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.
पोस्ट्स
७५ टिप्पण्या:
Extending some sort of legalistic penumbra to encompass the entire world as a crowded movie theater will do nothing but encourage EVERY faction to become more and more violent. Period.
Violence is rewarded. Noted.
*mapquest abortion clinics*
Maybe Breyer remembers that Flight 93 was headed to the Capital building itself, a place Breyer sometimes spends time. Does he want to submit to the bombers before they get him next? Interestingly enough, it is the bombers achilles heel that they cannot win a fair fight on theology, and they know it. Their fear of free speech is the tip off of their weakness.
Sad.
I remember back in the day when the scope of ojavascript:void(0 was very narrowly defined.
I blame html5
The reason you can't yell fire in a crowded theatre is not simply because people may get trampled to death. The reason is that the audience cannot afford to take the time to evaluate whether the speaker is telling the truth and as a result may trample people to death.
The analogy has no application to Koran burning. No listener or observer will die as a result of ignoring someone burning a flag, a bible, or a Koran. Nor would any observer need to risk or cause harm anyone else in an attempt to save his own life.
The more I think about this, the more it pisses me off. Can't these two supposedly learned people understand the difference between shouting fire in a crowded theater and burning a flag, Koran, whatever?
In the first case, you get a panic based on very real, immediate (if only perceived) danger to life and limb, if not loved ones like children. There is no debate. There are no ideological or theological difference to hash out. The same part of your brain that reacts in an dangerous stampede to shouts of FIRE in a theater is the same part that regulates fight or flight. It's not rational.
Burning something some group finds offensive and excusing their violent retributive behavior smacks of the most lazy and dangerous lines of thinking...if thinking can even be used in this case.
@Paddy O LOL and sorry I had to correct that.
Somehow, in this ever-changing world in which we live in, what I wrote as "our First Amendment freedoms" got published as "ojavascript:void(0ur First Amendment freedoms."
Unsaid, but implicit, Breyer:
'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.
The only thing worse than a journalist is a lawyer.
Here you have two of the worst on display.
To me, Breyer seemed to imply that if the speech in question didn't occur in his preferred context ("In debate. A conversation. People exchanging ideas"), then the First Amendment might not apply.
Of course, he was sure to include a bunch of lawyerly qualifiers and weasel words, but he certainly seemed open to the idea of squelching speech that didn't meet his lofty standards.
Cartoons caused the same riots and killings; thus, are cartoons no longer protected as free speech because of the reactions of people on the other side of the world?
The whole thing drives me to scream with frustration, but perhaps I am well down the road of crotchety old man.
Rights are only important to Breyer if they are in line with his philosophy.
Political Correctness meets the Constitution. In the Breyer worldview, political correctness wins. Lets hope our paisan Scalia drops 50lbs. and starts exercising!
Meant, dancing around without saying what he really wanted to say, but as you noticed, what I typed can be interpreted both ways as saying he hid his meaning, as I intended (and would have been hard to misinterpret if I had included the without), or to say that he said exactly what he meant, but in a manner that he hopes would be obscure to detractors, yet meaningful to supporters, as you imply that I meant (which I only did so in retrospect, and through poor editing).
Thanks for highlighting my thoughts, though, always a treat to be noticed.
Do any cons think that it is problematic for a spouse of the court to make a living doing this sort of stuff?
WWGBCBIS
(What Would Glenn Beck's Chalk Board of Interconnection Say [if this was a lib spouse])
Scott M: The more I think about this, the more it pisses me off...
Yes. Fucking castrates. Fucking whimpering eunuchs. They will sell out everything for their mess of globalist pottage. Everything.
Muslims apparently are willing to protest not only against koran burning, but also in response to women, Hindus, cartoons, Jews, gays, Lady Gaga, and yes, even silence. The only question remaining for me is why does anyone give a shit?
Do any cons think that it is problematic for a spouse of the court to make a living doing this sort of stuff?
No. Why would it be?
Why does a SCOTUS judge go on this type of show?
My initial reaction to Stehanopolous's question "Does it change the nature of what we can allow and protect?" was who you calling "we" Kemosabe?
Interviewing any of the sitting Justices is on its face a dishonest premise.
It's a given that the Justice will deflect specific questions. Thus allowing the media to frame questions and/or edit video to project the media's preferred political agenda/position. That this is not lost on the Justices makes it doubly dishonest.
1JPB:
Big deal - wasn't Justice Ginsburg a longtime ACLU agitator?
