This presents a number of problems for me as a moderate. First, is it only the Koran that should be so protected by truncating the first amendment’s protection of free speech? Is it only because the psyche of some number of Muslim fundamentalists represents some imminent danger, or would the holy scriptures of Christianity, Judaism, LDS, Hinduism, or the Buddhist texts, et al be equally protected? If not, does that mean that only those who are so religiously fanatic as to be driven to knowingly cause mayhem are due this special book protection?
If so, what about those of us who will fly into a violent murderous frenzy should anyone dare burn a copy of “god is NOT Great,” “Origin of Species,” or “The God Virus?” Will those books be protected, and their burning not be allowed as free speech? Or because they were written by men of reason are they exempt from such protection? Or is it because atheists have no history of mass hysteria over stupid or unreasoned acts that our favored books need not be protected?
How does that work in a nation of equal protection under the law? How does anyone not see that as providing special treatment to a class of people just because their mentality is such that they can justify violence in response to an act of non-violent expression?
Shouting fire in a crowded theater is not protected by the 1st amendment because the implication of danger is equal to all the unwilling participants in that theater regardless of their age, gender, race, nationality, religious belief or no belief. Additionally, and most importantly, the danger is not caused by a mental construct willingly embraced by voluntary adherents capable of controlling their reactions. The danger is a result of a tangible and objectively observable reality of the fear of uncontrolled fire and the human drive for self preservation. It’s instinctual.
I’ve agreed with Justice Breyer’s decisions about as often as not. But his liberal interpretation of the 1st amendment vis-a-vis free speech is more than a slippery slope. It’s like roller skating blindly on the edge of a very deep chasm. In his willingness to trade a little of our freedom for a little safety he denigrates the very meaning of the 1st amendment. It isn’t meant to protect speech that thinking people or non-thinking people approve of, it’s meant to protect speech that is abhorrent to thinking people and non-thinking people alike. I don’t want that protection undermined.
My politics tends toward liberalism on social issues, albeit, I’m more comfortable calling myself a Moderate. I’ve often thought about why I could never identify with liberals. Justice Breyer’s position on the 1st amendment’s freedom of speech helped reminded me why.