George Mason team wins in a tricky case

Monday, February 26, 2007

NASHVILLE, Tenn. — Founding father George Mason, who first called for a Bill of Rights to be added to the U.S. Constitution near the end of the historic convention in September 1787, likely was smiling this weekend.

Two students from the law school that bears his name captured top honors at an advocacy competition devoted to the first 45 words of the Bill of Rights — the First Amendment.

George Mason University School of Law won first place in the 17th Annual National First Amendment Moot Court Competition, co-sponsored by the First Amendment Center and Vanderbilt University Law School.

The Feb. 22-23 competition featured two-person teams from 35 law schools across the country arguing a hypothetical U.S. Supreme Court case before panels of lawyers, law professors and federal judges. The competition requires competitors to engage in the challenge of oral advocacy — answering difficult legal questions posed by the judges. It also requires an understanding of the First Amendment, thorough knowledge of case law, quick thinking, poise under pressure and mental gymnastics.

First Amendment case
The fictional case of Ussery v. State Bar of Georgia presented the student competitors challenging First Amendment legal issues surrounding the punishment of a lawyer for refusing to identify a flier as an attorney advertisement.

The flier contained many seemingly political statements that warned people in a small, rural community of the dangers of illegal immigration and a failing social security system, but also contained the words “Come See Me” with the attorney’s office address.

Competitors had to argue whether the flier constituted fully protected political speech or commercial speech, a type of speech the U.S. Supreme Court has said holds a “subordinate position in the scale of First Amendment values.”

They also had to address whether the speech, if commercial, was misleading; whether the Court should abandon its long-standing test for regulations of commercial speech in Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of N.Y. (1980);
and whether the state could compel the attorney to post a disclaimer signifying the flier’s commercial content.

The problem carried current significance, as various restrictions on attorney advertising have been treated differently in the lower courts and the Supreme Court continues to struggle with the application of its commercial-speech doctrine.

“The problem this year is particularly complex because of the continuing development and refinement of the commercial-speech doctrine by the U.S. Supreme Court,” said Gene Policinski, vice president and executive director of the First Amendment Center. “The problem uniquely presents students with many intricate arguments and questions.”

Final four
By the middle of the second day of competition, the field had been narrowed to the final four — George Mason University School of Law, Loyola University New Orleans College of Law, Brooklyn Law School (winner of the 1999 competition), and the University of Georgia School of Law (winner of the 2006 competition). The first semifinal round featured Brooklyn, representing
petitioner Ussery, against George Mason, the State Bar of Georgia. The second semifinal pitted Georgia, representing Ussery, against Loyola, representing the state bar.

The semifinalists argued before a three-judge panel of Sidney A. Fitzwater, U.S. District Judge for the Northern District of Texas; Marian F. Harrison, U.S. Bankruptcy Court for the Middle District of Tennessee and Aleta A. Trauger, U.S. District Court for the Middle District of Tennessee.

All four teams performed well, prompting Fitzwater, a mainstay jurist in this moot-court program, to tell the student advocates that “it is encouraging to see how capable future lawyers are — that you are head and shoulders above a lot of the practitioners we see in court on a daily basis.”

George Mason and Loyola advanced to the final round. For the finale, the Loyola team of Laura Cocus and Katie Francioni had to switch sides from respondent to petitioner Ussery, while George Mason’s team of Al Clarke and Samantha Mortlock was able to maintain its standing as the respondent state bar.

The advocates faced a seven-member panel of distinguished federal and state judges:

  • Justice Cornelia A. Clark, Tennessee Supreme Court
  • Judge Steven M. Colloton, 8th U.S. Circuit Court of Appeals
  • Judge Martha Craig Daughtrey, 6th U.S. Circuit Court of Appeals
  • Judge Julia S. Gibbons, 6th Circuit
  • Judge Robert Echols, U.S. District Court for the Middle District of
    Tennessee
  • Judge William J. Haynes, U.S. District Court for the Middle District of
    Tennessee
  • Justice Gary R. Wade, Tennessee Supreme CourtFinal-round arguments
    Loyola, as petitioners, presented first. Francioni argued that Ussery’s flier was predominantly political speech entitled to the full protection of the First Amendment.

    “Mr. Ussery distributed this flier at a political rally,” she began before facing a barrage of questions from Judge Gibbons and others. Her co-counsel Cocus contended that the state’s rule compelling advertising disclaimers did not apply to Ussery’s flier and that, if it did, it violated his First Amendment rights. She argued that “each generation must reaffirm the
    guarantees of the First Amendment, as more and more regulations attempt to whittle away our rights.”

