On ABC’s “Good Morning America”, Supreme Court Justice Stephen Breyer said that he's not prepared to conclude that -- in the internet age -- the First Amendment condones Koran burning. Here’s his reasoning:
“[Justice Oliver Wendell] Holmes said it [free speech] doesn’t mean you can shout 'fire' in a crowded theater,” “Well, what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is the being trampled to death?”
In essence, Justice Breyer is saying that the danger posed by burning the Koran is as clear and present a danger as is falsely alarming a crowd of people, enclosed in a structure, that their life and limb are in imminent danger thus causing uncontrolled panic and injury in an effort to escape the nonexistent danger.
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.
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.
38 comments:
Best post ever, Bart. And that's saying something. I'd love to see this as a guest editorial in major newspapers, because it addresses the issue so succinctly.
An interesting counterpoint to your post I read today, from Slate:
"Whatever else Breyer said or meant to say yesterday, it just isn't fair to rant that it represents the liberal influence of "creeping internationalism," as the Washington Times suggests, or part of a sinister liberal plot to carve out a special heckler's veto exception to "punish those who demonstrate against the Koran and … only the Koran.
...it's hard to argue that Breyer's comments amount some kind of dastardly liberal anti-free-speech conspiracy. If they signify anything, Breyer's strange musings about Quran burning illustrate the danger of allowing Supreme Court justices to go on live television for their book tours."
http://www.slate.com/id/2267464/
I agree with you on burning the Koran. We can only be responsible for our actions, we cannot be responsible for how others feel about them.
But, I'm not sure the Judge's position comes from someone calling him a liberal. If I cannot be a liberal if I disagree with any one position some other person has that someone calls a liberal (person or position) then I cannot be a conservative or moderate if I disagree with any one position of any person someone calls a moderate or conservative etc.
Liberal, moderate, conservative...whatever, his logic is just faulty. I think burning books of any kind is just stupid, and in this particular situation, staging a public burning of the Q'aran would have been politically unwise, but there is nothing to stop the man from doing so. I am glad he caved to the pressure and decided not to throw fuel on the fire (literally, in this case). A wise man always weighs the rewards and consequences of his actions. Muslims weren't going to suddenly convert to Christianity because he burned some of their holy books.
I will be seeing Justice Breyer September 30 in Cambridge, MA. and I will hand him a copy of this post to see his reaction and response.
Breyer was enunciating his personal opinion and not that of all liberals, by any means.
From this progressive liberal, Breyer is flat out wrong. I agree with you, Hump on this issue, as you know.
Robert..heheh..I'm no consiracy theorist; i dont buy into creeping internationalism...LOL.
i think their last line, however true it may be, is too dismissive. Supreme court Justices don't just shoot from the hip and run their mouths willy nilly... at least, not the intelligent ones (that excuses Scalia, and Thomas) .
Breyer was speaking his mind and expressing his genuine ambivilance about the koran buring issue...where absolutly no ambivilence should exist. I credit it to a Liberal willingness to trade freedom for safety. There is no other rational explanation, IMO.
Luther: I would never suggest that his position comes from someone calling him a liberal. I call him a liberal because of from where his opinion comes. ;)
Sure, you can still be a Liberal or Moiderate or Conservative when you differ from their "company line." But Breyer has a long history of Liberal decisions, some of them very sound. So, the fact is, he IS a liberal.
But I cannot be a Liberal when I disagree with his decisions 50% +/- of the time. Obviously, just on a statistical basis that makes me moderate. But when something as profoundly sacrosanct and rock solid as Freedom of Speech is considered by a Justice to be something that can be chipped away at in the face of irrational threats to preserve saftey from iratioanl people... then it's just one more reason that I'll never be confused with Liberalism.
Anon..I agree. we are happy the pastor idiot didn't burn the book. No disagreement there.
Bob.. I'd be interested to hear his response. But i doubt he'll actually give it much thought.
