Judge Sonia Sotomayor’s Record on Privacy

Sotomayor

On May 26, 2009, President Obama nominated Judge Sonia Sotomayor to replace Justice David H. Souter on the Supreme Court. Judge Sotomayor graduated summa cum laude from Princeton University where she also was elected to Phi Beta Kappa and won the Pyne Prize, the top prize for undergraduates. She attended Yale Law School where she was editor of the Yale Law Journal. She joined the New York District Attorney's Office immediately upon graduating. Judge Sotomayor then entered private practice, eventually becoming partner at Pavia & Harcourt. She specialized in intellectual property litigation, international law, and arbitration. President George H. W. Bush nominated Judge Sotomayor to the U.S. District Court for the Southern District of New York in 1991. In 1997, President Bill Clinton nominated her to the U.S. Court of Appeals for the Second Circuit. 

If Sotomayor is successfully confirmed by the Senate, she may encounter Constitutional and statutory issues in the area of privacy law during her tenure on the Court. In the contemporary environment, Constitutional and statutory protections of privacy are more vital than ever.

Judge Sotomayor's previous opinions on Fourth Amendment, First Amendment, and open government issues provide some indication of how she might rule when similar issues reach the Supreme Court in the future. This web page highlights important rulings by Judge Sotomayor in these areas.

Notable Cases

  • Search and Seizure- Daumutef v. Hollins, 297 F.3d 108 (2d Cir. 2002)(regarding the opening and reading of a prisoner's mail).

In Daumutef v. Hollins, Duamutef, an inmate, filed a 42 U.S.C 1983 action, pro se, which alleged that a defendant, an administrator of his correctional facility, had violated the First Amendment of the U.S. Constitution by instituting a "mail watch," authorizing the opening and reading of all of Daumutef's non-privileged incoming and outgoing correspondence for thirty days. The initiation of this "watch" was partially spurred by Daumutef's history as a leader of boisterous demonstrations and as a disseminator of inflammatory reading materials in his correctional facility, and for allegedly misaddressing mail containing correspondence advocating the overthrow of the government. Finally, his receipt of a book titled Blood in the Streets: Investment Profits in a World Gone Madprovided the final straw. The "provocative tone" of the first four words of the title compelled administrators to open and read Daumutef's mail for thirty days.

Sotomayor, writing for the majority, dispatched the issue of the administrators' liability by raising the doctrine of qualified immunity. The doctrine shields government officials from liability for civil damages when their conduct does not violate "clearly established statutory or constitutional rights of which a reasonable person would have known." In prison settings, she acknowledged, prisoners have a diminished expectation of privacy to enable officals to forestall violence by anticipating the probable consequences of certain speech.

The Second Circuit Court had previously ruled in U.S. v. Workman, that, pursuant to safety considerations, administrators were permitted to open and read a prisoner's mail when there was a "rational connection between the decision to impose a watch on [a prisoner's] mail and the desire to ensure the good order of the prison…" In Turner v. Safley, the Supreme Court ruled that any restriction on a prisoner's privacy is permitted insofar as the restriction is reasonably related to legitimate penological objectives. Sotomayor extended these principles to Daumutef, reversing the district court's denial of the defendant's motion for summary judgment. Conceding that the administrator adopted a course of action partially on the basis of mistaking Blood in the Streets a harmless economics book, for something inflammatory, Sotomayor reasoned that no rational jury could have found for Daumutef because the "mail watch" was inextricably tied to legitimate penological interests. She wrote:

[W]e find that it is generally sufficient for a prison official to base a security decision on the title alone. Considering the limited resources of prison systems and the intense pressure to prevent security problems, we cannot expect more of corrections personnel in most circumstances.

Thus, she concluded that the administrator's failure to peruse the contents of the book had no effect on the legitimacy of his "watch."

  • Search and Seizure- N.G. v. Connecticut, 382 F.3d 225 (2d Cir. 2004)(Sotomayor, J., concurring and dissenting in part)(regarding strip searches young girls at juvenile facilities).

In N.G. v. Connecticut, two young girls were strip searched on more than one occasion, and as a result of these searches, their families filed a lawsuit under 42 U.S.C. 1983 for damages and injunctive relief against the State of Connecticut. They alleged that the strip search policies of various juvenile detention centers violated the Fourth Amendment. Although the Second Circuit held that most of the repeated strip searches were constitutionally prohibited, it ultimately found that the Fourth Amendment did not prohibit the initial strip searches due to the "special needs" of children and based upon overarching concerns about institutional safety. The court also found that the fourth and eighth strip searches for one of the girls was also constitutionally permissible.

