Justice Breyer Revises and Extends

by David French

After my Corner post on Justice Breyer’s initial comments on Koran-burning, I should point out that he’s now clarified. After first seeming open to the possibility that Koran-burning might not be protected (akin to shouting “Fire!” in a crowded theater), he now says

CNN’s Larry King: There’s no doubt that Pastor Jones, little church in Florida, had the right, he has the right to burn the Quran, doesn’t he?

Breyer: Yeah, I said it depends on what analogy you use, but the most one analogous case is that there was — you have the right to burn an American flag as a symbol. . . .

King: . . . Does [the flagburning decision] make us a great country?

Breyer: It helps. It helps. . . . What we’re saying is we protect expression that we hate. And protecting expression that we hate is not the only good thing in the world, but it is one good thing in the world. And when you have a country of 300 million different people who think different things, it is helpful. It is helpful to tell everyone, you can think what you want.

King: Hard for other people to comprehend why Nazis can march —

Breyer: There they are. You know, it’s so often I hear people say — and particularly this is a college students, sir. Well, that’s just so terrible what he’s saying. I say, oh, you think that free speech is only for people who don’t say things that are terrible.

I welcome Justice Breyer’s statement, and I’m particularly intrigued by his comment regarding college students. While the transcript isn’t perfectly clear, Justice Breyer seems to be saying that college students “particularly” favor banning speech they perceive as “terrible.”  

Considering the prevalence of speech codes and censorship of disfavored speech on campus, this is hardly surprising. As my friend Greg Lukianoff would say, our students are “unlearning liberty.”

(Hat tip: Eugene Volokh.)

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