In today's internet age, should burning a Koran be protected under the First Amendment? That was the question posed to Supreme Court Justice Stephen Breyer recently. His reply was stunning. "[Oliver Wendell] Holmes said it doesn't mean you can shout 'fire' in a crowded theater...Why? Because people will be trampled to death. And what is the crowded theater today?" The fact that a Supreme Court Justice would compare burning a book to shouting "fire" in a crowded theater is alarming and flies in the face of traditional interpretations of the First Amendment.

The idea that religious beliefs should be shielded from criticism has gained traction in recent years. In 2009, the UN passed a resolution condemning "defamation of religion". Ireland followed suit by enacting an anti-blasphemy law, making it illegal for people to insult religion. In May, Polish authorities charged pop singer Doda with blasphemy, for making derogatory remarks about the Bible. Similarly, British authorities arrested six people last week after they were filmed burning a Koran.

If Breyer's statement is any indication, we may soon be following Europe's lead. If we do, who will be given the authority to decide what is offensive? If religious fundamentalists have shown us anything over the years, it is their propensity for being offended. Whether it is a cartoon depiction of Mohammed or sexual innuendo on prime-time TV, there is an ever-growing list of perceived indignities. Attempting to ban all of the things that religious fundamentalists find objectionable would be a fool's errand.

The more frightening implication of Breyer's statement is the notion that freedom of speech is contingent on the reaction of those being criticized. Under that scenario, the more likely someone is to engage in violence, the more protection they will receive from the state.

Such a policy would exacerbate the problem, rather than solve it. How long would it take for other groups to realize that a willingness to harm others is all that is needed to inoculate themselves from criticism? Of course religions don't have a monopoly on violence. Should skinheads, street gangs and other malcontents also be immune from criticism due to their proclivity to engage in violence against others?

Sacrificing our freedoms to placate the barbarous is a policy doomed to failure. We must recognize that protecting unpopular and distasteful speech is not an unfortunate by-product of the First Amendment. It is its purpose.

By Michael Squires | October 11, 2010; 12:00 AM ET

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