The mind of a liberal judge.

[Jacob]

Last week we saw a Florida Pastor – with 30 members in his church – threaten to burn Korans which lead to riots and killings in Afghanistan. We also saw Democrats and Republicans alike assume that Pastor Jones had a Constitutional right to burn those Korans. But Supreme Court Justice Stephen Breyer told me on “GMA” that he’s not prepared to conclude that — in the internet age — the First Amendment condones Koran burning.

“Holmes said it doesn’t mean you can shout ‘fire’ in a crowded theater,” Breyer told me. “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?”

First of all, what the hell does the internet age have to do with whether private citizens can burn a Koran?

More from this "thinker"

Here's the link: http://blogs.abcnews.com/george/2010...heater.html#tp

Last week President Obama told me that Pastor Jones could be cited for public burning – but that was “the extent of the laws that we have available to us.” Rep. John Boehner said on "GMA" that “just because you have a right to do something in America does not mean it is the right thing to do.”

For Breyer, that right is not a foregone conclusion.

“It will be answered over time in a series of cases which force people to think carefully. That’s the virtue of cases,” Breyer told me. “And not just cases. Cases produce briefs, briefs produce thought. Arguments are made. The judges sit back and think. And most importantly, when they decide, they have to write an opinion, and that opinion has to be based on reason. It isn’t a fake.”

Got that? It isn't a fake! That Breyer really can't state right now, what every other American knows to be the case--that the first amendment protects the burning of a Koran by a private citizen--but he instead has to wait years for court cases to be concluded and briefs to be filed to come up with an opinion on the matter is, to me, a sure sign that his version of constitutional interpretation is a complete fake.

[falafel]

First of all, what the hell does the internet age have to do with whether private citizens can burn a Koran?

More from this "thinker"

Here's the link: http://blogs.abcnews.com/george/2010...heater.html#tp



Got that? It isn't a fake! That Breyer really can't state right now, what every other American knows to be the case--that the first amendment protects the burning of a Koran by a private citizen--but he instead has to wait years for court cases to be concluded and briefs to be filed to come up with an opinion on the matter is, to me, a sure sign that his version of constitutional interpretation is a complete fake.

You can't see, based on this stupid Koran example alone, how things have changed since Holmes' crowded theater example was introduced? If you know (and based on this latest event, we're pretty close to knowing) that by burning the Koran in a highly publicized setting, innocent people, including Americans, will be killed as a direct result of it, how can you be so sure the first amendment protects that kind of speech?

Burning the Koran in your backyard is one thing, but planning a mass burning on the anniversary of the worst terror attack in our country's history, and then announcing that event to the world days or weeks in advance is quite another. This statement was intended to send a very strong and clear message, one that would certainly provoke its intended recipient. It shouldn't be a surprise to us that the recipient would be provoked to violence against American citizens, based on our past interactions with them. Burning the Koran like this Pastor wanted to do could even have national security implications, for Pete's sake! And you're so sure it should be protected speech?

[venkman]

You can burn the flag and the Bible because Americans and Christians can pretty much take it (i.e., they don't start lopping off heads). But you can't burn a Koran because the Religion of Peace will fly into a tizzy. Got it. Thanks, judge!

[Jacob]

You can't see, based on this stupid Koran example alone, how things have changed since Holmes' crowded theater example was introduced? If you know (and based on this latest event, we're pretty close to knowing) that by burning the Koran in a highly publicized setting, innocent people, including Americans, will be killed as a direct result of it, how can you be so sure the first amendment protects that kind of speech?

Burning the Koran in your backyard is one thing, but planning a mass burning on the anniversary of the worst terror attack in our country's history, and then announcing that event to the world days or weeks in advance is quite another. This statement was intended to send a very strong and clear message, one that would certainly provoke its intended recipient. It shouldn't be a surprise to us that the recipient would be provoked to violence against American citizens, based on our past interactions with them. Burning the Koran like this Pastor wanted to do could even have national security implications, for Pete's sake! And you're so sure it should be protected speech?

OK, so that's 2 people...you and justice Breyer who think burning a Koran might be unconstitutional even though burning a flag and desecrating a bible in any way you want is not. Any other takers?

I guess we also should revisit whether we can ban the building of Mosques if it might cause a riot.

Also, your statement that "innocent people, including Americans, will be killed as a direct result of it" is quite clearly not true, unless I missed the news about how the pastor intended to throw people into the fire with the Korans.

[falafel]

OK, so that's 2 people...you and justice Breyer who think burning a Koran might be unconstitutional even though burning a flag and desecrating a bible in any way you want is not. Any other takers?

I guess we also should revisit whether we can ban the building of Mosques if it might cause a riot.

Also, your statement that "innocent people, including Americans, will be killed as a direct result of it" is quite clearly not true, unless I missed the news about how the pastor intended to throw people into the fire with the Korans.

You must have also missed the news about how Afghanis were threatening to kill any American they see if the burning happened. But by all means, burn your Korans, peace lover!

[Jacob]

You must have also missed the news about how Afghanis were threatening to kill any American they see if the burning happened. But by all means, burn your Korans, peace lover!

No, I didn't miss that. But I can't see what the actions of people in Afghanistan might have to do with the question of whether burning a Koran is protected speech under the 1st amendment.

