Sotomayor on the First Amendment

Judge Sonia Sotomayor’s record doesn’t show a rigid, ideological outlook on First Amendment issues.

Sotomayor — nominated to the U.S. Supreme Court by President Barack Obama to replace the departing Justice David Souter — has handled a wide variety of First Amendment issues in her 16 years as a judge for the U.S. District Court and the 2nd U.S. Circuit Court of Appeals.

First Amendment advocates have hailed her opinions in a gag-order dispute and in protest cases. But she also has been criticized for joining in rulings involving limits on student online expression and commercial-speech claims. Both critics and advocates have found rulings in which she supported or rejected First Amendment claims by prisoners.

A review of her record as a district and appellate judge shows:

Gag orders
One of the more high-profile First Amendment decisions authored by Judge Sotomayor was her decision in U.S. v. Quattrone (2nd Cir. 2005) in which she invalidated a gag order issued by a trial judge that prevented the press from divulging the name of any prospective or selected juror in the second trial of Frank Quattrone, a former executive of Credit Suisse First Boston.

In her opinion for a unanimous three-judge panel of the 2nd Circuit, Sotomayor analyzed the case under the Supreme Court’s seminal prior-restraint decision Nebraska Press Association v. Stuart (1976). She noted that in the Quattrone case, the lower court “did not make factual findings that publicity in this case would impair defendant’s Sixth Amendment right to a fair trial” and that “the record does not demonstrate sufficient consideration of measures other than a prior restraint that could have mitigated the effects of the perceived harm.”

She also noted that the names of the jurors were read in open court, which limited the efficacy of a prior restraint in the first place. She concluded that “the district court’s order barring publication of jurors’ names not only subjected appellants to a prior restraint on speech, but also infringed their freedom to publish information in open court.”

“I would characterize this opinion as the textbook example or primer of how an appeals court should review a gag order, not only because I agreed with the outcome but also because her analytical process was just how an appeals court should do this,” said Jane Kirtley, the Silha Professor of Media Ethics and Law at the School of Journalism and Mass Communication at the University of Minnesota. “She very clearly looked at the Nebraska Press case and applied it very thoughtfully and set out in a very straightforward way how she did that.

“Judge Sotomayor did exactly what an appeals court would do. She applied Supreme Court precedent and held the trial court to account,” Kirtley said.

In another high-profile case involving a different type of gag order, Sotomayor authored an opinion for the 2nd Circuit in Center for Reproductive Law and Policy v. Bush (2002) rejecting various constitutional challenges to the so-called “global gag rule,” which prohibits overseas organizations that receive U.S. funds from providing abortion services or engaging in speech intended to ease restrictions on abortion.

Sotomayor rejected the First Amendment claim based on prior 2nd Circuit precedent — Planned Parenthood Federation of America v. Agency for International Development (1990).

On Jan. 23, President Barrack Obama rescinded the global gag rule. The Center for Reproductive Rights has issued a press release supporting Sotomayor’s nomination even though she ruled against the organization based on existing U.S. Supreme Court and 2nd Circuit precedent.

Election case
Sotomayor also rejected the First Amendment and due-process claims of a prospective judicial candidate who alleged she was unconstitutionally removed from the ballot for a New York civil court position. The prospective candidate ended up 71 signatures short of the required 1,500 signatures. She alleged in her free-expression claim that the election board’s action infringed on her and the voters’ free-expression rights. Sotomayor denied the claim, writing in Rivera-Powell v. New York City Board of Elections that “there is no independent burden on First Amendment rights when the state provides adequate procedures to remedy the alleged illegality.”

Sotomayor explained that a “contrary holding would permit any plaintiff to obtain federal court review of even the most mundane election dispute merely by adding a First Amendment claim to his or her due process claim” and added that “federal court intervention in ‘garden variety’ election disputes is inappropriate.”

Protest case
Sotomayor authored a unanimous 2nd Circuit panel decision in Papineau v. Parmley (2006), which involved First and Fourth Amendment claims advanced by members of the Onondaga Nation, who were protesting a decision between Onondaga Nation chiefs and the state of New York that would permit the state to tax tobacco products sold to non-Native Americans on Onondaga land.

The protesters alleged that they were beaten by law enforcement officials after some of the demonstrators moved their protest activities to a public highway. Sotomayor refused to grant qualified immunity to law enforcement, noting that it was clearly established law that demonstrators had a constitutional right to protest free from interference as long as the protesters did not present a clear and present danger to public safety.

Sotomayor wrote that “on the facts alleged, we cannot say as a matter of law that the police had an objectively reasonable basis to conclude that the plaintiffs presented a clear and present danger of imminent harm or other threat to the public at the time of the arrests.”

