Friday, May 29, 2009

SOTOMAYER ON THIS AND THAT

David L. Hudson Jr, First Amendment Ctr - One of the more high-profile First Amendment decisions authored by Judge Sotomayor was her decision in U.S. v. Quattrone in which she invalidated a gag order issued by a trial judge that prevented the press from divulging the name of any prospective or selected juror in the second trial of Frank Quattrone, a former executive of Credit Suisse First Boston. . . She noted that the names of the jurors were read in open court, which limited the efficacy of a prior restraint in the first place. She concluded that "the district court's order barring publication of jurors' names not only subjected appellants to a prior restraint on speech, but also infringed their freedom to publish information in open court.". . .

Sotomayor authored an opinion for the 2nd Circuit rejecting various constitutional challenges to the so-called "global gag rule," which prohibits overseas organizations that receive U.S. funds from providing abortion services or engaging in speech intended to ease restrictions on abortion. . .

Sotomayor authored a unanimous 2nd Circuit panel decision which involved First and Fourth Amendment claims advanced by members of the Onondaga Nation, who were protesting a decision between Onondaga Nation chiefs and the state of New York that would permit the state to tax tobacco products sold to non-Native Americans on Onondaga land.

The protesters alleged that they were beaten by law enforcement officials after some of the demonstrators moved their protest activities to a public highway. Sotomayor refused to grant qualified immunity to law enforcement, noting that it was clearly established law that demonstrators had a constitutional right to protest free from interference as long as the protesters did not present a clear and present danger to public safety. . .

She sat on a three-judge panel that unanimously reinstated part of a former public school teacher's claim that he was retaliated against by his principal and other school officials for critical comments in a New York Post article. The article discussed the problem of attendance fraud. The panel determined that there was sufficient evidence that one principal did retaliate against the teacher shortly after the negative newspaper article. . .

In 1993, Sotomayor ruled in Flamer v. City of White Plains that a rabbi had a First Amendment right to display a menorah in a city park. The city of White Plains, New York, prohibited "fixed outdoor displays of religious or political symbols." The rabbi asserted that the regulation violated his free-exercise-of-religion and free-speech rights. She wrote that the city may not "preclude a private speaker from erecting a fixed display of a religious symbol, free-standing or otherwise, in a City park on the basis of such display's religious message."

Sotomayor rejected the First Amendment claims of two Muslims who alleged a First Amendment violation because a post office displayed Christian and Jewish symbols during the Christmas and Chanukah celebrations. . . She accepted the post office's argument that it promoted its business by including certain symbols that would best attract business and that it did not have to include seasonal displays requested by the public. . .

As a district court judge, she authored an opinion in Campos v. Coughlin in which she granted a preliminary injunction to two inmates of the Santeria religion who were denied the opportunity to wear religious beads, while other inmates were allowed to wear rosary beads. . .

She ruled in favor of prison officials in a First Amendment claim brought by an inmate who was placed on "mail watch" after prison officials mistakenly thought a book on economics titled Blood in the Streets: Investment Profits in a World Gone Mad was inflammatory. She focused on the fact that the inmate had a poor disciplinary record and the prison officials had valid security concerns. ". . .

Judge Sotomayor sat on three-judge panels in at least two high-profile student speech cases - one ruling against the student and one ruling in favor of the student. In Doninger v. Niehoff, the panel ruled against a student and her parent for the student's online speech critical of the school principal. The appeals court ruled that school officials could reasonably forecast that the student's critical online speech could cause a substantial disruption in the school environment.

In Guiles v. Marineau the three-judge panel that included Sotomayor ruled in favor of a Vermont student punished for wearing a T-shirt with a picture of then-President George W. Bush. The T-shirt in question referred to Bush as "Chicken-Hawk-in-Chief" and featured small print calling the president a crook and implying he was a cocaine-user. The panel, in an opinion written by Judge Richard Cardamone, determined that the shirt was not "plainly offensive" . . .

Sotomayor has written opinions in several Freedom of Information Act cases. In Wood v. FBI, she wrote for the 2nd Circuit that a prosecution memo and the names of investigating agents of the FBI and Department of Justice who were investigating Connecticut Federal Bureau of Investigation agents could be withheld because of FOIA exemptions for work product and privacy.

In Tigue v. U.S. Department of Justice, she for a three-judge panel of the 2nd Circuit that a memorandum prepared by a U.S. attorney describing how the Internal Revenue Service should pursue criminal tax investigations was protected by an exemption covering an agency's "deliberative processes."

