By Kristin Billera

As the Supreme Court nomination hearings of Judge Sonia Sotomayor draw closer, people from all walks of life and with many different concerns have questions about her record. I have elected to take a closer look at Sotomayor’s record on media and communication law issues.

Last week, I gave you a glimpse of Sotomayor’s record on freedom of the press. Today, I have chosen to focus on various other freedom of speech issues.

Tasini v. New York Times Co. (1997) 972 F. Supp. 804

  • Facts and History: In Tasini v. New York Times, six freelance writers sued The New York Times, Newsday and Sports Illustrated (published by Time, Inc.) claiming that their copyright was violated when those media organizations resold the authors’ articles to Lexis Nexis and a company which distributed  a CD-ROM version of The New York Times and other periodicals. The defendant publishers argued that the articles were part of a collective work (that being the newspapers or magazines) and therefore they have the privilege to publish extends to selling and distributing the articles to third parties.
  • Holding and Judgment:  The court held that the writers no longer had a copyright interest in the articles and that the articles in the databases were “revisions,” which would have given the publishers the right to distribute or sell them as part of the collective work.
  • Sotomayor’s Take: “In other words, though plaintiffs contend mightily that the disputed electronic reproductions do not produce revisions of defendants’ collective works, plaintiffs’ real complaint lies in the fact that modern technology has created a situation in which revision rights are much more valuable than anticipated as of the time that the specific terms of the Copyright Act were being negotiated. If Congress agrees with plaintiffs that, in today’s world of pricey electronic information systems, Section 201(c) no longer serves its intended purposes, Congress is of course free to revise that provision to achieve a more equitable result.
  • Still Good Law? No. Shepard’s indicates that this decision was overturned. The case was appealed to the 2nd Circuit, where it was reversed and remanded and then appealed to the Supreme Court, which upheld the decision of the 2nd Circuit.

Doninger v. Niehoff (2008) 527 F.3d 41

  • Facts and History: In this 2008 case, Connecticut high school student Avery Doninger sent out a mass email to her fellow students, urging them to contact the school officials and tell them that a school event should take place in the auditorium after it was postponed numerous times and the location was changed. The school’s office received a large volume of phone calls and emails from people concerned about if and when the event would take place. Doninger claimed that the principal, Niehoff, called her to the office and told her that the event would not take place at all because she had mass emailed the students instead of coming to the office, however, the district court found Niehoff’s testimony that she never said such a thing to be credible. Avery returned home and posted on her blog an entry, which included the allegation that “Jamfest is canceled due to douchebags in central office.” She then encouraged the students to contact Niehoff again to “piss her off more.” The situation was eventually resolved and the event took place, however, when Doninger was nominated for Senior Secretary, Niehoff demanded that she withdraw her candidacy. Doniger’s mother filed a complaint in the Connecticut Superior Court, alleging that her daughter’s 1st Amendment  rights were violated.
  • Holding and Judgment:  The court held that Avery’s blog entry “a foreseeable risk of substantial disruption to the work and discipline of the school” and Doniger’s First Amendment rights were not violated when she was not allowed to run for secretary.
  • Sotomayor’s Take:  This case was heard by a panel of judges and Sotomayor did not write the opinion, however, she agreed with the majority.
  • Still Good Law? Yes,  Shepard’s indicates that this case was followed in 23 subsequent cases.

Pappas v. Giuliani (2002) 290 F.3d 143

  • Facts and History: Pappas, a New York City police officer was fired after it was found that he had anonymously sent messages with anti-Semitic and anti-black messages to the Mineola Auxiliary Police Department after being solicited for donations by mail. Pappas claimed that this was a form of protest, as he was tired of being harassed for donations and that his firing was a violation of his First Amendment rights.
  • Holding and Judgment: The court held that, “The Department appropriately took action against him not because of his private opinions but because of his conduct in violation of Departmental regulations — conduct that risked to harm the Department in the performance of its governmental mission.”
  • Sotomayor’s Take: This was a panel case and Sotomayor dissented with 2-1 majority. Sotomayor writes, “The Court should not, however, gloss over three decades of jurisprudence and the centrality of First Amendment freedoms in our lives because it is confronted with speech it does not like and because a government employer fears a potential public response that it alone precipitated . . . The NYPD’s concerns about race relations in the community are especially poignant. But there are limits. At some point, such 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.” Rankin, 483 U.S. at 391.”
  • Still Good Law? Shepard’s indicates possible negative treatment. This case was criticized and distinguished by Locurto v. Giuliani, 269 F. Supp. 2d 368.

In Tasini, it is clear that Sotomayor’s decision was not necessarily the right one, as it was overturned by the Supreme Court. I also personally disagree with this decision. While it is clear that the authors sold the articles to the New York Times, etc. it is not clear that the publishers had the right to redistribute the articles to other sources. Despite this, it is important to keep in mind that this is an early case, from 1997, involving copyright and the Internet which was still rapidly evolving.

I flat out disagree with Sotomayor in Doninger. I find it questionable under the First Amendment that students have limited freedom of speech rights while on a school campus, but I feel that there should be absolutely no question that students’ First Amendment rights cannot be violated by school officials while off campus. Furthermore, the actions Doninger encouraged, while perhaps inconvenient, were not illegal and did not disrupt the students while they were at school. The volume of phone calls and emails were merely inconvenient to the administrators and did not necessarily have an effect on the students’ educational experiences.

I applaud Sotomayor’s dissent in Pappas and absolutely agree with her strong statement that the court may not gloss over the First Amendment because it is confronted with speech it does not like. This is precisely the reason that the First Amendment exists and Sotomayor seems to show a true understanding of that principle in this case.

Overall, Sotomayor has a mixed record on First Amendment issues. The Tisani case, I am not worried about since technology has evolved so much since it was decided. I am not worried about the Sanders case which I discussed last week either, because as I said, reporters should receive privileges, but not immunity. I strongly disagree with Sotomayor’s rulings in both the Dow Jones case from last week and the Doninger case from this week. And I find that the Pappas case and Quattrone case from last week show a thoughtful understanding of the First Amendment.

I can’t make predictions on how Sotomayor might rule in the animal cruelty case, which is the only First Amendment case on the Supreme Court docket for the fall, because her record truly is a mix of pros and cons for First Amendment absolutists. I do hope she is truer to her thoughtful, careful analysis in Quattrone and Pappas and avoids, in my opinion, the missteps she made in Dow Jones and Doniger in any future First Amendment cases which she may hear.

See also the Reporter’s Committee for Freedom of the Press report.