Judge Sotomayor's First Amendment Jurisprudence

As a judge for the Second Circuit Court of Appeals since 1998 and for the Southern District of New York for the preceding six years, United States Supreme Court nominee Sonia Sotomayor has approached First Amendment issues narrowly and contextually, demonstrating traditionally liberal views in some cases and more conservative views in others. If confirmed, it seems most likely that Sotomayor will side with the Court’s liberal wing on many First Amendment issues. However, her seeming unpredictability in cases involving free speech could make her an important swing vote in some cases.

Sotomayor’s First Amendment record during her 17 years on the federal bench is not extensive, but it does give some insight into her views on the First Amendment generally and media law specifically. Among Sotomayor’s more notable free speech decisions, Sotomayor dissented in a Second Circuit case in which the majority affirmed the district court’s decision to uphold the New York Police Department’s decision to terminate a Police Officer after an investigation discovered he made anonymous racist comments via mail. Sotomayor also authored an opinion striking down a gag order on the news media that prevented the press from revealing the name of any juror during the retrial of a former bank executive.

These views are contrasted with other decisions favoring withholding records under the Freedom of Information Act and upholding a public high school’s right to bar a student from running for class office after she posted offensive comments about school administrators in her off-campus blog. These decisions are discussed below.

Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002), involved a First Amendment claim by a New York City Police Officer who was terminated after an internal New York Police Department investigation found that he anonymously disseminated racist and anti-semitic materials via the U.S. Postal Service. The majority affirmed the district court’s dismissal of the action upon a motion for summary judgment by the defendants, concluding that the NYPD’s “reasonable perception of serious likely impairment of its performance of its mission outweighed Pappas’s interest in free speech.”

Sotomayor dissented, stating that the potential harm to the NYPD’s performance of its mission did not outweigh Pappas’s First Amendment rights. Sotomayor stated that the potential harm to the NYPD was low because (1) Pappas did not occupy a high-level supervisory, confidential, or policymaking role in the NYPD, (2) Pappas did not have law enforcement contact with the public through his position as a computer operator in the NYPD, and (3) Pappas “engaged in the speech anonymously, on his own time, and through mailings sent from his home.” Acknowledging the particular nature of the speech involved in the case, Sotomayor explained:

To be sure, I find the speech in this case patently offensive, hateful, and insulting. The Court should not, however, gloss over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives because it is confronted with speech it does not like and because a government employer fears a potential public response that it alone precipitated.

Sotomayor’s views in Pappas are contrasted by her views in Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008), in which she joined in a ruling holding that a public high school student’s First Amendment rights were not violated when the school disqualified her from running for Senior Class Secretary based on inflammatory comments written off-campus in her personal blog. Pre-existing jurisprudence concerning free speech in public schools allowed schools to regulate some student speech occurring on school grounds or at school-related events while acknowledging that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Doninger extended the scope of a school’s authority to regulate expression that occurs beyond the confines of campus or campus activities.

In reaching its decision to extend the school’s authority, the court wrote that “Avery's posting—in which she called school administrators ‘douchebags’ and encouraged others to contact [a school administrator] ‘to piss her off more’—contained the sort of language that properly may be prohibited in schools.” However, the court emphasized that the particular nature of the discipline in the case influenced its decision to side with school administrators, stating that “given the posture of this case, we have no occasion to consider whether a different, more serious consequence than disqualification from student office would raise constitutional concerns.”

Sotomayor demonstrated her contextual approach to Freedom of Information Act issues as a District Judge in Dow Jones v. Department of Justice, 880 F.Supp. 145 (S.D.N.Y. 1995), deciding that the DOJ could redact portions of reports by the U.S. Park Police and the FBI upon a request for information concerning former Deputy White House Counsel Vincent Foster’s suicide, but that the copy of Foster’s suicide note needed to be released. Sotomayor found that the circumstances of the case warranted a FOIA 7(A) exemption, agreeing with the DOJ that release of the entire reports by the U.S. Park Police and the FBI could affect witness testimony and could “severely hamper the Independent Counsel’s ability to elicit untainted testimony”

In response to the Justice Department’s argument that publicly circulating the note would unjustifiably invade the Foster family’s privacy, Sotomayor held that the family’s interest was outweighed by the public’s substantial interest in viewing a photocopy of the actual note. Sotomayor explained that the note “touched on several events of public interest, including the controversy involving the White House travel office, and implicated government agencies and employees in misconduct.” In her analysis, Sotomayor gave particular weight to the “physical look of the note” as being an “integral part” of the public’s interest.

