In the torrent of news about President Obama’s selection for the U.S. Supreme Court, much will be read and heard on Judge Sotomayor’s perspective on constitutional interpretation (and whether or not it is too “activist”); on equal protection and affirmative action (and whether or not her disposition of the civil rights claims of white firefighters in the Ricci case was too dismissive); and even on baseball (and whether or not she fairly “saved” the sport in New York).  But fewer will comment on Judge Sotomayor’s views on the first of our liberties – the guarantees of speech, press, and religion.

There may be a very good reason for this.  Her judicial record as both a district and appellate court judge tells us relatively little that is truly definitive about her perspectives on expressive rights.  And that may not be comforting to those who yearn for certainty in a Court that has been narrowly divided in many First Amendment cases.

On the speech and press fronts, Sotomayor has articulated no grand vision or declared no new and bold principle.  Focusing attentively on the facts of the occasional case before her, she has ruled cautiously and contextually.  Perhaps no better example of her doctrinally-driven and fact-based approach exists than her ruling for the 2^nd Circuit Court of Appeals in U.S. v. Quattrone (2005), overturning a gag order that barred the news media from publishing jurors’ names disclosed during trial.  “The reviewing court must examine closely both the record and the ‘precise terms’ of the restrictive order,” she wrote, concluding that the Free Speech and Free Press Clauses of the First Amendment were violated “[b]ecause the facts of this case did not justify the imposition of a prior restraint or an infringement of appellants’ right to publish information disclosed in open court.”

Further examples of Judge Sotomayor’s favored approach of “focusing on facts and taking tests seriously” are ably analyzed by First Amendment scholar Ronald Collins.  Collins sees in the judge’s limited free speech record “the guarded mind of a jurist more in line with incremental context-based thinking,” but who “seems to take First Amendment tests seriously enough to apply them rigorously.”

That said, Collins and other First Amendment scholars (including Yours Truly) find disquieting the fact that Sotomayor joined the majority opinion in Doninger v. Niehoff (2008), which denied First Amendment protection to a student’s vulgar critique, published on her online blog, of her public high school principal.  Pushing to the breaking point the governing standard in Tinker v. Des Moines Independent Community School District (1969), the decision found it “reasonably foreseeable” that the student’s off-campus expression would cause some kind of “substantial disruption” on campus, a prediction that strained credulity given the realities of the situation.  One must wonder: Where was Judge Sotomayor’s characteristic sensitivity to the facts and fidelity to applicable law in this case?

Not much at all is known about Judge Sotomayor’s views on religious freedoms.  As for Establishment Clause issues that have been controversial of late – religious icons displayed on government property, religious activities in public schools, religious sponsorship of programs funded with government monies – Sotomayor is a virtual blank slate.  And when it comes to Free Exercise, Sotomayor has twice ruled in favor of prison inmates who were denied opportunities to practice their faiths in non-disruptive ways.  [Campos v. Coughlin (1994) (wearing strings of beads as a Santeria believer); (Ford v. McGinnis (2003) (a Muslim’s participation in Islamic feast)]  In his careful analysis of Sotomayor’s sparse record in these regards and others, First Amendment senior scholar Charles Haynes sees in such “tea leaves” some hope that she would be “sympathetic” to religious-freedom claims.  Of potentially greater concern to many, in Haynes’s opinion, may be Sotomayor’s relationship to Catholicism and “how her faith shapes her views on social issues like abortion and gay rights.”

Only time will tell what Sonia Sotomayor’s First Amendment profile will ultimately be.  But one prediction seems relatively safe: If she insists on remaining an incremental and context-based thinker, her portrait will not hang in the Gallery of First Amendment Greats along with those of Holmes, Brandeis, and Brennan.