Yes, it would be wrong for me to assume all Liberals think like Breyer on this issue. Just as not all Conservatives think like Beck or limbaugh. But I am hard pressed to see that kind of acquiessing to threat of violence coming from anyone else than a dyed in the woolto the death Liberal. The kind of Liberalism that Neville Chamberlain personified.
One of your bests posts! Equating a book burning to shouting falsely 'fire' in a crowded theater is a very poor analogy as you well point out.
@Luther
The trouble with the labels of "liberal" and "conservative" (at least in US politics) is that they tend to be poorely defined and over generalize most people's positions. Yet they are used as epithatats to drive wedges between groups.
For instance, I'm all for the broad interpetation of the USA 1st admendment rights (especially free speach and seperation of church/satate) which is generally veiwed as "liberal")
I'm also in strong favor of the broad interpetation of the 2nd admendment which allows individuals to own guns (generally viewed as "conservative").
Based on the above positions am I "conservative" or "liberal"?
- Fastthumbs
As much as I loathe coming back here I wanted to get the word out:
http://video.google.com/videoplay?docid=-5266884912495233634#docid=3273956447915041292
This vid is three years old but the information and how it is presented is the best.
Codex Alimentarius was passed by Obama in June right under everyone's noses. Research it. It's not secret. We're now about to be shackled to the WTO and our rights to be healthy are going right down the drain. Big Pharma won.
Can't sleep? Sorry. You won't be able to buy melatonin over the counter. It'll be illegal. You'll have to pay for Ambien at around $3 a pill.
http://www.healthfreedomusa.org/
Religious differences aside, Hump, please spread the word. This is SERIOUS STUFF. I want freedom the same as you do.
Fast thumbs..you and I agree on both of those positions.
sure, labels are kind of essoteric... they are hard to nail down with exactitude.
It's exactly because my interpretation of those two issues that the label Moderate best describes me. I Think ;)
Angel,
Sheesh. Loath is such a strong word :(
I'll look into the issue you are telling us about. Thanks.
I can tell this won't be a popular stance on this forum, but I think that focusing solely on rights is often an unproductive way to think of things. It is almost always important to also think about the consequences of exercising the right in question.
In the individual situation, this is fairly straightforward. If someone is threatening me with a gun, I certainly have the right to call him a stupid f---ing a--hole. Most people would be unlikely to exercise that right, though, because of the potential consequences to themselves.
I think it gets more complicated when the individual is not the one (or at least not the only one) who will pay the price for what he or she does. To me, that is the fundamental point of the “shouting fire in a theatre” example. I think the Koran burning issue is at least somewhat similar. If it is true that the pastor burning Korans would have put Americans in Afghanistan in danger, that doesn't necessarily mean that he didn't have the right to burn them, but he at least had the responsibility to take into account the possible harm his actions could cause to others.
In a combat situation, the issue of rights gets even murkier. Soldiers don’t have the right to give information to the enemy, but that is because they are soldiers. Do civilian journalists who are embedded with the troops have that right? How about civilian journalists who are safely at home? In wartime, such rights have often been suspended, but when is that justified - if ever? Does the fact that the danger caused by burning Korans would have fallen largely on American soldiers (as opposed to civilians) make a difference?
My point is that I don’t think these issues are simple. It’s much easier just to say “I have x right,” and not to think about the consequences, but real life is rarely that black and white. At the very least, I think it is important to recognize that along with rights come responsibilities. I think burning Korans would have been a highly irresponsible thing for that pastor to do. What do we do, either as individuals or as a society, when someone is shirking their responsibilities, and the result may be harm to others? I don’t think there is always a simple answer to that question.
I guess that I agree with Breyer, then, that I’m not sure that the First Amendment condones burning Korans in this particular situation. At the same time I’m not sure that it doesn’t condone it - I’m just not sure. Supreme Court Justices are (or at least should be) used to looking at an issue from many sides before deciding. It sounds to me like Breyer was saying no more than that.
