With Obama's pick of Judge Sonia Sotomayor for the Supreme Court, the press has been snuffling through her record to find out where she stands on all sorts of hot-button topics. Little has been written in the popular press about what she might mean for areas of interest to our readers, such as copyright and online speech (the RCFP just put out a great report summarizing her First Amendment and freedom of information opinions). Still, there's enough to get a sense of how her appointment might ripple through cyberspace, and unfortunately, there are a few red flags.
On the plus side, as noted by the Wall Street Journal, Ms. Sotomayor has "significant experience in the area of so-called cyberlaw," unlike the "famously low-tech" David Souter. She's also had extensive involvement with intellectual property issues, both in private practice and on the bench.
Still, it's unclear where her sympathies might lie in copyright issues. The Journal notes that while Sotomayor's work in the private sector suggests "a certain sympathy" for copyright and patent holders, her bench rulings tended to "split between companies seeking to protect intellectual property and those looking for more freedom to use materials." Ben Sheffner of the Copyrights & Campaigns blog takes a particular look at Sotomayor's opinion as the trial judge in Castle Rock Entertainment, Inc. v. Carol Publishing Group (which was later affirmed by the 2nd Circuit), where she ruled against the author of an unauthorized book of trivia questions about the Seinfeld TV show. Mr. Sheffner writes that Sotomayor's breakdown of the case "demonstrates a deep understanding of copyright. She may be on the left politically, but nothing in this opinion suggests she is on the copyleft."
But even if she's a Ginsburg-esque supporter of copyright, it's not clear how Sotomayor might approach the sort of excerpting and aggregating that you find in the online media environment. The Castle Rock case has a rather unique set of facts, and Sotomayor's analysis of market harm focused on the artist's ability to control derivative markets "[w]here nothing in the nature of criticism or parody is at issue." To boot, the Castle Rock defendant had a weak claim of transformativity. I don't believe that much can be gleaned from the case about Sotomayor's take on the critical copyright issues facing online journalism.
The more obvious concern is that Sotomayor apparently "hates bloggers." Well, that's what the snarky Manhattenites over at Gawker claim in typically hyperbolic fashion anyway. Gawker makes much of the Second Circuit's opinion in Doninger v. Niehoff, in which a high school student was booted off the student council ballot after she encouraged students on her livejournal blog to write various "douchebag" school officials to protest the apparent cancellation of a concert she was trying to organize. (Check out the CMLP threat database entry for the gory details.)
The court, in an opinion written by Judge Livingston and joined by Sotomayor, affirmed the trial court's ruling that the student failed to show a sufficient likelihood of success on her First Amendment claims. The court wrote that school officials could reasonably find that the student's blog post was a "material and substantial disrupt[ion of] the work and discipline of the school," particularly because the post was "plainly offensive . . . and potentially disruptive" and was "'at best misleading and at wors[t] false,'" as it made no mention of the school's offer to reschedule the concert. Because the school officials could reasonably find the post to be disruptive, they did not violate the student's First Amendment right to free speech.
This is a fairly disappointing outcome, of course. The student wrote the post off school grounds, on her own time. She may have been a wee bit rude in her post, but students talking smack about faculty and staff is pretty ubiquitous. Further, it's hard to see how the kid's actions would really impede school operations; she wasn't exactly protesting the hallways or chaining herself to the auditorium doors. Yes, I've no doubt that she'd riled up the students that it would be a bother to the school staff, but that sets the bar awfully low: schools shouldn't be allowed to punish off-campus speech every time it creates a ripple on campus.
If this is the sort of rationale that Sotomayor might apply to cases involving online expression, there is cause for concern. Still, Sotomayor wasn't the author of the opinion. More importantly, Avery Doninger's case was about student speech rights and therefore involved different considerations from First Amendment cases involving adult speech. So, Sotomayor may be a better advocate of First Amendment rights than this case would suggest. Certainly, it seems unlikely that she really "hates bloggers." The RCFP report shows a mixed bag: good marks on public and press access to the court system, but poorer marks on freedom of information requests. In any event, it's fun trying to read the tea leaves while waiting for the confirmation hearings to begin.
(Arthur Bright is a rising third-year law student at the Boston University School of Law and a former CMLP Legal Intern. Before attending law school, Arthur was the online news editor at the Christian Science Monitor.)