Supreme Court Justice Stephen Breyer caused a brief firestorm this week after he appeared to suggest that under certain circumstances, burning a Quran would not be protected under the First Amendment because of the violent reaction it could cause.
Appearing on ABC’s “Good Morning America” Tuesday, Breyer would not clearly state that burning the Muslim holy book should be classified as protected speech. Instead, he said the answer would lie “over time in a series of cases” and compared it to someone shouting “fire” in a crowded theatre. The interview prompted host George Stephanopoulis to later write that Breyer “was not prepared to conclude that — in the internet age — the First Amendment condones Koran burning.”
Breyer was referring to an incident last week in which a Florida pastor threatened to publicly burn copies of the Quran on the anniversary of the 9/11 terror attacks.
In an interview on CNN’s “Larry King Live” the next day, however, Breyer clarified his opinion, saying that he does think the Constitution protects book burning. “We protect expression that we hate,” he said. “And protecting expression that we hate is not the only good thing in the world, but it is one good thing in the world.”
According to legal observers who read the transcript and watched his follow-up interview, Breyer’s assessment was probably just a miscommunication and not a hint that Americans were on the cusp of losing their rights.
“I hate to say it but I think it was just poor interviewing technique,” said San Diego-based First Amendment attorney Marc Rendazza. “I think we have a medium problem…less than we have a Justice Breyer problem.”
“He’s a thinker,” said Amy Howe, a Supreme Court attorney and editor of SCOTUSblog, a popular website that covers the Court. “The impression that I had and I think others have shared, is that he…was just thinking out loud.”
But while it is now clear that Breyer does not support a law that bans book burning, he is open to the idea a Court could assess a similar situation and interpret the Constitution differently in the future.
And he’s not alone in that opinion.
The idea that the Court could rule against the right to burn the Quran is not so far fetched, legal scholars and analysts said.
“It is certainly conceivable that a Court would say, ‘this is way too dangerous, we’ve got to do something about it,” said Eugene Volokh, a First Amendment law professor at the University of California at Los Angeles. “These are people. People change their opinions. Also, people are new on the Court so who knows? I wouldn’t rule anything out.”
In recent cases at least, the Court arguably has kept a strong record of upholding free speech. In a landmark decision in January, the Court ruled that political spending was a form of protected speech, a ruling President Obama publicly decried. In April, eight out of the nine justices overturned a law banning the production of videos that depicted the torture of animals, saying that it was “invalid under the First Amendment.”
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Still, Rendazza said he was skeptical the Court would uphold speech in all cases in the future, especially offensive speech.
“Could I see a majority of the justices on this Court saying that speech that offends too many people too much, is not protected? I wouldn’t bet my daughter’s life that they wouldn’t do it,” he said.