From the Summer 2009 issue of The News Media & The Law, page 30.
This is a summary of a more extensive report available at www.rcfp.org/sotomayor
Although Judge Sonia Sotomayor has extensive experience as a judge, no clear standard on First Amendment issues has emerged from her many cases.
But she did suggest during her confirmation hearing in mid-July that she has had “positive experiences” with cameras in the courtroom and would add a “new voice” to the court’s ongoing internal discussion about opening up its proceedings.
On other issues involving the news media and the First Amendment, her position is less clear.
In U.S. v. Quattrone in 2005, Sotomayor wrote for a unanimous panel striking down a sweeping gag order on the news media issued during the retrial of former Credit Suisse First Boston executive Frank Quattrone. Sotomayor, writing for the panel, found that the order violated the First Amendment. “A judicial order forbidding the publication of information disclosed in a public judicial proceeding collides with two basic First Amendment protections: the right against prior restraints on speech and the right to report freely on events that transpire in an open courtroom,” she wrote.
In Doe v. Mukasey, Sotomayor joined a panel of the U.S. Court of Appeals in 2008 in striking down a portion of the Patriot Act that placed a gag order on recipients of “national security letters.” The court ruled that the gag orders violated the First Amendment and constituted a prior restraint on speech. Additionally, the court shifted the burden of proof for the necessity of the gag order to the government.
In Gambale v. Deutsche Bank AG in 2004, Sotomayor signed on to a unanimous opinion, written by Judge Robert Sack, which allowed a district court to unseal court documents despite party objections.
In U.S. v. Smith in 2005, Sotomayor signed on to a unanimous opinion written by Judge Barrington D. Parker, which cautioned the U.S. Marshals Service to consult the court before imposing limitations on courthouse access, “because the judiciary is uniquely attuned to the delicate balance between defendants’ Sixth Amendment rights to public trial, the public and press’s First Amendment rights to courtroom access, and the overarching security considerations that are unique to the federal facilities containing courtrooms.”
Freedom of Information
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, Dow Jones v. Department of Justice, Sotomayor wrote that the suicide 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.”
On the side of withholding, in two opinions she authored for unanimous Second Circuit panels, Sotomayor ruled that FOIA exemptions were properly applied to support documents’ exemption from disclosure. In Tigue v. U.S. Department of Justice, she affirmed a district court ruling that a memo describing and outlining how the Internal Revenue Service should conduct criminal tax investigations was an internal document that was never made final and was properly withheld under Exemption 5.
In Wood v. Federal Bureau of Investigation, newspaper reporter Alexander Wood of the Journal Inquirer in Connecticut sought documents related to an investigation of Connecticut FBI agents who had been accused of misrepresenting information in arrest warrant affidavits. Sotomayor’s opinion found the documents were properly withheld as work product under Exemption 5. That case also held that the names of those agents were protected from release under Exemption 6, which protects personal privacy.
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.
Sotomayor joined a panel that upheld the prosecution of an investigative journalist in U.S. v. Sanders, who was charged with stealing materials from the wreckage of TWA Flight 800, which crashed into the Atlantic Ocean in 1996.
The unanimous 2000 decision is one of Sotomayor’s only cases dealing with the reporter’s privilege, although this was not the typical privilege case in which a reporter was attempting to quash a subpoena. The panel held that the reporter’s privilege did not shield a journalist who alleged he was prosecuted only as a means to coerce him to reveal his source.
The facts of Sanders are unique, and because it is the only case Sotomayor has participated in dealing with a reporter’s privilege, it doesn’t offer much of a glimpse into her view of a First Amendment-based privilege.
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 Second Circuit overturned the decision, holding 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.
In a 1997 case, Sotomayor sided with “Seinfeld” in a copyright lawsuit brought by the owners of the television show against a book publishing company. Castle Rock Entertainment v. Carol Publishing Group involved the issue of “fair use.”
Carol Publishing Group had produced a “Seinfeld” trivia book based on the popular television series. Castle Rock, the company that owned the copyright in the Seinfeld series, sued Carol Publishing alleging that the book infringed on their copyright.
Sotomayor held that the book was an infringement of Castle Rock’s copyright in Seinfeld because it “appropriated original elements” of the television show. Additionally, Sotomayor analyzed each of the four “fair use” factors and found that Carol Publishing could not avail itself of the fair use defense.
Sotomayor’s record is mixed when it comes to student speech. In Doninger v. Niehoff in 2008, she signed on to a decision that allowed a school to disqualify a candidate for student office who called school administrators “douchebags” on an off-campus blog and encouraged readers to contact the principal “to piss her off more.”
Sotomayor and her colleagues concluded that a student may be disciplined for speech “occurring off school grounds, when this conduct ‘would foreseeably create a risk of substantial disruption within the school environment,’ at least when it was similarly foreseeable that the off-campus expression might also reach campus.”
On the other hand, in the 2006 case Guiles ex rel. Guiles v. Marineau, Sotomayor signed on to a unanimous opinion which upheld the right of 13-year-old Zachary Guiles to wear in his Vermont middle school a T-shirt criticizing George W. Bush “as a chicken-hawk president and accus[ing] him of being a former alcohol and cocaine abuser.” Guiles was disciplined when he refused to cover references to drugs and alcohol on the shirt, but the court rejected the idea that “all images of illegal drugs and alcohol” could be prohibited. It added that the shirt was not disruptive, noting that “Guiles wore the T-shirt on average once a week for two months without any untoward incidents occurring.” The court ordered the school to expunge Guiles’ record.