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Following last week’s Magna Carta citation-fest, the Chief got in on the fun, talking about the Great Charter in Horne v. Department of Agriculture

The Takings Clause provides: “[N]or shall private prop­ erty be taken for public use, without just compensation.” U. S. Const., Amdt. 5. It protects “private property” with­ out any distinction between different types. The principle reflected in the Clause goes back at least 800 years to Magna Carta, which specifically protected agricultural crops from uncompensated takings. Clause 28 of that charter forbade any “constable or other bailiff” from taking “corn or other provisions from any one without immedi­ ately tendering money therefor, unless he can have post­ ponement thereof by permission of the seller.” Cl. 28 (1215), in W. McKechnie, Magna Carta, A Commentary on the Great Charter of King John 329 (2d ed. 1914).

The colonists brought the principles of Magna Carta with them to the New World, including that charter’s protection against uncompensated takings of personal property. In 1641, for example, Massachusetts adopted its Body of Liberties, prohibiting “mans Cattel or goods of what kinde soever” from being “pressed or taken for any publique use or service, unlesse it be by warrant grounded upon some act of the generall Court, nor without such reasonable prices and hire as the ordinarie rates of the Countrie do afford.” Massachusetts Body of Liberties ¶8, in R. Perry, Sources of Our Liberties 149 (1978). Virginia allowed the seizure of surplus “live stock, or beef, pork, or bacon” for the military, but only upon “paying or tendering to the owner the price so estimated by the appraisers.” 1777 Va. Acts ch. XII. And South Carolina authorized the seizure of “necessaries” for public use, but provided that “said articles so seized shall be paid for agreeable to the prices such and the like articles sold for on the ninth day of October last.” 1779 S. C. Acts §4.

Methinks the Chief doth protest too much about Magna Carta, as he also cited it in Williams-Yulee.

Walker v. Texas Div., Sons of Confederate Veterans, Inc. is not only wrong, but dangerous. Five Justices embraced Justice Breyer’s democratic vision of the First Amendment, albeit an odd bunch. As it turns out Justice Thomas would have had to assign Justice Breyer the opinion to write for RBG, Kagan, and Sotomayor. (I don’t know that CT has ever made such an assignment in a 5-4 decision).

As I discuss in Collective Liberty, Justice Breyer has been making a concerted effort to reorient the First Amendment not around individual liberty, but on “collective speech.” That is, what kind of speech makes democracy work. This decision screams “collective liberty,” with its capacious understanding of “government speech” that is flatly inconsistent with Summum. By making the real of “government speech” bigger, the Court is able to contract “private speech.” This is dangerous.

Consider Justice Breyer’s opinion, which ties the First Amendment and the “Democratic Electoral Process together”

When government speaks, it is not barred by the Free Speech Clause from determining the content of what it says. Pleasant Grove City v. Summum, 555 U. S. 460, 467–468 (2009). That freedom in part reflects the fact that it is the democratic electoral process that first and foremost provides a check on government speech. See Board of Regents of Univ. of Wis. System v. Southworth, 529 U. S. 217, 235 (2000).

No! The First Amendment puts a limit on the democratic process. We don’t allow the majority to censor disfavored speech. This is so fundamentally wrong, and it got 5 votes.

Here is the relevant portion from Southworth:

When the government speaks, for instance to promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate and the political process for its advocacy. If the citizenry objects, newly elected officials later could espouse some different or contrary position.

As he did in McCutcheon, Justice Breyer relies on Stromberg to have a very deliberation-heavy vision of free speech:

Instead, the Free Speech Clause helps produce informed opinions among members of the public, who are then able to influence the choices of a government that, through words and deeds, will reflect its electoral man- date. See Stromberg v. California, 283 U. S. 359, 369 (1931) (observing that “our constitutional system” seeks to maintain “the opportunity for free political discussion to the end that government may be responsive to the will of the people”). Were the Free Speech Clause interpreted otherwise, government would not work.

The Free Speech Clause has absolutely nothing to do with a well-functioning government. In many respects, censorship would make government a lot more efficient. But efficiency is not a goal of our Constitution. (Breyer and Scalia had this same debate in Noel Canning).

Justice Breyer’s decision allows the state to withhold not only specialty plates, but vanity plates containing message the state finds unsavory.

This final approval authority allows Texas to choose how to present itself and its constituency. Thus, Texas offers plates celebrating the many educational institutions attended by its citizens. See Tex. Transp. Code Ann. §504.615. But it need not issue plates deriding schooling. Texas offers plates that pay tribute to the Texas citrus industry. See §504.626. But it need not issue plates praising Florida’s oranges as far better. And Texas offers plates that say “Fight Terrorism.” See §504.647. But it need not issue plates promoting al Qaeda.

