Jess Bravin asked Justice Ginsburg about Walker v. Texas Sons of Confederate Veterans. Her response:

“It would have been terrible if the court came out the other way,” Justice Ginsburg said.

Let’s make no mistake what was driving her opinion in that case. It certainly wasn’t the scope of government speech. I can’t imagine a decision about government speech being “terrible” one way or the other, no more than the sign case (Reed v. Gilbert) was terrible. The motivation for this decision by the Texas Department of Motor Vehicles, and the five Justices in the majority, was to stop speech that would offend–the very speech entitled to the greatest protections. Look no further than the Washington Redskins decision from earlier this week, which relied on Walker.

My working thesis is that Justice Scalia lost the majority opinion when Thomas flipped. I can’t fathom why Thomas would assign the majority opinion to Breyer. Couldn’t he, for once, command a 5-4 majority for a First Amendment Opinion?