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.