TheAgitator.com
Sotomayor, Cops, and Hate Speech
Monday, June 1st, 2009Some 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 Sotomoyor isn’t the caricature her oppoennts make her out to be doesn’t mean it was a good opnion.
This is a tough call, though, I’m pretty sure Sotomayor got it wrong. Hell, when I worked in a city councilman’s office I was banned from politicking by city laws. It does not seem like a particularly large encroachment on “free speech.”
Maybe he just thinks that his rich experience as a white person lets him make better judgements than the blacks and jews he could potentially arrest. That’s not racist-right?
What’s wrong with good racial self-esteem?
But was the officer accused of acting inappropriately while working? As long as his job performance wasn’t racist, I don’t have a problem.
(Yeah, I know, not bloodly likely…)
Wonder if the off-duty policeman was passing out literature to an organization named “The Race”….?
#2 Pinandpuller: Racial self-esteem, like being proud to be black? Being black is just a physical attribute one has no control over whatsoever. It makes about as much sense to be proud of one’s race as it does to be proud of their gender, or hair color, or eye color. Yes, I know you were being sarcastic, but racial pride, regardless of where it comes from, is overt racism, pure and simple.
“The fact that this opinion shows Sotomoyor isn’t the caricature her opponents make her out to be doesn’t mean it was a good opnion.”
Very true. Nonetheless, the point that Sotomayor isn’t the caricature her opponents make her out to be is very much worth making. It’s not at all surprising that her supporters, people who’d loathe the result of this ruling, are holding it up as an example of her hewing to principle.
To find it strange is to find it strange that many Jews are members of the ACLU, which famously defended the right of Nazis to march in Skokie.
It’s not all that complex an idea, having principles, but it’s grown-up stuff, and since most of the debate is happening at a grade-school playground level, any whiff of grown-up stuff seems heady.
I agree with Radley, but its a tricky question balancing legitimate 1st amendment rights with other due process/equal protection rights. Generally, the balance is very clear when it is a high ranking official, and whose opinions can be ascribed to the government department.
But Radley makes a good point: the police are not normal government employees, and are granted enormous deference by the courts. If you are going to presume that they were right to arrest, kill or imprison, then its appropriate that they be held to higher standards than the DMV employee.
This is highly relevant wrt Sotomayor: a former prosecutor who seems perhaps overly deferential of the police and authority in general.
What she said about coming to a better ruling because she’s a female hispanic would have been classified as racist were she a fat white guy, so to call her out on the issue seems to be well within bounds. Personally, I think her ruling in favor of the cop is based partly on the “richness of her experience” as a minority, she’s going to vote for the “little guy” against “the man” regardless of the actual facts of the case.
Radley, what I read about the case implied that he was anonymously sending this (non-threatening mail) from home. One fact I’m unclear about is whether or not the mailing soliciting charitable donations were just sent to police officers or not.
In any case, part of the issue is that in order to discover who was sending these racist pamphlets, they had to undertake a significant investigation. So it’s only in an attenuated sense that he was an “openly racist” officer.
That said, I take the thought that racist officers (especially ones who’d go so far as to mail out hate speech) are a serious concern for a police department. So I may still be convinced that Sotomayor made the wrong decision here. But I do think that the efforts the officer took to disguise his speech make it a much closer case.
“I don’t think it’s out of bounds to exclude as NYPD cops people who openly express hatred for Jews and black people.”
I disagree. His views are disgusting IMO, but unless you can show proof that those views were affecting his work, it shouldn’t be their concern what his philosophy is off duty.
“I don’t think it’s out of bounds to exclude as NYPD cops libertarians who openly express hatred for the government.”
“I don’t think it’s out of bounds to exclude as NYPD cops democrats who openly express hatred for republicans.”
“I don’t think it’s out of bounds to exclude as NYPD cops religious people who openly express hatred for sinful behavior.”
“I don’t think it’s out of bounds to exclude as NYPD cops vegans who openly express hatred for the killing of animals.”
Yeah, I know you can pick apart those examples, but IMO the right thing here would be to monitor the officer’s work closely for real evidence that he is using his position to discriminate against citizens, and fire him for that (assuming he does so).
“What she said about coming to a better ruling because she’s a female Hispanic would have been classified as racist were she a fat white guy”
No doubt. Make a statement like that and your critics, whoever they are, are going to give it an uncharitable reading and call you a racist.
