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Tilting at Windmills

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May 27, 2009
By: Hilzoy

Sotomayor: The Record

This is one of the things I love most about blogs: Barack Obama nominates Sonia Sotomayor to the Supreme Court; I, a non-lawyer, wonder what her record is like, and find the summaries in newspapers much too shallow and focussed on the politics of her appointment rather than her record; but voila! SCOTUSBlog has anticipated my every whim by running a series summarizing a whole lot of her decisions. The first one has gotten some attention, but there are more! (1, 2, 3, 4.)

They are really worth reading, especially if you are not a lawyer, since they'll give you a much richer sense of the kinds of decisions she has made than anything I've read so far in newspapers. To pick one example: you'll have a much more informed response to the idea that Judge Sotomayor will reflexively support the interests of minorities if you know about her dissent in Pappas v. Giuliani, which SCOTUSBlog summarizes as follows:

"One of her more controversial cases was Pappas v. Giuliani, 290 F.3d 143 (2d Cir. 2002), involving an employee of the New York City Police Department who was terminated from his desk job because, when he received mailings requesting that he make charitable contributions, he responded by mailing back racist and bigoted materials. On appeal, the panel majority held that the NYPD could terminate Pappas for his behavior without violating his First Amendment right to free speech. Sotomayor dissented from the majority's decision to award summary judgment to the police department. She acknowledged that the speech was "patently offensive, hateful, and insulting," but cautioned the majority against "gloss[ing] over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives just because it is confronted with speech it does not like." In her view, Supreme Court precedent required the court to consider not only the NYPD's mission and community relations but also that Pappas was neither a policymaker nor a cop on the beat. Moreover, Pappas's speech was anonymous, "occur[ring] away from the office on [his] own time." She expressed sympathy for the NYPD's "concerns about race relations in the community," which she described as "especially poignant," but at the same time emphasized that the NYPD had substantially contributed to the problem by disclosing the results of its investigation into the racist mailings to the public. In the end, she concluded, the NYPD's race relations concerns "are so removed from the effective functioning of the public employer that they cannot prevail over the free speech rights of the public employee.""

It's worth noting that the speech in question is genuinely offensive:

"The fliers asserted white supremacy, ridiculed black people and their culture, warned against the "Negro wolf... destroying American civilization with rape, robbery, and murder," and declaimed against "how the Jews control the TV networks and why they should be in the hands of the American public and not the Jews."

If you read Sotomayor's actual dissent, she makes very good points. While I am not qualified to say whether it's a valid legal argument, it is a subtler and (to my mind) deeper take on the relevant issues than that in the majority opinion. The justification for firing Pappas was the damage it would do to the NYPD's mission if it were known that one of their employees was mailing such racist screeds. Sotomayor notes, correctly, that this is often a good reason for firing someone: if, for instance, a beat cop held such views, one might legitimately worry about how he might treat any African-Americans or Jews he happened to encounter.

But Pappas was not a cop on the beat, a police commissioner, etc. He worked on the NYPD's computer systems. Moreover, he mailed the offensive literature anonymously, on his own time, and it took a police investigation, involving sending more charitable appeals out in special coded envelopes, to show that he had sent it. But besides making those points, Sotomayor also said this:

"The majority's core concern seems to be that, even though Pappas was a low-level employee with no public contact who was speaking privately and anonymously, the possibility remained that the news would get "out into the world" that the NYPD was employing a racist. I agree this is a significant issue, and I do not take it lightly. (...)

This case differs from others we have confronted in a critical respect. In the typical public employee speech case where negative publicity is at issue, the government has reacted to speech which others have publicized in an effort to diffuse some potential disruption. In this case, whatever disruption occurred was the result of the police department's decision to publicize the results of its investigation, which revealed the source of the anonymous mailings. It was, apparently, the NYPD itself that disclosed this information to the media and the public. Thus it is not empty rhetoric when Pappas argues that he was terminated because of his opinions. Ante, at 147-48. The majority's decision allows a government employer to launch an investigation, ferret out an employee's views anonymously expressed away from the workplace and unrelated to the employee's job, bring the speech to the attention of the media and the community, hold a public disciplinary hearing, and then terminate the employee because, at that point, the government "reasonably believed that the speech would potentially... disrupt the government's activities." Heil v. Santoro, 147 F.3d 103, 109 (2d Cir.1998). This is a perversion of our "reasonable belief" standard, and does not give due respect to the First Amendment interests at stake."

