[1]ALEXANDRIA, La. (BP)–The First Amendment right to free speech articulated in the U.S. Constitution is not sacrosanct. The Supreme Court has ruled that there are legitimate limits when it comes to an individual’s right to self-expression — but not too many.
However, one Supreme Court jurist has suggested another very specific limit might be warranted.
Justice Stephen Breyer recently indicated that the global socio-political climate could influence the interpretation of the First Amendment so as to render the public burning of a Quran unconstitutional.
Breyer appeared on ABC’s “Good Morning America” on Sept. 14 to promote his new book “Making Our Democracy Work.” During the interview the justice was asked by anchor George Stephanopoulos “how the process of globalization was changing our understanding of the law.”
Stephanopoulos elaborated on his question and asked, “When you think about the Internet and when you think about the possibility that, you know, a pastor in Florida with a flock of 30 can threaten to burn the Quran, and that leads to riots and killings in Afghanistan, does that pose a challenge to the First Amendment — how you interpret it?”
Breyer responded, “Well in a sense yes; in a sense no. People can express their ideas in debate, no matter how awful those views are — in debate, a conversation, people exchanging ideas.” The justice continued, “Core values remain, how they apply can change.”
[2]In explaining his view of how the public burning of a Quran might be interpreted in the future, Breyer referenced Justice Oliver Wendell Holmes Jr.’s rational in the 1919 Supreme Court Case Schenck v. United States.
Breyer noted that Holmes argued that shouting “fire” in a crowded theater was not protected speech because people could panic and be trampled while trying to escape the building. “And what is the crowded theater today?” Breyer asked. “What is being trampled to death?”
Holmes did write the unanimous opinion in Schenck that ruled it was illegal to distribute flyers opposing the draft during World War I. Holmes argued this abridgment of free speech was permissible because it presented a “clear and present danger” to the government’s recruiting efforts for the war.
Specifically, Holmes wrote: “The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic…. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.”
Holmes wrote that “falsely” shouting fire in a crowded theater is not protected speech. If there was a fire, one would be justified, even obligated, to shout “fire.” However, shouting “fire” when you know there is none, in order to cause panic, is not protected by the First Amendment, the Supreme Court ruled.
Given the context of the conversation with Stephanopoulos, Breyer seemed to be suggesting that the crowded theater of the future, and perhaps even today, is the Muslim world. As such, if adherents of Islam are offended by an American exercising his or her free speech rights, which could result in people dying, then the First Amendment must be reinterpreted.
It is outrageous for Breyer to suggest the curtailing of any American’s freedom of speech because of what could offend people in another country. The First Amendment was established to protect speech that Americans, in the United States, might deem offensive.
In a 1989 case, Texas v. Johnson, the Supreme Court struck down a Texas law that prohibited desecration of the American flag in a way “the actor knows will seriously offend” some people. Gregory Lee Johnson burned a U.S. flag outside the Republican National Convention in Dallas, Texas. Johnson was taking part in a political protest. In ruling on Texas v. Johnson the court said, “Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”
While I personally find burning a U.S. flag or a Bible in protest offensive, I accept both as part of comprehensive freedom of speech. The price we each must pay to enjoy our own freedom of speech is to endure being offended by someone else’s.
If, as Breyer suggests, the future of free speech in America could hinge on what people in other countries deem offensive — specifically about the Quran — and how they might react, just imagine the implications. Free speech would eventually evaporate.
“The populist authoritarianism, that is the downside of political correctness, means that anyone, sometimes it seems like everyone, can proclaim their grief and have it acknowledged,” observed Jonathon Green. “The victim culture … ensures that anyone who feels offended can call for moderation, for dilution, and in the end, as is all too often the case, for censorship.”
The British lexicographer continued, “And censorship, that by-product of fear, stemming as it does not from some positive agenda, but the desire to escape our own terrors and superstitions by imposing them on others — must surely be resisted.”
While the Supreme Court has established there are limits to freedom of speech in the United States, they are few and reasonable. And they need to stay that way.
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Kelly Boggs is a weekly columnist for Baptist Press and editor of the Baptist Message (www.baptistmessage.com), newsjournal of the Louisiana Baptist Convention.