That said, if the fat white male Sotomayor claimed that he could bring some extra perspective to the court, and the court was to that point largely dominated by latinas, and had a long and shabby history of reading the constitution in a way that diminishes non-latinas, he’d have a point.
Bonus question to all the libertarians who think cops should be fired for expressing racist views: How exactly would we write the resulting statute?
Radley, who gets to decide exactly what messages demonstrate racist or anti-semitic views? And are there protected classes of people beyond race and religion that cops can’t express their animus towards without losing their jobs? Who gets to decide what those are?
Lesson Learned:
Properly dispose of all junk mail.
Or Else…….
the racism charge, which basically comes from one line pulled out of context from one of her speeches, is ridiculous.
Hogwash. I’ve read the whole speech several times. I still can’t seem to find this “context” I’ve heard so much about that makes explicit racial supremacist statements OK. (And that’s exactly what it was. Sure, it was couched in squishy feel-good terms with lots of fluff for padding, but in the end it amounts to “Someone of race A will be better at this than someone of race B, precisely because they belong to race A.”)
The only “context” that I need to know is that if a white male had said anything remotely similar, he’s be hard pressed to find a job on the bench in front of a traffic court.
CTD: DeLong here addresses the issue:
http://delong.typepad.com/sdj/2009/05/sotomayor-vs-cardozo.html
If you’re interested in hearing the other side’s case, presented about as well as it’s going to be, there’s the link.
He’s worth a read, especially if one fears that one has given Sotomayor something of a hostile reading, and is interested in engaging her on her most favorable ground.
For my part, I didn’t find DeLong completely persuasive. I still think she klutzed it up a bit. But I do see her remarks in a different light now.
http://www.juliansanchez.com/2009/05/29/a-sotomayor-core-dump/ I think does perhaps a better job at it than DeLong.
This.
I too have read the speech and the added context doesn’t help explain away the problems with the line referenced above. Basically Sotomayor was saying that because she is a woman, and brown that she hopes to have a better insight to the truth than someone who is neither a woman nor brown. If we changed it up a bit it could read,
“Scalia was saying that because he is a man, and white that he hopes to have a better insight to the truth than someone who is neither a man nor white.”
Oh and Julian Sanchez is full of it. He completely dodges the phrase in question and instead focuses on the point that “people with different backgrounds will make different choices/decisions.” Well no fucking shit Sherlock. Did you need your magnifying glass to figure that one out. But Sotomayor went beyond that to assert that it was her hope/belief that a brown woman would be better than a white man at making those decisions/choices. It is an experssion of hope that a person who is both brown and female will be better than white males.
To be perfectly clear if Sotomayor had said, “Its good to have different people on the bench because they’ll come at some issues with new insights and perspectives that might otherwise get overlooked with a homogenous bench,” there would be little or no problem. She didn’t though. She said that she hopes that by adding brown women they would make better decisions than white males. Hell, she might have been okay if she just said, “Adding brown women could make the court a better court.” In fact, if she’d added a qualifier, “in some instances” to here statement it would be less obnoxious.
But she didn’t.
SJE@#7
You said: This is highly relevant wrt Sotomayor: a former prosecutor who seems perhaps overly deferential of the police and authority in general.
But wasn’t siding for the fired cop siding against “the police and authority” since the other side was the mayor and the police department? What about the case cited by so many, including myself on these comments in a different thread, where she sided with abortion protesters against the police? Does that count for anything?
I’m not saying that makes her good or bad, I am saying that any judge in serious contention for SCOTUS will be more complex than a read of just one or two opinions will portray.
On my first reading I thought it was offensive, so I reread the comment and it surrounding text again. It seems clear on the second reading she was referring to life experiences that a Latina may have that a white, male judge may not (like experiencing discrimination and how that would affect cases). Maybe I’m wrong and Sotomayor is really a racist and sexist. The hearings should hash that out.
“I would hope police officials would factor temperament into their hiring and firing decisions”
Radley, they do. Just not the way we’d like.
pc: That’s pretty much how it hit me as well. At first I was slightly offended, then I thought about it a while. I figure she just meant to say she was going to bring diversity to the court and found a piss-poor way to say it.
It could be she’s a bigot that always sides with cops. In which case they don’t need her, since Scalia usually handles that pretty well on his own.
I agree Radley, this is a real libertarian dilemna. But in the end, PD’s should be free to fire racists, not beause i’s bad publicity but because it’s incompetence.
It doens’t require a statute to authorize PDs to take this type of action. It’s just good judgment from superior officers. That is not outweighed by free speech.
