Sotomayor, Cops, and Hate Speech

Radley Balko | June 1, 2009

Some of Sonia Sotomayor's defenders are throwing out this case to counter attacks that she's racist against white people. The case involves an NYPD cop who was fired for publicly distributing racist anti-black and anti-semitic literature.

The Second Circuit upheld the cop's termination, but Sotomayor dissented, arguing that because the cop wasn't high-ranking, a public spokesperson, or involved in policy making, his public advocacy of racism while off-duty was protected by the First Amendment.

Sotomayor's defenders are right that the racism charge, which basically comes from one line pulled out of context from one of her speeches, is ridiculous. And I suppose her opinion in the case does in some way diminish the "she hates white people" talking point, though I doubt most people advancing that talking point were ever going to be persuaded otherwise.

But I have a real problem with her dissent in this case. Police officers have the power to detain, use force, and kill. I would hope police officials would factor temperament into their hiring and firing decisions, and given that Jews and black people will be among the people an NYPD officer is supposed to protect, I don't think it's out of bounds to exclude as NYPD cops people who openly express hatred for Jews and black people.

Sotomayor argued that this particular cop's dissemination of racist material was mitigated by the fact that he had a mostly clerical job. But that doesn't mean he didn't still have the authority to stop, arrest, and detain people. Nor does it mean he couldn't influence other officers with his opinions. And as the majority points out, there's also no reason to think he'd never be transferred to a job that did involve more interaction with the public.

I'll defend without reservation the First Amendment right to distribute racist literature. But I have a hard time accepting the idea that the First Amendment both protects your right to distribute that literature and hold a taxpayer-funded government job that gives you a tremendous amount of authority and control over the very people you would rather didn't exist.

It shows how strange these nomination battles have become when you have leftists pointing to a nominee's vote to let an openly racist cop keep his job as an argument in favor of her confirmation.

The fact that this opinion shows Sotomayor isn't the caricature her opponents make her out to be doesn't mean it was a good opinion.

Comments

Hambone|6.1.09 @ 3:25PM|#

This is like so early last week.

Josh|6.1.09 @ 3:28PM|#

Would this be another example of law enforcement's "new professionalism?"

Sotomayor will have a friend on the Court in Scalia.

Mister DNA|6.1.09 @ 3:31PM|#

I guess the cop in the case didn't call Jews and blacks "douchebags".

|6.1.09 @ 3:33PM|#

So her love of unions and public employees trumps her thinking that Latins are the superior race. Seriously. Just because you are a racist doesn't mean you don't have other values or that it dictates every action you take.

The Reverend Al Sharpton|6.1.09 @ 3:36PM|#

"Just because you are a racist doesn't mean you don't have other values or that it dictates every action you take."

Oh, I don't know...

|6.1.09 @ 3:41PM|#

"Sotomayor's defenders are right that the racism charge, which basically comes from one line pulled out of context from one of her speeches, is ridiculous. And I suppose her opinion in the case does in some way diminish the "she hates white people" talking point"

out of context- are you serious? the quote only gets worse when put in context.
and who is saying "she hates white people"? no one! they're saying she thinks her judgment is superior to people of other ethnicities due to her Latino descent.

i think that was the worst paragraph I have ever read on Reason.

24AheadDotCom|6.1.09 @ 3:42PM|#

Hi-lar-ee-ous. Even some at volokh.com have issues with the "one line", meanwhile RB has issues with the First.

Meanwhile, most all of her opponents continue to make mistakes when, if they simply did things my way they could win.

Rather than calling her names that are probably not true and in any case will always be disputed, they should concentrate on things that are true: she's deeply linked into far-left concepts like AffirmativeAction, EthnicNationalism, and IdentityPolitics. Not only that, but she joined not just one but two far-left racial power groups.

See my extensive summary of the National Council of La Raza.

Note especially that they gave an award to someone who proposed genocide.

Now, seriously: if your group can't beat someone who joined a group that gave an award to someone who proposed genocide, maybe that's a sign that your group needs new leaders.

