Sotomayor’s good instincts on free speech

Sotomayor’s statements about judges (better if they’re female and minority) and their role (to make policy) have been disturbing.  It’s worth nothing though that, as James Taranto points out that, on at least one occasion Sotomayor came out strongly in favor of free speech, even though it was very ugly speech:

Sotomayor Plays Against Type

Blogger Tom Goldstein has a roundup of Judge Sonia Sotomayor’s opinions on the Second U.S. Circuit Court of Appeals, and one First Amendment case caught our attention. Here’s Goldstein’s summary:

One of her more controversial cases was Pappas v. Giuliani, involving an employee of the New York City Police Department who was terminated from his desk job because, when he received mailings requesting that he make charitable contributions, he responded by mailing back racist and bigoted materials. On appeal, the panel majority held that the NYPD could terminate Pappas for his behavior without violating his First Amendment right to free speech. Sotomayor dissented from the majority’s decision to award summary judgment to the police department. She acknowledged that the speech was “patently offensive, hateful, and insulting,” but cautioned the majority against “gloss[ing] over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives just because it is confronted with speech is does not like.”

In her view, Supreme Court precedent required the court to consider not only the NYPD’s mission and community relations but also that Pappas was neither a policymaker nor a cop on the beat. Moreover, Pappas’s speech was anonymous, “occur[ring] away from the office on [his] own time.” She expressed sympathy for the NYPD’s “concerns about race relations in the community,” which she described as “especially poignant,” but at the same time emphasized that the NYPD had substantially contributed to the problem by disclosing the results of its investigation into the racist mailings to the public. In the end, she concluded, the NYPD’s race relations concerns “are so removed from the effective functioning of the public employer that they cannot prevail over the free speech rights of the public employee.”

We’re not sure where we come down on this particular case, but we like Sotomayor’s instinct to err on the side of protecting speech–an instinct that was a hallmark of “liberal” jurisprudence in the days of the Warren court but really is not anymore.


If President Obama’s first nominee turns out to be an old-style liberal with a reverence for free speech, the country could have done a lot worse.

I was also interested to read that there is concern on the Left that Sotomayor, a Catholic, is not a reliable vote on Roe v. Wade.  I won’t go into my abortion ambivalence here (sufficie it to say that I’m more pro-Life than I was, but less pro-Life than I could be), but I do find it interesting that her own fans are worried.

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  • suek

    I sure hope there’s more to this than meets the eye…,2933,522637,00.html

  • SGT Dave

    There is a funny tickling at the back of my mind, and it has been pestering for attention for some time. I work with, around, and concerning Hispanics – especially watching trends in social and political areas. I think the O-man might be making a mistake of the same magnitude that Bush Sr. made when appointing the man Sotomayor is replacing. She’s silent on abortion – which, if she was a full-on supporter she’d be crowing from the bellfrey to bolster support from Dems that are waffling. Practicing or not, she’s a Roman Catholic, and that carries a lot of odd impulses (and from what we’ve seen, she’s an impulsive sort). She’s tied to the Hispanic community, which can cause a huge shift in what is perceived as “liberal”. The community is not very supportive of the big labor unions in general (the moves to exclude them from some areas resulted in a lot of hurt feelings), they don’t like a lot of taxation, and they believe in education – especially results in education – along with private schools.
    I’m not going to hope, I’m way to big a cynic for that. I will say, however, that the press’ unwillingness to look too deeply into the O-man’s actions and desires may cause a serious backfire in this case. And not in the way most of us expect, if my intuition is not just blowing smoke.

    SSG Dave
    “The problem with rubber stamping people is that YOU aren’t looking that closely at their qualifications, tendencies, and plans either.”