Or, in short: the NYPD claims it has to fire Pappas because if word got out that they employed someone with his beliefs, that would hurt their ability to do their job. But they were the ones who first investigated these anonymous mailings, figured out who had sent them, and then publicized the fact that it was an NYPD employee. That makes it hard to argue that it was Pappas' mailing offensive stuff that harmed the NYPD: but for the NYPD's own actions, that harm would never have occurred. (It reminds me of someone I used to work with: when our college reached decisions he didn't like, he used to foment huge pseudo-controversies about them and then say: we can't go ahead with this; it's just too controversial!)

This is a really good point. As I said, I'm not competent to say whether it is or is not the best reading of the Pickering test, but I do think it's a subtler analysis than the majority's, and one that takes the First Amendment issues more seriously, and engages more seriously with the underlying rationale behind curtailing them. More to the point, however, knowing that in a case like this, where political correctness was plainly on the side of the majority, Justice Sotomayor was in dissent. And whether she was right or wrong, this case is worth knowing about, given how often we're likely to hear that she is all about identity politics at the expense of the rule of law.

And that's just one example. The whole series is worth reading.

Hilzoy 12:33 AM Permalink | Trackbacks | Comments (21)

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Very interesting...thanks for posting. She makes a very insightful deliberative point of who actually did harm and whose rights were actually violated. Great read.

Posted by: bjobotts on May 27, 2009 at 2:20 AM | PERMALINK

Two points of contention: one, it can be argued that Sotomayor's position is not less politically correct than the majority's, but rather progressive with a different spin--fighting for the kind of thing the ACLU prioritizes rather than what MALDEF or the NAACP do.
Two, it's important to imagine how it would have looked if the NYPD had conducted this investigation, discovered that one of their own people was behind the grisly racist mailings, and then did NOT publicize the matter, choosing rather to admonish the offender and let him off with a secret warning--all supposedly to protect his first amendment rights. I bet that kind of thing happens a lot, but when it gets exposed, it looks like the police department was just trying to cover its ass and whitewash the whole thing. The prospect of that alternate narrative perhaps makes the majority's analysis more compelling.

Posted by: Jimrameymexico on May 27, 2009 at 2:58 AM | PERMALINK

Wow, Hilzoy.

You seem to go out of your way to hide Pappas' job description. Several times you refer to him as being a "NYPD employee" and add that he "worked on NYPD computers systems". It almost sounds like he was just some civil service IT guy working for the NYPD, right? WRONG! IN FACT, Pappas was a police officer; he was an effing cop. That he happened to be assigned desk duty, as opposed to walking a beat, at the time he was caught, is of no consequence.

I'm sorry, but if a cop is mailing out racist literature (or attending KKK rallies, or marching with the Nazis) he needs to be fired. Period.

Posted by: Disputo on May 27, 2009 at 3:42 AM | PERMALINK

Hey Hilz--you are spoiling your fans again by doing all the heavy lifting in reading and analyzing Judge Sotomayor's actual scholarly work (as opposed to repeating rabid innuendo, which is so much less work) and condensing it into nourishing but tasty portions. As they say in Australia, go, you good thing, go.

Posted by: jhh on May 27, 2009 at 3:45 AM | PERMALINK

Jews (not "The Jews") control Hollywood the same way Roman Catholics control the Supreme Court.

Posted by: Chris Dowel on May 27, 2009 at 4:57 AM | PERMALINK

I must say that I do not agree with her opinion on this particular case. The NYPD apparently was Damed if they did and Damed if they didn't.

He should have been fired in my opinion

Posted by: ADAY on May 27, 2009 at 5:13 AM | PERMALINK

This might be a good opinion to use against the GOP when they attack her for stealing all of our freedoms-- she thinks that racists have the right to work so ya'll can relax. Take a deep breath.

Posted by: zoe kentucky on May 27, 2009 at 6:09 AM | PERMALINK

But they [NYPD] were the ones who first investigated these anonymous mailings, figured out who had sent them, and then publicized the fact that it was an NYPD employee. That makes it hard to argue that it was Pappas' mailing offensive stuff that harmed the NYPD

That isn't true. It was the Nassau County police that first investigated and identified Pappas. It may have been a courtesy that they then turned it over to the NYPD. On the other hand, if sending this hate lit in a prestamped envelope to the charity (Mineola Auxiliary Police Dept) was not illegal, why did the Nassau police investigate? If the NYPD had not fired Pappas, who knows whether someone at Nassau County or Mineola Auxiliary wouldn't have made this public?