By the way, I think it is ridiculous to blame liberals for abrogating rights as if conservatives have not done so also. Bush and Cheney certainly abrogated the rights of prisoners not to be tortured, as well as the rights of habeus corpus and of US citizens not to have their phones tapped without a warrant. More directly related to the First Amendment, they also systematically kept dissenters from being present at public appearances.
I welcome responses - hopefully in the form of dialogue, not a polemic!
Is there a character limit on responses? I keep getting an error message when I try to post a respons.
sd555..
you're certainly entitled to your opinion. Ofcourse, if it is deemed too inflamatory, it could begrounds for it being taken from you.
Your examples of freespeech questionability are all very faulty. as an example: Military personnel have to abide by the Uniform Code of Military Justice. Those rules supercede their constitutional rights. This is accepted when one joins the military.
One always has to balance one's rights with what is prudent. No one is saying they shouldn't. The question comes down to how much of the freedom of speech are you willing to surrender to extremists? If the answer is "just a little," than it's a little more than I am willing to.
Someone once said: "Those, who would give up essential liberty to purchase a little temporary safety, deserve neither liberty nor nor saftey." This country has stood by that learned quote for over 230 years.
I abhor the burning of books. That it's potential for harm to our soldiers was genuine adds to that abhorrance. However, one of the reasons our soldiers join the military is to defend our 1st Amendment rights... even when those rights seem to be abused.
The fact that the idiot didn't burn those Korans, and that the Constitution didn't have to be raped to stop him, reinforces my position that knee jerk action with far reaching down hill implications is not only surrendering to irrationality, it's absolutley unnecessary.
sd555... comments submitted here are moderated. It keeps out the riff raff and lunatics.
I have to allow all comments to be posted before they appear here.
You don't have to submit them more than once, thats probably why you got an error message.
thks.
hump
Hump (is that what I'm supposed to call you? I'm new to this.)
When you said my examples of free speech questionability were all very faulty, the one example you mentioned was the one that I intended to be obvious - as I said, they can't say what they want because they're soldiers. What about the other examples, which I think are at least somewhat harder?
Furthermore, it seems clear to me that the reason for infringing on someone's right to yell "fire" in a crowded theatre is because doing so causes harm to others. You claim that it's different because the threatened harm is "equal to all the unwilling participants in that theater regardless of their age, gender, race, nationality, religious belief or no belief." The same is true of the threat to American citizens caused by unnecessarily angering the irrational Muslim extremists. (Except, of course for nationality, which is a minor issue.)
You also claim that Islam is a "mental construct willingly embraced by voluntary adherents capable of controlling their reactions." I think that's hogwash, or maybe camel droppings. :-) There is absolutely no evidence that children raised in Islamic countries voluntarily choose to embrace Islam. They are brainwashed from the time they are old enough to talk - or maybe even before that.
On the other hand, I need to be clear that I don't advocate forcefully preventing that idiot in Florida from burning Korans. What happened is what should have happened - all sorts of people told him why he shouldn't do it, and he succumbed to outside pressure. (I also didn't understand Breyer to be advocating forcefully taking away his right, either, by the way.) I also fully agree that taking away rights of free speech is not something that should ever be done lightly. Maybe you're right and it should never be taken away at all, but I'm not totally convinced of that - hence my examples.
I also think it's very difficult to know what to do about the fanatics who are willing to murder anyone who "defames" the Prophet, even if they die a painful death in the process. It's intolerable that we all have to kowtow to them because of their violent insanity, but at the same time they are clearly not going to be swayed by a rational discussion, and it's not clear to me that they can be defeated by force, either. I'm not sure there is a solution. Maybe this is the way the West is paid back for the Crusades?
