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Saturday, May 2, 2009

Sotomayor's Anti-First Amendment Decision Should Disqualify Her for Supreme Court

According to Sam Stein in the Huffington Post, Sonia Sotomayor is "the odds-on favorite" to be chosen by Barack Obama to fill retiring Justice David Souter's seat on the U.S. Supreme Court. She now sits on the U.S. Court of Appeals of the Second Circuit in New York City. She is regularly described as liberal and a judicial activist - fine in my book - and it would good to have a first Hispanic and another woman on the Supreme Court.

But she has one major, very bad decision on free speech and press to her discredit, which should give everyone who values these freedoms in our society serious cause for concern about Sotomayor's possible nomination to the High Court.

The decision came from Sotomayor's Second Circuit Court last May, regarding Lewis Mills High School student Avery Doninger. While running for Senior Class Secretary, Ms. Doninger found reason to object to the school's cancellation of a "jamfest" event, and characterized those who scotched the event as "douchebags" on her off-campus LiveJournal blog (she also characterized a school official in that same blog posting as getting "pissed off"). The school officials, in turn, took umbrage, prohibited Avery from running for Class Secretary, and disregarded the plurality of votes she received, anyway, as a write-in candidate. Avery sued the school officials, and the Federal District Court supported the school. Avery appealed to Sotomayor's Second Circuit Court.

After acknowledging the Supreme Court's 1969 Tinker decision, which held that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," Sotomayor's Court proceeded to affirm the District Court's ruling - that is, Sonia Sotomayor and her colleague justices upheld the high school's right to punish Doninger for her off-campus speech. Their reasoning was that schools have an obligation to impart to their students "shared values," which include not only the importance of free expression but a "proper respect for authority".

"Proper respect for authority" ... is this what our democratic society and freedom is based upon? Last time I checked, I thought our democracy and freedom were predicated on the principle that all people have a right to express their opinions, which must certainly include disrespect for authority, if actions by the authority - such as canceling a school event such as "jamfest" - are at issue.

Or as Constitutional scholar and law-professor Jonathan Turley put it about this decision last year, "The continual expansion of the authority of school officials over student speech teaches a foul lesson to these future citizens. I would prefer some obnoxious speech than teaching students that they must please government officials if they want special benefits or opportunities."

It is not exaggerating events to say that our society hangs in the balance with the appointment of Souter's replacement to the Supreme Court. A powerful, corrective revolution is underway, with Obama's election as President, and the Democrats about to obtain a 60-seat majority in the U.S. Senate. But an adverse Supreme Court can stop and undo a lot of that.

David Souter was a surprise to the Republicans who appointed him and worked for his confirmation. His vote made a difference on the side of progressive and humane issues in many a Supreme Court decision.

We cannot afford or risk a Souter in reverse with this new appointment - a Justice who seems to have a progressive record, but who turns out to have an insufficient passion for protecting and strengthening the freedoms that make our country great.

I hope Sonia Sotomayor's name is taken off the list.

See also full text of Sotomayor's decision ... further discussion on Andy Thibault's Cool Justice Report ... and my 2005 Flouting of the First Amendment

Added after Obama's Nomination of Sotomayor: Why One Strike Against the First Amendment Should Rule Sotomayor Out of the Supreme Court


Presidential Candidates said...

Good job pointing this out. I certainly think we can do better than her. I want a true liberal chosen. Someone we can really trust to expand civil liberties whenever they get the chance.

andy thibault said...

thanks very much for jumping on this, Paul. your analysis is right on the mark.

for your readers,
Essay, Scales Of Justice, By Avery Doninger, 2007


Pesci, Conservative Columnist, Hails CT Free Speech Bill

Student Was Punished
For Seeking Redresss Of Grievances
After Postponements, Cancellation
Of Popular Music Festival

In U.S. District Court, New Haven,
For Suppression & Seizure Of Free Speech T-Shirts

Also Of Interest:
Discussion Of CT Free Speech Bill @ WNPR


along with many others who care about the bill of rights, i will be posting on this and following closely.

thanks again for your service to readers

Gary Chartier said...

I continue to maintain that Obama couldn't do better than Akhil Amar.

Paul Levinson said...

Andy - thanks for the great, hard work you have been doing on the Doninger case.

I was about to go over a script for my novel, The Plot to Save Socrates, when I got your message on Facebook about Sotomayor yesterday, and I decided this matter trumped science fiction and deserved my immediate attention.

