Skip to comments.First Amendment Headed for the Breyer Patch?
Posted on 04/30/2011 4:43:51 AM PDT by Scanian
A few days ago, Pastors Terry Jones and Wayne Sapp were thrown in jail for refusing to pay a $1.00 bond ordered by a Michigan judge who upheld a jury verdict that they would "likely breach the peace" if they were allowed to carry out a planned protest at a mosque. The judge appeared unfazed by the fact that the ruling was both a violation of the Court's Brandenburg test (which prohibits political advocacy only "where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action"), and that it amounted to a prior restraint to boot. The case will likely be overturned on appeal because the ruling is so patently unconstitutional. Nevertheless, the case is troubling for what it seems to portend about the future of free speech in America.
A week after Jones threatened to burn the Quran last September SCOTUS Justice Steven Breyer commented that "he's not prepared to conclude that -- in the internet age -- the First Amendment condones Koran burning." Alluding to Holmes's famous "fire" metaphor he added: "You can't shout fire in a crowded theater. Holmes said [the First Amendment] doesn't mean you can shout fire' in a crowded theater." Of course, Holmes said no such thing. He added that all-important little adverb "falsely" before the verb "shout," which makes all the legal difference. Indeed, for its thunder, the metaphor even relies on the certainty of our knowledge that the shout is both false and deceitful in order to give it its bite. For what would be the point of punishing someone who was simply warning us of something we should want to know?
At the time I assumed that Breyer simply misspoke;
(Excerpt) Read more at americanthinker.com ...
Muslims have everyone cowed into submission in this country, except people like Terry Jones who still have some backbone.
Now if it had been the Westboro Baptist church at a christian military funeral no problem.
I guess that means Justice Breyer wants to revisit the SCOTUS ruling that made US flag burning protected under the First Amendment.
Or he may be selectively applying foreign law, something he ardently advocates. (Apologies: “selective” and “applying foreign law” are inherently redundant).
Ironically, he "won" the case (Marbury v. Madison) in which John Marshall created judicial supremacy.