Supreme Court Justice Stephen Breyer proved this once again yesterday when he caved in to terrorist threats — or rather, the potentiality of terrorist threats — and in the process demonstrated how rickety the main support beam of our Constitution is, at least while people like Breyer are sitting on the bench.
In an interview with George Stephanopoulos, Breyer implied that the First Amendment may not protect speech that inflames the passions of violent people halfway across the globe:
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.
Here’s their exchange (taken from the video on the page linked above), after Stephanopolous introduces the Koran-burning case and how it relates to free speech:
Stephanopolous: The conversation is now global.
Breyer: Indeed. And you can say with the Internet, you can say this: 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 ‘being trampled to death’?
Breyer is implying here that in the Internet age, the entire digitally connected world is one vast crowded theater, and whoever says anything to cause a mass panic, or a violent reaction anywhere on Earth could be violating the “don’t yell ‘FIRE!’ in a crowded theater” exception to the Constitutional principle of free speech.
There are so many things wrong with this line of thinking that I hardly know where to begin. Off the top of my head:
Should the Behaviors or Opinions of Non-Citizens Have Any Bearing on the US?
The behavior, or possible future behavior, of people outside the United States should have no bearing whatsoever on our laws or on the interpretation of our Constitution. Down this road lies the complete extirpation of our national sovereignty. Should we jettison the Second Amendment because other countries ban guns and disapprove of our gun-happy society? Should we abandon even having national borders because so many foreigners want to violate our immigration laws? And, most pointedly, should we allow the threats of irrational mobs in the mountains of Pakistan to influence one iota the legal structure of our nation?
Justice Breyer thinks so, apparently.
Jihad is Not a Natural Phenomenon
The “crowded theater” example refers specifically to a situation whereby false or misleading speech can lead to accidental or unintentional death or injury due to the undirected behavior of a panicked crowd. Under this principle, to cite a well-known example, Orson Welles could have theoretically been charged with disturbing the peace for his infamous 1938 War of the Worlds broadcast which convinced many terrified Americans that we had been invaded by Martians (had in fact anyone been injured in the ensuing panic — luckily, no one was, and Welles was never charged). But that is an entirely different animal from speech which may incite some malefactor to take offense and potentially cause harm. For example, would it be illegal to stand up in Yankee Stadium and yell “Go Red Sox!” if by so doing you incited Yankees fans to start punching Bostonians? Wouldn’t the assailants be the ones to blame, not the Red Sox fan? Would it be illegal to praise Martin Luther King Jr. at a KKK rally, because you may incite the Klan members to attack innocent black bystanders? Wouldn’t it be a bit more logical to arrest the KKK members who committed the violence rather than the person whose statement pissed them off?
You Can’t Yell Fire in a Crowded Internet
If we take Breyer’s argument to its conclusion, then any word spoken, or any action taken, anywhere in America, could be considered to have taken place on the global stage for a global audience, because, by golly, someone could record it on their iPhone, upload it to YouTube, it could go viral, and within 10 minutes a million enraged Muslims are calling for a global jihad — all because you wrote the letters “K-O-R-A-N” on a scrap of paper and tossed it into your backyard barbecue pit, as your tipsy drinking buddy filmed it. This would mean the end of the presumption of privacy, as the existence of a globally interconnected world transforms anything you do or say anywhere, in any setting, into a potential “public” act. Breyer is suggesting that not only are you forbidden from yelling “FIRE!” in a crowded theater, you can’t yell “FIRE!” anywhere, because word might reach the theater that someone somewhere yelled “FIRE!”
Where exactly do you draw the line, if Breyer’s principle is applied? As Ed Morrisey insightfully pointed out at Hot Air, “Breyer’s argument would put government in charge of judging the qualitative value of all speech.” And that’s the first step (and the second and third step as well) toward totalitarianism.
The Rule of Law Bullying
If Breyer’s argument obtains, and the Supreme Court in fact one day rules that speech is not protected if it might incite someone to violence, then the message will be sent: If you act crazy enough, you get your way.
According to Breyer’s reasoning, it’s legal to burn Bibles and American flags solely because Christians and patriots don’t go on a violent rampage afterwards. But it may be illegal to burn a Koran because Muslims might start a war or something. Conclusion? It’s useful and wise to go completely berserk when your sensibilities are offended, because by so doing you’ll make violence appear to be the inevitable outcome if your particular sacred symbol is violated, and if violence is inevitable, according to the Breyer principle the offending act can be banned.
Not a Left/Right Issue: An American Issue
This is an issue on which the Left and the Right should wholeheartedly agree. The Left spent decades fighting for the right to burn flags and Bibles and create offensive artwork unimpeded. And it would be a grave error to suddenly flip positions if that principle the Left championed for so long were to be used by their political opponents as well. The sword cuts both ways. If the Left concurs that Koran-burning should be banned, then that opens the door to Bible-burning being banned as well. Do you really want to retrace your steps back down that road?
Was Breyer Only Musing?
If you lsten to the full Stephanopoulos interview, Breyer never officially rendered his opinion on the Koran-burning case. After musing about which points he would consider in any free speech ruling, he states,
“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.”
So, he’s affirming the deliberative nature of the Supreme Court. Which is good. But he’s also implying, through his speculations, which principles he will take into account when developing his opinion on this legal point, and he seems to be stating in no uncertain terms that the “crowded theater” argument should apply to a global context, which is a very dangerous line of reasoning.
Impeachment? R U Serious?
People forget that it’s not just the president who can be impeached — Supreme Court Justices can be impeached as well, as can any number of federal officials:
At the federal level, Article Two of the United States Constitution (Section 4) states that “The President, Vice President, and all other civil Officers of the United States shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.
Of course, Justice Breyer’s ill-considered interview hardly counts as “treason” nor as “High Crimes and Misdemeanors.” But the bar for “High Crimes and Misdemeanors” has actually been set pretty low. Bill Clinton, as you all might remember, was impeached for simply lying about his affair with Monica Lewinsky, because he did so under oath, which meant that he committed the crime of perjury. At the time, many argued that this hardly rose to the level of a “high crime,” but a majority of Congressmembers disagreed and impeached him anyway.
Yet Breyer’s interview was not under oath, so it doesn’t even rise to Clinton’s level. Even so, there is precedent. The very first federal official ever impeached was John Pickering (also a judge), who was impeached and removed from office for the vague “crime” of being a drunkard.
Considering the Clinton and Pickering cases, it seems that Congress has considerable leeway to determine that “High Crimes and Misdemeanors” means pretty much whatever it wants it to mean. And if it is determined that Breyer is unfit to hold office because his mind has been so clouded by threats and irrational arguments that he no longer understands the Constitution, then perhaps it’s time to give him an involuntary early retirement.