I hope Obama's advisers become aware of this.

andy thibault said...

Kudos to Fordham Prof Paul Levinson for last night's post that began a groundswell of opposition to Sotomayor from those who would preserve and protect the Bill of Rights.


SDSali said...

Actually, we law types wouldn't usually refer to this as Sotomayor's decision. She didn't write it. Judge Livingston wrote it. (That's what the court's opininon was delivered by Livingston usually means). Second. Give the Second Circuit some credit. They realized that a mass e-mailing to a bunch of students urging them to contact and protest to a teacher that the e-mail refers to as a douchebage is pretty much the same as standing on campus and handing out leaflets. The question, as they saw it, was did this student intend to create a disruption at the school? And did she achieve that goal by telling a lie about what happened in a conversation between her and the teacher? It appears fairly clear that she did.

The court went on to recognize that high school students don't have the same first amendment rights that adults in real elections where real politicians get elected to real positions of power. This was a class election at a school. Pretty much a case of if you want to play with our ball you have to play by our rules. The thing that would make me think she was write to go along with Judge Livingston is that not much real was at stake and administrators need to be able to exercise control.

Paul Levinson said...

Thanks foe your comment, Susan, but -

1. I didn't say that Sotomayor wrote the opinion. But she did not dissent, and therefore in effect endorsed it. She enabled and ratified the decision against the plaintiff, and her claim that her First Amendment rights had been violated.

2. This is especially serious - contrary to what you say - because Souter, whom Sotomayor would be replacing, was in the minority when the US Supreme Court ruled against the First Amendment in Morris (also known as the bong for Jesus case - see my blog post about that).

3. Also, as I assume you know, and was discussed in the decision, there is contrary precedent in this area - the Tinker case. Sotomayor, Livingston, and Preska's ruling was a deliberate ruling against Tinker. Putting Sotomayor on the Supreme Court, after this, makes no sense at all - if you value the First Amendment and the freedoms it is supposed to protect.

andy thibault said...

did this student intend to create a disruption at the school? And did she achieve that goal by telling a lie about what happened in a conversation between her and the teacher? It appears fairly clear that she did.

There was no disruption by students.
The student testified truthfully.

Mike Plugh said...

I don't generally disagree with you on most of your insightful commentary, but this time I think I have to.

I don't dispute anything you've said about that case or the negative effect such ruling can have on the 1st Amendment. That said, I doubt very sincerely that you will find anyone out there with a clean record. Judicial rulings are by nature complicated and convoluted affairs. There are very few cut and dry, black and white rulings that reach the Appeals courts or the Highest Court for that matter.

That may or may not have been a good decision (I'm not all that familiar with the nitty gritty of it), but the rest of her record is quite good and she's well respected by virtually everyone involved in lawmaking and politics. If we, as progressives or liberals, insist on purity from everyone involved in our movement, we become the current GOP.

If she had a long record of poor decisions regarding the 1st Amendment, or any other statute, I'd probably be right along side you calling for a different name. Since she doesn't, it's hard for me to take one ruling, regardless of how bad it is, and turn it into grounds for elimination. It's become very tempting to be purists about our beliefs in politics and the law, but it isn't practical.

The Supreme Court has 9 Justices for a reason. It's a check on the decision making process. Even if I thought Sotomayor was a danger to the 1st Amendment, which I don't, I have faith in the idea that the other 8 Justices will act as a check. Yes, I know that one Justice can be the difference in a 5-4 landmark that overturns or impedes our rights, but I can't actually envision that Sotomayor is such a person.

Anyway, I bet someone will find something to 'eliminate' every single candidate for the position, depending on their own particular feelings of purity.

Paul Levinson said...

Sorry, Mike, but we do seriously disagree on this one.

In my view, when it comes to issues such as the First Amendment - which have taken such a beating from the Supreme Court in most of its recent decisions - one strike and you're out.

This is an especially crucial appointment, as I said to Susan above, because it's about Souter's replacement, who was a staunch supporter of the First Amendment, but often in the minority.

Replacing him with someone for whom there is any doubt at all is dangerous - the last thing we need are even greater erosions on our freedom of expression.

And there are many other good choices available to replace Souter.

Anonymous said...