Public-employee cases
In Singh v. City of New York (2008), Sotomayor rejected the First Amendment retaliation claim of a fire inspector who voiced concerns about a city policy requiring him to carry inspection documents to and from work and other work policies. Sotomayor wrote for a unanimous three-judge panel in determining that the inspector’s speech did not touch on a matter of public concern, but related “only to internal employment policies of the City … made only in his capacity as an employee and not as a citizen.” For whatever reason, her opinion did not cite the Supreme Court’s most recent public employee First Amendment decision Garcetti v. Ceballos (2006) in which the Court ruled that public employees have no First Amendment rights for speech made pursuant to their official job duties.

She also participated in a panel decision, authored by Judge Dennis Jacobs, that rejected the First Amendment claims of a retired police sergeant in Ruotolo v. City of New York (2008) in part because of Garcetti and also because the speech did not touch on a matter of public concern, a standard articulated by the high court in Pickering v. Board of Education (1968).

However, she sat on a three-judge panel that unanimously reinstated part of a former public school teacher’s claim that he was retaliated against by his principal and other school officials for critical comments in a New York Post article. The article discussed the problem of attendance fraud. The panel determined in Brenes v. City of New York (2009) that there was sufficient evidence that one principal did retaliate against the teacher shortly after the negative newspaper article. Thus, the panel reinstated the part of the First Amendment as to that particular defendant.

In a public-employee case decided before Garcetti, Sotomayor issued an interesting dissenting opinion in Pappas v. Giuliani (2002). The case involved the free-speech claim of Thomas Pappas, a New York City police officer terminated for sending anonymous, racially offensive mailings in response to a charitable solicitation. In 2000, a U.S. District Court judge upheld the termination, finding that Pappas’ hateful expression did not touch on matters of public concern or importance — a central inquiry under the Pickering-Connick test. (See story on federal judge’s decision.) The district court reasoned that Pappas’ “conduct amounted to private interest dressed in public garb.”

Pappas then appealed. A three-judge panel of the 2nd Circuit ruled 2-1 in favor of the city with Sotomayor dissenting. Each member of the three-judge panel wrote separately with two judges ruling in favor of the police department. Judge Pierre N. Leval reasoned that the department could terminate the officer under the traditional Pickering-Connick balancing test because the police department could reasonably believe that the racist expression could hinder the department’s performance and reception in the community. Judge Colleen McMahon (a federal district court judge sitting by designation on the panel), wrote a concurring opinion, contending that the department should win because Pappas’ speech did not address a matter of public concern but engaged in “purely personal speech.”

Judge Sotomayor dissented. “Today the Court enters uncharted territory in our First Amendment jurisprudence,” she began her opinion. She said she found the speech of Pappas to be “offensive, hateful, and insulting” but that the court “should not … gloss over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives because it is confronted with speech that it does not like and because a government employer fears a potential public response that it alone precipitated.” She noted that Pappas was not a high-ranking officer with supervisory authority and “did not purport to speak for the NYPD.” Pappas later appealed the 2nd Circuit majority’s decision to the Supreme Court, which denied review in June 2003.

Religious-expression cases
Sotomayor’s record on cases involving religious displays appears in accord with some legal commentators’ assessments of her as a pragmatic judge who takes into account the particular facts of the case in addition to overarching constitutional law.

In 1993, Sotomayor ruled in Flamer v. City of White Plains that a rabbi had a First Amendment right to display a menorah in a city park. The city of White Plains, New York, prohibited “fixed outdoor displays of religious or political symbols.” The rabbi asserted that the regulation violated his free-exercise-of-religion and free-speech rights.

She wrote that the city may not “preclude a private speaker from erecting a fixed display of a religious symbol, free-standing or otherwise, in a City park on the basis of such display’s religious message.” She rejected the city’s establishment clause-based defense that it was trying to prevent perceived state endorsement of religion: “The Establishment Clause does not provide a compelling justification for the Resolution’s content-based restrictions on expressive conduct.”

However, a few years later while still a district judge, Sotomayor rejected the First Amendment claims of two Muslims who alleged a First Amendment violation because a post office displayed Christian and Jewish symbols during the Christmas and Chanukah celebrations.

Sotomayor noted in Mehdi v. United States Postal Service (1997), that the post office building was a nonpublic forum. “If the government’s speech on its own property by itself turned that property into a public forum, virtually all government facilities would become public fora open for a wide range of expression activity,” she wrote. “The First Amendment does not require this.”

