First Amendment Headed for the Breyer Patch?

[Geee]

American Thinker:

A few days ago, Pastors Terry Jones and Wayne Sapp were thrown in jail for refusing to pay a $1.00 bond ordered by a Michigan judge who upheld a jury verdict that they would "likely breach the peace" if they were allowed to carry out a planned protest at a mosque. The judge appeared unfazed by the fact that the ruling was both a violation of the Court's Brandenburg test (which prohibits political advocacy only "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action"), and that it amounted to a prior restraint to boot. The case will likely be overturned on appeal because the ruling is so patently unconstitutional. Nevertheless, the case is troubling for what it seems to portend about the future of free speech in America.

A week after Jones threatened to burn the Quran last September SCOTUS Justice Steven Breyer commented that "he's not prepared to conclude that -- in the internet age -- the First Amendment condones Koran burning." Alluding to Holmes's famous "fire" metaphor he added: "You can't shout fire in a crowded theater. Holmes said [the First Amendment] doesn't mean you can shout ‘fire' in a crowded theater." Of course, Holmes said no such thing. He added that all-important little adverb "falsely" before the verb "shout," which makes all the legal difference. Indeed, for its thunder, the metaphor even relies on the certainty of our knowledge that the shout is both false and deceitful in order to give it its bite. For what would be the point of punishing someone who was simply warning us of something we should want to know?

At the time I assumed that Breyer simply misspoke; that inadvertently omitting the criminalizing predicate was simply a slip of the tongue. Later I came across an article in these pages by John T. Bennett who seemed to suggest that Breyer may not have misspoken at all. By omitting the word "falsely," Bennett said, Breyer not only misquoted Holmes "but he did so in a way that indicates his willingness to weaken the First Amendment in favor of appeasing radical Islam." Of course, if Breyer had meant to drop the predicate, he also would have eliminated the criminality element. In the event, the mere burning of the Quran in a globally charged environment might well be sufficient to criminalize the expressive act.