I'm Speechless
In a recent interview, Justice Stephen Breyer seemed to believe that burning a Koran may not be an activity protected by the First Amendment. His reasoning seemed to be in a new world, with a global conversation going on, certain expression is so incendiary, and so likely to bring about violence, that the government may be allowed to do something about it. (He even brings out the old "shouting fire in a crowded theatre" chestnut, which can be utilized by any censor in any situation.)
I realize Constitutional law is complex, but this case isn't. We're not talking about giving out state secrets regarding troop movements, we're talking about expression being banned because some find it offensive, and are willing to strike out. This is pure heckler's veto. The more hateful and irrational the offended are, the more the government will cater to them.
I hope Breyer simple misspoke. But I guess being a Supreme Court Justice means never having to say you're sorry.
posted by LAGuy @ 12:14 AM
4 Comments:
It seems as if there are two slipperly slopes at the same time -- like two big waterslides zig-zagging back and forth in some intertwined manner.
On one slide, you have Breyer's implicit (but quite clear) assertion that the test of whether speech can be banned on the grounds of the "fire in a theater" exception is the amount of actual harm that one can reasonably expect. It seems safe to say that the predictions in this case -- the predictions that Terry Jones' burning of the Koran would lead to riots and injuries and perhaps even deaths -- were in fact extremely reasonable predictions. We can easily add several other things to this category (certain kinds of anti-Muslim cartoons, etc.).
But then the other waterslide is equal protection. Even though nobody thinks that burning the Buddhist holy books will lead to riots, if Koran-burning is banned, then this should be as well.
Meanwhile, various provacateurs will be pushing further down the first slope. All they have to do is threaten violence in reaction to a certain upcoming speech act (e.g., an unpopular speaker on a college campus) and they can shut it down. Remember, the USA is one of the very few nations that protects all these forms of speech. Canada and most European nations ban hate speech, racist speech, and the like.
And then each new ban must be matched by mirror bans according to the equal protection clause!
Another thing that annoys me: If Breyer were right (and he's not), then I think it would be better to ban media coverage of Jones' act rather than banning the act itself.
After all, the act itself serves a certain purpose in Jones' mind and those of his miniscule congregation. But the act of giving Jones 24/7 television coverage serves no useful purpose at all.
And even better than banning the media coverage, the government should ban army generals from telling the world about crazy pastors. After all, those generals have an obligation to the troops that the pastor does not.
Of course, I don't support any of these bans. But it's no accident that those like Breyer who want to ban things will begin by applying physical restraints to Jones rather than censorship to the media or a general. Because when the government takes rights away, it always begins by taking rights away from the powerless.
This is an argument that certain people should choose not to exercise free speech rights- no I don't mean Terry Jones- reasonable people can take him for what he's worth and unreasonable are well... unreasonable. I mean Justices ought not to pontificate and think out loud about their views on constitutional issues in a public forum- I mean if he was asked to opine on this issue during his confirmation hearing he would have deferred giving the tried and true excuse of not wanting to prejudge- of course not that he has lifetime tenure, maybe thats not so much an issue
NE Guy wrote: This is an argument that certain people should choose not to exercise free speech rights....
I firmly believe this myself. It is rude and immoral to show up at a funeral and yell obscenities at the family of the deceased. If someone asks me for driving directions and I deliberately point them to a road that goes off a cliff, that is horribly immoral. As a Christian, I think that a public Koran-burning event is both immoral and harmful. And as Ann Landers once said, the correct way to punctuate a sentence that begins “It’s none of my business, but” is with a period after the “but”.
But I don't want to see the federal government enforcing these rules, or any other rules of civil politeness and etiquette.
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