This column expresses the views of David L. Hudson Jr., First Amendment Fellow of the Freedom Forum.
“She is an inspiring woman who I believe will make a great justice,” President Barack Obama announced to the country in nominating Sonia Sotomayor on May 26, 2009. “Over a distinguished career that spans three decades, Judge Sotomayor has worked at almost every level of our judicial system, providing her with a depth of experience and a breadth of perspective that will be invaluable as a Supreme Court justice.” Obama emphasized that Sotomayor had served as both a federal district court judge and a federal appeals court judge in her distinguished career as a jurist.
The appointment was historic, as Sotomayor became the first Latina justice and the third female to serve on the high court. Former U.S. Attorney General Alberto Gonzales applauded the nomination: “This is a powerful message, a powerful message of hope and opportunity through this appointment, just like there’s a powerful message sent when an African-American is elected president.”
In her years on the high court, Justice Sotomayor has shown a penchant for caring deeply about constitutional freedoms and individual rights. She is the justice who has shown the most solicitude for freedoms from unreasonable searches and seizures in violation of the Fourth Amendment. But, she also has made an indelible impact on First Amendment jurisprudence.
Notably, Sotomayor wrote the opinion for a unanimous court in Lane v. Franks (2014), ruling that a public college violated the First Amendment rights of an employee when it fired him for his truthful in-court testimony. The college contended that Edward Lane had no First Amendment free-speech rights under the Supreme Court’s ruling in Garcetti v. Ceballos (2006), which held that public employees have no free-speech rights for official, job-duty speech.
“Speech by citizens on matters of public concern lies at the heart of the First Amendment, which was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people,” she wrote. “This remains true when speech concerns information related to or learned through public employment. After all, public employees do not renounce their citizenship when they accept employment, and this court has cautioned time and again that public employers may not condition employment on the relinquishment of constitutional rights.”
Sotomayor’s opinion distinguished Garcetti and focused her analysis on the court’s landmark public employee decision, Pickering v. Board of Education (1968). “There is considerable value, moreover, in encouraging, rather than inhibiting, speech by public employees,” Sotomayor wrote.
Sotomayor expressed concerns about the court’s true threat jurisprudence in a special concurring opinion in the denial of certiorari in Perez v. Florida (2017), a case involving a man sentenced to 15 years in prison for allegedly uttering a threat in a convenience store while he was inebriated. She wrote that the jury instruction, and Perez’s conviction, raised serious First Amendment concerns, because his drunken ramblings likely were not statements indicating a real intent to cause harm.
In 2015, the court decided the true-threat decision Elonis v. United States (2015), but did not determine whether or not a person could be convicted for making a true threat recklessly. The court held that the jury instructions in the initial trial failed to focus on Elonis’s mental state and required only that Elonis made a statement in a context that a reasonable person would interpret as threatening.
In his majority opinion, Chief Justice John G. Roberts Jr., reasoned that this was a mere negligence standard, disrespectful of the cardinal criminal law principle that “wrongdoing must be conscious to be criminal.” While the result was favorable to Elonis, the court’s decision left much to be desired.
The court in Elonis did not address larger First Amendment issues raised in the case and did not determine whether or not a person could be convicted for uttering a true threat recklessly. Justice Sotomayor — in her special concurring opinion in Perez — urged her colleagues that the court needed to address the questions it left unanswered in Elonis.
In her opinion, Justice Sotomayor emphasized the intent issue in the area of true threats. “Together, [this Court’s true threat jurisprudence] make[s ] clear that to sustain a threat conviction without encroaching upon the First Amendment, states must prove more than the mere utterance of threatening words — some level of intent is required,” she wrote. “And these two cases strongly suggest that it is not enough that a reasonable person might have understood the words as a threat — a jury must find that the speaker actually intended to convey a threat.”
As I noted in 2017, “Justice Sotomayor should be applauded for her concern over the court’s true-threat jurisprudence.”
Justice Sotomayor also showed her concern for individuals in the court’s latest decision involving the “ministerial exception,” a doctrine that allows religious-based employers to avoid compliance with federal and state anti-discrimination laws if the employee in question is deemed “a minister.”
The court ruled 7-2 in Our Lady of Guadalupe School v. Morrissey-Berru that two elementary school teachers were subject to the so-called “ministerial exception,” nullifying their respective disability and age-discrimination claims. Justice Sotomayor dissented, writing that the ministerial exception “gives an employer free rein to discriminate because of race, sex, pregnancy, age, disability or other traits protected by law.”
While the majority cloaked itself in the mantle of religious freedom, Sotomayor warned that the court’s decision was “profoundly unfair” and noted that “[t]he inherent injustice in the court’s conclusion will be impossible to ignore for long, particularly in a pluralistic society like ours.”
Justice Sotomayor’s tenure on the Supreme Court has been characterized by a consistent concern for the individual in cases involving constitutional freedoms. Her opinions in the areas of public employee free expression, true threats and the ministerial exception are prime examples.
David L. Hudson, Jr. is a First Amendment Fellow at the Freedom Forum, and a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of “First Amendment: Freedom of Speech” (2012), the author of a 12-part lecture series titled, “Freedom of Speech: Understanding the First Amendment” (2018) and a 24-part lecture series titled, “The American Constitution 101” (2019).