Glenn Garvin: Not clear on the 1st amendment

Time for today's civics quiz. Who can tell me what the U.S. Constitution's 10th Amendment says? That's right: "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, but especially to any group of bloodthirsty Muslim lunatics that threatens to kill somebody if they don't get their way."

That, at least, is what Stephen Breyer appeared to be saying last week when he compared burning the Quran to shouting fire in a crowded theater and seemed to invite a legal test of whether it's covered by the First Amendment.

Americans have been staging symbolic protests by burning and breaking things -- flags, draft cards, bras, comic books, Harry Potter books, Dixie Chicks records -- practically since the beginning of the republic, and mostly the Supreme Court has been on their side.

But, during an appearance on Good Morning America, Breyer suggested that might all be about to change. In response to a question about that nutjob Florida minister's plan to burn Qurans, he said the invention of the Internet means we can't just go around saying any damn thing we please.

"You can't shout 'fire' in a crowded theater, " Breyer said. "[Oliver Wendell] Holmes said [the First Amendment] 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." Holmes misquoted

In his courageous defense of the little-understood constitutional right of Muslim fundamentalists on the other side of the world to not be offended by a hick preacher in Gainesville, Breyer not only misquoted Justice Holmes' opinion in a 1919 case (Holmes wrote that there is no right to falsely shout fire in a crowded theater) but ignored 70 years of subsequent Supreme Court decisions backing away from it.

In a long string of cases beginning in 1949, when it upheld an anti-Semitic priest's right to make a racist speech even if it provoked a riot by his enemies, and ending in 1989 when it threw out the conviction of a Trotskyite for burning the American flag, the Supreme Court has consistently, insistently defended the right to be rude, hateful and yahoo. Some of those courts were populated with Franklin D. Roosevelt appointees, some with Nixon-Reagan majorities, but a dependable thread ran through their decisions: If you're offended by the content of free speech, tough.

"A function of free speech under our system of government is to invite dispute, " Justice William O. Douglas wrote for the majority in Terminiello v. Chicago, the anti-Semitic speech case. "It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger." That is, we don't let hecklers veto free speech.

After his comments on ABC, Breyer backed away somewhat from his comments in later interviews on CNN and NPR. Whether that's because he suddenly reverted to Jeffersonian constitutional principles or just became squeamish about shooting off his mouth on a subject that might eventually be before the court, no one knows.

But if Breyer does want to insert a Muslim asterisk in the First Amendment, he's hardly the first. The silence from civil libertarians over the past few weeks as would-be Koran-burner Terry Jones was bullied by just about every governmental entity in America was stunning. Silence on liberties

If the secretaries of state and defense told the braying anti-war ladies of Code Pink to shut up, the media's chattering classes would immediately have launched into full-froth alert. When Hillary Clinton and Robert Gates did exactly that to Jones, not a peep was heard. The same self-proclaimed progressives who view opposition to the Ground Zero mosque as a Nazi threat to the First Amendment didn't say a word when Gainesville's fire department ordered Jones to cancel his demonstration.

Criticism of Islam is simply not done in chattering-class circles. If conservative Christians want to yank a paragraph out of a school textbook paid for with their own tax dollars, they'll quickly be denounced as Nazi imbeciles who want to turn the world back to the 14th century. If fundamentalist Muslim judges in Iran decree death by stoning for an accused adulteress, well, let's change the subject.

Partly this stems from the traditional paternalistic approach of liberals to those they consider exotic savages. That's why American Taliban John Walker Lindh's neighbors in the San Francisco Bay Area praised him as "a citizen of the world" for participating in a culture that whipped women with electric cables for showing their ankles.

But a larger part of the double standard, I suspect, is fear. From the still-active fatwa on novelist Salman Rushdie to the murder of Dutch filmmaker Theodore van Gogh to the death threats against producers of the TV show South Park, the willingness of Islamic fundamentalists to kill to enforce their prickly religious orthodoxy has cowed a good part of the world. It was one thing to stand up to the heckler's veto, Justice Breyer is telling us. But the AK-47 veto is something else.

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