Sotomayor and free expression

Thursday, May 28, 2009

For those First Amendment devotees who revel in “big picture” rights-affirming jurists who author opinions like Oliver Wendell Holmes’ dissent in Abrams or Louis Brandeis’ concurrence in Whitney or William Brennan’s majority opinion in Sullivan or even Clarence Thomas’ concurrence in 44 Liquormart, Judge Sonia Sotomayor’s free-speech record, as we now know it, will disappoint. And she’s not an appellate judge in the mold of Richard Posner or Michael McConnell or Alex Kozinski.

Generally speaking, Judge Sotomayor’s 16 years of work on the federal district and circuit courts reveal a far more humble-minded jurist, one more concerned with context than with concepts, more attentive to discerning facts than with announcing new doctrine, and one who is more focused on applying law than developing it. That doesn’t necessarily mean she would be insensitive to First Amendment values. On that score, her record suggests there is reason for cautious optimism.

Focusing on facts & taking tests seriously
In U.S. v. Quattrone, 402 F.3d 304 (2005), the 2nd U.S. Circuit Court of Appeals reversed a lower court’s ruling that enjoined the news media from publishing, during a widely noticed trial, jurors’ names that were mentioned in open court. Many of the major media groups filed briefs, and Floyd Abrams argued the matter on their behalf.

When it came to the merits of the case, Sotomayor offered an array of snippets of the law of prior restraints, replete with footnotes that suggested she was duly attentive to nuances in the law. That said, she turned to a narrow reef on which to bank her ruling: “The reviewing court must examine closely both the record and the ‘precise terms’ of the restrictive order. … Application of the Nebraska Press test to the instant case demonstrates that the district court’s order violated appellants’ First Amendment rights.” She then examined the record and concluded, among other things, that it “does not demonstrate sufficient consideration of measures other than a prior restraint that could have mitigated the effects of the perceived harm.”

That would have been enough to have decided the case, but she added: “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 disclosed in open court. This imposed an independent constitutional harm on appellants and rendered the district court’s violation of the First Amendment even more plain.” Though flagging that argument, she returned to safe ground in announcing the court’s judgment: “Because the facts of this case did not justify the imposition of a prior restraint or an infringement of appellants’ right to publish information disclosed in open court, we hold that the district court’s order violated the Free Speech and Free Press Clauses of the First Amendment.”

Much of that same kind of caution was employed by Judge Sotomayor in her opinion for the 2nd Circuit in Papineau v. Parmley, 465 F.3d 46 (2006), which involved a cause of action for damages based on alleged First and Fourth Amendment violations arising out of purported police misconduct in dispersing plaintiffs’ demonstration. In finding a First Amendment violation, she honed in on the facts and concluded: “Quite simply, 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. Defendants were accordingly not entitled to qualified immunity.”

As in Quattrone, Judge Sotomayor did not end her discussion there. “Plaintiffs’ facts, as alleged, would also give rise to a separate First Amendment violation even if the NYSP had a lawful basis to interfere with the demonstration,” she added, and then proceeded to establish a second reason for affirming the plaintiffs’ free-speech claims.

In Campos v. Coughlin, 854 F. Supp. 194 (1994), Judge Sotomayor had to consider the constitutional claims of prisoners who were practitioners of the Santeria religion and who challenged a directive that prohibited prisoners from wearing certain religious artifacts, including religious beads. Here again, the judge cut to the factual quick of the matter: “While I defer to defendants’ assessment of the gang situation within the [prison] system, and I accept defendants’ assertions that beads are gang identifiers and facilitate gang activities and violence, this portion of defendants’ arguments as justification for the entire scope of its directive does not address the essence of plaintiffs’ claim. Defendants have not shown how the directive, which prohibits the wearing of beads even under clothing, furthers the state’s compelling interest in the least restrictive manner. Plaintiffs convincingly argue that wearing beads under their clothes would address DOCS’ concerns. Wearing of the beads in this manner avoids their public display and, hence, the easy identification of gang members, while simultaneously permitting plaintiffs to exercise their religion.”

For too many judges, the mere invocation of the need to preserve prison security would be sufficient to warrant deference based on the slightest evidence. For Judge Sotomayor, this was not the case: “I am troubled by defendants’ complete rejection of plaintiffs’ proposal based on what defendants speculatively describe as an ‘enforcement problem.’” (On the free-exercise front, as Charles Haynes has noted generally, Sotomayor’s opinion in Campos reflects a generous application of the law governing religious freedom.)

