Sotomayor's Mixed First Amendment Record

During Judge Sonia Sotomayor’s confirmation hearings next week, there will be plenty of
discussion about her “wise Latina” remarks, her decisions on affirmative action, the Second Amendment, and her perspective on judicial restraint. One area, however, that should receive equal consideration is her view of the First Amendment.

While Sotomayor has been involved in hundreds of First Amendment cases since her appointment to the federal bench, a review by the Center for Individual Freedom found that she has personally authored only nineteen cases that bear directly on issues of free speech and association, freedom of religion, and freedom of the press.  Of those nineteen cases, Sotomayor sided with the individual (the First Amendment) only five times, or a mere 26.3 percent.

To be fair, of course, one must look beyond percentages.  The details of Judge Sotomayor’s opinions provide a better glimpse into her overall judicial philosophy on the First Amendment’s dictates.  Therein lies plenty to give free speech advocates significant pause.

For example, take Judge Sotomayor’s concurrence in Landell v. Sorrell, the predecessor to the Supreme Court case Randall v. Sorrell.  In Randall, the Court struck down Vermont’s miniscule political donation limits and overturned the Second Circuit and Judge Sotomayor.  In the words of the opinion she joined, Sotomayor did not deem the case “itself ‘exceptionally’ important,” despite the well-understood demands by our Founders that political speech must be afforded the most protection against government censorship.

Perhaps most troubling about Sotomayor’s concurrence in Landell is that she not only upheld Vermont’s low contribution requirements, but also went further by suggesting that government could strictly limit the speech of political candidates by limiting the amount of money they could spend on campaigns.  That starkly contradicts the opinions of the Supreme Court, which held as far back as Buckley v. Valeo (1976) that strict limitations on candidate expenditures violate the First Amendment.

At a time when government at all levels is becoming bolder in its efforts to expand on McCain-Feingold’s misguided run at controlling political speech, Judge Sotomayor’s concurrence in Landell deserves significant attention.

Regarding student expression, Judge Sotomayor’s views are equally troubling.

In Doninger v. Niehoff, Sotomayor joined two other judges to hold that students could be subject to school sanctions for off-campus speech that “would foreseeably create a risk of substantial disruption within the school environment.”  As critics point out, however, the speech (criticism of school officials) took place on a personal blog, outside of the school setting, and was not part of a school function.  But because the student’s speech urged others to contact the school in protest, Sotomayor deemed it a risk to disrupt school activities.

In essence, Doninger is a significant expansion of the Supreme Court ruling in Morse v.Frederick (the infamous “Bong Hits for Jesus” case).  In Morse, the Court permitted the punishment of 18 year-old Joseph Frederick because the speech took place during a school function.  In Doninger, Sotomayor went further and permitted school officials to regulate and punish students for off-campus behavior, unrelated to any school functions.

As George Washington University Law Professor Jonathan Turley noted, “The continued expansion of the authority of school officials over student speech teaches a foul lesson to these future citizens. I would prefer some obnoxious speech than teaching students that they must please government officials if they want special benefits or opportunities — a key for college applications.”

To be sure, Sotomayor has ruled in favor of First Amendment protections on
occasion.  She has been a strong opponent of prior restraint during her time on the Second Circuit.  But this simply might be evidence of her selective application of free speech protections: protecting freedom of the press but opposing student speech and political speech.

For example, in Papas v. Giuliani, a police officer was fired for attempting to ward off non-profit solicitors by sending racist and anti-Semitic material.  Sotomayor, in dissent, argued that the First Amendment protected Papas’s speech because he “engaged in the speech anonymously, on his own time, and through mailings sent from his home.”   Acknowledging it is never easy to side with a bigot, Sotomayor wrote, “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.”  This was hardly a typical free speech decision, but it was a close case for the court, one in which Sotomayor sided with the First Amendment, not the state.

So what does Sotomayor’s record mean for free speech activists?  Well, batting .263 on free speech cases is hardly ideal even in baseball, and her record should definitely give First Amendment fans pause before embracing her nomination.