"Sotomayor Supported Censoring Biblical Verse on Homosexuality from New York City Billboard":

That's the headline on a 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 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
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 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 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. (The possible "hybrid claims" exception [see pp. 664-65 of this article if you want to know more about it] would in any event not apply, since it had been rejected by the Second Circuit by the time Okwedy was decided.)

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.

Related Posts (on one page):

  1. "Sotomayor Supported Censoring Biblical Verse on Homosexuality from New York City Billboard":
  2. Family Research Council on the Okwedy v. Molinari Case: