Arizona State wins First Amendment Moot Court Competition

Monday, March 23, 1998

Arizona State c...
Photo by Scott Maclay
Arizona State competitor Jacqueline Dunckley addresses judges.
A three-woman team from Arizona State University College of Law took top honors Saturday in the Eighth Annual National First Amendment Moot Court Competition, co-sponsored by the First Amendment Center and the Vanderbilt University School of Law.

The two-day competition featured 36 teams from law schools across the country arguing an unusually topical hypothetical pitting privacy rights against the rights of a free press. The case involved a lawsuit filed by macho movie star “Clint Deal” against “The Hollywood Examiner,” an imaginary California tabloid.

In the scenario created by Vanderbilt’s moot court board, Deal sued the tabloid after the paper published photographs of him embracing his male lover on the beach of a private island. A photographer for the paper had used a high-powered telescopic lens to capture the picture from the deck of a boat several miles offshore.

Deal — whose professional identity as an action hero had relied heavily on his supposed attraction to and for women — sued the tabloid for two invasion of privacy torts under California law: intrusion upon seclusion and public disclosure of private facts. The tabloid defended itself on First Amendment free-press grounds.

The final round of competition pitted the Arizona State students, representing The Hollywood Examiner, against a team from the University of Texas School of Law, representing Deal.

The student advocates were heard by “the U.S. Supreme Court,” a five-judge panel comprised of:

  • Judge Richard S. Arnold, Chief Judge of the U.S. Court of Appeals for the 8th Circuit;
  • Judge Martha Craig Daughtrey, U.S. Court of Appeals for the 6th Circuit;
  • Judge Gilbert S. Merritt, U.S. Court of Appeals for the 6th Circuit;
  • Judge Michael Duffy, U.S. District Court of South Carolina;
  • Judge Sidney A. Fitzwater, U.S. District Court for the Northern District of Texas.

Final-round oral arguments

Two advocates from each team divided the legal issues between them in presenting their oral arguments. Blaine Kimrey and Patricia Lin of Texas argued on behalf of the plaintiff against Jacqueline Dunckley and Juliet Peters of Arizona State for the defendant.

Kimrey contended that The Hollywood Examiner had intruded on Deal’s physical solitude, saying that the “tort of intrusion of seclusion punishes conduct, not expression.” The “tabloid used intrusive means that were highly offensive to a reasonable person,” he said, citing cases in which “crimes and torts committed during newsgathering are not protected by the First Amendment.”

Co-counsel Lin argued the paper should also be liable under the privacy tort of public disclosure of private facts. She told the court: “What this case is about is tabloid sensationalism, the morbid and sensationalist prying into an individual’s private life for prurient interests.”

Jacqueline Dunckley defended the Examiner, arguing that the tort charging public disclosure of private fact infringed on her client’s First Amendment right to publish truthful information. “One instrumental purpose of the First Amendment is to protect the free, open, robust discussion of political and social issues,” she told the judges.

Juliet Peters contended that the intrusion-of-privacy tort also violates First Amendment free-press rights because “newsgathering — while [it is] conduct — is essential for publication and is done for the purposes of gathering speech.” She passionately argued that “the First Amendment is and must continue to be a sacrosanct portion of our Constitution.”

All four competitors displayed remarkable knowledge of the case law, quick thinking under pressure and impressive analytical and oratorical abilities.

The panel fired several tough questions at the students, including:

  • Why should the First Amendment yield to a state-law definition of tort?
  • Should it make a difference at all if the court should find that Mr. Deal was living a lie — that Mr. Deal was holding himself out as a macho, heterosexual movie star?
  • What if this conduct had occurred in a state where homosexual conduct is considered a crime?
  • Where do we draw the line concerning what the press can publish and what it can’t under privacy law?
  • Where does this right to privacy come from?
  • Suppose the press legitimately learned about some public figure’s DNA structure and disclosed that the person had a gene for homosexuality. Would publication of this information be protected by the First Amendment?

