Sotomayor's dissent in Pappas should end the slurs against her

The supposedly "race-based" judge bravely dissented to defend the First Amendment rights of a white bigot.

By Glenn Greenwald

Published June 1, 2009 3:02PM (EDT)

(updated below - Update II - Update III)

The accusation that Sonia Sotomayor has – as The New York Times uncritically put it -- a "race-based approach to the law" is turning out to be one of the most reality-detached arguments to make it into the mainstream since Saddam’s mushroom clouds. All the relevant evidence -- all of it -- proves how false that accusation is.

Tom Goldstein comprehensively analyzed all of her race discrimination cases and found that she ruled against the plaintiff in close to 80% of those cases. Last week, I conveyed my own personal anecdote in which Sotomayor largely ruled against one of the most sympathetic plaintiffs I had in my legal career -- an African-American woman who put herself through nursing school, got injured on the job while trying to help a patient, and was then summarily fired by the hospital for which she worked for 12 years because of her resulting disability. And now, one of Andrew Sullivan’s readers points to a dissent which Sotomayor wrote in the 2002 case of Pappas v. Giuliani, which -- if we have even an iota of rationality left in our media and political discourse -- will, by itself, prevent anyone from claiming with a straight face that Sotomayor disregards the law in order to favor minorities and unfairly oppress white males.

The facts of Pappas are simple.  The plaintiff was a white employee of the New York City Police Department -- working in a clerical position in information management -- when he was fired for having sent blatantly racist and anti-Semitic replies in response to charity requests he received in the mail.  Pappas admitted doing it, and said he did it to protest the charity requests.  The NYPD fired him for having sent the replies on the ground that it did not want racist employees.  He sued the NYPD, alleging that his First Amendment rights were violated by the firing, because he was clearly fired due to the content of the political views he expressed.

The district court judge dismissed Pappas' case, finding that the NYPD had a legitimate need to exclude racists from its employ, a need which outweighed Pappas' First Amendment rights.  On appeal, two of the three judges on the Second Circuit panel agreed with that ruling and dismissed Pappas' case.  But not Sotomayor.  She wrote a dissent emphasizing the strong First Amendment interests of Pappas' that were being violated -- however contemptible it was, it was pure political expression -- and she argued that it he was entitled to a jury trial to decide if the NYPD, under Supeme Court precedent, had any right to fire him for it.  This is the crux of her ruling:

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.

As someone who has a lot of respect for those who defend the First Amendment rights of people expressing despised views -- that, after all, is where First Amendment rights are typically abridged -- this dissent of hers substantially elevates my view of her as a judge. It's not easy to be the only one of four federal judges in New York to rule in favor of a white racist NYPD employee on First Amendment grounds.  More important, standing alone, Sotomayor's dissent ought to put an end to the obnoxious and inflammatory claim that she has a "race-based" approach to the law whereby she ignores legal principles in order to rule against white males and in favor of racial minorities.  Anyone continuing to make that claim should be confronted with Goldstein's statistics and her dissent in the Pappas case.  How can anyone maintain that -- and how can media figures continue to treat it as a serious claim -- in light of her principled and courageous defense of a white racist's First Amendment rights?

I really don't want to be Sotomayor's unequivocal defender.  I continue to harbor some questions and reservations about how good of a choice Sotomayor is.  But none of those questions are being asked -- at least not yet.  Instead, the discourse is, as usual, filled with totally fact-free and inflammatory claims which, if we had a minimally functioning media, would have been exposed as the obvious falsehoods they are from the start.


UPDATE:  Hilzoy has more on what the Pappas dissent reflects about Sotomayor (all good) and how potently -- I'd say "dispositively" -- it gives the lie to the central accusation against her that "she is all about identity politics at the expense of the rule of law."


UPDATE II:  For those asking what my "questions and reservations" about her are -- as several people have in comments -- this is what I mean.


UPDATE III:  When I say that these facts should end the slurs against Sotomayor, I obviously don't mean that I expect Rush Limbaugh, Newt Gingrich and their friends in the right-wing smear machine to re-think their attacks in light of these rational arguments.  The reason those attacks gain traction is because the media gives them credence, and my argument is directed toward that process.  Expecting the media to expose right-wing accusations as factually false may be only slightly more realistic than expecting the right-wing attackers to cease on their own, but the argument is still worth making.

Glenn Greenwald

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