the “intolerant” being those who refuse to dutifully mouth politically correct platitudes and avoid giving offense to protected classes themselves decided upon by the left.
Just as Michelle Obama and members of the British Parliament believe that racism is proven by what the listener hears rather than what the speaker meant, Breyer seems to be arguing that we need to look at the reception of speech and, in instances of unfavorable reception, “reason” backward toward a justification for criminalizing the speech that prompted the reaction.
In very limited instances, society has the right to place restrictions on speech. But it is dangerous to let the reception of speech determine its protected status precisely because, in an increasingly Balkanized country, the probability for giving offense to some or other politically motivated interest group continues to grow — and our freedoms should not be contingent on some group’s threatened response to the deployment of that fundamental freedom.
When a Supreme Court Justice wants to lead us down the rabbit hole, we can safely say we are screwed.
Chris Christie just up and fires people for political speech he doesn’t like. He’s very efficient like that at least til the lawsuits hit.
Free speech should never be without threat of a nose punch. That’s where it went off the rails.
I guess it’s unconstitutional for the Lakers or the Pistons to win the NBA Championship, according to Breyer?
If the government keeps incentivizing violence, I may have to expand my product line to include small arms and explosives. How ’bout jars of 100% American moonshine with rags in ’em? I could call ’em Tolerance Cocktails!
So all you need to do to shut up people you hate is to make sure that their words incite YOU to violence.
Nice racket if you can get it.
So the next time some snot-nosed hippy sonofabitch decides to burn the american flag, I should cut his fucking head off, right? I figure the little bastard has it coming, inciting me to violence like that. I think maybe I’ll torture him a bit first so I can learn wear he lives and then burn his house down.
So meya thinks Breyer is a moron then? Tick takes a step into the light, ha!
OH MY GOD! FIRE!!!
Squid, could you send me a prospectus? I think your company has a lot of growth potential and I’d like to get in on the ground floor.
I think it might be the Koran that causes the violence, not the burnings.
Why not just burn the Koran and not make a big deal of it? Shouldn’t we all be starting our fireplaces this winter with Koran pages? I hear they burn hot.
Squid, I am Ordnance Branch qualified – let me know if you are taking resumes…
Fine time to learn (once again) that Breyer did know the First Amendment from his ass the whole time he was clogging up a seat in the SCT.
Whatever happened to “Sticks and stones…”?
The next thing you know, you won’t even be able to piss in the pool without going to jail.
Oh, and I hear there’s a new book out today that should be added to the Koran burning pile. Where was that again?
Whatever happened to “Sticks and stones…”?
Well, Cranky has the market cornered on cudgels, though I have a pretty good pitchforks-and-torches thing going on. I looked into stones, but there’s just no margin in it.
Have you considered branching out into slings and arrows? I hear those can make you an outrageous fortune… or something.
“Comment by happyfeet on 9/15 @ 12:10 pm #
Chris Christie just up and fires people for political speech he doesn’t like.”
That was Fat Man’s doing, it was NJ Transit that fired Koran Burning Boy.
was *not*
– Take a Koran to a bonfire on Sunday, you’ll both be better for it.
Free speech, unless it offends someone.
From the Supreme Court. Madison wept.
If these bastards ever take control we are completely fucked.
Chris Christie should reverse NJ Transit. I think he has authority to do it.
Come on Govenor. I will send you a pack of Combos* for doing the right thing.
* that is not a bribe.
“* that is not a bribe.”
– Sure it is, but your *motives* are beyond reproach..
You know what pisses me off? Peace signs and that Mean People Suck shit.
Next time I. see one of those its on.
You are a magnificent liar Tick. Never failing in that regard.
this is unpaid programming
buy squid™ pitchforks
Free speech!
no, #26 is correct – we have heard alot about how if you insult Korans, mosques or Islam, you face the heckler’s veto. Or beheader’s veto. Whichever.
LTC John,
When we in the West are insulted and offended, we might stage a protest, but when Muslims are insulted and offended they commit murder and worldwide mayhem.
I suppose our resident trolls will manage to claim the two are equal. With sneers.
Molly Norris runs away and hides at the behest of the helpless FBI; Chris Byrne, the 2005 Koran shooter – burner – pisser did no such thing…
A good man, Chris.
Meh. Would never work with this crowd. About the time you needed them the jars would be empty….
I’m thinking that, not being constitutional scholars, we simply don’t understand the nuance of Justice Breyer’s argument. Perhaps we could discuss it with him over some nice tar and feathers?
Alright, Chris cracked me up. Big time.
Free speech is not negotiable.
Tforeman, to quote Kim du Toit: “The Bill of Rights is not negotiable. Not one single line. Now if you’ll excuse me, I’m off to the range.”
This would be the most shocking thing I ever heard a sitting SCJ say, except for the fact I believe there’s at least three others on the bench that share the same opinion, so I’m not really shocked, more disgusted, really. Contempt for the Constitution should be a disqualification for the “good behaviour” criterion, but I daresay that qualifies me for dinosaur status.
1. Squid, I’ll take 100 Tolerance Cockslaps, er, tails. Not to the face!
2. Bradleys’s “Slings and arrows…” comment fucking wins the thread.