Sometimes words escape me

Cite this Article
Todd Henderson, Sometimes words escape me, Truth on the Market (September 14, 2010),

In a reply to a comment on my post about the proposed burning of the Koran, I condescendingly lectured someone about their claim that the First Amendment might not protect Koran burning because it was akin to shouting “fire” in a crowded theater. Turns out, the commentator has company on the Supreme Court. In an excerpt from an interview, George Stephanopolous quotes Justice Breyer as calling into question the protection of Koran burning under the First Amendment. See here. Of course, one big difference between screaming “fire” and burning a Koran, is that in the former case, even sane and rational people might panic and cause injuries or death, but in the latter case, only crazy people will kill people if someone burns a book. Are we really going to change our society because someone somewhere might go totally mental because of our penchant for burning Korans, watching scantily clad women on Baywatch, eating BLTs, and getting loaded on moonshine? It can’t be sensible public policy to let the least common denominator crazy in the world determine the scope of our rights. So in Breyer’s world, pole dancing, virtual child pornography, and flag burning are clearly protected speech, while Koran burning is on the bubble. If only American patriots strapped bombs to themselves, screamed “Semper Fi,” and blew themselves up in head shops in San Francisco whenever a flag was torched at a Code Pink rally, we would then have protection for Old Glory. I’m joking, and in fact I am thinking about taking down the flag flying in front of my house and burning it, along with a Koran, the Lord of the Rings series, a complete DVD set of the Sopranos, and a bunch of other stuff that some nuts might find “sacred.” If the Nazi’s can march in Skokie, if the New York Times can publish the Pentagon Papers, and I can call Jesus Christ a dumb carpenter with delusions of grandeur, then Koran burning must be protected. If not, we are really letting the terrorists win.

UPDATE: My colleague points out that the Stephanopolous reporting misconstrues Justice Breyer’s words. I watched the embedded video and I agree that the comments the justice made were more generally about the challenges of First Amendment law in the modern world of the Internet. I don’t see how the game changes that much with better communication technology, but that is a matter of some debate. It was unfortunate that the justice juxtaposed his remarks with a question about the Koran-burning pastor. It leaves an unfortunate ambiguity in the remarks. I don’t know what Justice Breyer really thinks about Koran burning, but given his penchant for balancing everything, I wouldn’t be surprised if he thought this too was a matter for balancing of interests.