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In DIRECTV, Inc. v. Imburgia (not Imbruglia), Justice Breyer writes the majority opinion reversing the California Court of Appeals’s apparent flouting of AT&T Mobility LLC  v. Concepcion. Concepcion was a 5-4 decision, with Justice Breyer in dissent–but that dissent is not perpetual.

No one denies that lower courts must follow this Court’s holding in Concepcion. The fact that Concepcion was a closely divided case, resulting in a decision from which four Justices dissented, has no bearing on that undisputed obligation. Lower court judges are certainly free to note their disagreement with a decision of this Court. But the “Supremacy Clause forbids state courts to dissociate themselves from federal law because of disagreement with its content or a refusal to recognize the superior authority of its source.” Howlett v. Rose, 496 U. S. 356, 371 (1990); cf. Khan v. State Oil Co., 93 F. 3d 1358, 1363–1364 (CA7 1996), vacated, 522 U. S. 3 (1997). The Federal Arbitration Act is a law of the United States, and Concepcion is an authoritative interpretation of that Act. Consequently, the judges of every State must follow it. U. S. Const., Art. VI, cl. 2 (“[T]he Judges in every State shall be bound” by “the Laws of the United States”).

NPR has an insightful interview with Justice Breyer, where he peels back the curtain at One First Street.

First, on how he approaches oral arguments:

It’s horrible for the poor lawyers! Because we do not think that that half hour, each side, is for them to make their argument. We think we know the argument. And we think that half hour is for us to pose questions that will make a difference to us. … And sometimes the following happens, which I just think is terrific, just terrific: difficult issue — really difficult — and what’s going on in that question is the judges are, through their questions, talking to each other with the help of the lawyer. And the lawyer is drawn into a conversation. And every so often I’ll come off the bench and others will too and say, ‘you know, we really made progress in that argument.’ And progress means it’s a kind of work of art.

And sometimes Justice Breyer doesn’t even need to talk to his colleagues “with the help of the lawyer.” With a Breyer Page, he talks uninterrupted for a few minutes by himself.

Second, on how the Justices vote in conference.

We go around the table. … The chief justices starts and he says, ‘the issue is this case is thus-and-so. And I think I’m leaning this way because,’ and then he gives his reasons. And then it goes to Justice Scalia and then it goes to Justice Kennedy, and then Justice Thomas, Justice Ginsburg, me, Justice Alito, Justice Sotomayor, and Justice Kagan. Nobody speaks twice until everyone has spoken once. That’s an excellent view. I mean, that really is a good rule. And by the time we’re finished, you see, with that part of the discussion, we know where people are beginning and where they stand. And then there can be some back and forth.

This is something I messed up in Unprecedented, as I was misinformed, based on Justice Stevens’s book which was somewhat vague on this point, that the conference starts with the most-junior Justice. I’ve since been corrected.

Third, on what he learned from Sen. Ted Kennedy:

I kept telling my law clerks these things and they gave me a cup with these things engraved. And it says, for example, ‘the best’ — and he believed this, my goodness — ‘the best is the enemy of the good.’ Absolutely, go for the good. Hold out for the best, you’ll end up with nothing. ‘Don’t try to get credit — for yourself or even your boss.’ I mean, he’d say to us, ‘look. If you get a project and you get a law and it’s successful, there will be plenty of credit to go around. And if it’s not successful, who wants the credit?’ And therefore I saw him do this so many times — he’s with someone who has a very different point of view of a different political party and they’re talking about how to produce some kind of compromise. His reaction is, as soon as he sees the opening, ‘what a good idea you have. What a good idea. Let’s see how we can work with that.’ And when it comes time to have the press conference, there he was, pushing the other person out, so that other person would be able to become more popular in his constituency, which is important for elected officials. The process used to work — and I hope it still does in many respects — work at that kind of level. Always.

Fourth, on Congress having a harder time compromising now.

I know what Senator Kennedy thought in part was the cause, because he used to talk about that. He’d say it’s the jet plane. You see, the jet plane means that it’s possible for the elected representative to be home on the weekend. And if he can be home on the weekend, his constituents want him home. So there they are, Friday, Saturday, Sunday, Monday, travelling or home. And they don’t get to know each other as people.

Fifth, on advice from Justices Blackmun and Souter:

Harry Blackmun, who was my predecessor in my particular seat on the court, he told me ‘you will find this an unusual assignment.’ And it is. David Souter told me, ‘you are never off-duty.’ And you’re not. And the point is that all nine of us take this job very seriously. There is no letting up. Their just isn’t. And as you get older, that’s an advantage. It’s tiring, but it’s an advantage. Because it calls for you to give whatever you have — the best of what you have — virtually all the time.

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.

During oral arguments in Yates v. United States, Justice Breyer referred to the case of Kolender v. Lawson, which he noted was written by Justice Ginsburg. That is not correct. It was actually an opinion by Justice O’Connor, authored in 1983, a decade before RBG joined the Court.

JUSTICE BREYER: ­­ would be that the void for vagueness, if you look at Skilling, has two branches. From Kolender v. Lawson ­­ Justice Ginsburg wrote it ­­ a penal statute defining the criminal offense, one, with sufficient definiteness that ordinary people can understand. That’s what Justice Scalia has just talked about. You can understand what is prohibited.

 

Ron Klain provided a memo to Bernie Nussbaum, listing questions that President Clinton should *not* ask Judge Breyer:

What is your view on the constitutionality of the death penalty?

Do you agree with Bakke v. Regents of California, or Roe v. Wade?

What test would you use to determine when an Establishment Clause violation has occurred?

How do you define the “right to privacy?”

When can race-conscious remedies be used under the civil rights laws?