P.S. Any replies to this comment will most likely consist of ad homs, as libertarians concede my points and show their childish, anti-intellectual nature.

|6.1.09 @ 3:43PM|#

even fricking Ruth Marcus says the quote is even worse in context. geez.

Mister DNA|6.1.09 @ 3:44PM|#

Lonewacko, the only thing I concede is that you should shut the fuck up.

hmm|6.1.09 @ 3:51PM|#

An interesting thing about the reasons for decent with this choice compared to others is that the issues, aside from this retarded race thing, have a very real basis in juris prudence. Stating appeals courts make laws in an open setting among your bunny hugging Berkley friends while the whole panel just chuckles is fucking scary as hell.

Then again Steven's authored Chevron, which is the most absurd fucking retard assclown American raping decision in recent history. Here you go admin agencies, here's carte blanche. I'd say we can't do much worse that that, but I know better.

|6.1.09 @ 3:53PM|#

It doesn't matter how crazy the Sotomayor quote was. Reason will never admit there was anything wrong with it. The entire staff are guilty white liberals at heart. Sometimes it shows more than others.

hmm|6.1.09 @ 3:53PM|#

Meanwhile, most all of her opponents continue to make mistakes when, if they simply did things my way they could win.

If we did things my way we would win and have pie. Your way is not the way since there is no pie involved.

|6.1.09 @ 3:55PM|#

It's always something with you people!

The Angry Optimist|6.1.09 @ 3:59PM|#

I agree that the quote is worse in context:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

|6.1.09 @ 3:59PM|#

While Sotomayor's argument didn't prevail, I am pretty radical on first amendment rights. Surely there are lots of racist cops who don't make it known through speech or email, so by restricting the first amendment here more damage is done to the first amendment than is caused by having one more among many racist cops still employed.

The Angry Optimist|6.1.09 @ 4:03PM|#

I think that if you start suspending the rights of government lackeys, that's going to make them respect your rights less, not more.

Mike M.|6.1.09 @ 4:07PM|#

Only civilians don't have the right to be racists, government employees do. Oh, and they can have guns also.

Warty|6.1.09 @ 4:23PM|#

Lonewacko pumped his greasy, semen-filled fists in triumph. He shouted in exultation, "Yes! Yes! Yes! I totally pwned Mister DNA! Yes!" He began to dance a jig, then stopped abruptly. Shit, he thought. Do IllegalMexicans dance jigs? ShitShitShit.

His thoughts were brought to an end by a pounding on the locked door that trapped him in the basement. Bam! Bam! Bam!

"Chris! Shut the fuck up! If you innerupt muh stories again, I'ma have Manuel whoop you with his belt! Then there was the faint whirrrrr of his mother's fatty-scooter, newly stolen from Wal-Mart, returning her to the living room.

Lonewacko stood in silence. His erection returned. Then...barely... he heard the sounds of a telenovela. A drop of semen and Crisco fell to the floor. It sounded like a door slamming.

Spoonman|6.1.09 @ 4:23PM|#

I still don't understand what's wrong with Sotomayor's statement. Having been discriminated against gives one a better understanding of the issue.

Warty|6.1.09 @ 4:24PM|#

Dammit, I missed a close-quote. My first Lonewacko story is ruined for all time.

hmm|6.1.09 @ 4:31PM|#

I still don't understand what's wrong with Sotomayor's statement. Having been discriminated against gives one a better understanding of the issue.

Really? I know physicists and astronomers that know more about space than 99% of the population and have never been there. Does not having experienced space make them less capable of explaining it or understanding it than an astronaut?

|6.1.09 @ 4:46PM|#

John and TAO-

Did you read Chapman's piece this morning? ALthough I do not think that Rush Limbaugh's David Duke comparison was particulary apt, Sotomayor's statement cannot be so easily dismissed along the lines of "its just those nasty right wing talk show hosts taking her out of context."

|6.1.09 @ 4:46PM|#

Does not having experienced space make them less capable of explaining it or understanding it than an astronaut?

