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Tuesday, June 9th, 2009


All the talk of Sonia Sotomayor’s racism tends to focus on a few of her remarks in her speeches (especially one in particular) and her ruling in a single case. But looking at her record on discrimination lawsuits, for example, she only ruled for the plaintiffs in 10 of the 96 racial discrimination claims that were before her. In one prominent case, she sided with a police officer who had sent out anonymously racist and anti-Semitic mailings in a strongly worded dissent. What’s more significant to me though is the extent to which Sotomayor interpreted the law to protect individual rights, in this case, the First Amendment.

Last week, I wrote I was concerned about Sotomayor’s decision in the “douchebag” case:

I think the role of Courts in checking the increasing power of corporations, schools, and other semi-voluntary organizations to monitor and police the private activities of citizens is going to gradually become a big issue. That Sotomayor signed onto an opinion then that allowed the restriction of free speech on a non-school affiliated blog because calling administrators “douchebags” presented a “foreseeable risk of substantial disruption” is a matter of concern.

The case of Pappas v. Guiliani shows a different side of Sotomayor’s jurisprudence. The plaintiff was an NYPD officer who was resposible for maintaining the department’s computers. He received several mailings at his home from charity groups associated with another police department and returned them anonymously filled with “offensive racially bigoted materials.” Or so he thought. The Nassau County Police Department started an investigation – and were able to determine Thomas Pappas’s identity because the return envelopes were coded to be tracked. The police department sent out another mailing to Pappas – and again received hate mail in return. They notified the NYPD which then performed the same experiment – and once again, Pappas sent them back an envelope filled with racist literature. At a disciplinary trial before the NYPD, Pappas explained his behavior was a form of protest as he “was tired of being shaken down for money by these so-called charitable organizations.” The NYPD then fired him – and in return he sued claiming his dismissal violated his First Amendment rights. The first judge to hear his case dismissed it – and Pappas then appealed to a three judge panel of which Judge Sotomayor was one member.

The panel upheld the dismissal – but Sotomayor registered her lone dissent in a strongly-worded opinion.

In upholding the dismissal, the Court determined that Pappas speech was protected under the First Amendment as it was “upon a matter of public concern.” But the Court explained, under certain circumstances, free speech rights were subordinated to the interest of the state – specifically with regards to the state as an employer. The opinion quoted Justice Oliver Wendell Holmes: “A policeman may have a constitutional right to [speak his mind], but he has no constitutional right to be a policeman.” Essentially, with regards to state employees, the protection of the First Amendment is limited to matters of public concern (to avoid an employee being protected while making privately disparaging or harassing remarks) and then must be balanced against the interests of the state in it’s public relations. If, for example, a police chief publicly states he is in favor of discriminating, he can then be fired – even though he is speaking on a matter of public concern – because his speech interferes with the ability of the police department to do it’s job. Court precedent states that each judge must evaluate the potential damage that would be caused by keeping the person and balance this against the First Amendment rights of the individual. In this case, the majority opinion found that the potential damage of a computer technician being a racist was vast – due to the publicity surrounding the case.

The other judge on the panel agreed that Pappas’s case should have been dismissed – but did not believe it was necessary to consider the First Amendment implications as the Court’s official opinion did, saying that Pappas’s speech was merely private – and thus not protected by the First Amendment.

Judge  Sotomayor though dissented:

Today the Court enters uncharted territory in our First Amendment jurisprudence. The Court holds that the government does not violate the First Amendment when it fires a police department employee for racially inflammatory speech — where the speech consists of mailings in which the employee did not identify himself, let alone connect himself to the police department; where the speech occurred away from the office and on the employee’s own time; where the employee’s position involved no policymaking authority or public contact; where there is virtually no evidence of workplace disruption resulting directly from the speech; and where it ultimately required the investigatory resources of two police departments to bring the speech to the attention of the community…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 it does not like and because a government employer fears a potential public response that it alone precipitated.

She had several points. One was that while she did not dispute that someone “has no constitutional right to be a policeman,” the position one held was important. Thus, she writes:

In Rankin, the Supreme Court applied this analysis to the law enforcement context and found that “where . . . an employee serves no confidential, policymaking, or public contact role, the danger to the agency’s successful functioning from that employee’s private speech is minimal.” Rankin, 483 U.S. at 390-91.

She also attacked the Court’s opinion regarding how it attempted to balance the potential damage caused by Pappas’s mailing and his free speech rights:

At some level of abstraction or aggregation, the potential for racist statements to damage the NYPD may indeed be “immense.” But that is not how the fact-specific Pickering test is applied. The question is how potentially damaging is this speech — that is, these leaflets sent by this employee under these particular circumstances.

In the end, Sotomayor’s defense of Pappas is grounded in the precise principles I would hope:

The majority’s decision allows a government employer to launch an investigation, ferret out an employee’s views anonymously expressed away from the workplace and unrelated to the employee’s job, bring the speech to the attention of the media and the community, hold a public disciplinary hearing, and then terminate the employee because, at that point, the government “reasonably believed that the speech would potentially . . . disrupt the government’s activities.” Heil v. Santoro, 147 F.3d 103, 109 (2d Cir. 1998). This is a perversion of our “reasonable belief” standard, and does not give due respect to the First Amendment interests at stake.

Sotomayor’s opinion is exactly what I would want from a Supreme Court justice. It is grounded in law, precedent, and a reverence for our founding principles; in this instance, she is also defending the unsavory, even though she clearly disagrees with his positions; most importantly, she is protecting basic rights against powerful interests.

[Image by keithpr licensed under Creative Commons.]

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