Although it is true that Sotomayor did not write the opinion, she joined in it in full. Tinker seems to be endangered by recent rulings, and I agree that it would be very bad to appoint anyone to the Supreme Court who is not likely to uphold it or vote favorably regarding the First Amendment.

I think the suggestion of Akhil Amar as a nominee is interesting, and that he would be a good justice.

Mike Plugh said...

I can 100% appreciate your position on this, although I think we'll have to agree to disagree. The Constitution is a very serious environment for defining our collective standards according to the social contract. It's always important to be vigilant.

From my end, I think there can be no litmus test for the Supreme Court. The typical litmus test is the abortion question, but I fear that those sorts of criteria run counter to the very nuanced reality that decisions are set to bound. The law is never so strictly confined to questions of yes and no, right and wrong, and I would argue that it's in the best interest of the nation to seat judges who are willing to consider all aspects of their decisions, even when they involve the most cherished of Constitutional freedoms....or especially when they do.

I'm no huge fan of Sotomayor. I don't really feel strongly one way or the other about her, except that I recognize that she's proved herself to be quite bright and her personal background suggests a very pragmatic individual with a sense of how her work affects real people.

The way I look at it, I would feel a lot better about your opposition to Sotomayor if you could produce a very clear alternative that has no such foundational problems in their background. I think it might be an easy game to knock down the names that are out there without having a champion of our own to hold up in their place.

Any thoughts about such a person? I'll jump on your bandwagon and run with you if you do. (Your bandwagon is likely the most enjoyable one in the parade for my money.)

Paul Levinson said...

At this point, I'm taking the Popperian approach of eliminating the unacceptable.

But I'll get back to you with whom I can and am supporting, soon.

Though my track record hasn't been too successful - I wanted Caroline Kennedy for US Senate, and Howard Dean for Secretary of Heath.

But on the other hand, I was a very early supporter of Obama :)

Anonymous said...

Updated version of a comment posted on different blog:

With all due respect and as noted elsewhere, Professor Levinson, your commentary on this case is patently absurd.

First of all, why do you go to such great lengths to suggest that the opinion in question, which was authored by Judge Debra Livingston, was authored by Judge Sotomayor? Three times in your short piece, you say that the decision came from “Sotomayor's Court" or "Sotomayor's Second Circuit Court." You then needlessly remind us that the panel consisted of “Judge Sonia Sotomayor and her colleague justices”; you also provide a link to the “full text of Sotomayor’s decision.” What’s the deal here? Why not just admit that she didn’t write it?

More importantly, your posting grossly exaggerates the scope of the Court’s ruling.

As an initial matter, the Court was engaging in a very narrow review; the question before it was only whether the district court had “abused its discretion” in concluding that the plaintiff had not satisfied the standard for a mandatory injunction – a standard which, by the way, is even more difficult than the typical standard for preliminary injunctions, in that plaintiffs must demonstrate a “clear” or “substantial” likelihood of success on the merits.

Most importantly, the Court carefully and expressly limited its holding to the facts, including but not limited to the fact that (1) the plaintiff student, Doninger, used vulgar language that was meant to be (and was in fact) *disruptive* to the school’s operations (encouraging people to make multiple calls to the “douchebags” in the school’s central office in order to “piss [them] off”.......this led to a "deluge" of calls and emails that interfered with office operations) (Note that the Court here is applying, not undermining, the Tinker rule); (2) Doninger knowingly used factually misleading and/or false information about school administrators in order to encourage others to make these disruptive phone calls; (3) while Doningner's speech was created off-campus, it was specifically and purposefully designed to come onto campus; (4) as Doninger knew, her vulgarities and false statements were especially prone to cause disruption in the school’s tense environment because, as Doninger herself testified, students were already “all riled up” about a dispute with administrators (the same dispute about which Doninger was spreading false/misleading information), and (5) school officials' "punishment" of Doninger for her disruptive speech consisted only of *partially* limiting her participation in student government (Note that although they denied her permission to serve as "Senior Class Secretary," they let her retain her position as a representative on student council. Oh the injustice! ).

The Court made crystal clear that its holding rested on the “CUMULATIVE EFFECT” of these numerous factual findings – findings which, by the way, the Court could not reject under the governing standard unless they were “clearly erroneous.”

It is completely impossible to tell whether any of the judges on the panel would have reached the same holding on facts that were even *slightly* different (or on facts presented in a different procedural posture).