Not quite. It was an unconditional statement that as a woman and a latina her hope is she’d be a better judge in all aspects than a white male. She went on to provide examples of where a white male judge and a male latino judge made bad decisions. The implication is she’d not make bad decisions or make fewer of them simply because of gender and race.
If she had qualified it and said, “in some instances” then I’d agree with your reading of it. It is the unconditional nature of the comment and the speech that left me quite disappointed.
Would we feel the same way about firing the cop if his off duty activities were one we were more sympathetic to? For instance, if a city were to fire a cop for being a member of LEAP on the grounds that he couldn’t be counted on to enforce the town’s policies on drug laws, would you be okay with that as well?
What I find humorous about this attempt to salvage Sotomayor with this case is that her supporters are essentially saying that Sotomayor siding with a racist cop bolsters the case that she’s not a racist. Umm… sure. We need Dave Chappelle’s blind, black, KKK member to make a reappearance.
As to the case, I tend to think that, outside activities that are outright illegal, the cop’s continued employment should be based on his performance as a cop, not on what sort of moron he is when not operating under the color of law. Chance already mentioned the case that popped into my head: What about firing cops who (off-duty) go to libertarian rallies, and protest stupid laws, and speak openly about bad cops on the force, et cetera? Do we fire them because that may have an impact on how they do their jobs? If we take that stand, we will see even fewer cops who criticize drug laws and so on, since their legal actions as private citizens will jeopardize their jobs.
I say that police have plenty of chances to screw up on duty. Let’s hold their feet to the fire when it counts. Frankly, acting as though they need to be in “cop mode” 24/7 and never do anything as an ordinary citizen is only going to exacerbate the us-versus-them mentality that is so often highlighted on this site.
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BTW, I haven’t really seen anything in Sotomayor’s jurisprudence that I find encouraging, even ignoring this “more melanin + less penis = better judge” issue. But, the overall tactic of evaluating Sotomayor’s (or any judicial nominee’s) views based on specific cases is problematic. They may well be acting as totally competent judges and enforcing the laws as written and in accordance with precedents set by higher courts, even if they don’t think those laws or precedents are worth a damn. In other words, if a judge gets an eminent domain case today and s/he rules that the city can take your property and throw you into the street in order to benefit some developer, that judge is ruling in accordance with Kelo, which is the current law of the land, even if s/he thinks Kelo was utter crap and a constitutional travesty. So, do we look at the decision and say the judge is an anti-property right statist, or do we say she was applying the law as given to her?
You’re wrong. The context doesn’t ameliorate the racism of that “one line.”
Even worse is her positions on gun control. It shows her concept of “rights” amounts to privileges doled out by the government, subject to the whim of mob hysteria. Another mass shooting? Too bad, your grandmother has to defend herself from burglars with her hat pin.
Radley, didn’t read the previous comments as I have limited time, but I agree with what I see as both of your points. One, that people should be free under the first amendment to advocate racism (as abhorrent as that is), but that police officers, as public officials, should be highly scrutinized if they choose to exercise that right, as they have too much authority to allow that kind of thought to influence their decisions (on the job). Especially because, as you point out daily, police officers have too little oversight anyway.
Thanks for this site. I love it, whether I agree or disagree with you. It is a daily must for this reader. Once I score my new high paying job, I’ll be a more regular paypal contributor.
I’m not trying to be fasecious but what I’m hearing is a lot of people say that citizens have zero right to demand that their hired state/city employees not be racist douchebags. If that is the case then what rights do the majority actually have when forming a government or a governmental agency?
To answer the question: If a cop was fired for speaking out against drug policies and/or agitating against drug laws I would not find that an unreasonable or unlawful decision on behalf of his PD.
I would find that result dissappointing, in that it more senseless policy, but I would not hope that the officer sued and was reinstated. A police officer who is a member of LEAP and speaks at schools or town meetings about how bad drug laws are and their enforcement is unjust probably should be fired by a police superior who wants to enforce those policies. That HAS to be within a (even an incompetent) beauracrat’s discretion.
@Elliot, though I’m not familiar with all of her gun control stances, I do know that in one opinion Sotomayor wrote that the 2nd Amendment applies only to the fed, and this is indisputably true. Sad, but clearly true. Which I suppose gets us back to debating the appellate judge v. Supreme court judge issue but still, it may not be HER personal stance.
