Supreme Court Justice: Right to Burn Koran Not Settled

Before the ink could even dry on our Constitution back in the late 1700s, attempts were already made at distorting its meaning or flat-out ignoring it. A prime example was the passage and enforcement of the Alien and Sedition Acts, part of which enabled the federal government to criminalize criticism against government officials. It flatly went in the face of the Bill of Rights, yet many of the same people who had a part in passing the First Amendment also supported the Sedition Act. Perhaps the clear words of the First Amendment sounded good to them at the time, that is until they themselves came to power in government. Then those words became a stumbling block to their agendas.

[picapp align=”left” wrap=”true” link=”term=stephen+breyer&iid=6650877″ src=”″ width=”156″ height=”201″ /]The plain words of the Constitution have always been misinterpreted, stretched inappropriately or outright ignored over the years by government officials. With this background in mind, it maybe should come as no surprise that Supreme Court Justice Stephen Breyer recently told ABC News that the right of individuals in this country to burn Korans, which has been taken as a given by most in the recent media coverage of the cancelled plan to do so by a Florida pastor, is still something the courts may end up ruling on in the future.

Breyer noted the following:

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 trampled to death? … It will be answered over time in a series of cases which force people to think carefully.  That’s the virtue of cases … 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.

The current standard or “test” for free speech/expression adopted by the Supreme Court is to protect all political speech that does not lead to “incitement to imminent lawless action.” Unfortunately, judging by Breyer’s words, a future Court decision may decide that such “lawless action” may include terrorist acts on the part of angry Muslims seeking to retaliate against those burning their holy book. Would burning the Koran be the “incitement” that is to not be protected? Breyer hints that this may be the case. Such a standard applied to the Koran-burning scenario equates to free speech being held hostage to the lawless actions of those too immature to not restrain their violent inclinations to harm others who set fire to pieces of paper.

The wording of the First Amendment is fairly straight forward: “Congress shall make no law … abridging the freedom of speech.” Unfortunately, the history of case law and legislation in this country from the beginning has never really upheld that clear statement.

What’s even more disturbing is that, even if the First Amendment never existed, the Constitution still does not allow most of the abridgments of free speech that the government has committed over the years. The less-talked-about Tenth Amendment forbids the federal government from exercising any power not expressly granted to it by the Constitution:

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Yet politicians, bureaucrats and judges have managed to ignore this over the years and will most likely continue to do so for years to come. Why do we celebrate Constitution Day if we are just going to keep ignoring it?

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