Josh Gerstein (Politico) has transcripts of Breyers Good Morning America remarks, which seemed to suggest that Koran-burning might be constitutionally unprotected, but also his more recent Larry King Live remarks, which pretty strongly suggest that Koran-burning is indeed constitutionally protected.
To recap, the earlier remarks were ambiguous. Stephanopoulos asked whether globalization and the Internet, and the greater risk that expression in the U.S. may lead to killings overseas, should change the nature .. of what we can allow and protect. Breyer responded: Well in a sense, yes. In a sense, no.... [Y]ou can say, with the internet, you can say this. Holmes said, it doesnt mean you can shout fire in a crowded theater. Well what is it? Why? Because people will be trampled to death. And what is the crowded theater today? What is being trampled to death? ... Well perhaps that will be answered by, if its answered by our court. It will be answered over time, in a series of cases, which force people to think carefully. Thats the virtue of cases. That might mean that hes suggesting Koran-burning might be unprotected (in a sense, yes, the Internet should change what we protect, and that remains to be answered over time, in a series of cases). Or these might be, as Ann Althouse thought, just the usual platitudes about how judges interpret law and decide cases in the context of ever-changing real world facts and lets have a fine day in the classroom cogitating about the elaborateness of all that.
In any case, the new remarks seem to pretty strongly come out in favor of the constitutional protection of Koran-burning:
CNNs Larry King: Theres no doubt that Pastor Jones, little church in Florida, had the right, he has the right to burn the Quran, doesnt he?
Breyer: Yeah, I said it depends on what analogy you use, but the most one analogous case is that there was you have the right to burn an American flag as a symbol....
King: ... Does [the flagburning decision] make us a great country?
Breyer: It helps. It helps.... [W]hat were saying is we protect expression that we hate. And protecting expression that we hate is not the only good thing in the world, but it is one good thing in the world. And when you have a country of 300 million different people who think different things, it is helpful. It is helpful to tell everyone, you can think what you want.
King: Hard for other people to comprehend why Nazis can march
Breyer: There they are. You know, its so often I hear people say and particularly this is a college students, sir. Well, thats just so terrible what hes saying. I say, oh, you think that free speech is only for people who dont say things that are terrible....
Im glad to hear Justice Breyer say that.