Most disturbing is Sotomayor's signing onto an opinion written by one of her colleagues in a May 2008 case limiting the speech rights of public-high-school students ... Does this signal a pattern that allows students to engage in political speech but not in harsh criticism of school administrators?
By HARVEY SILVERGATE
Minutes after President Barack Obama announced that he was nominating appellate judge Sonia Sotomayor for the vacant seat on the Supreme Court, battle lines were drawn on the pre-scripted questions of "post-racial" America: will she favor minority groups or judge all citizens equally? Will she treat alleged criminals and other down-and-out litigants with "empathy" (the Beltway buzzword du jour) or take a hard-line approach? And will she be a "judicial activist," or will her decisions hew to the text of the written law (so-called strict constructionism)? But missed in these debates is Sotomayor's stance on a basic tenet of American liberty: freedom of speech, without which all other rights are functionally meaningless. One might attribute the press back-burnering her focus in this area of law to Sotomayor's relative lack of decision-making on First Amendment cases. But, more likely, this reflects the modern bipartisan disregard for free speech — a right strongly valued from Thomas Jefferson to George Carlin, but one that has steadily eroded over the past four decades. Still, it is essential to consider how Sotomayor, currently a judge on an intermediate federal appeals court in New York, stacks up on free speech. Initially, a mixed picture emerges.
Most disturbing is Sotomayor's signing onto an opinion written by one of her colleagues in a May 2008 case limiting the speech rights of public-high-school students. Avery Doninger, a student-council officer in Connecticut, got into a tiff with school administrators who canceled a student-initiated band competition. Doninger lambasted the administration on (in the court's words) "an independently operated, publicly accessible blog," saying the event was axed "due to douchebags," and asked readers to phone school officials in protest. Her strategy worked, enraging those officials who said that "appealing directly to the public was not an appropriate means of resolving complaints the students had regarding school administrators' decisions." For this, Doninger was not permitted to assume the class office to which she had been duly elected.
The decision was a betrayal of the Vietnam War–era Supreme Court decision in Tinker v. Des Moines Independent Community School District (1969), in which the justices protected the right of students to wear a black armband protesting the war: "It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Since then, however, free-speech rights of students and adults alike have been whittled down by Supreme Court justices both liberal (some have allowed fundamental political speech to be controlled in the campaign-finance arena by federal bureaucrats, a development that Sotomayor praised in a 1996 speech) and conservative (the court's right wing has largely targeted high-school-student speech touching upon either sex or drugs, as well as student newspapers). Sotomayor's signing onto the Connecticut Doningerv. Niehoff opinion doesn't provide any confidence that she would seek to roll back the tide of censorship, though she did, in a 2006 Vermont case, uphold the right of a 13-year-old student to wear a T-shirt critical of George W. Bush. Does this signal a pattern that allows students to engage in political speech but not in harsh criticism of school administrators?
In contrast with the 2008 Connecticut case, Sotomayor dissented from a 2002 decision that allowed a New York City Police Department employee to be fired from his desk job for mailing racist and bigoted political material to charitable groups that had solicited him for donations (Pappas v. Giuliani). She agreed that the employee's speech was "patently offensive," but reminded the other judges that the First Amendment protects even speech that the government "does not like." Thus did this minority-group member admirably go against the grain and properly protect even racist speech.
So where exactly does Sotomayor stand on the multifaceted issues of free speech? These are the kinds of questions one hopes will be explored in the Senate's confirmation process. After all, freedom of expression is a prerequisite for citizens to secure all other rights from government intrusion. In the Bill of Rights, it is no accident that free speech is the subject of the First Amendment. "Strict constructionism" is a meaningless and utterly subjective concept — free speech is not.