Tuesday, September 14, 2010

Burning the American Flag and the Koran


The above article by Charles Lane is entitled "The Koran and Justice Breyer." It keys off of an interview George Stephanopolous had with Justice Breyer. Stephanopolous wonders if Terry Jones' threat to burn Korans might result in laws censoring that sort of action. Justice Breyer doesn't answer the question directly, perhaps because he anticipates a case being brought before him, but he does muse: "When you think about the Internet, and when you think about the fact that a pastor in Florida, with a flock of 30, can threaten to burn the Koran and that leads to riots and killings in Afghanistan, does that pose a challenge to the First Amendment and how you interpret it? Does it change the nature of what we can allow and protect?"

And further down, "And you can say -- with the Internet, you can say this. You can't shout fire in a crowded theater. 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."

Charles Lane goes on to describe some court cases that trace a transition from censorship to the level of freedom of speech that prevails today. It was in 1919 that Justice Oliver Wendel Holmes coined the "crowded theater" description. The level of censorship was defined: Speech would be free unless it constituted a "clear and present danger."

Holmes later modified his position. Speech would be free unless it intended and was likely to incite imminent lawless action.

In 1949 the court allowed a demagogue to make racist speech in a theater crowded with people who agreed with him even though there was a mob outside that didn't.

And in 1989 the court upheld a constitutional right to burn the American flag.

Charles Lane believes Terry Jones was behaving in accordance with this tradition when he decided to burn some Korans if the Ground Zero Mosque wasn't moved. Lane clearly thinks that if the Terry Jones case were to be brought before the Supreme Court, Justice Breyer would support Jones' constitutional right to burn Korans. I didn't quite get that out of Breyer's words, but perhaps Lane is right.

As I read Lane's article I wondered about those who brought the right to burn the American Flag before the Supreme Court. The decision giving them that right was handed down in 1989 so many associated with that case are probably still alive. I wonder what they think about a Jones' case if one should be brought . . . of course things are different now. The Leftists back in 1989 wanted the right to burn the American flag. Now they (if they are running true to form) want to shut Terry Jones up. They are on the other side. They want to censor Terry Jones. They want to take his right away from him even though 20 years earlier they wanted that right for themselves. They wanted it so badly that they went to court to get it, and they aren't the only ones burning American flags.



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