Holmes said, it doesn't mean you can shout fire in a crowded theater.
Holmes actually wrote: "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic."
Failing to shout "Fire" in a crowded theater that was on fire would be reprehensible.
(I personally would have said "knowingly and falsely"--even then, I'd say the man is still free to exercise his speech, but is bound by the consequences.)
So what's the end result?
Our freedoms are held hostage by the lowest common denominator of the Arab street?
btw-The French Senate-just voted to ban the public wearing of the burqa, hijab-etc.
You could say-the French have more experience with supposed "co-existence".
You also could say-they have more balls than well...
Here is a map from Le Monde of different European legislatures and the relative levels of bans-through out Europe.
Euro Map
"Why would it be?"
It could be argued that it would be better if folks weren't able to directly dump a ton of money into the Thomas bank account when that money has been explicitly raised to influence the government.
Would you have a problem w/ Justice Thomas accepting the donations from lobbyists directly, rather than having them funneled through his wife?
Yet it's Obama getting burned in effigy.
Kashmir.
"What is the crowded theater today?"
Is Breyer really as stupid a man as he seems? What in the world is he saying? Does he think he is still in a high school civics class?
Tip: If your answer to a question starts out "in a sense," the rest of the answer will be senseless. It's called the One Sense Rule.
And what if there really is a fire in the theater? Ever think of that, smarty pants Justice? Huh? Huh? Didja?
Plus who decides if the global internet theater is on fire, or whether it really is crowded. I have no trouble getting tickets. Stephen Fucking Breyer decides? Please, no.
I mean, if I'd gone to see Carrie: The Musical I guess I could have shouted Fire! all I wanted. Or something. In a sense.
I would have liked to have heard from Breyer as asked by Snuffle-upagus, why international law (the fiction that it is) is used as a basis many times by SCOTUS as a means to decide US law and what the justification for that really is.
@1jpb
You wouldn't dare ask that question if Ginni Thomas was an African-American or a liberal.
Proof of the pudding:
Ninth Circuit Judge Stephen R. Reinhardt's wife Ramona Ripston heads the Southern CA American Civil Liberties Union.
Third Circuit Judge Marjorie O. Rendell is married to Pennsylvania’s Democratic governor, Ed Rendell.
And then of course we have taxpayer funded FLOTUS
Michelle Obama campaigning for Dems.
" What is the crowded theater today?"
Go to hell.
That's my entire argument.
No. Why would it be?
The usual reason. Consider that up until two years ago it had never occurred to anyone to require a vice-presidential nominee to be a foreign-policy hand-- but a bunch of liberals decided that it would be convenient for such a standard to exist, so they invented one. We may be present at the birth of another newly-minted tradition.
BJM,
Can you point to any case were a Justice or their spouse was able to accept lobbying money from folks whose lobbying interests came before the Justice, and that Justice did not recuse themselves from the cases in question?
Apples to apples, please.
Aren't you cons even a little bit curious to know who secretly gave her a half a million dollars?
Sheesh.
The same people inflamed by the Koran burning abhor gay marriage. Other holocaust denial. Or see the denunciation of rapes by priest as an Anglo-Saxon conspiracy against the Church. Would he take the same position about the global audience?
Ginsburg and Breyer are both Jewish transnationalists, both think "international law" and international norms are above US law and US norms.
To the extent they convinced O'Connor and Kennedy, they sometimes got 5-4 majorities.
THey have maintained the 2nd Amendment is trumped by the UN Convention on Small Arms and US-made weapons end up in other countries as reason to oppose Heller. Both have cited the need to refer to the "global wisdom"contained in newer, fresher constitutions than ours. Why "changing international standards" demand we abandon the death penalty.
That free speech is now something that must reflect the "global will" because American's speech now goes past the US Border and may create violence and adverse effects elsewhere and this must be considered is par for the course.
At this point Kagan does not signal she buys into transnationalism or cosmopolitanism. That is a good thing.
Meanwhile, pray that not only Kagan resists conversion, but that the conservatives remain in good health another two-six years. (in case the Republicans end up with another unelectable nominee)
"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?"
Wow. Just ... wow.
Aren't they our laws?
I've never seen a class of people so interested and invested in control.
And BJM,
assuming you won't read the link:
"Thomas has compared her situation to that of Pennsylvania Gov. Ed Rendell, whose wife Marjorie Rendell is a federal appeals court judge. But Steven Lubet, a Northwestern University law school professor who studies judicial ethics, said the analogy is flawed because lower courts “just aren’t as important as the Supreme Court” and because another appeals court judge can replace Rendell on a case.
