Most of the skepticism surrounding Sonia Sotomayor coming from liberals has to do with her not yet divined position on reproductive choice, as Tim and Sarah have been blogging about. But there’s another issue that I think merits greater examination, and that’s Sotomayor’s view of First Amendment rights.
In Pappas v. Giuliani, Sotomayor dissented from the court’s majority ruling that the NYPD could fire a staffer (not a beat cop) for having sent racist mail in response to letters soliciting charitable contributions.As Tom Goldstein explains at SCOTUSBlog, while Sotomayor argued that the statements made were “patently offensive, hateful, and insulting,” she also concluded that the majority was wrong to “gloss 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.” Given the context of this situation, the fact that the statements were made anonymously and not while at work, I’m inclined to agree with Sotomayor.
Given Sotomayor’s opinion in Pappas, the decision reached in another free speech case, Doninger v. Niehoff was striking. Basically, a student was disqualified from running for student office by the school because she referred to school officials as “douchebags” for cancelling an event she had helped organize. The court concluded that because the remarks caused a “foreseeable risk of substantial disruption” she was not entitled to a preliminary injunction reversing a disciplinary action against her, according to Education Week.
The two opinions seem pretty contradictory. Both of the individuals in question had made the offending comments on their own time. In one, Sotomayor argued that firing someone for engaging in offensive speech on their own time was “glossing over First Amendment rights,” even if it did cause problems of race relations for the NYPD, but in the other, she joined a ruling saying the school “did not abuse its discretion,” because of the risk of “substantial disruption,” from a student venting about school administrators on a blog. How is it that the word “douchebags” creates such a significant risk of disruption that First Amendment rights are forfeit, while the equally forseeable risk of public disruption caused by the NYPD’s poor race relations isn’t a great enough concern to trump Pappas’ legal rights?
— A. Serwer