As a district court judge in Dow Jones v. U.S. Department of Justice, Sotomayor issued three different opinions related to the attempt by Dow Jones to receive a copy of a suicide note penned by former White House counsel Vince Foster. . . . Sotomayor ruled that FBI and Park Police Reports were exempt from disclosure. However, she also ruled that a photocopy of the Foster suicide note should be disclosed. . .

Sotomayor sat on the three-judge panel that rejected a First Amendment challenge by the New York Restaurant Association to a New York City Health Code policy requiring businesses to disclose calorie content of their food. The panel, in an opinion by Judge Rosemary Pooler, concluded in New York State Restaurant Association v. New York City Board of Health that "although the restaurants are protected by the Constitution when they engage in commercial speech, the First Amendment is not violated, whereas here, the law in question mandates a simple factual disclosure of caloric information and is reasonably related to New York City's goals of combating obesity."

Politico - The clarity of her support for limits on campaign fundraising and her background as a pioneering campaign regulator is raising eyebrows among election law experts who say her record is more substantial and explicit than that of any Supreme Court nominee since the dawn of the modern, post-Watergate campaign finance regime. . .

In a rare and little-noticed law review article, she forcefully defended the policy motivations behind restrictions, questioning the line between campaign contributions and "bribes," calling on Congress to overhaul campaign finance laws – including suggesting public financing of its own elections – and blasting the Federal Election Commission for not enforcing existing laws.

"The continued failure to do this has greatly damaged public trust in officials and exacerbated the public's sense that no higher morality is in place by which public officials measure their conduct," she wrote in a law review article based on a speech she gave to Suffolk University Law School in 1996, when she was a federal district court judge.

On the only occasion when she was confronted with the issue as a jurist, Sotomayor joined a decision that effectively gave a pass to a Vermont law that severely limited campaign contributions and capped campaign spending – a law that the Supreme Court later overturned as a First Amendment violation.

Richard Prince - [A Reporters Committee for Freedom of the Press] report notes that, "As a District Court judge, Sotomayor wrote the opinion in Tasini v. New York Times, a case that was eventually overturned by the U.S. Supreme Court. "In 1993, a group of six freelance authors sued the New York Times Company, Newsday, Inc., and Time, Inc., claiming that the print publishers had infringed upon the writers' copyrights when the publishers licensed rights to copy and sell articles to computerized databases such as Lexis/Nexis. The media companies argued that they were authorized to reproduce the articles as a 'collective work' under the federal Copyright Act.
Sotomayor sided with the media companies in holding that the writers did not have a copyright interest in the articles. Instead, Sotomayor held that electronic versions are 'revisions' of the original articles which are covered by the publishers' copyright interest in the collective work of the periodicals.". . . The case was appealed to the Second Circuit, which overturned the decision, and held that the reproduced articles were new works, and not revisions included in a collective work. The U.S. Supreme Court upheld the Second Circuit 7–2, ruling that the authors had copyright interests in the electronic editions of their works."

Matt Kelley, Change - Corey Rayburn Yung posted some informative statistics at the blog Sex Crimes this week. While the average federal judge ruled for the defendant in 6.28% of the time in 2008, Sotomayor ruled for the defendant in 7.41% of cases. A small difference, but it's something. Yung also ranks federal appeals judges on an activism scale and found her less activist in general than the average judge but slightly more activist on criminal cases. . .

In the case of U.S. v. Anthony Santa, the court ruled that crack cocaine found in Santa's possession was valid evidence despite the fact that the warrant against Santa had expired 17 months earlier. In a bookkeeping error, the warrant was never removed from the database and the police were acting in good faith. A true activist judge might have tossed that out, but not one aiming for a possible SCOTUS nomination. She was just following precedent.

She did go out on a limb, however, for felon voting rights. When her colleagues on the bench ruled to maintain the disenfranchisement of felons, she dissented strongly.

CNS - Supreme Court nominee Sonia Sotomayor ruled in January 2009 that states do not have to obey the Second Amendment's commandment that the right to keep and bear arms shall not be infringed. In Maloney v. Cuomo, Sotomayor signed an opinion of the U.S. Court of Appeals for the Second Circuit that said the Second Amendment does not protect individuals from having their right to keep and bear arms restricted by state governments. The opinion said that the Second Amendment only restricted the federal government from infringing on an individual's right to keep and bear arms. As justification for this position, the opinion cited the 1886 Supreme Court case of Presser v. Illinois. "It is settled law, however, that the Second Amendment applies only to limitations the federal government seeks to impose on this right," said the opinion. Quoting Presser, the court said, "it is a limitation only upon the power of Congress and the national government, and not upon that of the state."

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