This dicta will be cited the next time the state rejects a license plate with a vanity message it finds unfavorable. This is perhaps the most dangerous aspect of the opinion.

Justice Alito has some dicta suggesting that the opinion does not cover vanity plates:

This opinion does not address whether the unique combination of letters and/or numbers assigned to each vehicle, even when selected by the motorist, is private speech.

The Court does distinguish it from RAV v. St. Paul, and advertising space, which it deems “private speech.”

Nor is this case like Lehman, where we found the adver- tising space on city buses to be a nonpublic forum. See R. A. V. v. St. Paul, 505 U. S. 377, 390, n. 6 (1992) (identi- fying Lehman as a case about a nonpublic forum). There, the messages were located in a context (advertising space) that is traditionally available for private speech. And the advertising space, in contrast to license plates, bore no indicia that the speech was owned or conveyed by the government.

After spending 17 pages on the government’s perspective, Justice Breyer closes with but a mere paragraph on the “free speech rights of private persons.”

Our determination that Texas’s specialty license plate designs are government speech does not mean that the designs do not also implicate the free speech rights of private persons. We have acknowledged that drivers who display a State’s selected license plate designs convey the messages communicated through those designs. See Wooley v. Maynard, 430 U. S. 705, 717, n. 15, 715 (1977) (observing that a vehicle “is readily associated with its operator” and that drivers displaying license plates “use their private property as a ‘mobile billboard’ for the State’s ideological message”). And we have recognized that the First Amendment stringently limits a State’s authority to compel a private party to express a view with which the private party disagrees. See id., at 715; Hurley v. Irish- American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U. S. 557, 573 (1995); West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943). But here, compelled private speech is not at issue. And just as Texas cannot require SCV to convey “the State’s ideological message,” Wooley, supra, at 715, SCV cannot force Texas to include a Confederate battle flag on its specialty license plates.

I don’t know if there has been any Justice since Holmes who was so apathetic towards individual liberty.

Justice Alito’s dissenting opinion frames the dangerousness of Justice Breyer’s decision:

The Court’s decision passes off private speech as gov- ernment speech and, in doing so, establishes a precedent that threatens private speech that government finds displeasing. . . . Unfortunately, the Court’s decision categorizes private speech as government speech and thus strips it of all First Amendment protection. The Court holds that all the privately created messages on the many specialty plates issued by the State of Texas convey a government message rather than the message of the motorist displaying the plate.

Texas’s policy amounts to “blatant viewpoint discrimination.”

But the precedent this case sets is dangerous. While all li- cense plates unquestionably contain some government speech (e.g., the name of the State and the numbers and/or letters identifying the vehicle), the State of Texas has converted the remaining space on its specialty plates into little mobile billboards on which motorists can display their own messages. And what Texas did here was to reject one of the messages that members of a private group wanted to post on some of these little billboards be- cause the State thought that many of its citizens would find the message offensive. That is blatant viewpoint discrimination.

Texas will accept any plate, so long as it is not offensive.

Texas does not take care to approve only those proposed plates that convey messages that the State supports. Instead, it proclaims that it is open to all pri- vate messages—except those, like the SCV plate, that would offend some who viewed them.

The Court believes that messages on privately created plates are government speech because motorists want a seal of state approval for their messages and therefore prefer plates over bumper stickers. Ante, at 10–11. This is dangerous reasoning. There is a big difference between government speech (that is, speech by the government in furtherance of its programs) and governmental blessing (or condemnation) of private speech. Many private speak- ers in a forum would welcome a sign of government ap- proval. But in the realm of private speech, government regulation may not favor one viewpoint over another.

…

Texas has space available on millions of little mobile billboards. And Texas, in effect, sells that space to those who wish to use it to express a personal message— provided only that the message does not express a view- point that the State finds unacceptable. That is not gov- ernment speech; it is the regulation of private speech.

Justice Alito shows, based on the record, that this case constituted “pure viewpoint discrimination.”

The Board rejected Texas SCV’s design, “specifically the confederate flag portion of the design, because public comments have shown that many members of the general public find the design offensive, and because such comments are reason- able.” App. 64. These statements indisputably demon- strate that the Board denied Texas SCV’s design because of its viewpoint.

The Confederate battle flag is a controversial symbol. To the Texas Sons of Confederate Veterans, it is said to evoke the memory of their ancestors and other soldiers who fought for the South in the Civil War. See id., at 15– 16. To others, it symbolizes slavery, segregation, and hatred. Whatever it means to motorists who display that symbol and to those who see it, the flag expresses a view- point. The Board rejected the plate design because it concluded that many Texans would find the flag symbol offensive. That was pure viewpoint discrimination.

