Justice Breyer Clarifies Remarks On Koran Burning & The Constitution

As I noted earlier this week, Justice Stephen Breyer made remarks on Good Morning America on Tuesday that some interpreted as saying that Koran burning might not be protected speech. As Eugene Volokh notes, Breyer spoken again on the issue on Larry King Live the other night and seemed to clarify his remarks significantly:

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?

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.


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Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.