This case is easy if one accepts the legitimacy of regulating and in
some instances curtailing hate speech.
I know Eugene does not.
Sent from Steve Jamar's iPhone
On Sep 16, 2010, at 3:02 PM, "Marie A. Failinger" <mfailin...@gw.hamline.edu
> wrote:
Per Sandys' and others' remarks, it seems to me if we think about
it, virtually all of the incitement cases ultimately rest on the
Court's perception that real people will or will not be seriously
harmed or killed. (In Dennis and the WWI cases, apparently they
thought yes; in Brandenburg and some other WWI and cases like
Terminiellio, etc. no.) And, I think it is fair to recognize the
dilemma that the local sheriff and judge (and ultimately the Supreme
Court) face here: it may be true that we do not and should not hold
individuals criminally responsible for their omission/failure to
stop a criminal act from causing the harm; in that sense, courts
and sheriff are not RESPONSIBLE in that legal sense for what violent
Islamicists do about a Qur'an burning. But that doesn't mean they
themselves don't face a moral dilemma in SOME cases like this, i.e.,
if they act to quash the speech, some people's lives will be saved,
while uncertain harm to speech interests will occur.
Of course, predicting what will actually happen can be a messy
business, as all of those cases point out, which argues for a strong
speech-protective regimen. But as much a civil libertarian as I am,
I am not sure I would not stop the Qur'an burning if I were quite
convinced even one death would result from suppressing it, even if
the "national security" rationale is more uncertain and nebulous.
Without necessarily wishing to defend Justiice Breyer's offhand
suggestion, isn't the obvious difference between flag burning and
Koran burning a) the predictability of "real" violence, some of it
directed against Americans and !
b) severe consequences for basic American national security
interests. Anyone who finds Scalia's "Americans will die" comment to
be a plausible "argument" of constititional law should be hesitant
to censure Breyer.
Sandy
From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu
>
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu
>
Sent: Thu Sep 16 11:55:58 2010
Subject: Re: N.J. public transit employee fired for blasphemy
I think Breyer was attempting to demonstrate his approach to
constitutional law interpretation — thinking out loud to show how he
would work through the material in an idealized, judgely fashion. H
e's absorbed in the subject of case-by-case adjudication and how "ca
refully" everything needs to be thought about. It was very ivory tow
er of him not to anticipate how his statement would play in the pres
s and with laypersons who jump to read it as tipping his hand on wha
t he'd really decide about free speech and Koran-burning.
Ann
On Sep 16, 2010, at 10:58 AM, hamilto...@aol.com wrote:
How does burning the Koran differ from burning the flag? I thought
we had been through this debate before and find Justice Breyer's
comments strange, to say the least.
Marci
In a message dated 9/16/2010 11:27:09 A.M. Eastern Daylight Time, con...@indiana.edu
writes:
In an interview with George Stephanopolous, Justice Breyer has
suggested that burning the Koran conceivably might not be protected
by the First Amendment at all. According to Breyer, “Holmes said
it doesn’t 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 the being tramp
led to death? . . . It will be answered over time in a series of
cases which force people to think carefully.”
http://blogs.abcnews.com/george/2010/09/justice-stephen-breyer-is-burning-koran-shouting-fire-in-a-crowded-theater.html
Surely this cannot be unprotected speech, can it? Wouldn’t that a
mount to a global heckler’s veto whenever speech triggers or threa
tens a sufficiently violent reaction? And wouldn’t such a doctrin
e effectively reward - and thus encourage - such violence or threa
ts thereof?
Dan Conkle
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Marie A. Failinger
Professor of Law
Editor, Journal of Law and Religion
Hamline University School of Law
1536 Hewitt Avenue
Saint Paul, MN 55104 U.S.A.
651-523-2124 (work phone)
651-523-2236 (work fax)
mfailin...@hamline.edu (email)
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_______________________________________________
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