“Should Justice Thomas disqualify himself, the court goes ahead shorthanded,” Lubet said.
Additionally, donations to Rendell’s campaigns or committees are legally required to be disclosed."
Having publicly opined on 1st Amendment protections for book burning, must Justice Breyer now recuse himself from subsequent related cases?
But, none of that matters. Let's talk more about Breyer the dancer.
Breyer is a smarmy prick.
Am I missing something? When did Breyer ever say these cases involving offenses to Islamic lunatics would be decided in favor of restricting free speech? He only said that would be the question. Not the answer.
You are really a bunch of goat humpers and hummus heads. Keep the paranoia going. It makes you strong.
"Breyer is a smarmy prick."
Don't say that about BHO.
goat humpers?
Ritmo even your fantasies are boring.
"Am I missing something? When did Breyer ever say these cases involving offenses to Islamic lunatics would be decided in favor of restricting free speech? He only said that would be the question. Not the answer"
The fact that both entertain the notion that global extremists can impact our interpretation of our own laws without quashing it wholly is the rub.
I see that C-Fud offers his provisional approval of Kagan's non "Jewish transnationalist" creds.
We can all rest well knowing that Detective of the Semite Squad C-Fud has been on the case to find out precisely what sort of mischief Kagan might be up to, and she has passed through his Jewish Offenses Detector with flying colors. For now at least.
Any of you see the South Park episode where Cartman fights off the army of Jew robots? That was after he got bored boasting of his slaying of dragons, of course.
What sort of daydreams occupied the young C-Fud, I wonder?
And, just for Cedarford.
The fact that both entertain the notion that global extremists can impact our interpretation of our own laws without quashing it wholly is the rub.
Yes! Eureka! By George, we have it!
Foreign judges, by virtue of not being Americans, are therefore "extremists".
It doesn't matter how pretty they are/were! (Although, those are bad shots. Come on! Mila Kunis is much more attractive than how she looked in that picture. Although it was a British web site so there's no accounting for bad taste.)
The fact is that C-Fud can see right through the surface and skin into their Jew bones and hone in on the penchant for world domination and subterfuge lurking in the base pairs of their Jew DNA.
He is not fooled by their looks, and, sure enough has prided himself on the number of sly Jewesses who must have thrown themselves at him with the abandon that only a stud like C-Fud could command, only to strongly rebuff them upon calling them out for what he could cleverly discern was just another international racket of some sort or another!
You Jewess spy-bots don't fool C-Fud! He gots some mad, down-home Jew deflection skills!
Behold Young C-Fud!
Should we believe there is some constitutional distinction for Breyer and his liberal colleagues between decisions based on the actions of foreign judges and decisions based on the actions of foreign mobs?
you talked about how the process of globalization was changing our understanding of the law
That's scary.
To use the present issue with the theater example:
You can't yell fire in a crowded theater because the fire worshippers will blow up the theater
PS Did Mr. Stephanoupolis ask Justice Breyer how he got his tan?
@1jbp
I also noticed you omitted this graf in the Politico piece:
“Liberty Central has been run past the Supreme Court ethics office and they found that the organization meets all ethics standards”
All things considered I'm more in sync with Volokh on this issue than the fever swamp as it doesn't strike me as particularly pernicious or dangerous either...but flail away.
It is people like this who are going to destroy the Republic.
That is not hyperbole.
Now granted we survived a civil war. The Republic is pretty resistant. But this sort of thinking is just terrible. And for it to come from a Supreme Court justice is enough to make you weep.
For shame.
BJM,
I read the Volokh thing when it was written. I still think it's not good for Thomas to be receiving money in half million dollar increments from secret donors--which is something that Volokh doesn't discuss.
But, that's just me, and my crazy librul ways. So, let's get back to more concrete things such as interpreting how Breyer is a dancer, and his comments indicate that he's hoping the con justices will die so he can destroy all that is good w/ America.
[BTW, do you cons recall the beginning of the W years when you were excuse makers for him. Sometimes it's better to preemptively ditch the excuse making and accept that your side may be doing something that is not necessarily a good idea (e.g. secret half million dollar payments to Justices). Just sayin.]
BTW,
Since Volokh's solution is recusal; doesn't it seem like the public should know when Thomas needs to recuse himself, e.g. when someone gives his wife a half a million dollars?