Suppose you had two equally knowledgeable physicists and one had been to space and the other hadn't.

|6.1.09 @ 4:48PM|#

Warty hung his head in shame in front of the computer monitor. He finally had worked up the courage to post a LoneWacko story, and here he had gone and fucked up the quotation marks.

"Why, why, why?" he cried as he pounded his head against his blood-stained ergonomic keyboard. How could he have screwed up so badly? His psychologist had repeatedly told him he was too hard on himself, but this mistake meant that he was lower than NutraSweet.

He took out a cilice and wrapped it around his leg.

hmm|6.1.09 @ 4:51PM|#

Both would understand the principles the same.

You are missing the fact that this is about principles set forth not creating legislation. If the situation were applicable to someone who was involved in legislating you would have a point. As the argument stands your assertion is absurd. The math is the same here regardless of where you do it or your experience. The law is supposed to be blind and not consider the person it is being applied to. Just like the math.

Of course that system has been bastardized by those that think the way you do.

|6.1.09 @ 4:57PM|#

She should have used the word "misspoke" the republicans seem to like that one in the Bush days.

Warty|6.1.09 @ 4:58PM|#

Episiarch sobbed as he placed the shotgun barrel into his mouth. He looked around in desperation for a reason to stop, but he saw nothing but empty Cheetos bags and AD&D rulebooks.

He closed his eyes and fellated the cold blued steel, just for old time's sake. He took a deep breath and pulled the trigger with his toe. Everything went black.

No one cared but the rats.

|6.1.09 @ 4:58PM|#

I think Radley and Sotomayor are both right for the wrong reason. The First Amendment is supposed to protect people from being coerced due to their speech, not to protect them from being fired, which in every other context no libertarian considers coercion.

I doubt any libertarian would think that a security guard working for Brinks would be protected from being fired by the First Amendment if he did these things. But you're telling me a sucker of the public teat has MORE rights due to that status than someone who works in the private sector?

|6.1.09 @ 5:00PM|#

SO:

A cop brings up the FACT that black males commit violent crimes at a rate that is 100 times greater than the rate for white males.

You think he should be fired because he can't act impartially towards blacks

BUT:

A supreme court nominee who is an open racist (she is a member of La Raza - "the racists") CAN act impartially

YOU are a racist because you judge people exclusively on their skin color.

Warty|6.1.09 @ 5:08PM|#

YOU are a racist because you judge people exclusively on their skin color.

I wanna be a racist, but I haven't been able to afford that Ducati yet. Anybody wanna help me out?

|6.1.09 @ 5:17PM|#

Well was I surprised to see you left the gop and member of the aclu but turn coats are like that.the aclu is communist.
also i was furious you are comming out for a murderer of a police officer who ha been found gulty by hs peers and all the judges and lawyers that looked at his case.he should already been put to death.
you are like the other judges and jimmy carter who is a joke was when he was president.\
so nope you wont need police potection from any of them.
mayvbe charles manson and scott will get as many times to go to court they wont they are white
dont expect to hold office any more if i can help it

B|6.1.09 @ 5:22PM|#

"Sotomayor's defenders are right that the racism charge, which basically comes from one line pulled out of context from one of her speeches, is ridiculous."

Pulled out of context my ass. Exactly what context does saying "well, my Latina brain will arrive at superior decisions in comparison to some white dude" sound acceptable? The bitch wasn't misquoted, her words weren't twisted and she wasn't taken out of context. And here pathetic fucking rulings on cases that deal with race are more than adequate proof of that. The defense of her comments is almost as pathetic as the bullshit that came out of her mouth.

NLE|6.1.09 @ 5:22PM|#

I see Obama hats and clothes everyday where i work, I also hear people talk about him all the time. But, and I'm proud to say, I could give a rat's ass. I don't like Obama, but seriously, I see more and more people wigging out like he's the next Joe Stalin. GET A GRIP

The effort that some will go to believe this Sotomayor is a racist, is just an extension of Obama derangement syndrome (sorry).

Reading the whole stupid quote, it's just saying a wise latina is better at judging another latina than some old white guy. A case of odious group think, yes. Is it racist, only if you hurdle your dumb ass at Obama then you can believe she's a racist all you want because your stupid ass will be in jail.

