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Mr. Dilettante: A rough week for the first amendment

Just so we’re clear, you can say whatever you want, unless it’s somehow inconvenient to someone, apparently.

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.”

Zero tolerance for expressing an opinion, or offering an explanation to policyholders? They’re more subtle than this in Caracas.

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?

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.

“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?”

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?

Apparently Breyer is willing to entertain this:

For Breyer, that right is not a foregone conclusion.

“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.”

Do you trust Stephen Breyer to do this thinking for you? Do you trust Antonin Scalia? I wouldn’t trust either of them, frankly.

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?

This post was written byMark Huering and originally published onMr. Dilettante’s Neighborhood.

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Comments (4)

  1. Submitted by Richard Schulze on 09/15/2010 - 06:55 am.

    If liberals are OK with burning the American flag as a form of free speech, they should have nothing to complain about if a few law abiding citizens exercise their first amendment rights by burning the Koran.

    Personally, I think it is a pretty pointless act (much like flag burning),and they both ought to be ignored, because they will not happen if no one pays any attention. But hey it’s all about making yourselves feel good or feeding your inner self-righteous self in this New Age world.

  2. Submitted by Larry Copes on 09/15/2010 - 08:01 am.

    This article raises some points, like Breyer’s, that I hadn’t thought about. Thanks for that.

    A long-ago teacher, though, taught me that name calling and other forms of propaganda are often a way to convince people emotionally while avoding logical reasoning.

    So I reread it and indeed found little evidence of logical reasoning on the part of the author. To the question “Do you trust Stephen Breyer to do this thinking for you? Do you trust Antonin Scalia?” I reply that, even if I don’t trust anyone to do my thinking for me, Breyer, who said the issue needs a lot of thinking, seems to be better able to do it than this author.

  3. Submitted by Mark Heuring on 09/15/2010 - 09:08 am.


    I guess I’m not sure what name calling I did in the piece, but we’ll leave that aside. If you prefer Breyer’s thinking to mine, more power to you. As long as I’m able to offer my views without fetters, that’s fine.

  4. Submitted by Joe Williams on 09/15/2010 - 01:06 pm.

    Don’t we trust a lot of people to do our thinking for us? Private and public groups frequently digest information and make decisions for the populace.

    Additionally, if the insurance companies are going to lie about the Patient Protection and Affordable Care Act’s effects on premiums, then perhaps they should listen to John Boehner, who said “just because you have a right to do something in America does not mean it is the right thing to do.”

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