Posted by: Danp on May 27, 2009 at 7:04 AM | PERMALINK

Glad to see you plugging the reliably excellent SCOTUSblog. Funny, I had just come from that site to yours. Deja vu.

Another good read is SCOTUSblog's analysis of the Ricci decision (the "white firefighters" decision), which is likely to get lots of press as GOP senators try to justify their opposition. While Ricci is sure to be mischaracterized as a decision in which Judge Sotomayor held that the New Haven Fire Department's promotion exam violated the Constitution because minorities didn't pass it in large enough numbers, in fact the governmental action being challenged in that case was not the City of New Haven's initial decision to use the exam, but the City's later decision to withdraw the exam because of the disparate outcomes. White firefighters, in other words, claimed that the City discriminated against them by withdrawing the exam after the exam results favored whites and only whites for promotions. I guarantee that's not what you'll hear on Fox, nor will CNN commentators correct Republicans who misread the case, but it makes a big difference to the constitutional analysis.

Posted by: The Fabulous Mr. Toad on May 27, 2009 at 7:07 AM | PERMALINK

Moreover, Pappas's speech was anonymous - Sotomayor

This is also questionable. The Nassau County Police Department traced the source to P.O. Box 321 in Mineola, New York ? a post office box registered under the name "Thomas Pappas/The Populist Party for the Town of North Hempstead." He may have intended it to be anonymous, but at the minimum it was traceable.

Posted by: Danp on May 27, 2009 at 7:11 AM | PERMALINK


danp is anonymous...

Posted by: mr. irony on May 27, 2009 at 7:15 AM | PERMALINK

Thanks, Hilzoy, I will read the SCOTUSblog. I am going to hold my fire on this nomination until I know a lot more about Sotomayor. So far she is not only catching lots of canned heat from the insane right, but a lot of wink,wink,nod,nod busybodies on the left also seem to be very uncomfortable. The ugly whispering campaign that was apparently started by a journalist relative of one of the other nominees has also had an impact.

This nomination could turn out to be a textbook example of truth lost in a sea of issue oriented self promotion.

Posted by: Ron Byers on May 27, 2009 at 7:53 AM | PERMALINK

This is a difficult case. While I disagree that the racist behavior of a policeman should be protected, I like the fact that she is contemplative of the individual's rights when confronted with a powerful entity, such as the police forces.

This kind of bent might be a good foil to the consistently anti-individual Roberts (probably the most pro-business, borderline fascist SCOTUS appointment I've seen).

Posted by: KlevenStein on May 27, 2009 at 7:53 AM | PERMALINK

Mr. Toad, I wandered around a good bit of right-wing media yesterday because I was curious about their reaction, and most of them described the Ricci case correctly, exactly as you've described it here. Although their conclusions may be extreme, for the most part the right isn't lying about the general outline of the case.

What I find ironic about it is that in both Ricci and Diddings, the only two cases the right seems to have heard of, Sotomayor is supposedly an "activist" for refusing to overturn the government's actions or current law on constitutional grounds. It's almost as if the term "judicial activism" had no real meaning at all apart.

BTW, in both Diddings and Ricci, personally I disagree with the results, but I also think Sotomayor correctly interpreted current law and made the right legal decision.

Posted by: WoofWoof on May 27, 2009 at 7:53 AM | PERMALINK

Sorry Hilzoy, I have to go with Jeff Rosen's analysis, because his anonymous sources say that she's just a dumb mexican.

Posted by: goethean on May 27, 2009 at 7:56 AM | PERMALINK

danp is anonymous...

And hopefully untraceable. But even if it is traceable, it isn't a link between hate mail and the NYPD or any other organization that has a fragile reputation on race.

Posted by: Danp on May 27, 2009 at 8:02 AM | PERMALINK

I dunno how appeals courts work, exactly, but it seems useful to make a distinction between questions of FACT, and questions of law for a judge dissenting from an appellate decision.

That is, what precisely the guy did for the NYPD and how he was anonymously racist are questions of fact, right? If the department claimed his job included responsibility for dealing with the public, for which he was categorically disqualified as a racist, but the guy's lawyers responded 'not so!', that seems to turn on a factual issue -- yes or no -- to be decided BELOW the level of the appeal.

When the first court turns out to be wrong on a question of fact -- maybe the guy WAS a beat cop, oops! -- I don't think that's a matter for an appeal. What WOULD be an appeals question is the competence of the lawyers involved, but those are different issues.

Sotomayor's dissent seems to be focused on matters of the law, particularly the Constitutional power of the First Amendment, reflected in different arguments made by the parties to the case which ASSUME certain fact situations that -- as an appellate judge -- she did not challenge.

