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Justice Stephen Breyer: Burning the Koran May Not be Protected By the First Amendment (Even though burning the American Flag Is)

Posted By Joseph Klein On September 16, 2010 @ 1:09 pm In NewsReal Blog | No Comments

Supreme Court Justice Stephen Breyer said on ABC‘s “Good Morning America” yesterday that he’s not prepared to conclude — in the internet age, particularly – that the First Amendment would protect the burning of the Koran, despite Supreme Court precedent that protects the burning of the American flag as free expression.

This startling statement is very important because President Obama has said that Justice Breyer is his role model for the ideal kind of Supreme Court justice he would nominate. And, less than half way through his first term as President, Obama has already picked two Supreme Court justices in Breyer’s mold, if not even more to the Left – Justices Elena Kagan and Sonia Sotomayor.

Referring to a ninety year old First Amendment decision by Supreme Court Justice Holmes, in which Holmes said that the First Amendment doesn’t mean you can shout ‘fire’ in a crowded theater, Breyer commented to the “Good Morning America” host George Stephanopoulos:

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?

Stephanopoulos did not press Justice Breyer on this shocking statement. If Breyer goes on TV and introduces an idea with implications that could erode freedom of speech and press, why the silence from the mainstream media? Are they just plain dumb or do they harbor the view that any action which could be considered ‘Islamophobia’ should be struck down as out of bounds? I think it is a bit of both.

Therefore, web sites like NewsReal Blog will have to fill the information gap.

First of all, Breyer distorted what Justice Holmes had actually said. Holmes wrote in Schenk v. United States:

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

Breyer conveniently left out the falsehood part. Shouting out a maliciously false scare of imminent danger to life and limb in a tightly packed environment with few exits, which is intended to cause life-threatening panic, cannot be compared to burning an object that symbolizes what a person believes stands for something evil, so long as it is done in a safe and secure manner.

I am not saying that burning a Koran is a sensible thing to do. No doubt,  burning the Koran is deeply offensive to Muslims. Along with many other non-Muslim Americans, I too think that burning the Koran is a needlessly offensive act.  Likewise, burning the American flag is highlyoffensive to many Americans. But performing an offensive act safely with one’s own property to express one’s own belief – no matter how wrong-headed it may be - is protected free speech.

The one recent exception to this First Amendment protection was the Supreme Court case of Virginia v. Black, in which the Court  ruled that state laws could criminalize burning the cross  – an act most closely associated with the KKK’s history of violence against African-Americans – so long as the cross burning was done for the purpose of intimidating African-Americans.

Whether or not the Virginia v. Black case was correctly decided, it is not relevant here. Burning the Koran, while offensive, is not in itself an act of intimidation against Muslims.  In fact, it can be more accurately described as a symbolic act condemning intimidation by radical Muslims who are inspired to commit violence against Americans at the drop of a hat in the name of Allah. They do not need a reason. Their modus operandi is violence against the ‘infidel’ non-believers. Whether it is a Danish cartoon lampooning Islam’s prophet Muhammad or any other expressive speech or conduct considered a “defamation” of Islam, there will always be a manufactured excuse by radical Muslims for their violence.

Where do we draw the line? Justice Breyer advocates using international norms and foreign law to interpret the United States Constitution. What does that really mean? After all, the United Nations General Assembly and Human Rights Council have passed numerous resolutions declaring that any free expression that “defames” religions – specifically Islam – is a violation of international law. In many countries – including in Europe – speech considered insulting to a religious group could be deemed hate speech in violation of their laws.

Is that where Justice Breyer – President Obama’s role model for the ideal Supreme Court justice – wants to take our First Amendment? Apparently so.

Joseph A. Klein is the author of a new book entitled Lethal Engagement: Barack Hussein Obama, the United Nations and Radical Islam.

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