(By the way, I'm sorry if I posted more than once. I keep getting error messages when I try to post.)
sd555..
first.. it isnt children of islam who are threatening violence, it's adults. If you afe saing the islamic jihaddists and fanatics arent repsonsible for theiraction, and thus we must truncate American's rights in order to compensate for that...well, we have nothing more to discuss.
second..if the example of soldiers not having free speech for obvious reasons was, in fact, obvious.. why did you use it?
Third, how many hysterical and violent atheists would it take to convnce you that burning of atheist books should be banned?
100? 1000? 100,000? 1,000,000?
Letme know what constitutes a large enough threat for you to endorse such a law.
fourth..I claimed the fire example was diferent for more than the one phrase you sited. Go back and read the second phrase, wich as stated, was the more important of the two.
fifth...no, a journalist embeded with the mlitary does not have the right to knowingly turn over information that they know, or should have known, is a clear, present and immediate detriment to the saftey of our troops. We call that law "treason." See Article III of the constitution. That's another reson your examples were faulty.
The comparison of such an act, in the same breath as a threat of violence against a non-violent expresion of speech has zero to do with this thread. which is why i didnt bother to respnd to it originally. But at your request, I have.
Finally that you seem to disagree with Breyer's comment (and agree with me against his position) leads me to wonder why we are having this exchange at all. Yes, when people exercise freedom of speech it can be a touchy. I hate Neo-Nazi's speech, the KKK, white supremiscists... all of whom have the potential to provoke violence as a reaction to their rhetoric. Now what? What would you do there...outlaw their freespeech too...because of that potential?
In a free republic the laws err on the side of freedom. They do NOT kowtow to a threat of violence from irrational reactionarys.
[ the following was received as an email by reader "Paul B.". I am posting it on his behalf with his permission]
Hi Bart.
I'm not sure I understand Breyer's comment as you quoted it--and I'm a lawyer!
I can say, though, that the 1st Amendment prohibits the government from restricting speech unless what is uttered constitutes a clear and present danger to others. Thus, yelling "fire" in a crowded theater, when the alarm is false, meets the "clear and present danger" criterion; whereas, making false, derogatory statements about another (defamation) does not fit that criterion.
That is why, on the one hand, the government may make a law prohibiting the "yelling"; but, may not do so in the case of defamation. It may only make a law that establishes that the defamation is unlawful and the injured person may be compensated for any demonstrable harm.
This may seem like too fine a distinction but it is an important one. It is why courts may enjoin certain kinds of speech or expression but not others. That is, I may be enjoined from yelling "fire" etc. but not from slandering someone. I may be enjoined from setting a library on fire but not for burning a book, any book, if it is my book and the act of burning is safe. The same is true of flags, crosses, insignia, etc. They are forms of expression that the government may not restrict.
Under the current state of the law, then, the government may not prevent the loopy minister and his minions from safely burning the Koran, the Bible, Alice in Wonderland, Dick and Jane or any other book.
The obverse of that proposition is that the government may not (and should not be allowed to, wherever it occurs) prevent the reading of any book, the idolizing of any personage, grilled cheese sandwich and so on.
The question becomes whether we should restrict the safe burning of a book if millions of fanatical adherents of the book's contents (however silly that adherence is) might go destructively crazy. My vote is to allow the expression, however silly. I don't agree with the slippery slope argument because I believe that is a logical fallacy.
I do agree, though, that we ought to be exposed to as many ideas as there are so that we can decide for ourselves; in the hope that we can, or will, think critically.
I would not characterize you as a "moderate". I try to avoid those terms. I would say, however, that you are a thinking man and that's what counts.
Keep up the good work!
My best,
Paul B.
Oliver Wendell Holmes made a nice sounding analogy but ultimately he was wrong. Wrong for Schenck and wrong for today's circumstances.
Great post.
sd555, your argument is faulty because once you decide that the consequences of other people in response to one's speech are more important than free speech, then the crazies have won.
To say the preacher can't burn the Koran because crazy zealots half a world away will riot lets those crazies win.