Most folks objecting to her dissent here aren't challenging her reading of the Constitution but her understanding of the facts. That wasn't her job on the appellate court, and it isn't the job of a Justice, either.

Posted by: theAmericanist on May 27, 2009 at 8:06 AM | PERMALINK

Maybe she was using her "empathy" to wonder how the case would look if Pappas had used other language that his employer found offensive or controversial, then was found out and fired for it.
I believe the courts decided the language he used was offensive but not illegal. In that case, his employer shouldn't get to decide what's acceptable. Of course, they can and should decide never to let him meet the public as a cop, but that's not what was at issue in this decision.

Posted by: Mark Gilbert on May 27, 2009 at 9:14 AM | PERMALINK

I'm sorry, but if a cop is mailing out racist literature (or attending KKK rallies, or marching with the Nazis) he needs to be fired. Period. -Disputo

Why? What legal grounds does a state have to fire a public employee for offensive literature or views or attendance of legal public gatherings?

Being offensive and sending you to the fainting couch, hand clasped over your mouth in horror, isn't a valid legal argument.

Pappas' right to free speech is protected. The NYPD's right to an arbitrary level of purity among their employees isn't. Where do you draw the line about what literature he is and isn't allowed to send out?

Besides, it's questionable if Pappas even holds the offending views, but rather thought he was employing an effective method for junk mail cessation.

Rather than fire him, perhaps the investigation should have been into junk mail and why it's so difficult to get it to stop.

But go ahead and get your dander up because a state employee has a different view about something than you do and was using a public means of distributing that view. To be on the safe side, we should fire everyone who Disputo disagrees with from all state and federal jobs.

Posted by: doubtful on May 27, 2009 at 10:18 AM | PERMALINK

Why? What legal grounds does a state have to fire a public employee for offensive literature or views or attendance of legal public gatherings?

Wow, way to build an inane strawman -- "doubtful" totally and absolutely (and one has to conclude, willfully) misses the point that I carefully bolded several times, that Pappas was a cop, and instead pretends, like Hilzoy and Sotomayor, that Pappas was a mere "public employee".

Where do I draw the line? I draw the line at allowing racists to carry a badge and a gun. Is that clear enough for you? If he was a mere computer tech (as Sotomayor *incorrectly* argues) I'd not have a problem with him keeping his job (based on his racism.... I'd however argue that a loose cannon whose obsessive hobby is to get back at "The Man" by abusing self-addressed stamped envelopes should not be allowed special access to an organization's computer systems, but that's a separate matter.)

And as far as the *legal* grounds, you'd be well advised to read the effing opinion. This time, try to read for, um, *content*.

Posted by: Disputo on May 27, 2009 at 3:49 PM | PERMALINK

Where do I draw the line? I draw the line at allowing racists to carry a badge and a gun. Is that clear enough for you? -Disputo

What's clear is that you are ignorant of the law. A police officer is a state employee and his free speech rights are protected. The NYPD does not have a protected right to employees of a certain ideological purity.

If the NYPD was a private security company, then I would agree that he should be fired, but I'm not willing to so easily concede when the government is making distinctions between which speech should be protected and which speech shouldn't be.

Allow me to be quite firm in this next point, for I am not missing it willfully or otherwise, as is no one else here with a pair of working neurons: His job description as a non-elected state employee is irrelevant. You seem to think there is a legal distinction between being an officer or a technician, and thus continue to revisit it.

Let me repeat: It is irrelevant.

Where do I draw the line? I draw the line at allowing racists to carry a badge and a gun. -Disputo

For someone who waxes so unpoetically (seriously, could there be anymore spittle on your monitor) about people missing the point, let me ask you again:

Where do you draw the line with regards to what speech is protected? I'm comfortable with drawing it at 'illegal.' If he were sending child pornography, fire him, arrest him, and try him.

But if the speech is legal, which it is, then it's protected.

Does that mean I'm comfortable with racist police officers? No. I'm not. But firing them for dissemination of literature is not a legal or valid way of addressing the issue.

You're simply being obtuse and forgetting that to truly have free speech, we must protect speech we find offensive and abhorrent. If you're not willing to do that, you've misunderstood what it means to be an American.

And, on a personal note, you're not an asset to this community. You're vapid and undeterred in your sense of infallibility. I grow weary of your constant assaults on the hardworking bloggers who write here and your childish manner of delivering criticisms.

Posted by: doubtful on May 27, 2009 at 5:05 PM | PERMALINK



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