Justice Sonia Sotomayor’s Free-Speech Tests

250px-Sonia_Sotomayor_in_SCOTUS_robeBelow is today’s column on the first day of the October Term for the Supreme Court. It specifically explores the first amendment cases on the docket. There are four major such cases thus far on the docket and, most importantly, two free speech cases that will be strong indicators of the views of Justice Sonia Sotomayor.

The start of the U.S. Supreme Court’s fall term is always a much-anticipated event. This year, it is likely to receive more attention than usual, with a new justice being seated and conjecture that another plans to resign.

David H. Souter is no longer on the court, and this will be the first term for his replacement, Justice Sonia Sotomayor. It may be the last term for Justice John Paul Stevens, liberal icon of the court. The growing speculation that Stevens plans to retire next year was fueled by his recent decision not to select a full complement of clerks for 2010 — a strong signal that he doesn’t intend to remain on the bench.

For the most part, however, all eyes will be on Sotomayor. Most of the court handicappers will be watching for early signs of how she might depart from the liberal voting record of her predecessor. Originally a Republican nominee to the trial court (though later put on the appellate court by President Clinton), Sotomayor was suggested as a nominee for President George W. Bush and has a more conservative voting record than Souter. If she votes the way she voted on the appellate court, liberals will lose ground with her selection.

Sotomayor will be tested in one of the areas of greatest concern to liberals — free speech — at the very start of her tenure on the court. Sotomayor was opposed by some free-speech advocates, in part because of her vote in Doninger vs. Niehoff, in which the appeals court upheld the right of school officials to punish students for out-of-school speech — in what some considered a major blow to both the 1st Amendment and student rights. Notably, the panel acknowledged that it was not bound by existing precedent from the Supreme Court in denying free-speech protections to students.

Sotomayor’s first free-speech case at the Supreme Court came even before the official beginning of the term. In a rare re-argument of a case, the justices convened court in advance of this month’s opening to hear arguments in a case involving “Hillary: The Movie.”

At issue in the case — a ruling is still pending — may be the viability of one of the major parts of campaign-finance law. The case is actually more compelling than the movie, a 90-minute diatribe against Hillary Rodham Clinton released by the conservative group Citizens United during her 2008 presidential bid. The Federal Election Commission ruled that the film was “prohibited electioneering communication.”

The court in June asked to hear additional arguments regarding an earlier court ruling that upheld the constitutionality of a provision of the McCain-Feingold campaign-finance law.

For many free-speech advocates, it is hard to declare this film to be electioneering but not other films, such as liberal Michael Moore’s anti-Bush documentary, “Fahrenheit 9/11.” Sotomayor’s vote, although unlikely to determine the outcome of the case, may offer insight into her thinking on the 1st Amendment and whether corporations enjoy free-speech rights analogous to individuals.

At the start of the fall term, Sotomayor will be tested in yet another case raising fundamental speech rights. On Oct. 6, the court will hear United States vs. Stevens, involving a federal law making it illegal to sell photographs and films of the maiming and killing of animals. Among other things, the law criminalizes so-called crush films, in which models are shown crushing small animals with stiletto heels and other objects.

Robert J. Stevens of Pittsville, Va., was convicted under the law for selling videotapes of fighting pit bulls and sentenced to 37 months in prison. However, the appellate court struck down the law as unconstitutional, holding that there is no exception to the 1st Amendment for animal cruelty as there is for obscenity. The government is seeking to get the court to create another exception to the 1st Amendment, in what free-speech advocates fear will be part of a continued erosion of this fundamental right.

The case will test Sotomayor’s commitment to principle over the prejudicial elements of the crime. The justices will clearly find Stevens and his films of dogfights repugnant. However, there has been a line drawn under the 1st Amendment in which criminal conduct can be prosecuted even as speech is protected. The government can clearly arrest people for holding dogfights or organizing or transporting dogs for such fights. The question is whether selling material with such images is protected by the 1st Amendment if an individual did not participate in the criminal activity. The concern is that Congress will continue to add exceptions for areas viewed as offensive or cruel — abandoning a bright-line rule that has protected speech while allowing the prosecution of illegal conduct.

Given her conservative approach in some cases on the appellate court, Sotomayor could change the outcome in the case, because Souter was viewed as more likely to favor the position of the appellate court and free-speech advocates.

Whatever the outcome of these cases, one thing is clear: Court-watchers will not have to wait long to hear the voice of Sotomayor in the area of free speech. It could be a voice that resonates for decades for citizens and the 1st Amendment..

Jonathan Turley is a law professor at George Washington University, where he teaches a course on the Supreme Court.

For coverage of the Stevens argument, click here.
Published October 5, 2009: Los Angeles Times

17 thoughts on “Justice Sonia Sotomayor’s Free-Speech Tests”

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  2. What say you Justice Sotomayor and Professor Turley? Do corporations get to claim First Amendment rights? Make billions in mistakes and all you have to do is claim the 1st and then plead the 5th!


    For two decades, the nation’s top credit rating agencies have managed to fend off a crackdown from Washington by relying on a surprising ally – the First Amendment.

    Despite their key role in the most recent economic calamity, the three big bond raters–Standard & Poor’s, Moody’s and Fitch–seem poised to do it again. With help from two of the most storied constitutional lawyers in the country, the raters have successfully argued that when they make a mistake — say, awarding the top triple-A grade to a multibillion-dollar bundle of bonds that later default — they cannot be sued or held accountable.