[But let's speculate anyway. To the extent we might speculate about how the judges would rule on different facts, the most reasonable speculation would be that Sotomayor would favor student free speech rights. (Have you read her other First Amendment decisions? They are remarkable and you would appreciate them.) You should also check out reports on the oral argument at Doninger, which suggests that Judge Sotomayor takes students' rights quite seriously ("Pedagogical rights can't supersede the rights of students off campus to have First Amendment rights," Sotomayor said at the oral argument.) The other panelist, Judge Preska, was making more troubling comments ("If students are free to say offensive things about administrators on their home computers, chaos will rule," Judge Preska said.) In light of all this, it seems highly plausible that Judge Sotomayor joined in the opinion and convinced Livingston to narrow her holding in exchange for Sotomayor's unanimity-producing vote, which is a more productive strategy (and more protective of the First Amendment) than dissenting. Of course, that's just speculation, but it's reasonable speculation. And the larger point is that it's tough to judge judges on decisions they didn't write.]

Anyway, to sum up, Judge Sotomayor merely agreed with her colleague that a district court did not abuse its discretion in concluding that a student had failed to show entitlement to preliminary relief where her school had *partially* restricted based her participation in student government in response to her *vulgar and knowingly misleading efforts* to cause student disruption on an already-tense campus. This should make us worry?

Kevin said...

The fact that this even went to court just makes America look like a joke.

Paul Levinson said...

So you agree with me that the school should not have punished Avery in the first place?

Kevin again said...

I don't know the details. I don't care that much, honestly, but I could buy an argument that schools are a little like the army. While you're a member, you're representing, no matter where you are.

The point I was making is that the case should have been summarily dismissed with prejudice. Maybe a nice little fine against the kid for wasting court time.

Do kids still get detention in the States, or are schools afraid of kidnapping lawsuits?

Paul Levinson said...

You "don't know the details"? Well, then, I'd recommend that you get to know them, before offering an uninformed opinion.

Nimbus said...

I tend to agree with a couple of the posters that do not think this decision is a big deal. I do, in fact feel the courts each did exactly what they were designed to do and I agree with their decision. I agree with the fellow that said this is a waste of the courts time and perhaps at the end of this process a fine for time/money wasted would be appropriate.

No one said this... but where was the first amendment rights lost here??? She got to say what she wanted and no one stopped her. or took down the blog posting etc.

Where is it written in the first amendment that you can say anything you want and then if the results of what you say are not to your liking you have the right to cry fowl? People are not willing to accept the results of their actions today. This girl is not a victom of anything other than her own actions.

I also agree that calling it Sotomayor's court is is misleading. It implies she was the head of it.

In your podcast on this you say it was done on a private blog from home. I find this amusing since you have been interviewed on NEW media and its application. You should certainly know a blog is NOT private or like something said at home or even between a few friends. It is WORLD WIDE!!! It is akin to broadcasting on tv or radio or being in a newspaper. As such it is much different than talking privately as implied. I think the court knew that. They knew she had her free speech but was just mad about the unintended results of it.

Paul Levinson said...

Be amused all you want. The fact is that a blog published from home is a public expression that originates on and is disseminated via not school property.

The school's punishment is therefore an abridgment of the student's First Amendment rights, and even more egregious because the school's premises and resources were in no way being used.

I didn't "imply" this or anything in my blog or podcast - I said it point blank. What part of this was unclear or "implied" to you?

Nimbus said...

OK to be clear... on your podcast at 16:22 you IMPLY this was private. You say it is almost the same as sitting at home talking with a few friends. This IMPLIES privacy. You then say it is almost the same as if someone came by and was eavesdropping. I was surprised that you would draw this comparison at all since you speak on new media and should realize it is NOT private in any way. Reading that blog is NOT almost the same as eavesdropping!!!

In your reply to me above, you say it is it is a public expression so now we agree.

You did not answer my question.....How is this an abridgment of her rights since she DID get to express exactly what she wanted and it was not filtered in any way or taken down etc? Would it not be more accurate to say she was just unhappy with the RESULTS of her expression? Where in the first amendment does it guarantee we get the results we intend?

There was one other point I forgot to make. I have friends that are teachers. They have a much harder time with discipline today. Since a teacher is not allowed to spank or even touch students in some cases they have no fear. Teachers have no way to control students from parents that did not instill some respect for the school. Parents and teachers are told to withhold privileges from kids/students to retain authority.

