Critics, Commentators, and Cases Offer Few Glimpses at How Sotomayor can be Expected to Rule on Media Law

New Justice Expresses Support for Cameras in the U.S. Supreme Court

Examinations of the career of recently confirmed U.S. Supreme Court Justice Sonia Sotomayor provide mixed answers to the question of whether she will be a friend or foe to journalists and media organizations in her interpretation of the First Amendment and freedom of information laws.

Sotomayor, who replaces retiring Justice David H. Souter, was sworn in on August 8 after being confirmed by the Senate in a 68 to 31 vote. She served as a District Court judge in New York City for six years before becoming a judge for the 2nd Circuit U.S. Court of Appeals in 1998.

A report issued May 27, 2009 by the Reporters Committee for Freedom of the Press (RCFP) noted that despite Sotomayor's vast experience as a judge, "it is surprising to see that no clear standard on First Amendment issues has emerged from her cases." Given the small number of her judicial opinions concerning media law, the RCFP concluded that "it is difficult to know how she will decide the cases that concern journalists." The RCFP's extensive report on Sotomayor's media law-related decisions can be found online at http://tinyurl.com/rcfp-sotomayorreport.

In a May 28, 2009 report for the First Amendment Center, resident scholar Ronald K.L. Collins described Sotomayor as a jurist who is "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." Collins said Sotomayor's record gives reason to be cautiously optimistic about her stance on First Amendment values, and predicted that although her "First Amendment legacy is unlikely to be significant ... she might surprise us." Collins' report can be found online at http://www.firstamendmentcenter.org/commentary.aspx?id=21637.
Journalists are likely to be encouraged by Sotomayor's willingness to serve as what she described as a "new voice" in the Court's ongoing discussion about allowing cameras in its courtroom for oral arguments. Her view sharply contrasts with that of Souter, who once told a House appropriations subcommittee that "the day you see a camera come into our courtroom, it's going to roll over my dead body," according to a March 30, 1996 report in The New York Times.

During a July 14, 2009 Senate confirmation hearing, Sotomayor responded to a question from Sen. Herb Kohl (D-Wis.) by saying she has had "positive experiences with cameras" in courtrooms.

The Supreme Court announced that part of Sotomayor's oath-taking would be broadcast live from a Supreme Court conference room. An August 10 story in The National Law Journal said it was the first time an oath-taking had been broadcast live from the Court, although it was unclear from where the idea came. Previous oath-taking ceremonies have been broadcast, but they took place at the White House, not the Court.

In looking at her judicial record, media law experts praised Sotomayor's 2005 decision involving a prior restraint against the media in United States v. Quattrone, 402 F.3d 304 (2d Cir. 2005). Sotomayor, writing for a three-judge panel, struck down a district court gag order prohibiting journalists from publishing the names of prospective or selected jurors discussed in open court during the criminal retrial of former Credit Suisse First Boston executive Frank Quattrone. (See "Gag Order on Juror Names Ruled Unconstitutional," in the Winter 2005 issue of the Silha Bulletin.)

Jane Kirtley, director of the Silha Center and professor of media ethics and law at the University of Minnesota, lauded Sotomayor's approach in Quattrone in a May 28, 2009 First Amendment Center report by resident scholar David L. Hudson Jr. "I would characterize this opinion as the textbook example or primer of how an appeals court should review a gag order, not only because I agreed with the outcome but also because her analytical process was just how an appeals court should do this," Kirtley said. "She very clearly looked at the Nebraska Press case [Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976)] and applied it very thoughtfully and set out in a very straightforward way how she did that." Hudson's report can be found online at http://www.firstamendmentcenter.org/analysis.aspx?id=21629.

Meanwhile, three Sotomayor rulings on freedom of information have largely gone against disclosure. In Dow Jones & Co. v. U.S. Dept. of Justice, 880 F. Supp. 145 (S.D.N.Y. 1995), Sotomayor upheld the non-disclosure of investigative reports concerning the death of former deputy White House counsel Vincent W. Foster, but ordered the release of Foster's apparent suicide note, under the Freedom of Information Act (FOIA), 5 U.S.C. section 552.

