Dispatches from the Culture Wars

The headline on the CNSNews article says:

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

But as Volokh points out, that is not the case:

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The panel also issued an accompanying unpublished opinion rejecting the Free Exercise Clause and Establishment Clause claims.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.

In other words, the appeals court, including Sotomayor, basically said you don't have a free exercise or establishment clause case here, but you do have a free speech case. And they overturned the lower court on the free speech allegation and ordered a trial so that a jury could determine whether the evidence supports the conclusion that Molinari was using implied coercion to censor the billboard.

That is a far cry from the notion that Sotomayor supported censorship. I'm not going to accuse them of distorting the ruling because it could be inadvertent. After all, I missed that aspect of the ruling myself when I wrote about it.