I do have one other question for you. What would be so bad about having "shared values" and "proper respect for authority" If each of us has no respect for authority that would create anarchy. I can not believe you would like to live in a lawless world where no one respected the authority of anyone or anything? Is there ANY authority that you consider it important to have respect for? If so what makes that particular authority any different or more important than the school system that is trying hard to bring up our future citizens?

Finally I must admit that since Sonia Sotomayor was lead judge... that would make it right to refer to it as her court.

I thank you for letting me discuss this with you and I hope you will answer my questions above especially the main one. I can not see where her freedom of speech was in any way restricted here. Only the results of it are in question. Does the first amendment guarantee results?

Paul Levinson said...

1. You're taking what I said in the podcast out of context (or missing the context). The comparison to eavesdropping was about how Avery's blog post came to the attention of school of authorities. It was not because school officials read it on the blog at the time it was published, along with the students. It was because an agent of the school went snooping around Avery's blog, weeks later, hoping to find something to untoward (or at least checking there to see what she was writing). This was what I said was like coming by someone's house and eavesdropping on a conversation.

2. The First Amendment protects speech and press in more than one way. It prevents prior restraint, or stopping the publication. But it also prevents punishment after the publication. When the Supreme Court struck down the conviction of Joe Shea in 1997 for publishing an essay critical of Congress on the Web, they were stopping his punishment (2 years in prison, etc) for a publication that already took place. Avery Doninger was punished for what she published, and the punishment abridged her First Amendment rights.

3. Law is not about "respect for authority". I obey the speed limit when I drive, not because I respect it or think it makes sense for me - I know I can driver faster and safely - but because I don't want to get stopped and get a summons, which would cost me more time (and money, etc). I don't steal not because there's a law against it but because I find it ethically wrong. Neither of those two cases are about "respect for authority". And, in any event, Avery's case was manifestly not about her breaking of any school rule. It was about her saying disrespectful things. The essence of democracy is that all of us must be allowed to say disrespectful things about authority - otherwise, we would be hampered in our capacity to criticize authority.

Paul Levinson said...

An additional point: you ask if there are any laws I would have respect for. Of course there are - I have enormous respect for the First Amendment.

Important social and ethical principles - such as not stealing - can be and indeed are often embodied in law.

I would also add that I'm not saying laws that I disrespect should not be followed. We would indeed live in an uncivilized world (or nation) if no laws were followed. But laws can be followed without "respect" for them.

And, again, in Avery's case, she was punished not for disrespecting a rule but school authorities.

Nimbus said...

OK I guess I did misunderstand the comparison you made to privacy and eavesdropping. I wanted to make clear that a blog is very public.

suppose I say something and that causes something to happens that I do not like. can I take them to court? How does that work? Are there not some conditions and restrictions that apply to this? If not we could have no slander or liable lawsuits. Suppose you normally let your friends play in your yard but one day a certain friend calls you a name on his blog and you tell him to stay out of your yard. Can he sue you? If not how is this case different? She called them a name and they revoked a privilege. Are you saying this was not a privilege but was a RIGHT at this school? I find that hard to believe. How do we tell if something is a right or not in a school situation unless they state it as such somewhere? There is something VERY murky about how a first amendment defense is being used here. Apparently I am correct since 2 courts so far have sided with the school.


Many people, unfortunately, do not have your sense of ethics and have no problem with stealing. As far as your not driving fast due to your fear of the penalty...how is that any different than this case. The penalty was her not being able to fully participate in the school government. Really not all that bad. If we remove the penalties and we remove the respect for authority as you might have it and we remove the ethics that you have but many others do not... I think that would lead to a society I would be afraid to live in. If you support having penalties for violating the laws then why the problem in this case?

Paul Levinson said...

I answered your final question in my PS comment: I'm not advocating that people not follow laws. I'm saying people can follow and disrespect them - that is, think they are bad laws - and also any and all authorities.

As to your point about slander and libel: they are civil actions, and not covered by the First Amendment. Or, in plainer terms, A can sue B for spreading lies, but the government can't put B in prison for lying about A.

And, yes, two courts found that Avery Doninger's First Amendment right were not violated. Just as the Supreme Court found in Plessy v. Ferguson that discrimination was not unconstitutional.

In short: courts can and sometimes are wrong in their decisions.

And why do I think Avery was wrong punished? Tell me, what school rule did she violate?