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Freedom Watch
Minutes after President Barack Obama announced that he was nominating appellate judge Sonia Sotomayor for the vacant seat on the Supreme Court, battle lines were drawn on the pre-scripted questions of "post-racial" America.

Minutes after President Barack Obama announced that he was nominating appellate judge Sonia Sotomayor for the vacant seat on the Supreme Court, battle lines were drawn on the pre-scripted questions of "post-racial" America: will she favor minority groups or judge all citizens equally? Will she treat alleged criminals and other down-and-out litigants with "empathy" (the Beltway buzzword du jour) or take a hard-line approach? And will she be a "judicial activist," or will her decisions hew to the text of the written law (so-called strict constructionism)?

But missed in these debates is Sotomayor's stance on a basic tenet of American liberty: freedom of speech, without which all other rights are functionally meaningless. One might attribute the press back-burnering her focus in this area of law to Sotomayor's relative lack of decision-making on First Amendment cases. But, more likely, this reflects the modern bipartisan disregard for free speech — a right strongly valued from Thomas Jefferson to George Carlin, but one that has steadily eroded over the past four decades. Still, it is essential to consider how Sotomayor, currently a judge on an intermediate federal appeals court in New York, stacks up on free speech. Initially, a mixed picture emerges.

Most disturbing is Sotomayor's signing onto an opinion written by one of her colleagues in a May 2008 case limiting the speech rights of public-high-school students. Avery Doninger, a student-council officer in Connecticut, got into a tiff with school administrators who canceled a student-initiated band competition. Doninger lambasted the administration on (in the court's words) "an independently operated, publicly accessible blog," saying the event was axed "due to douchebags," and asked readers to phone school officials in protest. Her strategy worked, enraging those officials who said that "appealing directly to the public was not an appropriate means of resolving complaints the students had regarding school administrators' decisions." For this, Doninger was not permitted to assume the class office to which she had been duly elected.

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