In an interview aired Tuesday on ABC’s “Good Morning America,” Justice Breyer, who is on tour promoting his new book, averred that in the Internet age, speech traditionally protected by the First Amendment may have to be weighed against its global impact. George Stephanopoulos asked the justice about the canceled Sept. 11 Koran burning proposed by Pastor Terry Jones, and whether the fact that people riot in Afghanistan over what happens in the United States poses a challenge to the First Amendment or could “change the nature of what we can allow and protect.”
Justice Breyer’s largely rhetorical answer invoked the late Justice Oliver Wendell Holmes. “Holmes said [free speech] doesn’t mean you can shout ‘fire’ in a crowded theater,” Justice Breyer said. “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?” The implication, which Mr. Stephanopoulos reinforced, was that today the crowded theater is the entire world, and any speech that foments violence by anyone for any reason could fall outside First Amendment protections.
The analogy is extremely poor. Shouting fire in a crowded theater doesn’t incite an angry riot but a chaotic every-person-for-themselves scramble for safety. The potential danger is understood by everyone present, all of whom are threatened. The darkness of the theater, the confined and ungainly space and the likelihood of the quick spread of fire make quick action imperative. In only one context does shouting fire in a crowded theater make sense: when there actually is a fire.
Holmes‘ “clear and present danger” test doesn’t apply to Koran burning because there is no imminent danger. The world is not a small, dark, crowded room with few exits. Safely burning a Koran does not physically threaten anyone, not even those who think the book reflects the word of God. There is no need for immediate action. There is no potential for the same type of close-quarters chaos. The violence that may arise in response to it is calculated and directed, and such a riot is as much political theater as the Koran burning itself.
It’s troubling that a member of the Supreme Court would imply that anything that happens abroad in response to the exercise of free speech in this country should somehow inform the high court in assessing the boundaries of the First Amendment. This is symptomatic of creeping internationalism in the thinking of some justices. In this case, though, the suggestion is not simply to follow the lead of foreign courts, but to take into consideration the violent actions of foreign radicals when weighing American freedoms. Justice Breyer seems open to such a balancing test, in which acts should be banned if they offend a small minority of anti-American extremists who respond with irrational violence.
By this thinking, the best opposition response to any provocative speech is to protest violently. If a rent-a-mob riot in Afghanistan can cause a member of the Supreme Court to begin to question the value of First Amendment protections, the message to opponents of free speech is to ramp up the fighting. Make danger both clear and present.
Justice Breyer hedged that constitutional protection for Muslim books to pander to the sensitivities of radical Islamists abroad is not a foregone conclusion. “It will be answered over time in a series of cases which force people to think carefully,” he said. “The judges sit back and think.” Clearly on this question, Justice Breyer needs to follow his own counsel.