I mean, I get where he's going, but the difference - to me - is that one has immediate, obvious consequences.
The other has long-term, potential consequences that may not even be directly tied to the act.
You can't go around prohibiting any speech that might someday possibly maybe get someone hurt even if the act is purposely inflammatory.
Stephen Breyer Questions Right to Burn Quran
During an appearance on ABC's Good Morning America this morning, Supreme Court Justice Stephen Breyer addressed the recent controversy over a Florida Pastor's plan to hold a Quran-burning rally on the anniversary of the September 11 terrorist attacks, saying he wasn't convinced the First Amendment would protect such an action if the case were brought to the court in the future.
"Holmes said it doesn't mean you can shout 'fire' in a crowded theater," Breyer told George Stephanopoulos during the GMA interview, referring to Supreme Court Justice Oliver Wendell Holmes, Jr., who wrote the opinion in a 1919 Supreme Court decision that addressed Freedom of Speech. "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, who was on the show to promote his new book, "Making Our Democracy Work: A Judge's View" (Knopf), said that questions about the changing definition of free speech in the internet age will "be answered over time in a series of cases which force people to think carefully."
"That's the virtue of cases," he said. "And not just cases. Cases produce briefs, briefs produce thought. Arguments are made. The judges sit back and think. And most importantly, when they decide, they have to write an opinion, and that opinion has to be based on reason. It isn't a fake."
"It's a 'rickety system' Breyer added, but it has functioned "fairly well" so far.
Breyer also took the opportunity during his appearance to advise incoming Supreme Court Justice Elena Kagan as to handling the pressures of her new job. "Of course, you're nervous. I mean, for quite awhile, your cases now -- they're going to be final. There's no one to appeal to," he said. "She will be nervous. But don't worry about it."