The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

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.

NEXT: Justice Breyer Takes a Flood v. Kuhn-Esque Detour On Boston Architecture

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. IOW Breyer makes stuff up and wraps it in a fog of legalistic bullshit to provide the veneer of rationality.

    TBF that's better than his replacement is likely to do

  2. "In answering these questions, we conduct a holistic inquiry"

    I don't think I've ever seen an explicit use of "holistic" inquiry, where the apparent motive wasn't to make it impossible to prove that the decision had been arrived at on an improper basis.

  3. Let's hope the Satanists, Pastafarians, Jediists, Prince Philip Movement, Invisible Pink Unicornists, Nuwaubianists, Scientologists, Presleyterians, Panawavers, Raelists, Bullet Baba's Motorbikers, Aghoris, SubGeniuses, True Inner Lighters, Haitian Voodooers, and Zoroastrians have their flags ready to fly!

    (The Congregation Of Exalted Reason has taken this matter under advisement, concerned that offering its flag for display in this manner would make it no better than the Christian outfit that precipitated this development.)

    1. The American Thugee Association would like to take issue with your list. Why have you excluded them? 🙂

      1. I am not familiar with such an organization.

      2. Likewise the Church of the Blessed John Moses Browning (PBUH).

    2. How about a Confederate flag and a Nazi flag for good measure.

      1. Bigots have rights, too. As many rights as the gullible and superstitious, one would expect.

        By what reasoning would a Christian flag be displayed but a Confederate flag not be displayed on a public flagpole? Interestingly, the most enthusiastic proponents of both displays would be Republicans.

  4. Alito's concurrence was suspiciously long IMO.

    1. Yup. Roberts went along with Breyer, presumably tilting at those comity on the court windmills. Thereby creating lots of extra work for the federal courts going forward. Bear that in mind when he next whines about how desperately overworked the federal courts are. You're letting out the sheep they have to round up again, bud.

      1. Overworked federal courts is yet another situation that enlargement of the Supreme Court (and enlargement of the Circuit Courts) would improve.

  5. In other words, what you would all like is for the Supreme Court to add nice cookie-cutter sentences to the Constitution, sentences that can be quoted in countless future cases without needing to bother with the context of the case in which the statement originally arose. Am I getting that right?

    1. No, I think he just wants reasoning that's sufficiently explicit and quantifiable, that you can predict in advance what conclusion would fall out of it given a different set of facts.

      Isn't predictability kind of central to the rule of law, after all? If you can't tell in advance how the case that's just been decided would be decided again with a different set of facts, you might as well replace the judges with a toss of the dice.

      1. Brett, you're 100% right. Real clients, living in the real world, trying in good faith not to run afoul of the law, need predictability.

      2. Predictability is nice, but it would be great if we could do that without essentially asking the Supreme Court to add things to the Constitution because we can't manage to amend it any other way. Rules of general applicability are the job of Congress and, in the case of constitutional amendments, the state legislatures. The judiciary is there for cases and controversies, one at a time.

        1. "because we can't manage to amend it any other way."

          It's not that we can't amend the Constitution, the procedure is right there in Article V, and has been used repeatedly.

          Rather, I think what has happened is that the interests of Congress have diverged enough from those of the American people, that no amendment Congress would like has a prayer of being ratified, so they don't even try. While no amendment the American people would like has a chance of emerging from Congress.

          You can look back at '95, when Gingrich promised that Congress would act on a couple of popular constitutional amendments, one on term limits, the other a balanced budget amendment. Both were quite popular at the time, and probably would have been ratified if Congress had originated them.

          And Gingrich knew that: The amendments were carefully managed, brought to the floor in multiple versions, so that everybody who needed to be able to tell their constituents they'd voted for them could, without any one version ever clearing the bar to be sent to the states. It was all a sham of pretending to try to amend the Constitution.

          OTOH, when a student noticed in 1982 that one of the original amendments in the proposed Bill of Rights was still out there, had no time limit, and might still be ratified, what happened?

          By 1992 it had been ratified, thus demonstrating that the ratification end of the amendment process was still functional if a popular amendment were available to ratify.

          No, the problem is entirely on the originating end, Congress doesn't want to amend the Constitution, not in any way the states might plausibly agree to.

          But if we had a constitutional convention, I'm sure the log jam would be broken.

        2. And when that case or controversy is, "What does this clause of the Constitution mean?", you want the Court to give a clear answer, so that you don't have to keep going back and asking, "What does it mean this time?"

          That's the problem with the "holistic" approach, it's a deliberate evasion of giving a clear answer, the case at hand is resolved, but nobody is the wiser as to how the next case will go.

  6. Unprincipled? Pot, meet kettle.

  7. Justice Breyer's dismayingly vague multi-factor approach is unfortunately the approach of the NJ Supreme Court to just about every issue that Court faces. As a result, NJ lawyers always find it difficult to give definitive advice to clients -- who need to act -- about how they might avoid legal troubles. So too, prosecutors are often frustrated in attempting to advise police officers -- who need to act -- as to what investigative steps they can take with confidence that they aren't crossing any lines.

    1. IIRC from law school, Sandra Day O'Connor was a big fan of the multifactor balancing test that contained no objectively quantifiable factors.

Please to post comments