Sotomayor has indicated a more doctrinal approach to prior restraints on speech. In U.S. v. Quattrone, 402 F.3d 304 (2d Cir. 2005), Sotomayor authored an opinion for a unanimous panel striking down a gag order on the news media that prevented the press from revealing the name of any prospective or selected juror during the retrial of former Credit Suisse First Boston executive Frank Quattrone. The district court judge had placed the gag order on the press due to the recent mistrial at the state court level in the high-profile prosecution of Dennis Kozlowski, a former executive of Tyco Corporation, where the disclosure of the identity of a juror led to the juror’s harassment and pressure from outside sources. Sotomayor determined that nothing in the case justified the district court’s infringement of two basic First Amendment protections: “the right against prior restraints on speech and the right to report freely on events that transpire in an open courtroom.”

After establishing that the district court appeared to have based the prior restraint entirely on the incidents of the Kozlowski trial, Sotomayor stated:

While it is not improper for a district judge to take into account his or her "common human experience" or to make reasonable "speculations" in assessing the likely impact of news coverage, a judge may not impose a prior restraint based solely on incidents that occurred in a completely separate and unrelated, albeit temporally proximate, trial.

Sotomayor also found that the district court had not sufficiently considered measures other than a prior restraint that could have mitigated the effects of the perceived harm to the jurors, and that the efficacy of the prior restraint was “dubious at best” as the names of the jurors were announced in open court and filed as a public record. Sotomayor summed up her views on prior restraints by stating that “it has long been established that such restraints constitute ‘the most serious and least tolerable infringement’ on our freedoms of speech and press.”

In addition to her decision in Quattrone, Sotomayor joined the decision in Doe v. Mukasey, 549 F.3d 861 (2d Cir. 2008), invalidating as an unacceptable prior restraint a portion of the Patriot Act that placed a gag order on companies that received “national security letters” compelling them to produce customer records.

Unfortunately, Sotomayor’s views on free speech are not further elucidated by her extra-judicial background. Sotomayor’s 1997 Senate Judiciary Questionnaire shows Sotomayor to have been a member of various legal and judicial-related committees concerning public service, civil rights, and causes related to Hispanic heritage. Prior to her judicial appointment, Sotomayor was a general civil litigator with Pavia & Harcourt, LLP, focusing on general commercial work, with a “significant focus” in intellectual property law. She has not been involved with any organizations or committees related to the First Amendment, nor has she written any publications or speeches focusing on free speech.

Sotomayor addressed her narrow and contextual approach in her response to a question about judicial activism in the federal judiciary at the end of her 1997 Questionnaire. Sotomayor stated that her service as a judge has only served to reinforce her views that a judge’s decision should not “start from or look to” the possible effects of a decision on broad classes of individuals or the government “as an end result.” Sotomayor stated similar views in her 1992 Questionnaire, writing that “judges should seek only to resolve the specific grievance, ripe for resolution, of the parties before the court and within the law as written and interpreted in precedents.” Sotomayor also reaffirmed her view that “intrusion by a judge upon the functions of the other branches of government should only be done as a last resort and limitedly.” Sotomayor concluded by stating that judges must be “extraordinarily sensitive to the impact of their decisions and function within, and respectful of, the constraints of the Constitution.”

It remains to be seen whether Sotomayor’s views on free speech issues will change on the Supreme Court, if confirmed. However, Sotomayor has demonstrated that her fact-specific approach could likely make her an influential swing vote on a Court that has been marked for some time by its polarization on many issues.