Justice Stephen Breyer: Is Burning Koran ‘Shouting Fire In A Crowded Theater?’

By Kate McCarthy

Sep 14, 2010 6:52am

Last week we saw a Florida Pastor – with 30 members in his church – threaten to burn Korans which lead to riots and killings in Afghanistan. We also 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?”


Click here to read what advice Breyer has for incoming Justice Kagan.


Last week President Obama told me that Pastor Jones could be cited for public burning – but that was “the extent of the laws that we have available to us.”  Rep. John Boehner said on “GMA” that “just because you have a right to do something in America does not mean it is the right thing to do.”


For Breyer, that right is not a foregone conclusion.


“It will be answered over time in a series of cases which force people to think carefully.  That’s the virtue of cases,” Breyer told me. “And not just cases. Cases produce briefs, briefs produce thought. Arguments are made. The judges sit back and think. And most importantly, when they decide, they have to write an opinion, and that opinion has to be based on reason.  It isn’t a fake.”


Breyer, the author of “Making Our Democracy Work,” told me it’s a “rickety system” — but it’s worked “fairly well” for a long time.


George Stephanopoulos


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