 

Justice Alito also references the recent 2nd Circuit decision which upheld New York’s refusal to allow a “Choose Life” license plate. And for good measure, the Boy Scouts and NRA make an appearance.

Like these two plates, many other specialty plates have the potential to irritate and perhaps even infuriate those who see them. Texas allows a plate with the words “Choose Life,” but the State of New York rejected such a plate because the message “‘[is] so incredibly divisive,’” and the Second Circuit recently sustained that decision. Children First Foundation, Inc. v. Fiala, ___ F. 3d ___, ___, 2015 WL 2444501, *18 (CA2, May 22, 2015). Texas allows a specialty plate honoring the Boy Scouts, but the group’s refusal to accept gay leaders angers some. Virginia, an- other State with a proliferation of specialty plates, issues plates for controversial organizations like the National Rifle Association, controversial commercial enterprises (raising tobacco and mining coal), controversial sports (fox hunting), and a professional sports team with a controver- sial name (the Washington Redskins). Allowing States to reject specialty plates based on their potential to offend is viewpoint discrimination.

Justice Alito specifically alludes to the inevitable–college campus viewpoint discrimination.

What if a state college or university did the same thing with a similar billboard or a campus bulletin board or dorm list serve? What if it allowed private messages that are consistent with prevailing views on campus but banned those that disturbed some students or faculty? Can there be any doubt that these examples of viewpoint discrimination would violate the First Amendment? I hope not, but the future uses of today’s precedent remain to be seen.

It is noteworthy that Justice Breyer’s opinion makes absolutely no mention of discriminating against “offensive” speech, but the tenor of the argument makes apparent that the liberal Justices were comfortable with censorship of speech that (in today’s lingo) makes people feel unsafe.

This opinion is so, so dangerous, and represents a quiet shift, in that it now has 5 votes.

Justice Thomas’s concurring/dissenting opinion in Zivotofsky warrants a carefuly study, notwithstanding Justice Scalia’s snark. CT raises many points which Nino does not address, or simply brushes away. I break down all of the opinions in detail here. But beyond the issues he raised–as he often does–he noted issues that he would not resolve. This will no doubt provide fodder for future opinions by the Court’s originalist.

First, how should the “Proper” work when Congress tries to exercise a power that belongs to another branch.

That the evidence thus points to a definition of “proper” that protects the separation of powers does not fully ex- plain the way that the “proper” requirement operates when Congress seeks to facilitate the exercise of a power allocated to another branch. I can see two potential mechanisms, either or both of which may accurately reflect the original understanding of the Clause. First, a law could be “improper” if it purports to direct another branch’s exer- cise of its power. See Calabresi & Prakash, The President’s Power to Execute the Laws, 104 Yale L. J. 541, 591 (1994) (“[T]he Clause . . . does [not] allow Congress to tell constitutionally empowered actors how they can imple- ment their exclusive powers”). Second, a law could be “improper” if it takes one of those actions and the branch to which the power is allocated objects to the action. See Prakash & Ramsey 255–256 (“Congress has the general power to legislate in support of the President’s foreign policy goals. But . . . [s]ince it is derivative of the Presi- dent’s power, it must be exercised in coordination with, and not in opposition to, the President”).

I need not resolve that question today, as the application of §214(d) to passports would be improper under either approach.

Second, Justice Thomas raised the question of what the original meaning of “carry into execution” is:

Because §214(d) is not proper, I need not resolve whether such a law could be understood to “carry into execution” the President’s power.

Third, Justice Thomas raised, but didn’t address, what happens when there is a conflict between Congress acting pursuant to an enumerated power and the so-called “residual foreign affairs power.”

As the issue is not presented, I need not decide how a direct conflict between action pursuant to an enumerated power of Congress and action pursuant to the residual foreign affairs power of the President should be resolved.

Fourth, Justice Thomas casts doubt on the modern approach of the “international community” recognizing sovereign states:

Scholars have long debated the extent to which official recognition by the sovereign states that make up the international community is necessary to bring a new “state” into the international community and thereby subject it to international law. Oppenheim §39, at 128–129. Resolving this debate is not necessary to resolve the issue at hand, so I describe the modern view of recognition without endorsing it.

Fifth, Justice Thomas does not reach a question that Justice Scalia addressed–what happens when the President and Congress are each acting pursuant to their powers, and there is a clash. Who wins?

JUSTICE SCALIA’s dissent does at least answer how, in his view, the Constitution would resolve a conflict between the political branches, each acting pursuant to the powers granted them under the Constitution. He believes that congressional power should trump in any such conflict. Post, at 18. I see nothing in the Constitution that clearly mandates that solution to a difficult separation-of-powers question, and I need not opine on it.

