14 September 2010


Since at least the mid-1960’s, the liberal left has taken for granted that certain acts, e.g., burning an American flag, during a protest are “protected speech” under the First Amendment to the Constitution.

In the past few weeks, however, the loony left has gone berserk over the possibility that a pastor in Florida might burn a Koran. To do something so disrespectful of a another culture runs contrary to their views of diversity and apparently cannot have First Amendment ramifications. The President, the Secretaries of Defense and State, and General David Petraeus, Commander, International Security Assistance Force (ISAF) and Commander, U.S. Forces Afghanistan (USFOR-A), either spoke to or otherwise directed comments to this lone citizen, asserting in language that is eerily reminiscent of the Espionage Act of 1917, that he was endangering US troops. The pastor was even allowed to have coffee with a bunch of FBI agents who dropped in at the behest of the Attorney General.

Ever since now-Vice President Biden took to task Judge Robert Bork for his scholarly writing, asserting that his comments in such writings disqualified him for confirmation as an Associate Justice of the Supreme, candidates for the Court have asserted a “principle” that candidates and serving Justices ought not comment on cases that might come before the Court. They routinely do so in order to avoid being “borked” by the Senate.

In a recent interview with ABC's George Stephanopolous, Associate Justice Stephen Breyer, appears to have departed from that principle.  Breyer, a Clinton appointee to the Supreme Court, said that it is likely that the First Amendment to the Constitution does not protect persons from being arrested and tried for burning the Koran. In so doing, he misquotes one of the landmark decisions of the Supreme Court, Schenck v. United States, 249 U.S. 47 (1919).

Schenck was the Secretary of the Socialist Party during World War I. A “war protester”, he had printed and then distributed or mailed 15,000 leaflets to men eligible for the draft. The leaflets advocated opposition to the draft. They suggested that the draft was identical to slavery, outlawed by the 13th Amendment, and contained statements such as: "Do not submit to intimidation", "Assert your rights", "If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain." 249 U. S. at 51.

Schenck was tried under the Espionage Act of 1917 which prohibited any attempt to interfere with military operations, to support America's enemies during wartime, to promote insubordination in the military, or to interfere with military recruitment. He was convicted and sentenced to six months in prison.

On appeal, Schenck asserted, inter alia, that his actions were protected by the free speech clause of the First Amendment. Writing for a unanimous Court, Justice Oliver Wendell Holmes, Jr., a Civil War veteran, wrote that “when a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right." 249 US at 52.

Because Schenck was later watered down in a series of cases, including Brandenburg v. Ohio, 395 U.S. 444 (1969)(government cannot punish inflammatory speech unless it is directed to inciting and likely to incite imminent lawless action), it is primarily remembered for the quote that Breyer botched.

Justice Holmes wrote that "the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." 249 US at 52 (emphasis added). The resulting test announced by the Court was stated thusly: “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree.” Id. (emphasis added).

So Breyer—and this is surprising for a man of his judicial experience and intellect—left out an important word. If the theater is, in fact, burning, it is quite permissible to shout “fire.”

In the interview, Breyer suggested that any “speech”, which now apparently includes burning some books or flags or ROTC buildings, can be suppressed if it would upset people in other parts of the world. (Stephanopolous posed his question on the ability of modern media to instantaneously spread around the globe the happenings in a kooky little congregation in Florida.)

So, protesters beware. It looks as if Breyer, for one, would return to Schenck and might allow prosecutions under the Espionage Act of 1917 for acts that would impede military operations or give support to America’s enemies during wartime (something that the President who appointed him had fun doing while your reporter was getting shot at on a daily basis).  At least one man in the current government recognizes that Iraq and Afghanistan are wars!

Justice Breyer, can you spell "recusal"?

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