As it is the preacher did NOT burn the Korans but the asshole Islamic nut-bags in Pakistan STILL rioted anyway. So therefore, using your rules, the preacher should not even be allowed to SAY he might burn Korans.
This makes your argument faulty.
Anon..thanks.
NEBob..very good points and observations.
BTW... sd555's argument was faulty in so many ways, we could probably find a few more ;)
Breyer's statement, if he in fact said this, is insane. If freedom of expression can be compromised in any case where other people might get mad about it and react violently, then freedom of expression does not exist at all.
And whatever Breyer's record, this stance cannot even remotely be described as "liberal". Kowtowing to violent fundamentalists is the furthest thing imaginable from liberal.
Infidel,
Oh he said it alright. I heard it, and here is the article on it:
http://blogs.abcnews.com/george/2010/09/justice-stephen-breyer-is-burning-koran-shouting-fire-in-a-crowded-theater.html
I'm not sure why you'd say that such a position wouldn't be considered liberal. The liberal perspective on the Constitution is that it and it's articles are a "living document" subject to interpretation in accordance with changing times and conditions.
With that mind set and with the introduction of the "internet age" and world wide fanaticism, manipulating the 1st amenedment free speech doctrine in response is PRECISELY what a liberal judge would do.
Another example: the only people who perceive the 2nd amendment as either obsolete for our times, or as a "collective" and thus not an "individual" right (all other bill of rights amendments are individual rights why would the 2nd amendment not be? ) are Liberals.
No, his statement could only come from someone with a far left perspective... IMO, and based on history.
I heard the interview on NPR and, if I recall correctly, Breyer didn't say that burning the Koran wasn't protected. He basically said it was an issue to think about and wasn't just black and white. I'm fairly certain that he didn't say that it's the same as yelling "Fire!" in a crowded movie theater.
Much of the interview was Breyer implying that many of the issues were not black and white, regardless of whether he agreed with them or not. I thought he came across as fairly moderate.
...the only people who perceive the 2nd amendment as ... obsolete for our times ... are Liberals.
I'm with the conservatives on this one. I think we should interpret the Second Amendment precisely as the Founding Fathers would have, without making any adjustments for modern conditions. I think every citizen has an absolute, individual right to own a musket.
Dan,
I heard him on NPR too. But go to the Good Morning America link I provided above. here it is again:
http://blogs.abcnews.com/george/2010/09/justice-stephen-breyer-is-burning-koran-shouting-fire-in-a-crowded-theater.html
He didn't say it was the same. He said that like the limitation of speech like shouting fire in a theater, burning the koran could be interpreted as speech that might similarly be curtailed under the 1st amendment.
There is no room for hedging his intent, IMO and in the opinion of the reporter.
Early,
then to remain consistant with that you'd only protect free speech for public and private assemblies, and newpapers, since TV, internet, radio etc. didn't exist in the 18th century.
The constitution isn't subject to the whims of technological advancement. Its a matter of basic intent.
The intent of free speech is to prevent government from curtailing it, in any form or through any media. The intent of the 2nd amendment was to allow private citizens to own firearms; rifled barrels or otherwise.
I think you're missing my point - I'm being facetious, of course. Many conservatives insist upon a strict reading of the text of the Constitution and its amendments when it suits their purposes, but seem to be willing to put their own gloss on the text when it's ill-mannered enough to conflict with their ideology. They're the ones who are inconsistent.
I'm a liberal. I think the Constitution MUST be read with one eye on the past, and the other eye on the here and now. Otherwise, it's a dead letter.
When it comes to the First Amendment, I tend towards being an absolutist. I'm not even sure that the Government should be able to prevent me from shouting "Fire!" in a crowded theater. They can certainly punish me for the foreseeable results, but that's a different matter entirely. Prior restraint is the danger that we need to guard against. (And you, vile blasphemer that you are, should appreciate that. Wink-wink, nudge-nudge.)
