The majority opinion in Expressions Hair Design v. Schneiderman reaffirmed the Supreme Court’s commitment to the First Amendment, holding that New York General Business Law § 518 was potentially unconstitutional as applied by precluding a business from letting its customers know that they had to pay a surcharge if they wanted to use a credit card because the card company took a chunk out of their fees.

That might make customers unhappy with Mr. Visa, and New York didn’t want any frowns. Better to maintain the delusion that plastic is wonderful and shut the business up.

Section 518 regulates speech. The Court of Appeals concluded that §518 posed no First Amendment problem because price controls regulate conduct, not speech. Section 518, however, is not like a typical price regulation, which simply regulates the amount a store can collect. The law tells merchants nothing about the amount they are allowed to collect from a cash or credit card payer. Instead, it regulates how sellers may communicate their prices. In regulating the communication of prices rather than prices themselves, §518 regulates speech.

Good news, a good decision, even if, as Justice Sotomayor, joined by Justice Alito (?) notes in a concurrence, the Supremes yet again left a complete determination on the cutting room floor.

The Court addresses only one part of one half of petitioners’ First Amendment challenge to the New York statute at issue here. This quarter-loaf outcome is worse than none.

But hey, it’s hard work being a Supreme, and who can expect them to expeditiously address all issues raised by a case when they can remand it and make some lesser judges bat it around for a few years before having to tweak another bit of the problem, right?

So all’s well, aside from the quarter-loaf problem? Not so fast. Slipped between the majority and the dissent is a concurrence by Justice Breyer, as if no one would notice.

When the government seeks to regulate those activities, it is often wiser not to try to distinguish between “speech” and “conduct.” See R. Post, Democracy, Expertise, and Academic Freedom 3–4 (2012).

The cite for this radical transformation of free speech comes from a book by Yale lawprof Robert Post, who rejects the “marketplace of ideas” approach in favor of elevated protection for expertise that promotes “values.”* Post addresses it in the context of academic freedom, Breyer goes orthogonal, meaning that it has little to do with how Breyer puts it to use.

The sentence above, offered in a casual, almost flip fashion, is shocking in its disconnect from First Amendment jurisprudence. It’s wiser? Because why?

Instead, we can, and normally do, simply ask whether, or how, a challenged statute, rule, or regulation affects an interest that the First Amendment protects. If, for example, a challenged government regulation negatively affects the processes through which political discourse or public opinion is formed or expressed (interests close to the First Amendment’s protective core), courts normally scrutinize that regulation with great care.

There’s the rub. Forget that whole speech thing, the entirety of caselaw, the right to say stupid things, wrong-headed ideas, because they aren’t the sort of interest that we want the First Amendment to protect. They aren’t “valuable” ideas. The First Amendment should protect interests we value, regardless of whether they’re speech or conduct.

See where this is going?

I repeat these well-known general standards or judicial approaches [ ] because I believe that determining the proper approach is typically more important than trying to distinguish “speech” from “conduct….”

Unlike the other justices, Justice Breyer sees his role as keeper of the “values” protected by the First Amendment, rather than speech regardless of whether it reflects a value he deems “important.” And what could be less valued under the First Amendment than hate speech?

This does not mean the sky is falling, that the First Amendment is at risk from the mean Stephen Breyer or that the Antifa is right and hate speech isn’t protected by the First Amendment. But what it does mean is that there is a justice on the Supreme Court, one of nine (eventually) who comprise a branch of our tripartite government, who sees enough room to recreate the First Amendment by shedding the whole speech thing and then deciding whether it meets his metric for valuable.

This is where the confusion about the First Amendment permeates the rhetoric justifying censorship, that some expression just isn’t worthy of protection because it’s not valuable. This is how promoters, academics, sneak their “hate speech isn’t free speech” mantra into legitimacy, through the little-scrutinized back doors of an insignificant concurrence that few bother to read, no less question, until its utility is recognized to rationalize how a Supreme Court justice says that it’s not speech, but values, that the First Amendment should protect.

Is this concurrence, in itself, a disaster? Hardly. It carries no weight. But it was important enough to Justice Breyer to write it, to flippantly note that “it is often wiser not to try to distinguish between ‘speech’ and ‘conduct.'” And when some academic contends that the First Amendment doesn’t protect your speech, because it fails to rise to a value she deems important, this is where she will take comfort.

*This is the sort of quickie reduction that infuriates academics, who demand that any discussion of their work must be 1048 pages long with footnotes so as not to omit a critical word. And it is, indeed, a wholly inadequate explanation of Post’s book, which you should read to appreciate.