Posted by Eugene Volokh:
"Sotomayor Supported Censoring Biblical Verse on Homosexuality from New York
City Billboard":
http://volokh.com/archives/archive_2009_07_05-2009_07_11.shtml#1247290779
That's the headline on a [1]CNSNews.com article. But if you look
closely at what Judge Sotomayor actually did, the headline -- and some
other statements of the rest of the story -- doesn't really fit. (Note
that the CNSNews article has been [2]linked to by quite a few other
sources.)
Here's what happened in the case: Kristopher Okwedy's Keyword
Ministries made a deal with a billboard company to put up the
following billboards on Staten Island:
Word on the Street
4 WAYS TO SAY LEVITICUS 18:22
THOU SHALL NOT LIE WITH MANKIND AS WITH WOMANKIND: IT IS
ABOMINATION (KING JAMES)
YOU SHALL NOT LIE WITH A MALE AS WITH FEMALE: THAT WILL BE
LOATHSOME (JAMES MOFFAT)
DO NOT LIE WITH A MAN AS WITH A WOMAN: IT IS DETESTABLE (BERKLEY
VERSION)
HOMOSEXUALITY IS ABSOLUTELY FORBIDDEN FOR IT IS AN ENORMOUS SIN
(LIVING BIBLE)
I AM YOUR CREATOR
Guy Molinari, Staten Island Borough President, responded by sending a
letter to the billboard company that said:
For the last two days we have attempted to contact your office,
without success ....
I write regarding the recent appearance on two of your Staten
Island billboards of four translations of Leviticus. As you are
probably aware this particular biblical verse is commonly invoked
as a biblical prohibition against homosexuality.
The sponsor for the billboard message is nowhere apparent on the
billboard, so I am writing to you with the hope that I can
establish a dialogue with both yourself and the sponsor as quickly
as possible.
Both you and the sponsor of this message should be aware that many
members of the Staten Island community, myself included, find this
message unnecessarily confrontational and offensive. As Borough
President of Staten Island I want to inform you that this message
conveys an atmosphere of intolerance which is not welcome in our
Borough.
P.N.E. Media owns a number of billboards on Staten Island and
derives substantial economic benefits from them. I call on you as a
responsible member of the business community to please contact
Daniel L. Master, my legal counsel and Chair of my Anti-Bias Task
Force ... to discuss further the issues I have raised in this
letter.
The billboard company then took the signs down. Okwedy and Keyword
Ministries then sued Molinari for violating the Free Speech Clause,
the Free Exercise Clause, and the Establishment Clause. (There was
also an Equal Protection Clause claim, but that was in essence the
same as the Free Speech Clause claim.)
What did the Second Circuit panel, on which Judge Sotomayor was a
member, do? It [3]held in some measure for Okwedy on his Free Speech
Clause claim. It reasoned (in my view quite correctly) that
"Plaintiffs� Free Speech Clause claim turns on the question of whether
Molinari�s letter ... was an unconstitutional 'implied threat[] to
employ coercive state power to stifle protected speech,' or a
constitutionally-protected expression by Molinari of his own personal
opinion." And it reversed (again, in my view quite correctly) the
district court's conclusion "that Molinari�s letter was
constitutionally-protected speech because the 'letter ... was not
reasonably susceptible to a threatening interpretation, and [Molinari]
did not have regulatory authority over PNE�s business.'" The panel
concluded that
[A] jury could find that Molinari�s letter contained an implicit
threat of retaliation if PNE failed to accede to Molinari�s
requests. In his letter, Molinari invoked his official authority as
�Borough President of Staten Island� and pointed out that he was
aware that �P.N.E. Media owns a number of billboards on Staten
Island and derives substantial economic benefits from them.� He
then �call[ed] on� PNE to contact Daniel L. Master, whom he
identified as his �legal counsel and Chair of my Anti-Bias Task
Force.� Based on this letter, PNE could reasonably have believed
that Molinari intended to use his official power to retaliate
against it if it did not respond positively to his entreaties. Even
though Molinari lacked direct regulatory control over billboards,
PNE could reasonably have feared that Molinari would use whatever
authority he does have, as Borough President, to interfere with the
�substantial economic benefits� PNE derived from its billboards in
Staten Island.