Sotomayor concurred with the majority that the Fourth Amendment prohibited the reptitious strip searching in this case. She dissented in part, however, concluding that the Fourth Amendment prohibited all of the strip searches at issue. Sotomayor rejected the application of the "special needs" doctrine which gave the detention centers broad authority to search children. Although approved the majority's refusal to apply the penological interest test applied above in Daumutef, Sotomayor regarded the application of the "special needs" test as being overly harsh in this case, particularly because the two girls were already emotionally troubled before the administration of the strip searches and because neither one had ever been charged with a crime. She wrote:

The question instead is whether the government's concerns are sufficiently credible and sufficiently weighty to justify a highly degrading, intrusive strip search absent any individualized suspicion that the particular young adolescents ordered by the state to disrobe possess contraband. To that question, I would respond in the negative.

  • Search and Seizure- Kelsey v. County of Schoharie, No. 07 Civ. 1782 (2d Cir. May 22, 2009)(Sotomayor, J., dissenting)(strip searches of adult males in jail on misdemeanor charges).

In Kelsey v. County of Schoharie , the court dealt with separate strip searches of two adult males in jail on misdemeanor charges. The prisoners were required to strip for prison administrators, exposing themselves to them as well as to inmates in nearby cells. The majority found that the searches were not unconstitutional. In fact, they determined that the incidental observation of the arrestees' bodies did not render the searches unreasonable due to an institutional interest in preserving law and order. Moreover, the majority accorded "substantial deference to prison administrators, who, as in Daumutef, were better equipped and experienced to make case by case determinations about the reasonableness of a search, particularly when inmates held a limited expectation of privacy and freedom of movement in general.

Sotomayor, rather, presented a different view of the case in her dissent. Arguing that the strip search violated the Fourth Amendment, she departed from the deference rationale she had previously articulated in Daumutef. Sotomayor, on the other hand, found the strip searches to be unconstitutional despite the significant penological interests. She argued that those interests could be effectively carried out by less intrusive search methods, particularly where the arrestee is charged with a misdemeanor. This is especially true when the government concedes that penological interests are satisfied by a less invasive search than a strip search. She wrote:

[W]here defendants, themselves, have conceded that penological interests are satisfied in a manner that does not require the forced exposure of private parts, we should not condone an alleged infringement upon constitutionally protected privacy interests merely because we can imagine an alternative procedure that we might consider to be more effective.
  • Search and Seizure- U.S. v. Santa, 180 F.3d 20 (2d Cir. 2004)(concerning errors in a police computer database).

In U.S. v. Santa, police officers arrested Anthony Santa and seized a jacket from him which contained several vials of cocaine. He was charged with several offences that were filed on the same day in a local criminal court. Due to technological error and miscommunication between various police departments and courthouses, two of his charges were refiled and a warrant for his arrest was issued. Santa was later arrested pursuant to the outstanding arrest warrant. His arresting officers discovered that he had been traveling with bags filled with crack cocaine. The warrant, however, had been vacated seventeen months earlier, without their knowledge. The issue present was whether the arrest had violated Santa's Fourth Amendment rights because the warrant had been vacated seventeen months earlier, and accordingly whether evidence of the discovered cocaine should have been suppressed at trial.

In 1995, the Supreme Court had answered this question in the negative in Arizona v. Evans. Focusing on the deterrence rationale of the exclusionary rule, Justice William Rehnquist found that incriminating evidence acquired due to an error in a computer database should not be suppressed because the suppression of the evidence would not prevent or deter such errors from occuring in the future. Nevertheless, Justice Sandra Day O'Conner, in a separate concurring opinion, expressed concern that privacy rights may be much more diminished because of an officer's ability to rely on error-prone record keeping systems without being held accountable through the suppression of evidence. Justice John Paul Stevens, in a dissent joined by Justice Ruth Bader Ginsburg, wrote that the suppression of evidence based on computer errors would have some impact on the number of errors made in the future.

Despite her trend toward greater privacy protection through the curtailment of administrative discretion, in U.S. v. Santa,Judge Sotomayor, adopted Justice Rehnquist's reasoning in Arizona v. Evans (finding "the exclusion of evidence at trial would not sufficiently deter future errors so as to warrant such a severe sanction" as the exclusionary rule). Yet, Sotomayor also wrote:

  • Of course, the Evans exception, while categorical, is not absolute. As noted above, it would not apply if the arresting officers' reliance on the erroneous computer record was not objectively reasonable because the recordkeeping system itself was unreliable.