The Second Amendment is a tougher case, because "arms" is such a vague term ("speech" is somewhat ill-defined, too, but "arms" is even worse). Could anyone in the 18th Century have anticipated the advent of fully automatic weapons, of bazookas, of RPGs, or of tactical nuclear weapons?
It seems clear to me that we have to draw the line somewhere, so let's have a rational discussion about where that line is. But let's not pretend that it's somehow a settled matter because of what the raw text of the Second Amendment says. The Constitution doesn't include a glossary.
I'm much less concerned with whether the right is individual or collective. I don't think I want to encourage the formation of militias, given what they've been turning into (i.e., assemblages of angry, confused, trigger-happy wingnuts).
Early,
LOL..no i understood your intent.
and I dont want to get any further into gun rights discussion. It has become a tedious and no win discussion.
But again, technology isnt the issue, full auto or otherwise. NOW, this is NOT to say that the government cannot introduce certain reasonable controls and requirements, only that the 2nd amendment is NOT a collective right, DOES permit firearms in the hands of the populace; and DOES NOT permit out right ban on private ownnership.
I own two machineguns among large collection of guns. It doesn't bother me a wit that the machineguns have to be registered, and my ownership approved by the BATF. I fully endorse that. But blind banning and prohibitions based on cosmetic or technological improvements is not lawful.
Explosive devises / grenade and rocket launchers, et al (aka "other destructive devises" iun BATF parlance) are similarly regulated...but NOT illegal. Live and learn.
I own two machineguns....
Those will come in handy when the Druids come for you. And they will.
I think you'd be better served by coming to the light, and letting my personal savior, the Invisible Pink Unicorn, watch over you (well of course you can't see him - he wouldn't be invisible if you could). Somewhere along the line, I'll have to introduce you to His Horniness.
Hahahah... I'm not worried about Druids...it's those damn watermelons and pumpkins I have to watchout for.
They die hard ... and make quite a mess;)
Bart,
Your last question is the really important one, so let me respond to it. I initiated this interchange because I had some thoughts about the issue that weren't addressed in your post, and I was interested in having a discussion about those thoughts and how they relate to what you said. Unlike you, I have not thought about this issue enough to have come to a conclusion. As I said at the end of my first post, I was hoping to have a discussion that would help me clarify my own thoughts about it.
And, as a matter of fact, although I have to admit that I didn’t really enjoy having my ideas ripped to pieces, I am clearer about this issue as a result. As I said, I don’t think that the Florida pastor should have been physically or legally prevented from burning the books. And, looking back at what Breyer said, I actually totally disagree with him. The First Amendment clearly does condone the burning of the Koran - and I think it should.
So, if that is what I believe, why did I say what I said? Because I was confused. Specifically, I got confused between 1) what the law should say and 2) what strategy should be used in talking with someone who is demanding his/her rights despite the potential harms that could cause. I certainly am not in favor of a law banning the burning of the Koran. However, as I said, I think it’s important for individuals to balance their rights with their responsibilities. So the pastor needed to be reminded of the potential harmful outcomes of exercising his rights at that time and in that way.
So, thank you all for helping me clarify my thinking about this.
At the same time, I have to say that I am skeptical that any right is absolute, including the right of free speech. I think there are situations where violating that right could be justified. As an example, what if Ahmadinejad had nuclear weapons and he threatened to fire them at Israel if the pastor burned the Korans. If the pastor’s response was to say, “That’s fine with me - the sooner Armageddon happens, the sooner Jesus will return,” then I think that it would be justifiable to forcibly prevent him from burning the Korans in that situation. To me, this would be an example of what Paul B.’s friend characterizes as the “clear and present danger” exception.
