Real progress doesn't need permission
The reason I don't trust people in power in any government in any time to get questions of liberty right.
Justice Breyer: First Amendment Probably Doesn't Protect Burning The Koran
Because they get it wrong more often than they get it right.
And then they pass on. And future generations always liberalize. Always. Without exception.
And that is the long established road of progress. No matter Stephen Breyer's or anyone's opinions to the contrary.
Or anyone in power. Or anyone else, for that matter.
No matter how infallible we might otherwise wish we might be.
3 comments:
RCP and a billion other sites did a great job of blowing up that comment to supersized proportion.
First, GS asks if the global nature of communication could pose a challenge to existing 1st amendment interpretation. He uses Jones' burning plan as an example.
Breyer first reaffirms the core of the first amendment (admittedly, not as full-throated as either of us would like) and begins to discuss the way application has changed over the centuries and will continue to change when GS interrupts him.
GS steps in with his "global thing" and Breyer, brings up Holmes and rhetorically asks "What is the crowded theater today, what is--"
GS cuts him off and says that's his question.
Breyer goes on to say that will be answered--if it's answered at all--through the consideration of a number of cases which will for which reasoned decisions will be provided.
So, Breyer in a nutshell:
(1) Constitutional interpretation is an ongoing process and new developments can, indeed, present analytical challenges.
(2) The question of what constitutes a "crowded theater" could change with time and technology.
(3) The Court *may* address some of those questions via a series of cases, if presented.
(4) The Court will issue rulings based on those individual cases.
HOLY SHIT! He just banned everything short of talking about the weather!
Not.
I don't really care for Breyer, but this is a major blow-up of next to nothing.
What did the world expect him to say? "The First Amendment, which we already know isn't absolute, is close enough to absolute that nothing is ever, ever, ever gonna change and the Court is never, ever, ever gonna look at those issues again." Fat chance.
The other thing no one seems to mention is the traditional (and potentially codified?) policy of SC justices to refuse direct comment on specific cases before the court or on their way to the court and the issues attached to them.
A friend of mine once asked a question of then CJ Rehnquist at an event we attended. Rehnquist refused to answer the question because the court was going to hear cases addressing the same legal issue. We discovered that is the norm for Justices. It's very possible that Breyer wasn't interesting in playing the hypothetical game in detail for that reason, which would be completely understandable.
It would also make his answer, which was a generic discussion of how the court could hear individual cases and render specific decisions about them seem slightly more sensible.
Also, one should remember that the Koran burning was being used as an example of the changing nature of global communication--not as an example of religious or political speech. Breyer's answer about the changing nature of a "crowded theater".
You know I'm a 1st Amendment guy to the max, but I can't even begin to get worried about the legality of future book burnings--or anything else--based on that interview. Not even close.
BTW, GS did a shit job with that interview, too. If he thought it sounded like Breyer was carving out exceptions to 1A protection, he might've thought to clarify the comments and/or dig deeper. Instead, he went for the "you're no longer the new kid" thing. Lame.
Carson
Yeah, that's a plausible explanation, Carson. Though, if he ruled in that way, he'd lose that gamble long term, I'm pretty confident, at this point. It's been occurring to me, lately, Carson, that it only marginally matters, really, even what these guys think. The beauty of democracy is that it just keeps moving. And it's always moving in a liberalizing direction. This discussion actually demonstrates the point.
20 years ago, when we were all debating the flag burning issue, it was still controversial for liberals to argue that the first amendment covered flag burning. Today, it's the standard by which this situation is argued because the agreement is so widespread on it. Because, for all of everyone's bluster, liberty is the one principle that everyone finds agreement on, long term. Everything else is just posture and polemics, in the meantime. And our long history bears that out. Even the progressive position of today versus, say, the progressive position of the New Deal era, which is far more liberalized, today. And still has a long way to go.
It's pretty funny, really, watching everyone get all in a dither about something they're generally gonna change their minds about in 20 years. And if they don't, their opinions will really only matter to themselves, anyway:).
It's been interesting watching the population catch up with that. Slowly. Genuine progress is just a function of people fucking up the important questions as much as getting them right, I think. And, eventually, people get things figured out, I think. Often despite ourselves, I'm learning. But plenty of good learning happens that way, I think.
Things
I have no idea what I was starting, there, Carson:).
It's cool, dude. I'm at a point, where I don't even give a shit about the political theatrics of the moment, anymore, because my thinking provides enough predictive value, at this point, that it really doesn't even matter what the drama of the moment, is.
And I don't even care, anymore, about that for any whatever purposes outside of just my own personal peace of mind.
The bottom line is that you just can't talk your way around realities you don't like, forever. And it doesn't even matter how sophisticated your talk is. They just are. And they don't care about your opinions to the contrary.
I better get to class, here, Carson. Talk soon.
Ben
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