Or is that just librul crazy talk?
What Breyer is doing is what despots always do -- asserting supreme power. The judges and only the judges will determine what "rights" the people will be allowed to have.
If this were truly a free society, this would not even be an issue. That Breyer does apparently think that it is something for the courts is appalling.
1jpb: "I still think it's not good for Thomas to be receiving money in half million dollar increments from secret donors--."
But this makes him twice as bad as the normal "rich" person. But I suppose if he gets the money secretly then he doesn't pay taxes, or forgets like, say, Geitner.
Besides Thomas is a house negroe and not a real black person and second only to GWB in lack of smarts.
"Foreign judges, by virtue of not being Americans, are therefore "extremists". "
Nice try, but that's not what I said.
@1jpb - If the Supreme Court ethics office is OK with what Thomas's wife is up to, why should anyone else give a fuck?
I am wondering how Breyer thinks he will come off sounding like anything other than a fool by this exchange. It was almost Chomskyian in its irrationality.
Apparently our rights to protest shall be subject to the veto of the most oversensitive, intolerant and violent group amongst us. This isn't someone yelling "fire" in a theater. This is someone burning a copy they own of the same movie on DVD because they don't like it and getting beaten down because of it. Breyer would have the government do the thug's work for them.
I am quite sure that such a policy as Breyer contemplates would not end well. And I call it a policy because it certainly has no grounding in law or the Constitution. You would think such reasoning would be clear enough that even a left wing justice could understand it.
Yes, God forbid 1jpb that spouses of powerful decision makers that we trust to make important decisions fairly and impartially take political donations.
Unlike say, Michelle Obama: "Mrs. Obama will keynote the DNC's Women's Leadership Forum, speaking to a mostly female audience of about 500 people who donated from $250 to $5,000 to the DNC to attend the event."
And "Mrs. Obama -- along with Oprah Winfrey and the Bidens -- addressed the Women's Leadership Forum in 2008, when the event, held that year in Chicago, doubled as a "Women for Obama" function, with proceeds helping to elect Barack Obama to the White House. About 1,000 women paid $2,500 to $28,500 to attend the two-day forum, which included a speech from candidate Obama in a separate session."
That cool $2.5M-$28.5M puts Mrs. Thomas to shame. And offhand, I'd rework your phrase to say the President's "spouse was able to accept lobbying money from folks whose lobbying interests came before the [President], and that [President] did not recuse [himself] from the [policy making] in question". Further, I'd say the President exerts MORE power and influence than a Justice, so where's your outrage?
But thanks for trying to derail the discussion about Breyer and free speech with your Thomas smear.
More importantly, did Justice Breyer say that Adams wrote the Constitution? http://joshblackman.com/blog/?p=5111
Are you folks really this dense?
Comparing elected officials and their non-anonymous and regulated donations to a lifetime appointment to the highest court in the land (which is the Final Word regarding the implementation of our laws/constitution) and their unlimited and secret half million dollar donations.
This reminds of the ways you cons' were such good (though blind) excuse makers for W. How did that work out?
Lame. And, sad.
Is there any amount of secret donations that would bother you? What if Thomas and four other Justices each receive a secret 50 million dollars some year when, coincidentally, Microsoft has a big case in front of the court where these five Justices side with Softy. Is that a problem?
P.S.
I personally have nothing to lose, and everything to gain, if the powerful in our country continue to lock up political and judicial power. But, I've got to imagine that this can't be true for many (if any) of the folks who post here. Although Micheal has indicated to me that he pays more than four million a year in taxes, so he is likely to benefit while the rest of you continue to be left behind.
In a crowded theater, the crowd is not necessarily behaving irrationally by running out the door in the event of a fire - although doing so may trample other people. (and remember, that was first said years ago when fire hazards in public buildings were worse - wooden structures with no sprinkler systems and not so many well marked exits)
However, killing someone for burning a reglious book is a rather irrational act.
I don't think the two are comparable.
Do we really want to be held hostage to the feelings of the most senstive crazy people?
It's not really the Arab street we should be worried about at all. Success breed emulation. If, for some ungodly reason the SCOTUS were to come down on the side of a case that curtails free speech like flag burning, book burning, effigy, satirical cartoons, etc, just wait until the other, much closer to home, marginalized groups get a hold of it.
That's the real worry.
Busy Bodies in Washington are loving this comment. They'd love to curtail speech they don't like.