  • Search and Seizure- U.S. v. Castellano, 820 F.Supp. 80 (S.D.N.Y. 1993)(addressing the validity of a warrant based upon lies or dubious facts).

Nelson Castellano's was arrested pursuant to an arrest warrant and charged with conspiracy to distribute cocaine. The arresting officers found he was carrying $10,000 in cash in mostly one and twenty dollar bills. The officers took custody of the cash and his keys. They went into his building, matched his keys to the door of an apartment and entered the apartment to conduct a security sweep after hearing noise coming from within. A detective in the arresting group then prepared an affidavit for a search warrant to search the apartment. A magistrate initially would not issue the warrant, but finally did so after the detective inserted additional facts into the affidavit. Based upon the new facts, the warrant was issued and the search was conducted. Castellano moved to suppress the evidence based on the validity of the warrant because of the dubious truth of the facts inserted into the affidavit.

Judge Sotomayor heard the casewhile a District Court Judge for the Southern District of New York. First, having determined that based on discrepancies in the detective's testimony, the additional facts were false or were made with reckless disregard for their truth, Sotomayor considered whether the magistrate had determined if the original affidavit established probable cause. She did not, however, examine whether the original affidavit established probable cause to issue a valid warrant. Rather, she concluded that the magistrate's first refusal indicated there was no probable cause. She reasoned:

To reject the magistrate's original determination in a case such as this would reward and encourage deception by giving the government and police multiple bites at the apple. Where a magistrate determined that there was not probable cause, or questioned the sufficiency of facts proffered during a warrant hearing, the applicant would be encouraged to supplement the affidavit with false information that would guarantee the issuance of a warrant. Then, the search will have occurred and the police and government would still have a de novo review of the affidavit. This result would be contrary to the basic tenets expressed by the constitutional requirements for a search warrant. 

  • Search and Seizure-U.S. v. Howard, 489 F.3d 484 (S.D.N.Y. 2007)(regarding automobile searches)

The case of U.S. v. Howard, a fairly recent decision, involved the suppression of evidence from automobile searches in two separate cases. The issues that arose in both cases were whether there was probable cause to execute the searches and whether police needed a search warrant in order to do so. In both instances, the police officers devised a ruse to lure the defendants away from their respective cars. Then, while the defendants were away, the police officers executed a search of both cars. In the course of both searches, police officers discovered drugs and large quantities of cash. The police officers did not have a warrant to search either car and subsequently sought to make it appear that neither car was searched. As a result, both defendants sought to suppress evidence the police found while searching their respective cars.

The district court had ruled that although probable cause existed, a warrant was still required, and thus ordered that the evidence, in both cases, be suppressed. Judge Sotomayor, who wrote the Second Circuit opinion, disagreed. Although she agreed with the district court that probable cause was present, she found that the warrant was unnecessary. Sotomayor held that the searches qualified for the automobile search exception. The automobile search exception exempts police searches based on probable cause from the warrant requirement during a car search "if [the vehicle] is readily mobile…" Here, the district court had determined that the two cars were not readily mobile because (1) the defendants had been taken away from their vehicles; (2) they were not given notice of the search; (3) and could not move their cars even if they wanted to. Sotomayor found the district court erred in its analysis. She reasoned that "readily mobile" meant that a vehicle was inherently mobile, regardless of whether its owner had been informed that a search would take place or was even in the vicinity of the vehicle when the search occurred. According to Sotomayor, the mere fact that a vehicle was capable of being moved was enough to dispense with the warrant requirement for a search of that vehicle. Following the Supreme Court's reasoning in California v. Carney, Sotomayor noted that the defendants in Howard had a diminished expectation of privacy in their cars and that, accordingly, the fact that they could not immediately access their cars was no bar to the application of the automobile exception to the warrant requirement in this case. Sotomayor vacated the order of the district court to suppress the evidence of the two warrantless searches.

  • Special Needs Searches -Cassidy v. Chertoff, 471 F.3d 67 (2d Cir. 2006)(involving a ferry business that searched its passengers pursuant to a federal statute enacted to prevent acts of terrorism).