She accepted the post office’s argument that it promoted its business by including certain symbols that would best attract business and that it did not have to include seasonal displays requested by the public. She ruled that “the Postal Service’s prohibition of seasonal displays by the public is a reasonable restriction designed to further its business.”

Prisoner cases
The most frequent class of civil rights litigants in federal courts are inmates — individuals under 24-hour supervision by government officials. During her time on the bench, Judge Sotomayor has written several opinions involving the First Amendment rights of inmates.

As a district court judge, she authored an opinion in Campos v. Coughlin (1995) in which she granted a preliminary injunction to two inmates of the Santeria religion who were denied the opportunity to wear religious beads, while other inmates were allowed to wear rosary beads.

“This case raises significant constitutional and statutory issues about the protections accorded fundamental First Amendment rights of freedom of religious expression in a prison setting,” she wrote. “It underscores the complex nature and difficulty of accommodating various religious belief systems and tenets within a prison system, wherein violence is a real and daily threat.”

The prisons had a policy providing that “inmates will be permitted to wear only traditionally accepted religious medals, crucifixes, or crosses.” Sotomayor ruled in favor of the inmates, finding that “the beads are not, as defendants would have me recognize, an optional devotional item. Rather, they are a hallmark of plaintiffs’ beliefs.”

However, in other cases she rejected inmate claims. For example, in Duamutaf v. Hollins (2000) she ruled in favor of prison officials in a First Amendment claim brought by an inmate who was placed on “mail watch” after prison officials mistakenly thought a book on economics titled Blood in the Streets: Investment Profits in a World Gone Mad was inflammatory. She focused on the fact that the inmate had a poor disciplinary record and the prison officials had valid security concerns. “In light of these background facts, coupled with the paramount importance of exercising caution in matters of prison security, a rational jury could not find that defendants’ decision to place a temporary watch on plaintiff’s mail was not reasonably related to legitimate penological interests,” Sotomayor wrote for the 2nd Circuit.

Student-speech cases
Judge Sotomayor sat on three-judge panels in at least two high-profile student speech cases — one ruling against the student and one ruling in favor of the student. In Doninger v. Niehoff (2008), the panel ruled against a student and her parent for the student’s online speech critical of the school principal. The appeals court ruled that school officials could reasonably forecast that the student’s critical online speech could cause a substantial disruption in the school environment.

However, in Guiles v. Marineau the three-judge panel that included Sotomayor ruled in favor of a Vermont student punished for wearing a T-shirt with a picture of then-President George W. Bush. The T-shirt in question referred to Bush as “Chicken-Hawk-in-Chief” and featured small print calling the president a crook and implying he was a cocaine-user. The panel, in an opinion written by Judge Richard Cardamone, determined that the shirt was not “plainly offensive” within the meaning of the Supreme Court’s 1986 decision Bethel School District v. Fraser (1986).

Sotomayor has written opinions in several Freedom of Information Act cases. In Wood v. FBI (2005), she wrote for the 2nd Circuit that a prosecution memo and the names of investigating agents of the FBI and Department of Justice who were investigating Connecticut Federal Bureau of Investigation agents could be withheld because of FOIA exemptions for work product and privacy.

In Tigue v. U.S. Department of Justice (2003), she for a three-judge panel of the 2nd Circuit that a memorandum prepared by a U.S. attorney describing how the Internal Revenue Service should pursue criminal tax investigations was protected by an exemption covering an agency’s “deliberative processes.”

As a district court judge in Dow Jones v. U.S. Department of Justice (1995), Sotomayor issued three different opinions related to the attempt by Dow Jones to receive a copy of a suicide note penned by former White House counsel Vince Foster.

In her first of the three rulings — issued in January 1995 — Sotomayor ruled that FBI and Park Police Reports were exempt from disclosure. However, she also ruled that a photocopy of the Foster suicide note should be disclosed. “The public has a substantial interest in viewing the Note,” she wrote. “I do not doubt that making photocopies of the Note available on a wider scale may spark a new round of media attention toward the Foster family, and I sympathize with them for the pain they will bear as a result of any renewed scrutiny. I am not convinced, however, that any such renewed interest will be so substantial as to outweigh the important public interest in viewing the Note.”

Commercial speech
Sotomayor sat on the three-judge panel that rejected a First Amendment challenge by the New York Restaurant Association to a New York City Health Code policy requiring businesses to disclose calorie content of their food. The panel, in an opinion by Judge Rosemary Pooler, concluded in New York State Restaurant Association v. New York City Board of Health (2009) that “although the restaurants are protected by the Constitution when they engage in commercial speech, the First Amendment is not violated, whereas here, the law in question mandates a simple factual disclosure of caloric information and is reasonably related to New York City’s goals of combating obesity.”

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