Just saying:
[Senator Lindsey] Graham’s reaction — the response to a security threat is to curtail individual freedoms — is the most frustrating response imaginable, but it’s typical of the way the U.S. has responded to terrorism after 9/11. But while other mistakes made in the name of security that have stoked outrage in the Muslim world, such as Gitmo or legalizing torture, required an adjustment of U.S. policy, the fact is that the U.S. has all the laws against Qu’ran burning it needs: Zero. The adjustment that needs to be made here is among those who would react to hateful speech with violence. To abandon fundamental freedoms in the fight against terrorism is to abandon the very things the U.S. is supposed to be defending.
A while ago, there was some controversy over whether or not Supreme Court Justice Stephen Breyer had suggested that burning a Quran could be like yelling "fire" in a crowded theater, the archetypical example of non-protected speech. But as Josh Gerstein noted at the time, even then he seemed to come down on the free-speech side of the equation:
CNN's Larry King: There's no doubt that Pastor Jones, little church in Florida, had the right, he has the right to burn the Quran, doesn't he?His original remarks seemed more like a law-professory way of thinking about a legal question than an actual opinion. Between the moderate justices and reactionary anti-Islam thought on the right, I'd say you have at least seven votes against criminalizing Quran burning on the court, with Elena Kagan and Samuel Alito being the wild cards. Why? Kagan just because she was so close to the administration, and Alito because if you're going to curtail the First Amendment over hurt feelings, then you'd probably find people actually being beheaded by screaming mobs more persuasive.Breyer: Yeah, I said it depends on what analogy you use, but the most one analogous case is that there was — you have the right to burn an American flag as a symbol.
King: Oh, it's a 5-4 ruling though.
Breyer: I wasn't there.
King: Scalia wrote I think the majority -- he did. Does that make us a great country?
Breyer: It helps. It helps. It says that in this respect, I understand the — it's awful. I once saw a flag being burned during that Vietnam period. Do you remember?
King: Sure.
Breyer: And I didn't know I would have this physical reaction. I had a physical reaction of revulsion. I couldn't stand it. We were talking earlier, I'd been in the army though only for six months. But when I saw that, I couldn't stand it, all right? Now, what we're saying is we protect expression that we hate. And protecting expression that we hate is not the only good thing in the world, but it is one good thing in the world. And when you have a country of 300 million different people who think different things, it is helpful. It is helpful to tell everyone, you can think what you want.
King: Hard for other people to comprehend why Nazis can march —
Breyer: There they are. You know, it's so often I hear people say — and particularly this is a college students, sir. Well, that's just so terrible what he's saying. I say, oh, you think that free speech is only for people who don't say things that are terrible.
King: I forgot what a great guest you are.
But it's all speculation anyway, since I think a proposal to criminalize Quran burning would be a political nonstarter. Americans tend to be roused by really obvious threats to free speech in ways they aren't in response to threats to other freedoms.