In Cassidy v. Chertoff, a recent Second Circuit decision, the Lake Champlain Transportation Company ("LCT"), a ferry business had engaged in the practice of conducting random screenings of persons, cargo, vehicles, or carry-on luggage pursuant to the Maritime Transportation Security Act of 2002 ("MTSA"). The act requires vessels of a certain class size to plan and implement policies that will deter the "unauthorized introduction of dangerous substances and devices, including any device intended to damage or destroy persons, vessels, facilities, or ports." LCT planned and implemented policies for its vessels and the federal government approved them. The policies provided that foot and bicycle passengers would be required to open their carry-on items and present them for visual inspection. In addition, car passengers were required "to open their trunks or tailgates and [to] present them for visual inspection" and to occasionally open their windows to permit a visual inspection of their cars' interior. In general, however, attendants would refrain from searching containers contained within car trunks or tailgates. LCT also placed large plastic signs near its ticket booth and ferry boarding areas stating that:

All vehicles, baggage, and personal items were subject to screening at any time; and that failure to observe [the] requirements could result in immediate removal from the ferry or detention by law enforcement authorities.

In this case, LCT screened two passengers: they asked the one passengers as they attempted to take a trip. They asked one passenger to open his bike pack for inspection and the other to open his car on several times. Both passengers acquiesced to the respective requests to search because, otherwise, they would not have been allowed on any ferry. As a result of these incidents, the two passengers sued LCT and others for violating their Fourth Amendment Rights.

Sotomayor found that the searches fell within the ambit of Fourth Amendment protection because even though they were carried out by a private party, they were executed at the instigation of the government. She determined that the plaintiffs' had a full expectation of privacy in their carry-on bags. Presuming that they had a full expectation of privacy in the trunk of their car, Sotomayor employed a "special needs" test. She assessesed the constitutionality of the challenged conduct by weighing "the government conduct--in light of [a] special need and against the privacy interest advanced'--through the examination of three factors: (1) the nature of the privacy interest involved; (2) the character and degree of the governmental intrusion; and (3) the nature and immediacy of the government's needs, and the efficacy of its policy in addressing those needs." Having already determined the nature of the plaintiffs' privacy, Sotomayor looked to three factors to determine the character and degree of governmental intrusion on privacy rights: (1) The duration of the search; (2) the manner in which government agents decide which individuals to search; and finally, (3) the notice given to individuals that they are subject to a search. Sotomayor concluded that the character and degree of the intrusion was minimal. She found that the duration of the search was cursory, that there was no unbridled discretion delegated to LCT employees to execute a search. Moreover, there was ample notice provided to individuals, informing them that although they were subject to searches, they could avoid a search altogether by exiting the premises. Finally, she ruled that preventing terrorism was a special need. Although she conceded that government's special need of preventing terrorism can be problematic when there is no clear limit to the government' s power to conduct suspicionless searches, this was not the case in Chertoff. Here, the government imposed security requirements on the nation's largest ferries only after extensive research about the threat of terrorism on such vessels. Thus, the government's conduct limited the scope of its power, and consequently warranted the validation of its special need in this case. Last, Sotomayor found that the searches were suited for the "special need" of preventing terrorism because they served as a reasonable method of deterring terrorism. Accordingly, she granted the defendant's motion to dismiss. She wrote:

While plaintiffs enjoy undiminished privacy expectations in their carry-on baggage and we presume such undiminished expectation in the trunks of their vehicles, we find that...given that both the intrusions on plaintiffs'privacy interests are minimal and the measures adopted by LCT are reasonably efficacious in serving the government's undisputedly important special need to protect ferry passengers and crew from terrorist acts, we find no constitutional violation. Accordingly, we affirm the district court's judgment granting defendants' motion to dismiss.

  • Special Needs Searches -Leventhal v. Knapek, 266 F.3d 64 (2d Cir. 2001)(involving the search of an employee's computer).

In this next case, Leventhal v. Knapek, Gary Leventhal, an employee for the Accounting Bureau of the New York State Department of Transportation ("DOT"), filed suit against his employer for violating his Fourth Amendment rights, among other things. The DOT discovered that Leventhal had been using his work computer for non-work related purposes. The employers initiated a search, without Leventhal's consent, after receving a letter alerting them to Leventhal's activities.

Sotomayor decided that Leventhal was entitled to a reasonable expectation of privacy with respect to his workplace computer. First, she indicated that the issue of whether an expectation of privacy was reasonable was to be determined by its circumstances. She noted that DOT had never instituted a practice of routinely conducting searches of employee workstations or computers. Moreover, when supervisors did conduct computer searches, they were performed in a cursory manner (indicating that "one unannounced visit to Leventhal's computer was [made] only to change the name of the server"). Although Sotomayor decided that Leventhal had a reasonable expectation of privacy to his computer, she determined that DOT had not violated Leventhal's Fourth Amendment rights. She first reasoned that the search had not been intrusive because it was limited in scope. Since the search related to Leventhal's "alleged penchant" for being inattentive to his duties, the investigators focused the search on the viewing and printing of file names. Second, she decided the search satisfied the "special need" of ensuring that prohibitions against misuse of computer equipment were enforced. Third, Sotomayor determined that the search was reasonably related to knowing whether Leventhal was misusing his computer. Sotomayor affirmed the district court's grant of summary judgment for the defendants.