Anyways, i don't know what it is with Reason and it's eagerness for Rule by employers, but it's pretty obvious whether talking about this cop or others, this is what they're getting at. I hate cops, LOTS, but I agree with old girl, until he does something to fuck up at work he still has rights.

Mister DNA|6.1.09 @ 5:25PM|#

Does anyone here have a Scarlet-to-English decoder ring?

ShutterGeek|6.1.09 @ 5:30PM|#

There is more than a single case to prove this issue is silly. Here is an analysis of 96 race related cases that Sotomayor has decided since becoming an appeals court judge.

Of 96 cases she rejected claims of discrimination 78 times and accepted claims 10 times (the rest were decided on a basis other than the merits). Of the 10 where she accepted the discrimination claim, she was part of a unanimous decision 9 times (and 7 of those 9 included republican appointees).

Hardly the record of a rabid racial activist, regardless of what you think of her overall philosophy.

|6.1.09 @ 5:31PM|#

NLE-

You are reaching. Just because one accurately concludes that another who joins an organization like La Raza is racist, or has racist tendencies, does not mean one is suffering from Obama derangement syndrome.

hmm|6.1.09 @ 5:31PM|#

The problem isn't here being a racist. It's her thinking that her race is even important. The race of the defendant has no bearing on the case in determining guilt. Before someone brings out the hate crime gong and correct me if I'm wrong, but hate crime legislation always deals with sentencing and not guilt. She is an appealing judge, she has zero concern except for the word of law and precedent anyway.

JB|6.1.09 @ 5:39PM|#

So if you work for the government you don't have 1st Amendment rights?

That's going to be an even bigger problem as the government keeps on growing.

|6.1.09 @ 5:53PM|#

ShutterGeek,

How many of the claims she rejected were claims by inexperienced white males (as in the New Haven firefighters case)?

|6.1.09 @ 5:56PM|#

JB,

You have the same rights as everyone else, ie, not to be coerced by the government due to your speech.

What I'm arguing against is the idea that government employees should be immune from being fired for their expressed political views. Those of us greedy, nassssty profiteers who work in the private sector don't have any such immunity (and reason presumably doesn't think we should!).

|6.1.09 @ 6:08PM|#

Having been discriminated against gives one a better understanding of the issue.

Has she been discriminated against? She actually had a pretty middle-class upbringing, not to mention a top-shelf education and career?

But even so, I can easily imagine that being discriminated against could be an impediment to a fair, judicial analysis of appellate issues. Being discriminated against could make you a better advocate, certainly, but not necessarily a better judge.

ShutterGeek: Now that's what I call a link. Very nice.

|6.1.09 @ 6:12PM|#

If anything, the NYPD had the right idea firing the guy. 1st Amendment or not, if this asshole had been in an inter-racial police situation (say... shooting the wrong black guy 52 times) his pamphleteering leaves the city open to a huge lawsuit.

BakedPenguin|6.1.09 @ 7:15PM|#

SugarFree, if they shoot the wrong anyone 52 times, I'm thinking NYPD is still getting sued. Even if the cop didn't pass out KKK pamphlets.

That is, assuming there were witnesses.

|6.1.09 @ 7:24PM|#

But it certainly lowers the prima facie bar, though...

ShutterGeek|6.1.09 @ 9:23PM|#

Tulpa, the referenced article doesn't say. Statistically I'd think it unlikely that most or even many of them were ("reverse discrimination" cases aren't as common as you might think), but that's pure speculation on my part.

You could email Tom and ask him. He seems to respond fairly regularly to even tempered inquiries. Based on his record I would expect him to have mentioned if a significant number of the discrimination cases involved discrimination against whites.

|6.1.09 @ 9:51PM|#

Noting the comment by "hmm" | June 1, 2009, 5:31pm-- exactly: race should not be a factor at all, and in saying it should be, she was off base.

|6.1.09 @ 11:37PM|#

point of order;

"La Raza" means "The Race"
"Los Racistas" means "the racists"