Justice Alito Identifies The Problems With Justice Breyer's "Factorized" Jurisprudence

"And like any factorized analysis, this approach cannot provide a principled way of deciding cases."

Whenever I read a new Justice Breyer majority opinion, I brace myself. Not because I will disagree. But because the decision will be impossible to teach. Breyer will identify a host of factors, that can be weighed in indeterminate ways, which yield a result that cannot be clearly explained. I will miss Justice Breyer's quirky questions from the bench, but I will not miss his confounding caselaw.

Breyer's majority opinion in Shurtleff v. City of Boston was true to form. It includes this paragraph:

In answering these questions, we conduct a holistic inquiry designed to determine whether the government intends to speak for itself or to regulate private expression. Our review is not mechanical; it is driven by a case's context rather than the rote application of rigid factors. Our past cases have looked to several types of evidence to guide the analysis, including: the history of the expression at issue; the public's likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.

Justice Alito responds forcefully to Justice Breyer's "factorized" jurisprudence:

The factors relied upon by the Court are thus an uncertain guide to speaker identity. But beyond that, treating these factors as a freestanding test for the existence of government speech artificially separates the question whether the government is speaking from whether the government is facilitating or regulating private speech. Under the Court's factorized approach, government speech occurs when the government exercises a "sufficient" degree of control over speech that occurs in a setting connected with government speech in the eyes of history and the contemporary public, regardless of whether the government is actually merely facilitating private speech. This approach allows governments to exploit public expectations to mask censorship. . . .

And like any factorized analysis, this approach cannot provide a principled way of deciding cases. The Court's analysis here proves the point. The Court concludes that two of the three factors—history and public perception—favor the City. But it nonetheless holds that the flag displays did not constitute government speech. Why these factors drop out of the analysis—or even do not justify a contrary conclusion—is left unsaid. This cannot be the right way to determine when governmental action is exempt from the First Amendment.

If my math is right, this case will likely be Justice Breyer's final First Amendment decision. Regrettably, courts will have to struggle with the Shurtleff factors for years to come.

One other note on Justice Alito's concurrence. He flags an issue that may become important: do states have free speech rights with respect to the federal government?

That is because the government-speech doctrine is not based on the view—which we have neither accepted nor rejected—that governmental entities have First Amendment rights. FN2

FN2: The text of the First Amendment also seems to exclude the possibility that the Federal Government has a constitutional right to speak, since it prohibits "Congress" and other federal entities and actors from "abridging the freedom of speech." A different analysis might be called for in a case in which the Federal Government attempts to restrict the speech of another sovereign. If the States had First Amendment rights against the Federal Government at the time of ratification, it is not obvious why that right would be eliminated by the incorporation of the speech rights of private citizens against the States through the Fourteenth Amendment. 

Howard Wasserman writes at Prawfs:

A different issue--and possible future bomb--involves whether government has speech rights. Alito drops a footnote arguing the federal government does not have such a right, but that states might have free-speech rights against the federal government. The text of the First Amendment--prohibiting Congress from abridging--eliminates any free-speech right for the federal government against itself. But extending that restriction to state governments in the 14th Amendment as to private individuals does not answer the question of the speech rights of states as to the fed. So is the next line of lawsuit against anything policy from a Democratic administration going to be a claim that it violates Texas' free-speech rights?

Stay tuned.