Cheating Sotomayor
From the American Family Association comes an e-mail ,which can be found here, with the enticing headline:
“SOTOMAYOR: It’s okay for Government to ridicule Holy Bible.”
Pretty damning, but not very accurate. The news release correctly notes that Sotomayor joined a summary order dismissing a lawsuit alleging that free speech rights were violated when a Staten Island official contacted a billboard company about removing billboards quoting Bible verses critical of homosexuality. The official said he found the billboards “unnecessarily confrontational and offensive.”
But the release omits a crucial fact: Sotomayor also joined an opinion overturning part of the district court ruling. That opinion rejected a claim that the city official could not have violated free speech rights because he had no regulatory authority over billboards. The three-judge panel that included Sotomayor held that even public officials without regulatory authority could violate First Amendment rights by threatening coercion to suppress free speech.
In this case, the public official had written to the billboard company, “As Borough President of Staten Island I want to inform you that this message conveys an atmosphere of intolerance which is not welcome in our Borough. P.N.E. Media owns a number of billboards on Staten Island and derives substantial economic benefits from them. I call on you as a responsible member of the business community to please contact Daniel L. Master, my legal counsel and Chair of my Anti-Bias Task Force… to discuss further the issues I have raised in this letter.”
Before issuing a summary judgment in the official’s favor, the lower court should have considered the implied threat in those comments in the light most favorable to the plaintiffs, Sotomayor held.
In short, she carefully trod the line between a public official’s right to free speech and attempts to cross that line by threatening government action to suppress unpopular speech.
It’s a ruling that the American Family Association should have applauded. But that would have required reading it.
UPDATE: You might ask, why should the AFA applaud? Suppose the city official had instead written that he loved the billboards and would like to see more of them all over the city. Wouldn’t the AFA want that speech protected? You bet it would.