The panel also issued an accompanying [4]unpublished opinion rejecting
the Free Exercise Clause and Establishment Clause claims. For both, it
reasoned -- again, in my view quite correctly -- that Molinari's
action was aimed at the anti-homosexual aspects of the message, not
the religious aspects of the message. This meant that there was no
Free Exercise Clause violation; as the Supreme Court's landmark
Employment Division v. Smith decision held, religion-neutral laws are
generally not violations of the Free Exercise Clause even when they're
applied to people who have religious motivations for their actions.
There was also no Establishment Clause violation, for much the same
reason; as the district court said (and on this the Second Circuit
unpublished opinion endorsed the district court), " The letter
responds to the message, not the religious source of the message. As
plaintiffs acknowledge, the billboards were deliberately erected to
convey an anti-homosexual message, and they were placed where
plaintiffs believe that a substantial number of members of the gay
community and their supporters would be exposed to it. That plaintiffs
used a quotation from the Bible to convey their message does not give
it extra protection, or insulate it from criticism by public
officials." These are easy decisions given the Court's Free Exercise
Clause and Establishment Clause caselaw, which is probably why the
panel decided that they weren't worthy of a published opinion.
So the CNS headline, "Sotomayor Supported Censoring Biblical Verse on
Homosexuality from New York City Billboard," strikes me as at the very
least quite likely to mislead readers. "Supported censoring," I think,
is likely to make people think that she rejected the group's Free
Speech Clause claim, and (to quote the second paragraph) "upheld a
lower court's ruling ... against" the claimants. But the panel
reversed the lower court's ruling against the claimants, and concluded
that if indeed the government official was "censoring" the verse in
the sense of threatening reprisals -- as opposed to exercising his own
free speech rights to condemn the speech -- that would have violated
the Free Speech Clause.
What's more, later on the story further errs by saying, "In their
'summary order' the judges ruled that the district court was correct
to dismiss Okwedy�s claim that Molinari�s letter violated free speech
rights." The summary order (that's the unpublished opinion I mentioned
earlier) didn't uphold the district court's free speech ruling; it
upheld its Free Exercise Clause and Establishment Clause rulings, and
the published opinion reversed the free speech ruling.
Later in the opinion (in paragraph 20, by my count), the story
acknowledges that the panel reversed the district court on something
("DePrimo also noted that the court issued two different opinions on
the case, dismissing most of the case with the summary order, but
writing a published opinion on one portion of the case that was sent
back to the district court") but doesn't says that this reversal was
on the free speech issue. Only in paragraph 29 does the story
acknowledge that in "the court's written opinion, ... Okwedy's free
speech claim was returned to the lower courts for a new ruling," and
quotes Prof. William Marshall as saying that "The part that I saw, the
speech piece of it, is a very pro-religious expression piece."
I think that the panel on which Judge Sotomayor sat handled the case
quite correctly (though I'm sure that I'd disagree with Judge
Sotomayor on lots of other issues in lots of other cases). But even if
one disagrees with the panel, it seems to me that the description in
the CNS News story is quite misleading.
References
1. http://www.cnsnews.com/public/content/article.aspx?RsrcID=50678
2.
http://www.google.com/search?q=%22%22Sotomayor+Supported+Censoring+Biblical+Verse+on+Homosexuality+from+New+York+City+Billboard%2C%22&ie=utf-8&oe=utf-8&aq=t&rls=org.mozilla:en-US:official&client=firefox-a
3.
http://www.ca2.uscourts.gov/decisions/isysquery/71a471b1-a4c0-4bcb-a3b5-605129498289/2/doc/01-7941_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/71a471b1-a4c0-4bcb-a3b5-605129498289/2/hilite/
4.
http://www.ca2.uscourts.gov/decisions/isysquery/cdff05ae-72b0-4898-bda6-d3449e13fde1/3/doc/01-7941_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/cdff05ae-72b0-4898-bda6-d3449e13fde1/3/hilite/
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