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May 27, 2009

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That really is a good sign. Many people claim to think that people who engage in speech that is unpopular or offensive to others should still enjoy protection under the rule of law. Too often they abandon their conviction when the situation comes up in the real world.

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... and then publicized the fact that it was an NYPD employee.

And yet: the NYPD was correct to launch the investigation, and, having found out that an NYPD employee was at fault, they were surely correct to publicize the findings. Or do you think they should have hushed it up? If so, imagine the damage to the NYPD's community relations if the media ever found about the cover-up.

Why were they correct to launch the investigation? The employee's speech wasn't a crime.

Tom: I don't see why they had to launch the investigation either. Nor do I see why the results have to be disclosed: do the police normally disclose people's private speech?

Didn't they have to launch an investigation to determine if there was a possible threat? If I worked at a charitable organization and I got mailed some white supremacist literature, I would really want someone to figure out why they were doing it. I believe that Sotomayer brings up some good points and I'm swayed quite a bit by them. But I'm not totally convinced that the department was out of line trying to figure out what was going on.

I can see your point, liberal japonicus, but then that just gets us to what hilzoy asked: do the police normally disclose people's private speech?

Or, I guess that's not quite the right question, since the speech here wasn't really private. But it was anonymous, and non-criminal. And political, too, a quality that tends to attract stronger First Amendment protection.

So, yeah, do the cops normally disclose the identities of anonymous political speakers who haven't committed a crime? Is there any reason they should feel obligated to do so?

Tom, good questions, and it reminds me of people pointing out that anything that you write on email should be something that you are comfortable seeing on a billboard outside your house. The problem seems to be that there doesn't seem to be an intermediate step between firing and not doing anything. Perhaps in a situation like that, you shouldn't fire, but given the public relations element, the police department was in a damned if they did, damned if they didn't situation. I don't think that Sotomayer was wrong per se, but I don't think that she is completely correct. If he had expressed those sentiments to coworkers, he would have probably been fired without any question, so claiming the speech is political and is protected by the first amendment seems a bit of a ruse. Still, I'm not totally disagreeing with you, it's an interesting question.

Well, the point might be precisely that he did not make the obnoxious statements publicly to co-workers.

And, for the sake of the discussion of Ms. Sotomayor, it would seem to put at least a small nail in the coffin of the thesis that she is a knee-jerk liberal who will vote that way every time. Odd how exposure to reality does that some times.

@ wj

Odd how exposure to reality does that some times.

She's going to get confirmed anyway, absent any hidden skeletons. Nevertheless we need to rememeber that "reality" is like an anti-kryptonite to the GOP.

Be prepared for a few months of really aggravating kabuki.

LJ,

That's a really good point about the potential criminal/threatening nature of the mailings. But, the key here is that the issue before the Circuit Court was the District Court's granting summary judgment to the NYPD. In shorthand, summary judgment basically means that there are no contested factual issues which if resolved in favor of the side opposing summary judgment, would allow them to prevail at tiral.

The point as to whether the mailings were actually threatening and/or criminal and/or might expose the NYPD to legal liability is a factual question which should allow the case to survive dismissal on summary judgment, because at the summary judgment stage the court cannot assume the NYPD's contention in this regard to be true, and is in fact required to draw all reasonable inferences in favor of Pappas' contention that they were not criminal/threatening etc.

Or, I guess a shorter way to put it would be to say that your objection goes to the factual merits of the case, whereas summary judgment is primarily with the legal merits.

In my very quick skim of Sotomayor's writing as a judge, the thing that jumps out at me is that she thinks about statutes, rules, and court-made doctrines in terms of their policy purpose. To put it another way, when two lawyers argue about what a law really means, she asks whether each lawyer's idea for how to use the law matches the sort of problem the law was meant to solve in the first place. Judges are absolutely supposed to do this, but they don't always. At the same time, she does NOT just say, well, the law must have meant to do X because X is so good, so let's do X, even though the law says Y. Her logic and sourcing are very good, and she seems to have real respect for the law as it stands.

I'm impressed. She is not a token, she's very good at her job.

"In my very quick skim of Sotomayor's writing as a judge, the thing that jumps out at me is that she thinks about statutes, rules, and court-made doctrines in terms of their policy purpose. To put it another way, when two lawyers argue about what a law really means, she asks whether each lawyer's idea for how to use the law matches the sort of problem the law was meant to solve in the first place."

Oh, dear me, dear me.

That will NEVER do...

Well, I'm sure that if I were a judge, I'd be one of those Boston Legal types with bizarre quirks that permit the writers to use jury nullification to wrap up so many of the plots. So how the factual versus the legal plays out is beyond me.

But I would make the further observation that what you see in this dissent is how the quality of empathy that conservatives have gotten in such a tizzy about is precisely something that protects them as much as it protects anyone else. Still, the conservative experience seems to revolve around cutting one's nose off to spite one's face, so it is not unexpected.

Sotomayor: 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.
She expressed sympathy for the NYPD's "concerns about race relations in the community," which she described as "especially poignant" ...

I admire her light touch here.

"Poignant" indeed is the department's concern that "word might get out" that they employ a racist or two.

A borinqueña who grew up in the Bronx projects must have had to bite her lip at the idea that revelations about the anonymous, off-duty political speech of an employee would add significantly to bad race relations on top of people's daily encounters with (and the very recent history of torture and murder by) police in the Giuliani-era NYPD.

But I would make the further observation that what you see in this dissent is how the quality of empathy that conservatives have gotten in such a tizzy about is precisely something that protects them as much as it protects anyone else.

It's blindingly obvious, once you stop to think about it. Same with her comment about appellate courts making policy (hint: it's a descriptive statement, not a prescriptive statement). In their hurry to rap out talking points, pundits aren't bothering to stop and think about the nuts and bolts of these things and how they work in real life.

It reminds me of the people who get all in a tizzy over ACLU for being damn liberals and so on, and then get all pissy over ACLU's "defending Nazis and NAMBLA". It's like, O.K., if you associate damn liberals with Nazis and NAMBLA that would be one thing (at least the arguments would be consistent), but otherwise isn't ACLU's defense of the rights of even people and organizations its members are against a mark in its favor?

I mean, if ACLU will defend the Westboro Baptist Church group, how badly does its damn-liberal-ness bias its actions? And ditto all the moaning and groaning about "the PC brigade" and whatnot. Well, I must really be the worst thought police officer ever if my arrests are limited to "no one wants to hear your bigotry, kindly shut up."

This may be yet another example of that-kind-of-conservative projection: since they think that the ends justify the means, and they'll willingly discard any kind of principle they don't like to get to a result they do, they assume that everyone else does the same, so therefore either the ACLU supports pederasty or Sotomayor never defended virulently racist speech on grounds of (gasp!) law and rights and logic.

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