Comments from the bench added moments of levity to the final round. When Judge Fitzwater, for instance, asked about determining newsworthiness by applying a “reasonable-journalist standard,” Judge Merritt quipped: “The question assumes such a thing exists, of course.”

The judges uniformly praised both teams, saying the decision to name Arizona State the winner was “very difficult.”

“The one thing we judges were unanimous on was that we wouldn’t want to have to compete against these teams,” Judge Duffy said. Judge Arnold emphasized that this was as “close to a dead heat as I’ve ever seen in a moot court competition.”

Several of the judges also praised the high quality of the bench brief prepared by Vanderbilt Moot Court board members Virginia Bain, Marit Bank and Ross Shank.

Reactions of Participants

Arizona State c...
Photo by Scott Maclay
Arizona State competitors, left to right: Juliet Peters, Jacqueline Dunckley and Maxine Polomski.
The Arizona State team — Dunckley, Peters and Maxine Polomski — were thrilled with their victory. “It was really scary arguing before this esteemed panel of federal appellate judges,” said Peters. “I could feel the power of the judiciary.”

Team members gave credit to their coach, Prof. Laurence Winer, who has written extensively on First Amendment issues. Winer downplayed his own role, saying he merely listened to the team in certain oral-argument practice rounds.

“All the credit should go to the team members. I would like to pay tribute to these three wonderful woman, who did a wonderful job,” he said, adding that “the problem was superbly well-drafted, very rich and evenly balanced.”

The runners-up from the University of Texas law school also had high praise for the competition. Kimrey, who next week will argue in the Jessup International Moot Court Finals, said that “the problem was very well organized and the competition was simply a fantastic experience.” Lin, who has argued in several moot court competitions, observed that “this was the best problem I have ever encountered.”

Other participants praised the competition as “the best” or “one of the top” competitions that they have ever attended. Holly Boots of Pace University School of Law went even further. “This is the best law school experience I have ever had,” she said.

Reactions from the judges

“We judges learn as much as the students in this competition,” said federal district court Judge Philip Pro, who sat on the semifinal panel. “This moot court serves as a great refresher course on the First Amendment.”

Judge Duffy characterized this year’s hypothetical as “unique, mind-teasing, and thought-provoking.”

“We judges don’t confront these First Amendment issues on a weekly basis,” he said. “It is simply a pleasure to hear such fine young advocates argue passionately about the First Amendment.”

Several judges praised the quality of the competitors’ arguments.

“I heard better arguments from these Moot Court competitors than I do on a daily basis in court,” observed Judge Fitzwater. “As a former Moot Court competitor myself, I view this competition as an extremely worthwhile and valid intellectual discipline.”

Judge Martha Craig Daughtrey, who has been judging the First Amendment Center competition “since the beginning” found this year’s problem “the most intellectually stimulating of any with which I’ve ever been associated.”

“The level of advocacy is consistently good,” she said. “In fact, it’s better than we see on a daily basis on the Court of Appeals.

“It is important for these students to learn about the First Amendment. Many … will go on to big law firms and will deal with such topics as ERISA and securities-regulation issues. Constitutional issues are so important and must not be forgotten,” she said.

Judge Richard Arnold considers it part of a judge’s job to help educate young lawyers. “This First Amendment problem gave me an excellent opportunity to do that,” he said, adding: “Plus, it’s fun.”

Judge Gilbert Merritt, chief judge for the final round, stressed the importance of the First Amendment.

“In our society the First Amendment is and must be the preferred freedom, the first freedom. Other civil liberties depend on this first freedom. We never would have had the abolition of slavery, for example, without the First Amendment and a free press.

“The First Amendment Center and Vanderbilt Moot Court board always do a fine job of highlighting a pressing First Amendment issue in society.”

Timeliness and relevance are a primary goal of each year’s contest, said Ken Paulson, executive director of the First Amendment Center.

“When we began work with the moot court board on developing the problem, we emphasized the need for the problem to be as current and topical as possible,” he said. “But none of us could have foreseen how closely these issues of privacy and press would be mirrored in the headlines of today,” he explained.