Sotomayor, Cops, and Hate Speech


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.