Indeed. And you can say—with the Internet, you can say this. … Holmes said it doesn’t mean you can shout “fire” in a crowded theater. 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? … It will be answered over time in a series of cases which force people to think carefully.
Breyer is referring the opinion of Justice Oliver Wendell Holmes in Schenck v United States 249 U.S. 47 (1919) where he said:
The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. [...] The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.
This hypothetical proposed by Holmes and answered with the clear and present danger test. That test is no longer good law. I’m no free speech expert but as far as I know the current test is “incitement to imminent lawless action” found in Brandenburg v Ohio 395 U.S. 444, 447 (U.S. 1969). So, Breyer used a hypo that relates to an abandoned standard of law. Further, burning Korans is not advocacy for lawless action. The lawless action would be a response to the lawful expression of free speech.
Breyer seems to suggest that if what one says is sufficient to upset a listener (or viewer) then that speech may not be protected. This should strike us all as a bit of inverted logic. The first doesn’t exist to protect speech that is popular. Recall that the Supreme Court held, in National Socialist Party of America v Village of Skokie 432 U.S. 43 (1977) that the Nazi’s could parade through the mostly Jewish community of Skokie Illinois. If burning books is regarded as sufficient provocation of lawless action amongst those offended by the speech or act what then should we say about Nazi’s marching through a neighborhood of Jews where the issue was the burning of people and the extermination six million Jews?
Breyer is on the wrong side of the law, history and common decency.
For the record: I hate Illinois Nazi’s.