In 2003, justices Kennedy, Ginsburg and Breyer ruled in favor of a cross burning ban if done to intimidate. If Sotomayor and Elaine Kagan joined them on a Koran burning case today, then the court will have a 5 to 4 majority in favor of state laws outlawing burning the Koran. Considering Ginsburg, Breyer, Kagan and Sotomayor’s well known contempt for the Constitution, it leaves Justice Kennedy as the swing vote. A thin thread on which to hang the First Amendment.
In 1935 Sinclair Lewis wrote It Can’t Happen Here, a novel about the rise of tyranny in America, whose message was that it indeed can happen here. Just to remind us that in fact it “can happen here”, Supreme Court Justice Stephen Breyer used the occasion of his appearance on noted legal forum, Good Morning America, to suggest that there may not be any First Amendment protection for burning the Koran.
“Holmes said it doesn’t mean you can shout ‘fire’ in a crowded theater,” Breyer told me. “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?”
Breyer’s statement was every bit as flippant and ignorant of the Constitution and even previous Supreme Court decisions as you would expect from a Clinton appointee.