POLITICS
07/04/2009 05:12 am ET | Updated May 25, 2011

Sotomayor's Defense Of White Racist Speech Looms Large In Confirmation Battle

Of the thousands of cases decided by Judge Sonia Sotomayor, the one that could have the most influence on her confirmation for the Supreme Court involves the defense of New York City Police Department employee who was fired for distributing bigoted and racist material.

Sotomayor's opinion in the 2002 case of Pappas v. Giuliani does not seem like a judicial cause célèbre for progressives. But in the days since she was named Obama Supreme Court nominee, it has emerged as an effective counterweight to charges that she is a judicial activist bent on helping minorities like herself.

Those intimately involved in the case say that Sotomayor's dissent -- in which she defended the First Amendment rights of a employee who had distributed white supremacist material -- shows a type of jurisprudence diametrically at odds with the caricature painted by her conservative critics.

"It showed that she is not knee jerk when it comes to dealing with racial issues," said Chris Dunn, an attorney for the New York Civil Liberties Union who argued the defense. "That was the case in which she took the side of a person obviously engaging in racist conduct and recognized the important First Amendment interest that was represented. She respected that interest and stuck to it."

Thomas Pappas had worked in the New York City Police Department since January, 1982, primarily in the Management Information Systems Division. In August 1999, he was fired by then commissioner Howard Safir after it was discovered that he had mailed more than 200 pieces of racially insensitive and anti-Semitic material from his home to various political groups who had been soliciting him for donations. Among the more than 200 or so pieces of literature Pappas had sent out were pamphlets from the National Association for the Advancement of White People.

A member and chairman of the Populist Party of the Town of North Hempstead, whose platform included repealing the federal income tax and abolishing the IRS, Pappas sued Safir and New York City's Mayor Rudy Giuliani on grounds that they had violated his First Amendment rights. In October 2000, U.S. District Court Judge Naomi Reice Buchwald ruled that the NYPD had operated within the rule of law.

The case was appealed and in 2002 it found its way to the Second Circuit Court of Appeals. The three-judge panel, which included Sotomayor, considered two main components of the case: Whether Pappas's "speech" was of public concern and whether it had "interfered with" the NYPD's activities. Two of the three judges upheld the district court decision that it didn't matter that Pappas had sent these mailings anonymously from his private home. "Although Pappas tried to conceal his identity as speaker," they ruled, "he took the risk that the effort would fail."

While finding the speech "offensive, hateful and insulting," Sotomayor dissented. Her basis was the precedent established by Rankin v. McPherson, in which the Supreme Court held that a public employee in Texas who cheered the assassination attempt on Ronald Reagan in a conversation with a fellow worker had not interfered with the office's operations, because her job did not require public contact. But Sotomayor also did not shy away from the constitutional implications of the Pappas case.

"I of course do not dispute the majority's premise that a public employee's free speech interest is often subordinated to the effective functioning of a government employer," Sotomayor's dissent read. "I also agree that it is appropriate to consider the agency's mission in relation to the nature of the speech, and I appreciate the enormous importance of race relations to the operation of the NYPD. These facts alone, however, do not support the constitutionality of the NYPD's termination of Pappas. The well-established case law of the Supreme Court and this Court requires a more searching inquiry."

Seven years later, that opinion and those words in particular have struck observers as uniquely important aspects of Sotomayor's lengthy record. The political implications are obvious: A Latina judge accused of being a "reverse-racist" took the side of the white supremacist police officer at a time when the NYPD was widely resented and distrusted by New York's minority communities.

"Certainly during the Giuliani administration there were many instances where police officers engaged in racially insensitive conduct, at best, while on duty," said Dunn. "And so the easy thing for someone to do would be to say, 'let's fire someone for engaging in racially insensitive activity.' That would have been the easy out. It was certainly what people traditionally viewed as progressives were calling for. But she didn't accept that. She said that even though what this guy did may be racist, I will uphold his constitutional rights. And that is a position of principle."

Observers say Sotomayor's dissent also offers a vivid indication into what type of kind of judicial philosophy she will bring to the bench.

"What I found after looking at some of her statements is someone who I think takes the First Amendment extremely seriously," said Maria Blanco, Executive Director for the Chief Justice Earl Warren Institute at University of California, Berkeley. "She went with the facts. But what you see is she that she also put an extremely heavy burden of proof on a defendant who is trying to abridge privacy or First Amendment protections. That has not been the case with the Supreme Court in the past, though we have had some famous pro-First Amendment judges."

"I actually think that on these issues she may end up being a [Justice William] Brennan type," Blanco added. "That is just my instinct as a lawyer who has done constitutional law for many years."

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