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Others have made the first analytic point, that Chief Justice Roberts's effort to distinguish the Court's creation of a new exception to First Amendment coverage is transparently circular. See, for example, Michael Dorf.) The test for new exceptions is apparently historical, except when it isn't, in which case the test involves precisely the kind of balancing the Chief Justice says is "startling and dangerous."

The second analytic point is about one line in Justice Alito's dissent. He writes, "The First Amendment protects freedom of speech, but it most certainly does not protect violent criminal conduct, even if engaged in for expressive purposes." What on earth is "violent" doing in that sentence? Does Justice Alito mean to suggest the possibility that the First Amendment does protect non-violent criminal conduct engaged in for expressive purposes? (An easy case: Defacing public property with graffiti? A harder one: Solicitation of others to break into government buildings and destroy government documents [the solicitation is nonviolent, after all]?) Or is this just a slip of the pen?

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