    That’s because ratings are opinions, the agencies claim, protected by the constitutional right to free speech.

    Read more at: http://www.huffingtonpost.com/2009/10/28/under-attack-credit-rater_n_337712.html

  3. Yeah Buddha. However, I am bankin’ on her not readin’ that thread of mine.

  4. Well of course, she is a woman!


    Sotomayor Asks More Questions In An Hour Than Thomas Has In Years

    Does Clarence Thomas really ask so few questions that Sotomayor could beat his total in an hour, you may wonder. Indeed, he does. As the AP reported in February 2008, Thomas had gone 2 years and 144 cases without speaking up during oral arguments. “It is a period of unbroken silence that contrasts with the rest of the court’s unceasing inquiries,” the AP wrote at the time.

    Read more at: http://www.huffingtonpost.com/2009/10/06/sotomayor-asks-more-quest_n_310988.html

    Full disclosure: I support Ms. Sotomayor.

    You need to the the photo of old ‘Tony n’ Clarence’ at HuffPo with Ms. Soto.

  5. Henry is right and so is Rafflaw on the Donniger case.

    Sotomayor’s vote in Donniger shows a overreaching expectation of state jurisdiction.

    All seem to forget the base context of any minor student school case – the minors are COMPELLED by law to be there. That alone is reprehensible to my sensibilities, but when the state then parlays that offense into justification to curtail even more freedoms, on the basis of compelled association no less, it breaks all bounds of reasonable legal reasoning.
    The justification of control over the student’s personal life, unrelated to his school activities, is that he is a student there, is just a naked assertion of moral-based micromanagement, capricious control over another human being.

    On the right to sell photos of a crime that one did not participate in, I would go it one further and say the same principle should apply even to child pornography.

    To make criminal “depictions” of a crime, that is, images, seems to go beyond the letter of constitutional law. Images alone can never be a crime – sure they can be evidence of the crime committed, but inofthemselves?, it is a vicarious reference to an evil, it is a depiction of a crime, not a crime itself.
    I know the argument, that the images themselves are a commodity that encourages the crime, but that is a leap of associative logic that lead to a slippery slope.
    It legitimizes the precedent that photos of any arbitrary crime (or anything at all) could be made illegal. That then slips into making depictions of depictions illegal, which is the stuff of storytelling and drama.
    However reprehensible pornographic child abuse is, I cannot see how a piece of paper with ink on it, or worse pixels/bits in a computer, can be seriously proclaimed a crime inofitself without a bit of magical mysticism necessarily backing it up.

  6. Another issue with a ban on films of animal cruelty – PETA and similar groups use such films in their political speech in an attempt to have laws changed. I wonder if the big meat producing companies supported this law – it could criminalize protesters who might film them throwing live chicks into grinders, or using electric prods on injured cows during slaughter and so on.

    Personally, I’m a leather shoe wearing omnivore, but it seems that responsible groups (which might or might not include PETA) should have the right to document and share evidence of animal slaughter practices (and abuses) for their political speech.

    As an aside: I’ll be in DC next week and looking forward to hearing some of the oral arguments. The cases being heard on the day we can get over there aren’t particularly exciting, but should will be interesting!

  7. In the animal cruelty case, the decision should turn on whether the statute bans only photographs where the animal cruelty took place for the sake of producing the pictures. If it does, then it is analogous to statutes that ban child pornography produced with a real child and should be upheld. If, however, the statute covers pictures taken by someone uninvolved with the animal cruelty, then it should be struck down as violating the First Amendment; one generally has a right to sell photographs of a crime.

  8. Mespo,

    You have nothing to choose from then. Sotyomayer has reject pleas for exactly the same reason. Of course we likely differ in opinion on whether some felon’s last ditch bid not to be justly executed should have been heard in the 1st place, just as we likely differ in opinion on animal cruelty.

  9. Fatally efficient is too much when one innocent life could be spared. Life is but a dream when human kind today lays its trust in another. The irony is that the ones that touted personal responsibility are the ones with the least accountability.

    I would take back their devil with his lady in a blue dress any day of the week before entrusting the morals of the right wing to deem for me what is right.

    Yesterday was a type of right to life day by even the christian fundamentalist. This is wrong on so many fronts. Children teach your children well is all I can say, they will select your quality of care later in life.

  10. janolan:

    “Fortunately there is still a majority of right-thinking, moral judges in the SCOTUS.”


    Yep, they’re the guys who denied a death row appeal because it was filed a day late. Right-thinking and moral, indeed. How about just fatally “efficient?”

  11. I expect Sotomayor to show her true colors and protect the First Amendment. However, the animal cruelty films aren’t very high on my list to protect. I have alsonot seen the Hillary movie mentioned above, so I cannot compare Moore’s 9/11 movie to the Hillary movie. However, the student free speech case, Doninger v. Niehoff was a travesty and an attack on the First Amendment. How a student can be disciplined by school officials for speech outside of school is beyond me. Students have long been second class citizens and Sotomayor’s vote was inexcusable.

  12. Oh,I’m fairly sure that Sotomayor will vote in favor of “protecting” such filth. Fortunately there is still a majority of right-thinking, moral judges in the SCOTUS.

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