  • Special Needs Searches -N.G. v. Connecticut, 382 F.3d 225 (2d Cir. 2004)(Sotomayor, J., concurring and dissenting in part)(regarding strip searches young girls at juvenile facilities).

In N.G. v. Connecticut, the Second Circuit found that out of a number of strip searches administered to two girls detained in juvenile correction facilities, most of the searches were unconstitutional under the Fourth Amendment. The court explained that the state had a "special need" in taking "reasonable action to protect youths from the hazards resulting from the presence of contraband." Strip searching, the court determined, was well suited to accomplish that goal. Moreover, the court decided that while there was a reasonable basis to strip search youths as they entered a juvenile facility, there was no reason for searching them again after the initial search, unless there was a reasonable basis to believe they had acquired and secreted contraband while inside the juvenile facility. Sotomayor, concurring and dissenting in part, concluded, however, that the majority erred in finding that some of the strip searches were not constitutionally prohibited. She explained that the highly invasive character of strip searches, taken in conjunction with their inherently embarrassing and dehumanizing impact on minors, called for some degree of individualized suspicion before such searches were performed. Sotomayor found that the majority's decision to permit the state to execute strip searches of the two girls was unreasonable. The girls had never been charged with any crime. She wrote:

To hold that the strip searches of the two girls in the instant appeal were reasonable is equivalent to saying that these girls are entitled to the same level of Fourth Amendment protection as prison inmates held on felony charges, and to decidedly less protection than people crossing the border, [or] jail inmates detained on misdemeanor charge.

In essence, she found that the majority's unwillingness to demand individualized suspicion for strip searching juveniles was akin to permitting administrators to treat persons not alleged to have committed a crime as if they were already proven guilty of one. Therefore, she concluded that reasonable suspicion of misconduct was required before the plaintiffs in N.G. v. Connecticut were strip searched. Second, Sotomayor addressed the efficacy of the strip search policy. She contended that the strip searches at issue did not bear a "close and substantial relationship" to the government's "special need" in the case. She examined thirty-four event reports from juvenile facilities during the period of 1995 through 2000 when contraband was found in the possession of detainees.

Of the thirty-four reports of contraband violations, thirty-two describe contraband that either (1) was discovered through a search that was less intrusive than a full strip search; (2) could have been discovered through a search that was less intrusive than a full strip search; or (3) could have been discovered through a policy that allowed strip searches only in cases of individualized suspicion. With regard to the remaining two reports, it is unclear whether a strip search was necessary for discovery of the contraband; it is also unclear if individualized suspicion existed. Thus, the detention centers' own documentation of contraband discoveries provides absolutely no evidence that suspicionless strip searches were necessary, or even helpful, in any case.

Moreover, Sotomayor contended that the government's second "special need" rationale was even weaker. The government argued they had a special need to prevent child abuse. Sotomayor noted that there was no evidence on the record to suggest a "close and substantial" relationship between preventing child abuse and conducting strip searches. Sotomayor, however, would permit the strip search of a juvenile when the administrators in the case had gathered information concerning the criminal and medical history of the detainee. Such information would have furnished the requisite reasonable suspicion to conduct a strip search. This, however, was not the case in N.G. v. Connecticut. Accordingly, Sotomayor found that all of the strip searches at issue violated the Fourth Amendment.

  • First Amendment- Kraham v. Lippman, 478 F.3d 502 (2d Cir. 2007)(concerning restrictions on receiving fiduciary appointments).

In Kraham v. Lippman, Judge Sotomayor affirmed a district court ruling that the section 36.2(c)(4)(i) of the Rules of the Chief Judge of the State of New York ("the Rule"), which prohibits certain high-ranking political party officials, their families, and the members, associates, counsel, and employees of their law firms from receiving New York State court fiduciary appointments did not violate Bonnie Kraham's First Amendment right to freedom of political association.

Judge Sotomayor considered whether or not the district court should have applied strict scrutiny rather than rational basis review of the First Amendment claim. She explained:

  • When evaluating a First Amendment challenge to a limitation on associational freedom, courts apply either strict scrutiny, in which case the restriction survives only if it is narrowly drawn to advance a compelling state interest, ... or rational basis review, in which case the restriction need only be rationally related to a legitimate government interest... When a challenged regulation imposes "severe burdens" on the right to associate into political parties, it must survive strict scrutiny.