Although I understand the sentiment I can’t agree that the personal opinions of this guy should be some kind of disqualifier for whatever office he is holding or wanting to hold. By rendering a verdict on this guy (or anyone else for that matter) based solely on ideas and the peaceful distribution of literature (however repugnent) indicates a guilty until proven innocent mindset.
Gun control, drunk driving, and drug laws are indicitive of the same principle: becasue a few commit irresponsible (read – stupid) acts, the rest of us are painted with the same brush and have our freedoms restricted without having first committed a crime.
Unless and until this guy acts upon his beliefs, then I would think the libertarian position would be that his opinions shouldn’t matter. Wouldn’t libertarians be pissed if one of us were fired from or prohibited from filling a position based solely on what blogs we read? Shouldn’t the standard be that we are innocent until proven guilty?
“He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself.” Thomas Paine
Tom
Tom,
You’re conflating criminal guilt with no longer being employed by the government. They are entirely different and in very meaningful ways.
When you work for the government, you can be fired for simple incompetence, or poor judgment. You don’t have to be “proven guilty” of anything. Nonetheless, your basic freedoms are still implicated because the government has to treat everyone equally and can’t use employment as a means of restricting your liberties unreasonably. But the government can still fire you for things that normal people in private settings would also be fired over, and they don’t need to prove you are not a good worker beyond all reasonable doubt or in a court of law.
If I were representing the police in that case I would argue that his speech was not being restricted in any way. He was fired not because of what he said but because of what he said *revealed* about him and his beliefs. Those beliefs are completely incompatible with the work he is being asked to do, and contrary to PD policy. Thus his firing is consistent with providing the best possible service to taxpayers.
Since when?
#25 Stormy Dragon: “Would we feel the same way about firing the cop if his off duty activities were one we were more sympathetic to? For instance, if a city were to fire a cop for being a member of LEAP on the grounds that he couldn’t be counted on to enforce the town’s policies on drug laws, would you be okay with that as well?”
That’s an excellent question, Stormy. I disagree with Nick T’s answer to your question (#30), and here’s why. If a police officer joins LEAP and agitates against the policy of prohibition, he is sharing his (hopefully informed) opinion on public policy. So long as the officer makes it clear that he is speaking as a private citizen, and that his views don’t necessarily represent those of his agency, that should be protected free speech.
If an officer has racist opinions, and goes as far as to distribute hate literature, then he is going after PEOPLE, not POLICY. The police should be expected to serve people of all backgrounds, and the public has a right to be protected from officers who would pursue grudges based on bigotry.
Unfortunately, due to the realities of urban policing, officers are often put into a situation where they are expected to be an occupying force in ghettos. This leads to friction and scapegoating on both sides. I have grown up around the p.d., and am still looking at careers in the criminal justice system, so I know all about this sad situation. But, when your cynicism turns into feelings of racial supremacy, and you commit the act in furtherance of mailing literature, you should no longer be a member of a police department. This guy had no business wearing a badge and gun. Let him go to the mountains so he can revel in his whiteness away from the rest of us!
A small but important correction: the employee in this case was not a cop or a supervisor, he was a computer operator in the NYPD’s IT department. That was an important distinction in Judge Sotomayor’s ruling. She did say that if the employee had contact with the public at all, the NYPD’s actions would be justified because his attitude might well negatively impact the agency’s operation. But she cites precedent that says that when an employee “serves no confidential, policymaking, or public contact role, the danger to the agency’s successful functioning from that employee’s private speech is minimal.”
#35 Ed Brayton: Thanks for the extra research, Ed! That does put a different spin on it. Even without public contact, I do have some concerns about him having access to the NYPD computer system (public records, information on on-going investigations, etc.), but it’s obviously not the same kind of danger that could be posed by, say, a neo-nazi patrol officer.
Public expression of racism does adversely affect a cop’s job performance. OJ Simpson would be in prison for murder if his lawyers hadn’t thrown doubt on the evidence by digging up some racist expression by one of the police officers who collected it. That’s hardly going to be an issue just because a cop belongs to LEAP.
In the case Sotomayor ruled upon, it may be questionable whether the department computer operator would ever be part of the evidence chain. But if he is subject to being deployed to the field with a badge and a gun in an emergency, he could wind up being on the spot where key evidence turned up, or in the middle of a lawsuit against the department alleging racially motivated brutality, and if he’s never going to be deployed to the field, I wouldn’t call him a cop.
It would be especially egregious if he passed out said literature of duty, but while in uniform.