Early glimpse into Sotomayor’s media law record

We’re compiling a full report on the record of Judge Sonia Sotomayor, President Obama’s Supreme Court nominee, in the areas of First Amendment and media law, and expect to post our findings here tomorrow. In the meantime, though, Sotomayor’s input on three cases seemed particularly noteworthy:

In high-stakes prosecution, Sotomayor rejected prior restraints on the press

A 2005 opinion regarding the high-profile prosecution of a bank executive suggests that  Sotomayor, in her time as a judge on the U.S. Court of Appeals in Manhattan (2nd. Cir), understood well the value of a transparent judiciary and a free press.

The opinion, U.S. v. Quattrone, struck down a gag order slapped on the press during the retrial of former Credit Suisse First Boston executive Frank Quattrone. Noting that harassment of jurors had led to a mistrial in the prosecution of Tyco Corporation’s Dennis Kozlowski, Senior District Judge Richard Owen ordered that “no member of the press or a media organization is to divulge … the name of any prospective or selected juror.”

Twelve news organizations appealed the order as an impermissible prior restraint on the press.  Sotomayor agreed, writing on behalf of a unanimous panel for the Second Circuit.

The opinion pointed to the long line of cases calling prior restraints “the most serious and the least tolerable infringement on our freedoms of speech and press.” Sotomayor added that the gag on the press “also infringed their freedom to publish information disclosed in open court,” which she called “an independent constitutional harm on appellants [which] rendered the district court’s violation of the First Amendment even more plain.”

Despite the jury harassment leading to the Kozlowski mistrial, Sotomayor said, “nothing in the record justified an exception to the First Amendment doctrines that bar prior restraints and protect the right to report freely on information disclosed in open court proceedings.” Thus, she concluded, the trial court’s order “violated the Free Speech and Free Press Clauses of the First Amendment.”

In CBS case, Sotomayor tossed defamation claims

Early in her judicial career on the federal district court in New York, Sotomayor wrote one of her few opinions dealing with a defamation lawsuit against a news media outlet.

In the 1994 case, Aequitron Medical Inc v. CBS, Sotomayor allowed a lawsuit to go forward against CBS News for various business claims, while dismissing defamation and trade libel claims for procedural reasons.

Aequitron, a Minnesota-based company that manufactured infant monitors, sued CBS after it aired a segment on its morning show that reported on the failure of some Aequitron monitors that were used to prevent Sudden Infant Death Syndrome. In the 1989 airing of CBS This Morning, the reporters described flaws in the monitors, showed tests conducted by an expert in biomedical engineering, and interviewed mothers who blamed their infants’ deaths on a failure of the Aequitron monitors.

The lawsuit alleged violations of the Minnesota Deceptive Trade Practices Act, tortuous interference with prospective business advantage, trade libel and defamation. The suit was first brought in Minnesota, where a district court dismissed the trade libel and defamation claims for a lack of personal jurisdiction. The business claims were allowed to go forward.

The case was transferred to Sotomayor’s court in the Southern District of New York. In an opinion that focused entirely on procedural grounds, Sotomayor upheld the Minnesota court’s ruling dismissing the trade libel and defamation claims and held that there was personal jurisdiction over the business claims, thus allowing them to go forward.

Record in Vince Foster case bucked a possible trend

Sotomayor’s freedom of information jurisprudence has skewed more in favor of withholding records under the federal Freedom of Information Act rather than ordering their release. However, she did have one notable order releasing the suicide note of former deputy White House counsel Vince Foster.

In the Foster case, the Wall Street Journal sued the Justice Department for reports prepared by the U.S. Park Police and the FBI concerning Foster’s death and for a copy of the apparent suicide note found in his briefcase. Citing law enforcement exemptions, the Justice Department redacted portions of the Park Police report and the entire FBI report and the copy of the note.

Sotomayor sided with the government on the reports but wrote that the note “touched on several events of public interest,” including the controversy related to the Whitewater investment issue, and that it “implicated government agencies and employees in misconduct.”