Bench Memos

Justice Breyer v. First Amendment

Once upon a time, protecting a broad view of the First Amendment was considered more of a liberal cause.  But with the Roberts court, that has certainly not been the case, from their invalidation of law banning “crush” videos to the much-discussed Citizens United.  In a recent ABC interview, Justice Breyer suggested that there could be a First Amendment exception to Koran-burning, analogizing it to shouting fire in a crowded theater. He unfortunately ignored the fact that there are more relevant Supreme Court cases suggesting that speech might be banned for being insulting only when it is a personal epithet or that, say, burning the American flag itself is protected speech. The Washington Times takes him to task for the bad analogy — and what would certainly be bad policy, encouraging violence in response to disfavored speech as a way to help minimize it. This method, of course, has worked splendidly for radical Muslims in the past, as the Muhammad cartoonists and the South Park creators can attest. But it has no place in our First Amendment law.


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