Remember When The Issue Was The First Amendment Right TO Criticize Islam?

Remember when the issue was the First Amendment right to criticize Islam? Now, it appears that in the Internet Age Islam could be protected from criticism.

Back in 2005 when Congressman Conyers sponsored HR 288? It was supposed to address religious intolerance, but ended up talking mostly about Islam--here's part of it:

Resolved, That the House of Representatives–

(1) condemns bigotry, acts of violence, and intolerance against any religious group, including our friends, neighbors, and citizens of the Islamic faith;

(2) declares that the civil rights and civil liberties of all individuals, including those of the Islamic faith, should be protected;

(3) recognizes that the Quran, the holy book of Islam, as any other holy book of any religion, should be treated with dignity and respect; and

(4) calls upon local, State, and Federal authorities to work to prevent bias-motivated crimes and acts against all individuals, including those of the Islamic faith.

Conyers made clear on his website that no special treatment was intended:

The resolution was drafted to oppose all religious intolerance. To the extent it mentions the Quran and Islam specifically, that is obviously to respond to those who believe our nation would tolerate disrespect of that religion or its holy book.

Left unclear is why there was a need for this, considering that anti-Semitic attacks far outnumber those against Muslims.

Be that as it may, the possibility of special treatment for Islam has again surfaced--this time not from a member of Congress, but from a member of the Supreme Court. George Stephanopoulos notes on his blog that Justice Stephen Breyer considers a special comparison between burning the Koran and yelling fire in a crowded theater:

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.

“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?”

Last week President Obama told me that Pastor Jones could be cited for public burning – but that was “the extent of the laws that we have available to us.” Rep. John Boehner said on "GMA" that “just because you have a right to do something in America does not mean it is the right thing to do.”

For Breyer, that right is not a foregone conclusion.[emphasis added]

That opens up a whole Pandora's box of issues though, doesn't it--especially since Breyer apparently makes a  distinction between flag-burning and Koran burning. For years now, there has been criticism of how the very threat of violence by "the Arab street" has become a potent force that has forced special consideration for Islam and its adherents. Now, according to Breyer, that threat may have become--due to the Internet--a legal force.

Last year, the British government used the same "crowded theater" analogy to explain why they decided to not allow Geert Wilders to show his film Fitna:

Foreign Secretary David Miliband told the BBC's Hardtalk: "The home secretary made a decision on an individual case as she is required to do."

He added that the film contained "extreme anti-Muslim hate and we have very clear laws in this country".

Mr Miliband also said: "We have profound commitment to freedom of speech but there is no freedom to cry 'fire' in a crowded theatre."

At the time, Mark Steyn quoted from John Hinderaker of Powerline on Miliband's analogy:

Even among American constitutional law scholars, the "fire in a crowded theater" analogy is generally understood to be dumb. I took Constitutional Law from Paul Freund, one of the great scholars in the field—among other things, he was the guy who worked with John and Bobby Kennedy to lay the constitutional foundation for the Civil Rights Act. Anyway, he pointed out in class that yelling "fire" in a theater is exactly the same as pulling the fire alarm. It isn't really "speech" for First Amendment purposes at all, any more than pulling a fire alarm is "speech." Or, to take another example that I came up with, if a mobster says "Shoot him, Bugsy," and Bugsy shoots him, and the mobster is prosecuted for murder, he doesn't have a First Amendment defense.

The First Amendment is intended to protect debate and discussion about issues of public concern—e.g., your books—not the giving of orders or false fire alarms. [emphasis added]

Responding to Breyer's statement, Ed Morrissey goes a step further in understanding the point of the analogy:

The “fire in a crowded theater” standard is intended to limit government intrusion on free speech, not enable an expansion of it. It means that only when speech that will directly and immediately result in a threat to human life in the proximate setting can the government criminalize it — and it has to contain the element of malicious falsehood as well. After all, no one will prosecute a person who yells “Fire!” in a crowded theater when it’s really on fire, or when the person yelling honestly believes it to be so.

Allahpundit addresses the issue as well, and provides other Supreme Court rulings to examine how the Breyer distinction plays out--but he also poses a question:

If the left suddenly decided the First Amendment had a “Koran” exception — which would also surely be extended to the Bible, the Torah, etc, in the name of “neutrality” — how would they go about justifying it?

It's the assumption in the middle that caught my attention. Going back to Congressman Conyer's resolution mentioned above, I am not so sure that 'neutrality' is that big an issue these days. The proteksia granted to Islam by virtue of the threat of Muslim violence may become a special First Amendment protection.

Technorati Tag: Koran Burning and Stephen Breyer and First Amendment.