Who is encouraging the trampling?
Speaking of constitutional rights that can't be taken for granted, via an email I learned that Supreme Court Justice Stephen Breyer has made an analogy between burning the Koran in protest, and shouting fire in a crowded theater:
We... saw Democrats and Republicans alike assume that Pastor Jones had a Constitutional right to burn those Korans. But Supreme Court Justice Stephen Breyer told me on "GMA" that he's not prepared to conclude that -- in the internet age -- the First Amendment condones Koran burning.
"Holmes said it doesn't mean you can shout 'fire' in a crowded theater," Breyer told me. "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?"
First of all, there is a huge difference between an burning a Koran in protest and shouting "fire" in a crowded theater. The former is an expression of a particular point of view -- an opinion -- while the latter is not the sharing of any viewpoint at all, but the deliberate fomenting of panic by falsely declaring an emergency when there is not one. It is no more "speech" or "expression" in the First Amendment sense than it would be to pull a fire alarm or phone in a fake bomb threat.
I'm wondering what Breyer is smoking. He seems to be conflating the possibility of irrational and murderous reactions by angry Muslims to the burning the Koran with the act itself. Essentially, he is saying that the standard for when the government can prohibit opinions should be grounded in whether they might cause people to become violent. That could be said about any number of things. Like the assertion that Hitler was right to kill the Jews, that Muhammad was a child molester, that black people deserve to be enslaved, etc. We take for granted that no matter how wrong such opinions might be, they nonetheless are constitutionally protected speech.
Breyer, though, seems to believe in true mob rule. If enough people resort to violence over an opinion they don't like, then it's fine for the government to prohibit the expression of the opinion. Imagine if what Breyer suggests were to become the legal rule. People who engaged in rioting and violence against opinions or even people they disliked could get them banned because of the violence they committed.
As my friend put it in the email, it's the "rioter's veto."
Those who trample the most on the rights of others become the winners.
If enraged patrons who didn't like, say, the film "Fitna" were to start a riot and trample on people in a crowded theater, I guess Breyer would ban the movie. Far from saving us from such people, Breyer encourages their trampling by giving them their way.
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