[falafel]

No, I didn't miss that. But I can't see what the actions of people in Afghanistan might have to do with the question of whether burning a Koran is protected speech under the 1st amendment.

Yes, that's obvious.

[All-American]

No, I didn't miss that. But I can't see what the actions of people in Afghanistan might have to do with the question of whether burning a Koran is protected speech under the 1st amendment.

Let's start at the beginning. Why won't the first amendment allow you to shout "Fire" in a crowded theater?

[Moliere]

You must have also missed the news about how Afghanis were threatening to kill any American they see if the burning happened. But by all means, burn your Korans, peace lover!

I'm not one to give up my liberties due to threats.

[falafel]

I'm not one to give up my liberties due to threats.

That's okay, and a good point. Once the threat is realized, however, things change. And more to the point, once a threat gets close enough to a certainty, even though it has not been realized, things change. In other words, at some point your liberties cannot outweigh a significant threat to someone's life. But really, would you even want it to?

[Moliere]

That's okay, and a good point. Once the threat is realized, however, things change.

Here's an idea. When threats are made, let's respond to the threats with security. If threats are realized, then let's catch and prosecute/penalize them.

FWIW, it's out troops that are the ones standing on the soil of Afghanistan. I wonder what they would say about this issue and I'm inclined to think that they would be for allowing the burning as those are the same liberties that they are trying to defend for us and bring to the Afghans.

[falafel]

Here's an idea. When threats are made, let's respond to the threats with security. If threats are realized, then let's catch and prosecute/penalize them.

FWIW, it's out troops that are the ones standing on the soil of Afghanistan. I wonder what they would say about this issue and I'm inclined to think that they would be for allowing the burning as those are the same liberties that they are trying to defend for us and bring to the Afghans.

Of course, that's part of the process. Breyer isn't advocating immediately preventing the burning of the Koran as unconstitional. He's merely saying that he could see how, under certain circumstances highlighted by recent events, such a burning could be viewed as unprotected speech. He's not advocating making that determination lightly - he wants to do it with years of briefing and argument based on real events. Right now, to use S.Ct. terminology, the case is not ripe. And it likely won't be ripe until someone burns the Koran, an innocent American (read: humanitarian aid worker, not U.S. military personnel) gets killed abroad in a direct response to the burning. Some state or perhaps even the federal government will pass a law banning Koran burning based on this, and then the ACLU will sue, and BAM we've got a case.

Until all of that happens, your suggested course of action is what will and should happen.

[Moliere]

Of course, that's part of the process. Breyer isn't advocating immediately preventing the burning of the Koran as unconstitional. He's merely saying that he could see how, under certain circumstances highlighted by recent events, such a burning could be viewed as unprotected speech. He's not advocating making that determination lightly - he wants to do it with years of briefing and argument based on real events. Right now, to use S.Ct. terminology, the case is not ripe. And it likely won't be ripe until someone burns the Koran, an innocent American (read: humanitarian aid worker, not U.S. military personnel) gets killed abroad in a direct response to the burning. Some state or perhaps even the federal government will pass a law banning Koran burning based on this, and then the ACLU will sue, and BAM we've got a case.

Until all of that happens, your suggested course of action is what will and should happen.

Boy, I'm pretty good at this lawyerin' stuff!

[Jacob]

Let's start at the beginning. Why won't the first amendment allow you to shout "Fire" in a crowded theater?

That's an entirely separate debate.

As an aside, the reasons that shouting "Fire!" in a theatre was not protected speech in the early 20th century don't apply today. If I were to shout Fire! in a crowded theatre, nobody would get trampled. We have fire exits, we're not using oil lamps, nobody would believe me, etc. There just isn't any real threat to public safety.

And if you can't see how a burning in protest is a type of speech more worthy of 1st amendment protection than the nuisance that shouting fire is, then I'd be happy to try to explain it.

Anyway, pretty much everybody agrees with me, I think. And just about any judge at any level would be able to throw this case out rather quickly. And that Justice Breyer doesn't think that's proper is an indictment of him. And a pretty serious one.

[All-American]

That's an entirely separate debate.

As an aside, the reasons that shouting "Fire!" in a theatre was not protected speech in the early 20th century don't apply today. If I were to shout Fire! in a crowded theatre, nobody would get trampled. We have fire exits, we're not using oil lamps, nobody would believe me, etc. There just isn't any real threat to public safety.

And if you can't see how a burning in protest is a type of speech more worthy of 1st amendment protection than the nuisance that shouting fire is, then I'd be happy to try to explain it.

Anyway, pretty much everybody agrees with me, I think. And just about any judge at any level would be able to throw this case out rather quickly. And that Justice Breyer doesn't think that's proper is an indictment of him. And a pretty serious one.

"Pretty much everybody agrees with me" only works as an argument if you're SU and nobody takes you seriously anyway.

But it is not an entirely separate debate. The basic principle which dictates that the first amendment does not protect certain kinds of speech that needlessly endangers innocent lives applies beyond early twentieth-century theaters.

You are too quick to dismiss the merits of the opposing argument. As I understand what Breyer is saying, he is not arguing that one side or the other is right, but acknowledges that there is merit to the other argument, whether it ultimately ought to prevail or not.

(For my part, I think burning the Qur'an is despicable, but protected, since it should not provoke otherwise reasonably-acting individuals to commit acts that would result in injury to other parties.)