Wait until they pass a law outlawing 'hate speech'. Then watch them defline 'hate speech'
Comparing elected officials and their non-anonymous and regulated donations to a lifetime appointment to the highest court in the land (which is the Final Word regarding the implementation of our laws/constitution) and their unlimited and secret half million dollar donations.
Ooh, spooky!
Of course, Justices don't actually need money or favors from lobbyists. Their jobs aren't in jeopardy -- they're guaranteed for life even if everyone in the world hates them.
People like Barack Obama, on the other hand, need great swacking piles of money and lots and lots of favors from lobbyists, because they need to win the next election. So seeing them (or their spouses) pal around with lobbyists is much more worrying. Unlike justices, they have added incentives for corruption.
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If, for some ungodly reason the SCOTUS were to come down on the side of a case that curtails free speech like flag burning, book burning, effigy, satirical cartoons, etc, just wait until the other, much closer to home, marginalized groups get a hold of it.
Very true. Not to mention that today, it's some asshole burning a book. Tomorrow, it's someone drawing Muhammad (sp?). Next week, it's women with their heads uncovered in public. Etc.
Wait until they pass a law outlawing 'hate speech'. Then watch them defline 'hate speech'
It's shocking to me how many people believe that laws against hate speech already exist. Even when I was in law school, I would hear fellow law students say that some person should have been charged with "hate speech" or a "hate crime" (for something that was clearly speech and nothing more). It's extremely disturbing.
*************
1jpb-
Setting aside the fact that your complaint is pretty much Alpha Liberal level off topic, I seriously ask you: How much curtailment can we reasonably put on the spouses of people in power? It would be great if we could have all of our judges live in a little bubble where they never have any human relationships, but that's not the way it works. They have families, and those families need to have the ability to exercise their ideals like the rest of us. Certainly, we should be vigilent, but we do have to allow Ms. Thomas some freedom in this matter.
Also, at the risk of being accused of playing the sex card, do you really want to curtail the rights of wives of powerful men? There are more powerful men than powerful women; saying that powerful people's spouses can't do certain political activities would certainly help keep that status quo.
- Lyssa
i am not as clear that breyer meant to imply it could be banned. i think he merely expressed open mindedness on the topic, and you know what? he might have to rule on the issue someday, so he kind of is supposed to do that.
That being said, anti-blasphemy laws are idiotic on every level. and the left's sudden love of them is transparent as crud. No one wanted to ban blasphemy when my savior was being dipped in urine and photographed. Indeed, liberals wanted that little bit of blasphemy to have government subsidies, despite the problems that presents under the establishment clause. But now since 9-11 a certain strain of liberal is enamored with restrictions on my freedom of religious expression and my freedom of religion itself. apparently the urine went from being the medium in which jesus was submerged, to the stain on the front of their pants. it all recalls the comment in "Team America" that sometimes you can be such a p----y you become an a--hole.
Let every nation know, whether it wishes us well or ill, that we will deny any price, shirk any burden, avoid any hardship, abandon any friend, embrace any foe, in order to assure the survival and the success of "multiculturalism."
The "[falsely] yelling fire in the crowded theater" analogy doesn't work here. It's more like someone coming along and saying "shut your mouth or we'll burn your crowded theater down".
The potential injury is not the result of panic and fear on the part of innocent bystanders. It's a premeditated threat made by violent people intended to discourage or punish peaceful and otherwise harmless speech. You can't pretend as though they're the same thing.
w/v "Wophyrihi" - the proper Latin plural of "Whopper".
Lyssa,
You'll notice that I haven't declared what amount of secret payments to a Justice's spouse is too much. But, I'm pretty sure that half million dollar or multimillion dollar secret payments should, at the least, not be secret.
Certainly anyone in favor of lifetime Justices (the final word on law and the constitution) having spouses that can raise unlimited, anonymous donations must, logically, also be in favor of all elected officials and government procurers being allowed to have spouses who can accept unlimited, anonymous donations. At least these political leaders need to fear the wrath of the public because they don't have lifetime positions.
Are you in favor of unlimited, anonymous donations for politician spouses and the spouses of folks who make procurement or regulatory decisions?
we will deny any price, shirk any burden, avoid any hardship, abandon any friend, embrace any foe
We shall pretend to be an island, whatever the cost may be. We shall never do anything but surrender. And if in spite of all this America lasts a thousand years, men will still say, "this was their phoniest hour."
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