This is a summary of a more extensive report available at www.rcfp.org/sotomayor
Although Judge Sonia Sotomayor has extensive experience as a judge, no clear standard on First Amendment issues has emerged from her many cases.
But she did suggest during her confirmation hearing in mid-July that she has had "positive experiences" with cameras in the courtroom and would add a "new voice" to the court's ongoing internal discussion about opening up its proceedings.
On other issues involving the news media and the First Amendment, her position is less clear.
In U.S. v. Quattrone in 2005, Sotomayor wrote for a unanimous panel striking down a sweeping gag order on the news media issued during the retrial of former Credit Suisse First Boston executive Frank Quattrone. Sotomayor, writing for the panel, found that the order violated the First Amendment. "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," she wrote.
In Doe v. Mukasey, Sotomayor joined a panel of the U.S. Court of Appeals in 2008 in striking down a portion of the Patriot Act that placed a gag order on recipients of "national security letters." The court ruled that the gag orders violated the First Amendment and constituted a prior restraint on speech. Additionally, the court shifted the burden of proof for the necessity of the gag order to the government.
In Gambale v. Deutsche Bank AG in 2004, Sotomayor signed on to a unanimous opinion, written by Judge Robert Sack, which allowed a district court to unseal court documents despite party objections.
In U.S. v. Smith in 2005, Sotomayor signed on to a unanimous opinion written by Judge Barrington D. Parker, which cautioned the U.S. Marshals Service to consult the court before imposing limitations on courthouse access, "because the judiciary is uniquely attuned to the delicate balance between defendants' Sixth Amendment rights to public trial, the public and press's First Amendment rights to courtroom access, and the overarching security considerations that are unique to the federal facilities containing courtrooms."
Freedom of Information
Sotomayor's freedom of information jurisprudence has skewed more in favor of withholding records under the federal Freedom of Information Act rather than ordering their release. However, she did have one notable order releasing the suicide note of former deputy White House counsel Vince Foster.
In the Foster case, Dow Jones v. Department of Justice, Sotomayor wrote that the suicide note "touched on several events of public interest," including the controversy related to the Whitewater investment issue, and that it "implicated government agencies and employees in misconduct."
On the side of withholding, in two opinions she authored for unanimous Second Circuit panels, Sotomayor ruled that FOIA exemptions were properly applied to support documents' exemption from disclosure. In Tigue v. U.S. Department of Justice, she affirmed a district court ruling that a memo describing and outlining how the Internal Revenue Service should conduct criminal tax investigations was an internal document that was never made final and was properly withheld under Exemption 5 .
In Wood v. Federal Bureau of Investigation, newspaper reporter Alexander Wood of the Journal Inquirer in Connecticut sought documents related to an investigation of Connecticut FBI agents who had been accused of misrepresenting information in arrest warrant affidavits. Sotomayor's opinion found the documents were properly withheld as work product under Exemption 5. That case also held that the names of those agents were pro- tected from release under Exemption 6, which …