While the First Amendment gives every American the right to free association, not every American should avail him- or herself of the right to free-associate in public. Nobody knows this better today than Justice Stephen Breyer, who committed the cardinal sin yesterday of musing aloud about the Constitution on national television.
Anyone who has ever seen Breyer in action at the high court will not be surprised to hear that he had lots of strange and confusing things to say when the subject of Pastor Terry Jones and Quran-burning arose. Breyer’s conversation with George Stephanopoulos of Good Morning America included a discussion about how and whether the Internet changes the nature of First Amendment analysis. “People can express their views in debate, no matter how awful those views are,” Breyer said. “In debate. A conversation.” Then Breyer—who is more accustomed to asking leading questions than answering them and who may or may not have been speaking about Terry Jones and the prospect of Quran burning—responded to a comment from Stephanopoulos about how “the conversation is now global”:
Indeed. And you can say—with the Internet, you can say this. … Holmes said it doesn’t mean you can shout “fire” in a crowded theater. 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? … It will be answered over time in a series of cases which force people to think carefully.
In other words, Breyer seems to have implied that Oliver Wendell Homes’ “clear and present danger” standard might in future cases permit the government to prohibit certain kinds of speech, if it might result in “people being trampled to death.” Stephanopoulos read his response to mean that such a future case might involve Quran-burning and foreign protesters. It’s also possible that by the time Breyer got to the end of his very long sentence, he had forgotten how it began. That happens quite a lot with him.
Now, let’s stipulate something upfront. If what Breyer meant to say was that burning the Quran is not protected by the First Amendment, then that’s flat-out bananas. As the Washington Post’s Chuck Lane was quick to point out, Holmes’ “clear and present danger” test comes from a defunct 1919 case, Schenck v. United States, which was a First Amendment challenge to the conviction of socialists during World War I for publishing pamphlets urging insubordination in the military. The test was long ago replaced by a test that permits inflammatory speech unless it is both “directed to inciting or producing imminent lawless action” and is also “likely to incite or produce such action.”
Moreover, as Eugene Volokh has explained, while we often quote Holmes for the proposition that shouting fire in a crowded theater is unprotected speech, what he in fact wrote in Schenck was that “the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.” Note the adverb. Presumably, if the theater really were on fire, one would encourage citizens to say so, and loudly, and that such a warning would be protected.
Lane was right to point out that it was a mistake for Breyer even to suggest that the First Amendment rules might be ripe for reassessment based on the whim of crazy people abroad:
It is striking that a Supreme Court justice would contemplate, however tentatively and hypothetically, reassessing American free speech because the audience for it has gone global and might include people who will react with violence. To be sure, public safety limits liberty; as Justice Robert H. Jackson memorably put it, the Bill of Rights is not ‘a suicide pact.’ But it doesn’t contain a rioter’s veto, either.
Of course, Breyer is fully aware of the court’s jurisprudence on the so-called heckler’s veto. It’s a longstanding First Amendment principle that a listener’s offense is not a legitimate basis for regulating speech. In 1949 in Terminiello v. City of Chicago, Justice Douglas wrote for a majority striking down a breach of the peace statute, pointing out that the “function of free speech under our system of government is to invite dispute.” In Forsyth County v. Nationalist Movement, the Supreme Court determined that “[s]peech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.” And in 1971 in Cohen v. California—the case every law student loves to read aloud—the court pointed out that the state cannot engage in censorship “to avoid physical censorship of one who has not sought to provoke such a response by a hypothetical coterie of the violent and lawless.” Finally, in protecting flag-burning under the First Amendment in Texas v. Johnson, the court rejected the idea that “an audience that takes serious offense at particular expression is necessarily likely to disturb the peace and that the expression may be prohibited on this basis.”
It’s not at all clear that Breyer was flushing all this doctrine down the constitutional toilet yesterday. In the interview, he seems to be responding to a general question about speech and incitement and the Internet rather than to the specific facts of the Terry Jones case, which, as he noted, is not before him. Lane is quite right: The better answer to Stephanopoulos would have been that, heck yes, Quran-burning is constitutional, just as flag-burning is constitutional, and the fact that angry people are inclined to react by running around setting fires of their own is irrelevant. The fact that Breyer reframed his answer to the Quran-burning question between his morning appearance on ABC and his afternoon appearance on Fresh Air yesterday suggests he himself may have had second thoughts. By the time he was answering Terry Gross on Quran burning, he was framing it as a balancing of two constitutional ideals: Holmes’ fire-in-a-crowded-theater test (again!?) vs. the ideal that “where an American flag is being burned in protest, that the Constitution protects that because it is a purely symbolic action which is being done, despite how much people hate it, to express a point of view.” That sounds about right for Breyer, who has never met a balancing test he couldn’t love.
Whatever else Breyer said or meant to say yesterday, it just isn’t fair to rant that it represents the liberal influence of “creeping internationalism,” as the Washington Times suggests, or part of a sinister liberal plot to carve out a special heckler’s veto exception to “punish those who demonstrate against the Koran and … only the Koran.” On Fox News Sunday, Bill Kristol explicitly made the same point about rethinking the First Amendment, and America yawned, scratched itself, and rolled over. In discussing book-burning, Kristol announced: “I’m not even so sure we have to tolerate it—I’m not sure that the interpretation of the First Amendment as being so absolute or correct.” And then he urged that we “just go back to an older understanding of the First Amendment.” Yet nobody is accusing him of being a nefarious globalist rights-grabber.
Let’s also pause briefly to observe that some of the same people who are horrified by Breyer’s comments were perfectly prepared to amend the Constitution to ban flag-burning only a few short years ago. So it’s hard to argue that Breyer’s comments amount to some kind of dastardly liberal anti-free-speech conspiracy. If they signify anything, Breyer’s strange musings about Quran burning illustrate the danger of allowing Supreme Court justices to go on live television for their book tours.