16 Sep How International Law Will Leave Koran Burning Constitutionally Unprotected (Justice Breyer Points the Way)
Chuck Lane makes this case for rejecting a “cry fire” analogy on Koran burning, as suggested by Justice Breyer in a book-flacking recent interview with George Stephanopoulos. The logic is pretty clear: that where an expressive act creates an immediate danger, it’s not constitutionally protected. If the burning of a Koran in Florida was going to cost lives in Afghanistan, then maybe there is a compelling interest in suppressing the expression, or so Breyer seemed to suggest.
I will defer to Chuck on how this doesn’t work under a historical conception of “cry fire.” I wonder though if the international context changes the picture to broaden its applicability, especially if Koran burning were deemed inconsistent with international norms (as well it may be or become, as norms requiring the prohibition of hate speech start to harden).
One case that’s gone missing from the discussion is Boos v. Barry, which considered a District of Columbia statute prohibiting protests within 500 feet of diplomatic facilities. There Justice O’Connor recognized that “[a]s a general proposition, it is of course correct that the United States has a vital national interest in complying with international law.” While (unsurprisingly) stopping short of finding that an interest recognized in international law “automatically render[s] that interest ‘compelling’ for purposes of First Amendment analysis,” she did float the possibility that in some cases could “require that First Amendment analysis be adjusted” to accommodate that interest.
That seems plausibly applied here, and distinguishable from the domestic context in which relevant actors (those who would be provoked) will be subject to governmental control. In the long run, judicial interest balancing is another way in which the international norms will insinuate themselves into US law, even absent a treaty obligation. Justice Breyer’s mindset indicates it may happen sooner than we think.
With all due respect, Justice Breyer should be ashamed of himself. Based on that logic, if you oppose flag burning you don’t need to bother with a constitutional amendment. You just need to threaten death to those who threaten to do it or to just to random people because it will happen, and then viola…flag burning is unconstitutional.
Really?!? And from a Justice of the U.S. Supreme Court!
I must admit Breyer’s comments were not the wisest. This has nothing to do with whether what he said was right or wrong. It has more to do with the fact that people will read commentary (Peter Spiro’s post) about Breyer’s comments, failing to pick up on Spiro’s carefully constructed hedges (“as suggested by Justice Breyer” and “or so Breyer seemed to suggest”) without actually investigating what Breyer said (it took me 10 minutes on Google) and why those hedges were placed there. Witness AdamR’s response as Exhibit A. In doing my 10 minute Google research, I also saw comments by Breyer suggesting it would be constitutional. Surprise, surprise, he did not answer definitively either way the question of the legality of Koran-burning in those circumstances. Instead, he suggested that there could potentially be new legal issues arising from globalization and increased internet usage, and predictably said that it would have to be answered through careful debate through a series of cases. Justice Breyer raised one issue on how the “international context” could broaden the “historical conception of ‘cry fire.'” Spiro proposes another. To the extent that these issues will generate debate, Justice Breyer is absolutely right. Pile onto this… Read more »