The problem, of course, is that once you allow any exceptions, it’s hard to know exactly where to draw the line. How “clear and present” does a danger have to be to justify an exception? If Ahmadinejad made the same threat, and high-ranking people in the military and the administration stated that they had good evidence that he had weapons of mass destruction, would that be a clear and present enough danger? Paul B.’s friend said “I don’t agree with the slippery slope argument because I believe that is a logical fallacy,” but I think the slippery slope is an unavoidable part of life. The only way to avoid stepping onto the slope is to allow no exceptions, and yet there are clearly situations (at least they are clear to me) where exceptions have to be made. We can’t make a law that covers all those exceptions in detail, and I don’t think we should try to do so. Decisions about when to make an exception will inevitably involve making judgments, and as such there will always be those who disagree with any particular decision. It would be nice if life were neater than that, but it’s just not.
With regard to New England Bob’s objection that this will mean the zealots win, I think that is a short-sighted viewpoint. If we were in the Ahmadinejad situation I mentioned above, I certainly would not advocate letting him dictate what we can say or do forever just because he has the bomb. Stopping the pastor from burning the Korans would be a stopgap measure to allow time to work out a better solution. If he continued to be unreasonable, at some point we might ultimately have to decide that the military option was the only possible one. In other words, I think it would be acceptable to lose a skirmish, if the overall goal was still to win the war.
sd555,
I apprciate what youve said, and thank you for it.
But, let me be clear I am also not an absolutist on free speech. If I gave that impression it was in error. I fully endorse the "not yelling fire in a crowded theater" exception, and I'm sure I could think of others.
But the Iranian threat scenario you present would not be such an exception. Under no circumstances can a foreigh tyrant's threat of war if a sanctioned act of free speech were to be exercised, be allowed to truncate the rights of even one idiotic American.
To do so would be to suggest, no.. to agree and acquieses to, that any foreign power with military might and the mindlessness to use it can dictate how to interpret and enforces our freedoms and laws. I won't surrender that to any of them. Not for a month, a week, a day, an hour, or even a minute.
To even seriously contemplate it would be to defecate on the Constitution. I hold it, and it's promise, in too much regard to do that.
Actually it's mostly been right-wingers who wanted to put limits on free expression, in cases like pornography or blasphemy. Breyer's argument sounds rather like the kind of thing they used to say in such cases.
Bart,
I can see your point about the Ahmadinejad example I gave, and you may be right, but I'm not sure. I'll have to think more about that. I've certainly been wrong before!
Infidel,
Pinning the pornography limitaions on the right would be a mistake. While the conservative religionsits certainly oppose porn, Feminists have long opposed and been vocal against porngraphy because of the "sex object" argument. You don't see alot of conservative feminists. That issue is something of a mixed bag. Remember Tipper Gore and her recording lyrics tempest in a tea pot?
I guess you can say porn makse strange bedfellow ;)
I haven't heard about a blasphemy law being considered by the courts in our life times. In fact in 1952 the supreme court ruled against imposing any kind of blasphemy regulations in movies (Joseph Burstyn, Inc. v. Wilson).
As for what party or pol philosophy was responsible for the state by state blasphemy laws from the 19th century and earlier, it's anyone's guess.
Incidently, while not a legal issue, consider the whole political correctness thing and the insistence on artificially reworking basic english descriptors: "physically challenged" vs handicapped; "special needs" or "developmentally challenged" VS retarded; "Asian" VS oriental; "plus size" instead of fat; ... and all of the other examples that are too numerous to mention. I think we can all agree that mania is driven by the most liberal minded folk.
@sd555- I know how you feel. I have commented on this blog before with the intention of working thru my thoughts on the matter, only to get blasted, but always in a very rational and cordial way! Hump has us at a disadvantage. He has that extra brain in his hump!
Hump, thanks for pushing us all to use our left brains. This exchange has been very educational, for me anyway. And remember to be cordial to those of us just looking to learn at your feet ;-) LOL!
Longhorn: LOL..learn at my feet? Rachel..you forget, it's just the average camel toe.
Hey, my middle name is Cordiality. ;)
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