Justice Breyer Suggests That Burning a Quran Could be Like Shouting 'Fire' in a Crowded Theatre--Thus Not Protected by 1st Amendment

By Chris Neefus | September 15, 2010 | 11:30 AM EDT

Muslims believe the Quran, in the original Arabic, to be the infallible “final revelation” of Allah to Mohammed. (Image: Iqra)

(CNSNews.com) Supreme Court Associate Justice Stephen Breyer said on Tuesday that globalization may change the way the First Amendment applies in the United States, and he suggested that Pastor Terry Jones’ proposed Quran-burning may or may not be protected under the First Amendment.

Breyer -- appearing on ABC’s “Good Morning America” to promote his book “Making Our Democracy Work” -- made the comments to anchor George Stephanopoulos.

Stephanopoulos was a senior adviser to President Bill Clinton when Breyer was elevated to the U.S. Supreme Court in 1994. The ABC anchorman asked the justice to explain whether globalization, and Jones’s ability to broadcast his actions, poses “a challenge” to the First Amendment.

“[W]hen we spoke several years ago, you talked about how the process of globalization was changing our understanding of the law,” Stephanopoulos began. “When you think about the Internet and when you think about the possibility that, you know, a pastor in Florida with a flock of 30 can threaten to burn the Quran, and that leads to riots and killings in Afghanistan, does that pose a challenge to the First Amendment—to how you interpret it? Does it change the nature of…what we can allow and protect?”

“Well, in a sense, yes; in a sense, no,” Breyer replied. “People can express their views in debate, no matter how awful those views are -- in debate, a conversation, people exchanging ideas. That’s the model so that, in fact, we are better informed when we cast that ballot.”

While the “core values remain,” Breyer continued, “how they apply can change” over time, he suggested.

Breyer pointed to Justice Oliver Wendell Holmes’ opinion in a 1919 case testing the limits of First Amendment protection. Holmes argued that shouting “fire!” in a crowded theater would not be protected speech because people could be trampled in the rush to escape a burning theater.

“And what is the crowded theater today?” Breyer asked. “What is being trampled to death?”

On Tuesday morning, Breyer said any new interpretation of the First Amendment and the “crowded theater” benchmark will be decided over time through jurisprudence.

“Yes, well perhaps that will be answered by—if it’s answered by our court, it will be answered over time in a series of cases, which force people to think carefully. That’s the virtue of cases,” he said.