by Burning Qur’ans, as Terry Jones threatened to do last week, is wrong. It is disrespectful and needlessly provocative, an act that threatens the fabric of a pluralistic society. I take this to be axiomatic, as do most Americans. And yet, had Jones carried out his plan, his actions would have been protected by the First Amendment. I would have thought that axiomatic, too, as would most Americans. With the exception of one or two commentators – like Patrick Buchanan, who apparently thought President Obama should have sent in the federal marshals to arrest Jones – most Americans assumed Jones had a constitutional right to burn Qur’ans, even if they denigrated his decision to do so.
Justice Stephen Breyer is not so sure. In an interview with George Stephanopoulos, he mused that the Constitution may not protect Qur’an burning. After all, he reminded Stephanopoulos, the First Amendment does not allow someone to shout “fire” in a crowded theater and cause a panic in which people are trampled to death. In the internet age, we may need to update the metaphor. “What is the crowded theater today?” he asked. “What is the being trampled to death?” Justice Breyer said that these questions would be answered over time in case-by-case way, by judges who have the luxury to “sit back and think.”
One probably shouldn’t make too much of these offhand comments, but Justice Breyer seems to be proposing an inversion of traditional American free-speech doctrine. It’s true that the First Amendment doesn’t protect so-called “fighting words,” but this exception is very narrow. Under cases like Brandenburg v. Ohio, unless speakers are inciting actual, imminent violence, they have the right to express their views, however noxious those views are. In the internet age, it’s true, listeners may be thousands of miles away, on different continents; they may not even learn about the offensive speech until days or weeks later, after the news goes viral. But if we extend the concept of incitement to cover an audience so remote, what’s left of the traditional presumption in favor of allowing expression? Does “crowded theater” mean the whole world, indefinitely?
I was puzzling over Justice Douglas’ phrase in Brandenburg, “speech brigaded with action,” which I have never quite understood, and I think there’s a link here. If we accept the instinctual nature of human beings as creatures, then our survival response will be more likely triggered by someone who speaks AND acts than by someone who speaks, just like we flinch when we see a car coming toward us.
In the “crowded theater” scenario, it is probably unlikely that the speaker will be sitting in his seat calmly saying, “there’s a fire.” If he does, the hypothetical will not occur, because nobody will be frightened. Once he stands up, raises his voice, and makes the motion to flee, however, our instinctive “flight” responses kick in, and panic ensues.
For that reason, I think you’re right that Justice Breyer’s analogy is ultimately inapt though not because he doesn’t have a point. A pious Muslim is likely to have an instinctive response (whether to protect or anger) to seeing the action of Qur’an burning live.
If we can establish that such an instinctive response is likely to occur when someone uses words and actions–a response that goes beyond insult, distaste, etc. and begins to verge on alarm or the instinct to protect–why couldn’t we say the metaphor applies?
By the same token, wouldn’t the medium of TV which is conveying the sight probably will dull that instinct? (For example, couldn’t we imagine that someone who watched the Twin Towers go down would have a more legitimate response of anger/revenge/alarm than someone who watched it on TV?)
And, similar, a protest IN ADVANCE of the action is unlikely to be stirred by an instinct to protect or an instinct that one has been insulted. It is more likely to be stirred by someone else’s inciting speech (which identifies who should really be held responsible) or it is an inappropriate reasoned out response to the planned event which has not occurred in the presence of the hearer. That’s why I don’t think Breyer can apply it to this particular situation.
Another fascinating insight. One of the great things about working for a law school is learning how very different some of our understandings of commonly thought settled matters is. Even the subtlest adjustment has such strange ramifications as it ripples out across the philosophical topography of law.
Of course, Justice Stephens gets to have a say that I could never have, but that doesn’t stop me from thinking he’s loopy. I remember someone saying in defense of the Patriot Act that the Bill of Rights was not a death pact.
I wonder if it isn’t then what exactly is it? Both for those who wrote it and for us today?
The challenge that you deal with physically in the work out center and the challenge that you deal with in your life can only develop a good character
And burning the flag? If enough hyper-patriotic Americans respond with violence, would a statute prohibiting the burning of the flag be upheld?