There is so much good stuff in Justice Thomas’s and Scalia’s opinions. These intellectual giants rarely duel like this, but this was a battle worthy of the ages.

I will add my thoughts about Zivotofsky as I make my way through the opinion.

(more…)

Today the Supreme Court denied certiorari in Jackson v. San Francisco, a Second Amendment case where the City requires that lawfully-owned handguns must be stored in a locked container or have a trigger lock. Justice Thomas, joined by Justice Scalia, dissented from the denial of certiorari. I explored in a piece in the American Spectator that the Court has denied review of every single 2nd Amendment case since Heller. This case continues that tradition.

The dissent faults the 9th Circuit for effectively disregarding Heller, focusing on the “core protection” of the right.

Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense, lower courts, including the ones here, have failed to protect it. Because Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document, I would have granted this petition.

Thomas’s dissent makes clear this law, which nullifies the right of self defense if someone is asleep and cannot unlock the gun in time, is in “serious tension” with Heller.

The decision of the Court of Appeals is in serious tension with Heller. …  The law thus burdens their right to self-defense at the times they are most vulnerable—when they are sleeping, bathing, changing clothes, or otherwise indisposed. There is consequently no question that San Francisco’s law burdens the core of the Second Amendment right. That burden is significant.

Next Thomas sketches out the massive circuit split that has emerged since Heller.

Compare Heller v. District of Columbia, 670 F. 3d 1244 (CADC 2011) (“We ask first whether a particular provision impinges upon a right protected by the Second Amendment; if it does, then we go on to determine whether the provision passes muster under the appropriate level of constitutional scrutiny”), with id., at 1271 (Kavanaugh, J., dissenting) (“In my view, Heller and McDonald leave little doubt that courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny”).

While Justice Thomas does not purport to resolve that issue, he explains the San Francisco law doesn’t survive any scrutiny:

One need not resolve that dispute to know that something was seriously amiss in the deci-sion below. In that decision, the Court of Appeals recog- nized that the law “burdens the core of the Second Amendment right,” yet concluded that, because the law’s burden was not as “severe” as the one at issue in Heller, it was “not a substantial burden on the Second Amendment right itself.” 746 F. 3d, at 963–965.

Thomas turns to the First Amendment to provide a basis to resolve these questions:

But nothing in our decision in Heller suggested that a law must rise to the level of the absolute prohibition at issue in that case to constitute a “substantial burden” on the core of the Second Amendment right. And when a law burdens a constitu- tionally protected right, we have generally required a higher showing than the Court of Appeals demanded here. See generally Heller, 554 U. S., at 628–635; Turner Broad- casting System, Inc. v. FCC, 512 U. S. 622, 662 (1994) (explaining that even intermediate scrutiny requires that a regulation not “burden substantially more speech than is necessary to further the government’s legitimate inter- ests” (internal quotation marks omitted)).

Thomas urges that the Court should have granted the case to set the Circuit straight:

The Court should have granted a writ of certiorari to review this questionable decision and to reiterate that courts may not engage in this sort of judicial assessment as to the severity of a burden imposed on core Second Amendment rights. See Heller, 554 U. S., at 634 (“The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis what is really worth insisting upon”); id., at 635 (explaining that the Second Amendment “elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home”).

The denial is especially striking as the Court takes other cases involving constitutional rights.

The Court’s refusal to review this decision is difficult to account for in light of its repeated willingness to review splitless decisions involving alleged violations of other constitutional rights. See, e.g., Glossip v. Gross, 574 U. S. ___ (2015) (cert. granted) (Eighth Amendment); Ontario v. Quon, 560 U. S. 746 (2010) (Fourth Amendment); Hill v. Colorado, 530 U. S. 703 (2000) (First Amendment). In- deed, the Court has been willing to review splitless deci- sions involving alleged violations of rights it has never previously enforced. See, e.g., BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996) (right to limit on punitive damages awards). And it has even gone so far as to review splitless decisions involving alleged violations of rights expressly foreclosed by precedent. See, e.g., Boumediene v. Bush, 553 U. S. 723 (2008) (right of aliens held outside U. S. territory to the privilege of habeas corpus); Lawrence v. Texas, 539 U. S. 558 (2003) (right to engage in adult, consensual same-sex intimate behavior). I see no reason that challenges based on Second Amendment rights should be treated differently. 

This echoes a point I made years ago, but has become truer since–the Second Amendment is treated by the Court as a second-class right.

With only Thomas and Scalia in dissent, we can presume that the Chief and Alito are content with maintaining this status quo where the lower courts continue to trivialize Heller.