It's been a rough week for the First Amendment. First, we had Kathleen Sebelius putting us on notice about mentioning things she'd rather not contemplate. The WSJ editorialists remind us of her subtle approach:
Witness Kathleen Sebelius's Thursday letter to America's Health Insurance Plans, the industry trade group—a thuggish message even by her standards. The Health and Human Services secretary wrote that some insurers have been attributing part of their 2011 premium increases to ObamaCare and warned that "there will be zero tolerance for this type of misinformation and unjustified rate increases."Wonder how Sebelius would look with a parrot on her shoulder. Well, I'm not part of the insurance industry. Wonder if she'll come and get me?
Zero tolerance for expressing an opinion, or offering an explanation to policyholders? They're more subtle than this in Caracas.
Meanwhile, we had the spectacle of a sitting Supreme Court justice pondering whether a Koran can be burned (H/T Captain Ed):
Last week we saw a Florida Pastor – with 30 members in his church – threaten to burn Korans which lead to riots and killings in Afghanistan. We also saw Democrats and Republicans alike assume that Pastor Jones had a Constitutional right to burn those Korans. But Supreme Court Justice Stephen Breyer told me on "GMA" that he's not prepared to conclude that -- in the internet age -- the First Amendment condones Koran burning.Let's be clear about a few things from the outset. The guy who wanted to burn the Koran was a rat bastard. But as the saying goes, hard cases make bad law. Do we really want to give anyone a heckler's veto over what is indisputably free expression, even if it is vile expression?
“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?”
Apparently Breyer is willing to entertain this:
For Breyer, that right is not a foregone conclusion.Do you trust Stephen Breyer to do this thinking for you? Do you trust Antonin Scalia? I wouldn't trust either of them, frankly.
“It will be answered over time in a series of cases which force people to think carefully. That’s the virtue of cases,” Breyer told me. “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.”
I don't mean to be flip about this, but let's ask a hypothetical: would it be okay to burn a Koran if it were wrapped in an American flag? And if not, on what basis should the Koran (or a Bible) be afforded greater protection than an American flag?