STEPHANOPOULOS: You know, when we spoke several years ago, you talked about how the process of globalization was changing our understanding of the law. When you think about the internet and when you think about the possibility that, you know, a pastor in Florida with a flock of 30, can threaten to burn the Koran and that leads to riots and killings in Afghanistan, does that pose a challenge to the First Amendment, to how you interpret it? Does it change the nature of what we can allow and protect?To me, Breyer is doing nothing more than smearing around the usual platitudes about how judges interpret law and decide cases in the context of ever-changing real world facts and let's have a fine day in the classroom cogitating about the elaborateness of all that.
BREYER: Well, in a sense, yes. In a sense, no. People can express their views in debate. No matter how awful those views are. In debate. A conversation. People exchanging ideas. That's the model. So that, in fact, we are better informed when we cast that ballot. Those core values remain. How they apply can-
STEPHANOPOULOS: The conversation is now global.
BREYER: Indeed. And you can say, with the internet, you can say this. Holmes said, it doesn't mean you can shout fire in a crowded theater. Well, what is it? Why? Well people will be trampled to death. What is the crowded theater today? What is-
STEPHANOPOULOS: That's exactly my question.
BREYER: Yes. Well, perhaps that will be answered by- if it's answered, by our court. It will be answered over time, in a series of cases, which force people to think carefully. That's the virtue of cases.
But maybe you think he's revealing that he thinks that ill-behaved hot-heads in other countries are changing the scope of our First Amendment freedoms, now that the internet transmits every local free speaker's performance art around the world.
IN THE COMMENTS: XWL said:
Unsaid, but implicit, Breyer:I think you're right. By the way, "he dances around saying what he really wants to say" has a second meaning, which I know you didn't intend.
'What fun we could have re-interpreting the Constitution if only Scalia and Thomas would drop dead while we still have Obama as President and a Democratic majority in the Senate'
Seems like he knows there isn't a plurality of justices that agree with his implied stance that freedom of speech should be limited based on the global sensitivities, so he dances around saying what he really wants to say.
If Scalia, Thomas, Roberts or Alito were to leave, and we had the likes of Breyer in the majority in the Supreme Court, all sorts of new 'rights' would be established, and all sorts of old rights would be curtailed.