Statutes analyzed under strict scrutiny typically involve restrictions on "the internal workings of political parties," as well as "restrictions on voters' access to the polls, [and] candidates' access to the ballot." …If, however, to ensure fairness in government or in the party system, the regulation affects political party participation only in a limited and incidental fashion, the restriction should be reviewed only for a rational basis.

In Pappas v. Guiliani, Judge Sotomayor dissented from the majority decision which held that a police officer could be dismissed for anonymously sending racist and anti-semitic material through the mails. Whereas the majority argued that the government interest in maintaining its effectiveness in policing its community outweighed the First Amendment rights of its employee, Judge Sotomayor's dissent focused on the anonymous nature of Pappas's speech and the fact that the speech took place when he was off duty.

Judge Sotomayor explains that Pappas's identity would not have been revealed but for the police department's investigation into the mailings and the publicity surrounding the issue. The disclosure of his identity in this fashion should not detract from Pappas's right to speak anonymously.

Ultimately, the governmental interest that the majority seeks to protect in this case is publicity. The majority's core concern seems to be that, even though Pappas was a low-level employee with no public contact who was speaking privately and anonymously, the possibility remained that the news would get "out into the world" that the NYPD was employing a racist. I agree this is a significant issue, and I do not take it lightly. This Court has made clear that negative publicity affecting the community's faith in government can be a significant factor in the Pickering balancing test...

The majority's decision allows a government employer to launch an investigation, ferret out an employee's views anonymously expressed away from the workplace and unrelated to the employee's job, bring the speech to the attention of the media and the community, hold a public disciplinary hearing, and then terminate the employee because, at that point, the government "reasonably believed that the speech would potentially ... disrupt the government's activities...This is a perversion of our "reasonable belief" standard, and does not give due respect to the First Amendment interests at stake."

In N.Y. Civil Liberties Union v. Grandeau, Judge Sotomayor granted summary judgment to the defendant, the director of a state lobbying commission against the plaintiff-appellant, the New York Civil Liberties Union ("NYCLU"). NYCLU claimed that the commission's demand from the organization to produce additional information for reporting expenses regarding a certain billboard violated its First Amendment rights. The billboard promoted awareness of free speech issues in private shopping malls in New York State. Judge Sotomayor affirmed the district court's grant of summary judgment under the prudential ripeness doctrine rather than the mootness doctrine as the district court had. She held that the NYCLU's First Amendment claim was not ripe for adjudication. She reasoned that while the NYCLU had standing, the issue itself ("whether the alleged policy at this stage is sufficiently definite and clear to permit sound review by this Court of the NYCLU's First Amendment challenge") was not fit for judicial review at this time.

Judge Sotomayor applied a two-step analysis-the court must "evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." Judge Sotomayor noted that in First Amendment cases, the "hardship standard is relaxed somewhat" "to avoid the chilling of protected speech," but "some credible fear of enforcement must exist." She found that the NYCLU had not exhausted its administrative options, which included seeking an advisory opinion from the Commission regarding the matter. Judge Sotomayor found that "the NYCLU has not demonstrated that it will suffer hardship by our withholding judicial review. Although the NYCLU must grapple with some ambiguity in preparing its regular reports, it has not shown that this lack of clarity is the cause of 'present detriment,' rather than a 'mere possibility of future injury' if the Commission initiates another inquiry or enforcement action." Finally because the NYCLU did not allege that its lobbying efforts would be hindered by the lack of a judicial review, their First Amendment activities would not be chilled.

In Rivera-Powell v. N.Y. City Bd. of Elections, the question presented was whether a prospective judicial candidate was improperly removed from the primary ballot by the city board of elections. Judge Sotomayor held that the appellant, a candidate to be a judge of the Civil Court of New York and the voters supporting her candidacy, did not exhaust the Board of Elections' administrative remedies (specificially a pre-deprivation hearing and an adequate judicial procedure by which to challenge any alleged illegalities in the Board's action). Judge Sotomayor also held that Rivera-Powell and her co-plaintiffs failed to state violations of their procedural due process and First Amendment rights. She wrote:

The general rule is that § 1983 claims, including First Amendment claims, do not require exhaustion of state remedies. When § 1983 claims allege procedural due process violations, we nonetheless evaluate whether state remedies exist because that inquiry goes to whether a constitutional violation has occurred at all...'Exhaustion simpliciter is analytically distinct from the requirement that the harm alleged has occurred. Under the jurisprudence, a procedural due process violation cannot have occurred when the governmental actor provides apparently adequate procedural remedies and the plaintiff has not availed himself of those remedies.'"

