Freedom of Speech and Assembly

Judge Sotomayor adheres to precedent and takes a non-ideological approach to cases involving the First Amendment’s protection of free speech and the freedom of assembly. Her opinions in this area also demonstrate that she rules in accordance with the law, not her personal views or sympathies.

In Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002), a New York City police officer was fired because he had sent anonymous racist and anti-Semitic materials in response to hundreds of solicitations for charity. The officer sued, alleging that his firing violated his First Amendment right to free speech. Judge Sotomayor dissented from the Court of Appeals’ opinion affirming dismissal of the case, despite the fact that she personally found the speech “patently offensive, hateful, and insulting.” In her view, the law required the case to proceed in no small part because the officer, although a public employee, made the offensive speech anonymously and in private. She concluded: “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.”

In United States v. Quattrone, 402 F.3d 304 (2d Cir. 2005), the district court issued an order forbidding members of the media from publishing jurors’ names in the second trial of Frank Quattrone. Quattrone is a former banking executive at Credit Suisse First Boston who was accused of obstructing investigations into the bank’s handling of initial public offerings of certain technology companies during the Internet boom of the late 1990s. Although Quattrone’s first trial was completed without incident, the harassment of jurors and subsequent mistrial in a similar high profile case led the district court to issue the order in Quattrone’s second trial. On appeal, Judge Sotomayor wrote an opinion for a unanimous panel striking down the district’s court order as an unjustified prior restraint on expression in violation of the First Amendment’s protection for freedom of speech and the press. Although she was sensitive to the district court’s attempt to protect the fairness of the criminal trial, Judge Sotomayor reasoned that the order unnecessarily infringed both the right against prior restraints on speech and the right to report freely on events that transpire in an open courtroom.

Judge Sotomayor has also decided important cases touching on the freedom of assembly. In Papineau v. Parmley, 465 F.3d 46 (2d Cir. 2006), Judge Sotomayor issued an opinion for a unanimous panel that allowed a First Amendment case to proceed against law enforcement officers who allegedly disrupted a peaceful protest by Native American protesters and their supporters on private property. In an episode captured on videotape, the officers dispersed the demonstration and indiscriminately arrested numerous protesters. All charges against the protesters were eventually dismissed. Judge Sotomayor’s opinion held that the plaintiffs were entitled to pursue their claims alleging that the officers violated their First Amendment rights and used excessive force because the relevant law was well established, and no objectively reasonable officer could have believed that it was permissible to take the actions alleged in the case.

Judge Sotomayor has also recognized limits on First Amendment protections where appropriate. In Farrell v. Burke, 449 F.3d 470 (2d Cir. 2006), a parolee who had been convicted of a sex offense with a minor agreed to a parole condition prohibiting him from possessing pornography. The plaintiff was found to have violated the terms of his parole when his parole officer found a publication entitled Scum in his home. He then brought a lawsuit, seeking a court declaration that the parole condition banning possession of pornography violated the First Amendment. On appeal, Judge Sotomayor, writing for a unanimous panel, affirmed the district court’s judgment in favor of the defendants. She explained that even if the term “pornography” is inherently vague, the materials that the parolee possessed, which contained sexually explicit pictures and lurid descriptions of sex between men and boys, fit within “any reasonable understanding of the term.” She concluded that the no-pornography condition did not threaten to chill the exercise of constitutionally protected conduct, and was not overbroad.

In Center for Reproductive Law and Policy v. Bush, 304 F.3d 183 (2d Cir. 2002), Judge Sotomayor authored a unanimous opinion that rejected a First Amendment challenge to the “Mexico City Policy,” under which the United States refused to provide funds to foreign non-governmental organizations that performed or promoted abortion. A domestic reproductive rights advocacy organization and its attorneys argued that the policy violated the right to freedom of speech and association because it prevented them from forming partnerships with foreign organizations and interfered with their ability to engage in political speech. Judge Sotomayor’s opinion held that the plaintiff’s First Amendment challenge was squarely foreclosed by precedent.

Overall, Judge Sotomayor has a balanced record in First Amendment cases. She is non-ideological, attuned to the particular facts of the cases before her, and above all respectful of controlling Second Circuit and Supreme Court precedent. Judge Sotomayor has not been afraid to rule in favor of unpopular speech, or speech she disagrees with, when that speech enjoys the protection of the First Amendment as set forth by the Supreme Court. Judge Sotomayor rules in accordance with the demands of the law.