A few months later, however, at the request of Foster's wife and the Justice Department, Sotomayor vacated her order to release the note after The Wall Street Journal published an authentic copy it received from a confidential source. In Dow Jones & Co. v. U.S. Dept. of Justice, 907 F.Supp. 79 (S.D.N.Y. 1995), Sotomayor wrote that her order had been mooted because the newspaper had already "obtained and published exactly what their Complaint had sought" through different means.

The Silha Center filed an amicus brief with the U.S. Supreme Court in another case stemming from the Foster suicide. See Brief for Silha Center for the Study of Media Ethics and Law as Amicus Curiae Supporting Respondent, Office of Independent Counsel v. Favish, 541 U.S. 157 (2004) (No. 02-954). In Favish, the Supreme Court prevented the release of death-scene photographs of Foster's body under FOIA exemption 7(C). Exemption 7(C) protects disclosure of "information compiled for law enforcement purposes" that could constitute "an unwarranted invasion of personal privacy." The brief is available online at http://www.silha.umn.edu/silharesources.html.

In two other FOIA rulings, Sotomayor invoked exemption 5, the work product exemption. In Tigue v. U.S. Dept. of Justice, 312 F.3d 70 (2d Cir. 2002), she affirmed a district court ruling that an internal memo written by an assistant U.S. Attorney detailing how the Internal Revenue Service (IRS) should conduct criminal tax investigations did not have to be released. In Wood v. FBI, 432 F.3d 78 (2d Cir. 2005), she found that the FBI and Justice Department were justified in withholding documents sought by the Journal Inquirer in Manchester, Conn., in the investigation of FBI special agents who had been accused of misrepresenting information on arrest warrant affidavits.

Sotomayor's rulings on restrictions on freedom of expression by schools and employers led some comentators to observe that the judge is not an ideologue.

In Doninger v. Niehoff, 527 F.3d 41 (2d Cir. 2008), Sotomayor joined in a decision that upheld the authority of a Connecticut public high school to prevent a student from running for senior class secretary after calling school administrators "douchebags" on her personal blog. (See "2nd Circuit Rules School Can Punish Teen for Online Criticism of Administrators" in the Summer 2008 issue of the Silha Bulletin.) The court decided that a student could be disciplined for speech that occurs off school grounds if the expressive conduct "would foreseeably create a risk of substantial disruption within the school environment."

Paul Smith, a former classmate of Sotomayor at Yale Law School, cited Doninger and Guiles ex rel. Guiles v. Marineau, 461 F.3d 320 (2d Cir. 2006), in which Sotomayor joined in a unanimous opinion that upheld the right of a 13-year-old Vermont middle school student to wear a T-shirt criticizing George W. Bush at school, to respond to critics who said she is a judge with a tendency to decide cases based on her personal ideology. In a May 31 report in Newsday of Long Island, N.Y., Smith said that the student speech cases demonstrate that Sotomayor "is a careful person who could go either way, but is focused on not just broad doctrine but how the doctrine applies to particular factual situations."

According to a June 7 report in The Washington Post, Scott Moss, a University of Colorado law professor, pointed to Sotomayor's dissent in Pappas v. Giuliani, 290 F.3d 143 (2d. Cir. 2002), as evidence that Sotomayor is not an ideologue. The majority in Pappas upheld the firing of a New York City police officer who anonymously distributed anti-black and anti-Semitic material on his own time. Sotomayor disagreed with her colleagues for entering "uncharted territory" in First Amendment decisions. She found the speech "patently offensive, hateful and insulting," but she advised against glossing over settled constitutional freedoms because the court was "confronted with speech it does not like and because a government employer fears a potential public response that it alone precipitated."

Moss said, "If she were really a judge who ruled on personal or ideological preference, Pappas is about the last guy you'd want to stretch the law for."

- Cary Snyder
Silha Research Assistant

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This page contains a single entry by cla published on October 2, 2009 9:45 AM.

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