Judge Sotomayor reasoned further that Rivera-Powell's claim failed because

her First Amendment claim is inextricably intertwined with the question of whether the state afforded her procedurally adequate process. As we discussed above, New York provided Rivera-Powell appropriate opportunities to challenge the Board's allegedly improper conduct in the form of an initial hearing and full judicial review. When, as here, a plaintiff challenges a Board of Election decision not as stemming from a constitutionally or statutorily invalid law or regulation, but rather as contravening a law or regulation whose validity the plaintiff does not contest, there is no independent burden on First Amendment rights when the state provides adequate procedures by which to remedy the alleged illegality."

A significant concern for Judge Sotomayor was that "a contrary holding would permit any plaintiff to obtain federal court review of even the most mundane election dispute merely by adding a First Amendment claim to his or her due process claim. We would thereby undermine our holding--one which we share with many other circuits court intervention in "garden variety" election disputes is inappropriate..."

  • First Amendment- Farrell v. Burke, 449 F.3d 470 (2d Cir. 2006)(concerning pornography)

In Farrell v. Burke, a case involving an as-applied challenge to the pornography-related conditions of supervised release, Judge Sotomayor explained that "[t]he vagueness doctrine is a component of the right to due process...vagueness in the law is particularly troubling when First Amendment rights are involved." "Where a statute's literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts." Judge Sotomayor ultimately held that "under all definitions relevant to Farrell's case, Scum was pornographic. We therefore find that Farrell had adequate notice that Scum was prohibited by his parole agreement and that the no-pornography condition was not vague under the first prong of our as- applied vagueness analysis." Moreover, "[f]irst, we note that the First Amendment rights of parolees are circumscribed. Pornographic materials-at least those that are not obscene-receive full First Amendment protection when in the possession of ordinary adults, but may be regulated in the hands of parolees to a much greater extent..."

  • First Amendment - United States v. Quattrone, 402 F.3d 304 (2d Cir. 2005)(concerning a judge's ban on media publication of jurors' names).

United States v. Quattrone held that a judge's ban on media publication of jurors' names during trial was unauthorized prior restraint. Nothing in the record justified the judge's ruling according to the majority. Judge Sotomayor wrote "A judicial order forbidding the publication of information disclosed in a public judicial proceeding collides with two basic First Amendment protections: the right against prior restraints on speech and the right to report freely on events that transpire in an open courtroom. Because nothing in this case justified the district court's infringement of these two central freedoms, we hold that the court's order violated the Free Speech and Free Press Clauses of the First Amendment." She noted:

Though we define prior restraints as content-based restrictions for purposes of this decision, we recognize that the caselaw has not clearly articulated whether prior restraints are always, by definition, content-based...The district court's order barring publication of jurors' names not only subjected appellants to a prior restraint on speech, but also infringed their freedom to publish information disclosed in open court. This imposed an independent constitutional harm on appellants and rendered the district court's violation of the First Amendment even more plain...While we appreciate the district court's efforts to avoid an unfair or disorderly trial, the freedoms of speech and press invariably must inform a court's choice of remedy...

  • Right to Control Disclosing Identity- Wood v. FBI , 432 F.3d 78 (2d Cir. 2005)(regarding FOIA exemptions)

In Wood v. FBI, Judge Sotomayor, writing for the majority, found that though FOIA exemptions should be construed "narrowly, resolving all doubts in favor of disclosure," she denied a reporter's request for an FBI memorandum regarding local FBI agents accused of lying. She reasoned that the "unwarranted invasion of privacy" for the individuals whose names would be released outweighed the public interest in disclosing a government employee's identity. Alexander Wood, a reporter for the Journal Inquirer of Manchester, Connecticut filed a FOIA request seeking disclosure of a prosecution memorandum ("the Radek memo") prepared by two trial attorneys in the Public Integrity Section of the Department of Justice ("DOJ") and other documents related to the investigation of Connecticut Federal Bureau of Investigation ("FBI") agents accused of lying in affidavits supporting arrest warrant applications.

Judge Sotomayor likened administrative investigative files to personnel and medical files which generally contain information about an individual's place and date of birth, marriage, employment history, spouse and children's birth dates and other identifying information. Disclosure of a witness's identity is subject to the FOIA Exemption 6 balancing test. First, a judge must determine whether the personal information is contained in a file similar to a medical or personnel file. "In considering whether the information is contained in a "similar" file, we ask whether the records at issue are likely to contain the type of personal information that would be in a medical or personnel file. At the second step of the analysis under Exemption 6, we balance the public's need for the information against the individual's privacy interest to determine whether the disclosure of the names would constitute a 'clearly unwarranted invasion of personal privacy.'"