What her Quattrone, Papineau and Campos opinions reveal is a judge disposed to deciding cases on the narrowest grounds with careful scrutiny of the facts. There is nothing bold in her opinions, no “big picture” dicta about the jurisprudence of prior restraints or freedom of assembly or prisoner rights and the First Amendment. Quattrone, Papineau and Campos show the guarded mind of a jurist more in line with incremental context-based thinking than with, say, the broad sweep jurisprudence of a Hugo Black or William Brennan. Nonetheless, they also reveal the mind of someone who seems to take First Amendment tests seriously enough to apply them rigorously. If so, that kind of a mindset could make a real difference in First Amendment cases involving matters such as the “secondary-effects” doctrine, where the Court has been lax in applying its law to the facts of cases.

Aside: There was something rather old-fashioned about the way Judge Sotomayor began both the Quattrone and Papineau — she quoted the text of the First Amendment.

Cause for concern
For all her attention to factual detail as it concerns the commands of doctrinal law, the vote Judge Sotomayor cast in Doninger v. Niehoff, 527 F.3d 41 (2008), is troubling. The panel, in an opinion by Judge Debra Ann Livingston, ruled against a student concerning her online speech critical of the school principal. The court concluded that school officials could reasonably forecast that the student’s critical online blog created a “risk of substantial disruption” in the school. The young woman’s off-campus blogosphere expression referred to school officials in vulgar terms and urged other students to complain about the cancellation of “Jamfest” (a factual misstatement) and to e-mail the district superintendent, if only to “to piss her off more.” As a result of this, the student was not allowed to have her name on a school ballot or to give a campaign speech at an assembly regarding school elections.

The Doninger opinion is a confusing amalgamation of different free-speech doctrines coupled with a strained reading of Tinker v. Des Moines Independent Community School Dist. (1969) combined with a loose application of law to the facts of the case. At one point, Judge Livingston declared: “The Supreme Court has yet to speak on the scope of a school’s authority to regulate expression that . . . does not occur on school grounds or at a school-sponsored event.” Of course, such authority derives not from the Supreme Court but from state statutes. Equally troubling is how the Doninger opinion applied Tinker’s speech-protective standards to regulate all off-campus expression so long as it might be deemed “reasonably foreseeable” that such expression would find its way to campus and then might cause some kind of “substantial disruption,” which as applied in this case is synonymous with any disruption, however insubstantial or however caused. The opinion seemed to equate “substantial disruption” with student complaints to school officials, who could have readily made a general statement to the student body to clear up any misimpressions.

True, Sotomayor did not author the opinion. And true, judges tend to be less demanding when they join a judgment then when they write an opinion. That said, had Sotomayor approached the Doninger case as she approached Quattrone, Papineau and Campos, the applicable law would have been more scrupulously applied to the facts and the First Amendment claim would have been sustained.

A few concluding thoughts
Perhaps her experience as a trial judge explains Judge Sotomayor’s attention to facts, the importance of context and the need to apply the controlling law in a rigorous way duly attentive to what is or is not in the trial record. As previously noted, this approach to the First Amendment could prove salutary in some kinds of cases, as with the secondary-effects doctrine or the government employee-speech doctrine. Then again, it might lead to the kind of fact-specific jurisprudence championed by Justice Stephen Breyer in the religious monument cases — McCreary County, Ky. v. ACLU of Kentucky (2005) and Van Orden v. Perry (2005) — or to the confusing law of obscenity prior to Miller v. California.

What we now know of Sotomayor’s First Amendment record seems consistent with the generalizations mentioned above. What we don’t know is how that record and her contextual approach to decision-making will play out when, if confirmed, she is called upon to consider new exceptions to the First Amendment (see United States v. Stevens) or free-speech challenges to broadcast indecency regulations (see FCC v. Fox) or attempts to ban new kinds of commercial speech (see IMS Health, Inc. v. Ayotte).

Absent the kind of about-face we saw with Sen. Black when he became a justice, or the kind of jurisprudential development we have witnessed with Justice Anthony Kennedy, Sotomayor’s First Amendment legacy is unlikely to be significant. Then again, she might surprise us.

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