Judge Sotomayor noted that the "[n]ames and other identifying information do not always present a significant threat to an individual's privacy interest. Instead, whether the disclosure of names of government employees threatens a significant privacy interest depends on the consequences likely to ensue from disclosure." Further, "[t]his Court and others have recognized that government investigative personnel may be subject to harassment or embarrassment if their identities are disclosed...This interest against possible harassment and embarrassment of investigative personnel raises a measurable privacy concern that must be weighed against the public's interest in disclosure." Judge Sotomayor explained:

Given that the FBI has already revealed the substance of the investigation and subsequent adjudication, knowledge of the names of the investigators would add little, if anything, to the public's analysis of whether the FBI dealt with the accused agents in an appropriate manner. Because we find the public interest to be negligible, the investigators' interests in preventing the public disclosure of their identities substantially outweighs it. Consequently, such disclosure would be a "clearly unwarranted invasion of privacy" and the names were properly withheld by the FBI pursuant to Exemption 6 to FOIA...

  • Internet- Specht v. Netscape, 306 F.3d 17 (2d Cir. 2002)(regarding contract formation in cyberspace)


In Specht v. Netscape Communications Corp, the Court of Appeals for the Second Circuit affirmed the district court's denial of defendants motion to compel arbitration and to stay court proceedings. The primary issue under consideration was whether or not individual internet users invited to download free software could be bound by the software's license terms even though they would not have learned of the existence of the terms unless, prior to executing the download, they had scrolled down the webpage to a screen located below the download button. A second issue concerned whether, by downloading the free software and being unaware of the license terms, the plaintiffs were nevertheless bound by that arbitration clause. The court held that "Reasonably conspicuous notice of the existence of contract terms unambiguous manifestation of assent to those terms by consumers are essential if electronic bargaining is to have integrity and credibility."

Judge Sotomayor reasoned that "a consumer's clicking on a download button does not communicate assent to contractual terms if the offer did not make clear to the consumer that clicking on the download button would signify assent to those terms." Having concluded that no contract had been formed, Judge Sotomayor moved on to the question of whether the scope of Netscape's license terms (particularly the arbitration clause) included SmartDownload even though SmartDownload had a separate license agreement. If Netscape Communicator's license agreement extended to SmartDownload then the plaintiffs would be bound by the arbitration clause. The plaintiffs who downloaded Netscape's free software intentionally upgraded their Netscape Navigator Internet browser program to Communicator, a software suite during the same period in question. The defendants argued that the arbitration clause in the Communicator license included in its scope the SmartDownload software even though the license did not expressly mention SmartDownload. Judge Sotomayor found that because the Netscape Communicator license did not expressly include reference to plug-in programs like SmartDownload, the merger clause foreclosed the extension of the arbitration requirement to SmartDownload disputes.

Judge Sotomayor pointed out that the plaintiffs both consistently distinguished between the Communicator and SmartDownload agreements and emphasized that the SmartDownload program violated their privacy by "eavesdropping" on the plaintiffs "by clandestinely transmitting personal information toOn May 26, 2009, President Obama nominated Judge Sonia Sotomayor to replace Justice David H. Souter on the Supreme Court. Judge Sotomayor graduated summa cum laude from Princeton University where she also was elected to Phi Beta Kappa and won the Pyne Prize, the top prize for undergraduates. She attended Yale Law School where she was editor of the Yale Law Journal. She joined the New York District Attorney's Office immediately upon graduating. Judge Sotomayor then entered private practice, eventually becoming partner at Pavia & Harcourt. She specialized in intellectual property litigation, international law, and arbitration. President George H. W. Bush nominated Judge Sotomayor to the U.S. District Court for the Southern District of New York in 1991. In 1997, President Bill Clinton nominated her to the U.S. Court of Appeals for the Second Circuit. 

If Sotomayor is successfully confirmed by the Senate, she may encounter Constitutional and statutory issues in the area of privacy law during her tenure on the Court. In the contemporary environment, Constitutional and statutory protections of privacy are more vital than ever.

Judge Sotomayor's previous opinions on Fourth Amendment, First Amendment, and open government issues provide some indication of how she might rule when similar issues reach the Supreme Court in the future. This web page highlights important rulings by Judge Sotomayor in these areas.

The Nomination Process

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