    Next, the respondent team of Clarke and Mortlock presented their arguments to the bench. Clarke contended the “this case concerns state’s ability to protect consumers from false and misleading advertising that is presented under the guise of political activism.” He argued that the advertisement was commercial speech.

    Mortlock contended that the flier constituted misleading speech and that a disclaimer was an appropriate requirement. She showed great aplomb and managed to engage in a conversation with the judges without a show of nerves.

    All four advocates faced tough questioning from a “hot” bench, as attorneys say when judges become sharply engaged with oral arguments.

    Verdict from the bench
    Moot Court “Chief Justice” Daughtrey announced that the panel had voted for George Mason. She praised all the finalists for their “excellent” performance, noting that it was “difficult to
    declare a winner” and the decision was “very close.”

    Judge Gibbons said that “it was difficult to know who benefits the most from this round of oral advocacy,” emphasizing that the justices gain greatly from hearing such fine advocacy skills. “It is a very affirming experience for all of us,” she said.

    Justice Wade told the competitors that their advocacy skills “stands up against the best” he had encountered in his 20 years on the Tennessee Supreme Court.

    Reaction from finalists, others
    The George Mason team of Clarke and Mortlock expressed gratitude for their victory.

    “It was an intimidating experience but also it was a truly great honor to argue in front of a panel of such distinguished jurists,” said Clarke. “I really enjoy having a legal discussion and I enjoyed the argument/advocacy process very much.”

    Added Mortlock: “I’m taking a First Amendment class this semester and next week we are discussing commercial speech — I think I’ll be ready to talk in class on the subject.” Asked how she managed to maintain her poise under heavy fire, she replied: “I’ll talk to anybody.”

    Both winners praised the problem, the judges and the competition as a whole.

    Mortlock and Clarke said they could not even estimate how much time they spent preparing for the problem. “We spent a full month on the brief,” she said.

    Clarke said he gained greater appreciation for the 45 words of the First Amendment and for how issues surrounding freedom of expression are “always contentious.”

    The finalists from Loyola — two second-year law students — also expressed appreciation for the competition.

    “It was a really intense and amazing experience,” said Cocus. “It was very interesting to study the First Amendment and I learned that it has major implications for everyone.”

    Their coach, Rachel P. Catulanotto, is a third-year law student who competed in Moot Court last year. “It is just an amazing competition that features interesting topics that mean something in this world,” he said.

    The competition featured several former participants returning to coach teams from their alma maters. Mike Caplan, who led Georgia to victory in the 2006 competition, helped coach another talented team from Athens. The Georgia team of Bret Hobson and Lauren Mock won the award for best brief and advanced to the semifinals.

    Asked why he returned, Caplan, who now clerks for U.S. District Judge Richard Story in Atlanta, said: “I had a great experience last year and am just excited to be a part in helping this year’s team.”

    Honoring Prof. Tom McCoy
    In the awards ceremony, First Amendment Center founder John Seigenthaler and others paid special tribute to the man described as the “cornerstone of the competition.” Vanderbilt Law School Professor Tom McCoy has “guided every problem,” Seigenthaler noted.

    McCoy will retire at the end of this academic year, after serving nearly 40 years on the Vanderbilt law faculty. Every year he was the driving force that created the complex First Amendment Moot Court problem. More than anyone else, he provided the intellectual engine that drove the competition to its finish lines.

    McCoy also helped many local attorneys by teaching a continuing legal education class — organized by Tiffany Villager, director of First Amendment studies at the First Amendment Center — to many local attorneys who served as judges for the competition.

    “His leaving creates a void that will not be filled,” said Seigenthaler, who publicly thanked McCoy for his “talent as a teacher” and for his “embrace of the Bill of Rights.”

    Accepting the honors, McCoy said he had “really enjoyed his own law school
    career” and sought to “replicate that experience for future students” throughout
    his career.

    “We will miss having Professor McCoy’s insight as we develop the moot court
    problem,” said Villager, who also supervises the competition each year. “His
    depth of First Amendment knowledge has helped in the development of a strong and
    substantive Moot Court competition.”

    In an earlier interview, McCoy described the value of the First Amendment
    Moot Court: “It has been a pedagogical exercise and an opportunity to reach lots
    of students beyond the Vanderbilt law-school community. It allowed me a chance
    to stimulate these many students’ interest in the First Amendment.” He added
    that developing the problem provided him with the “closest thing to creative
    writing” he experienced in his legal career. Saying he considered the
    competition a form of teaching, he added: “Teaching in any form is very
    rewarding.”

    Awards, closing remarks
    A total of $5,000 in prizes was awarded to:

  • Winning team ($2,000): George Mason University School of Law
  • Runner-up ($1,000): Loyola University New Orleans College of Law
  • Semi-finalists ($500 each): Brooklyn Law School and University of Georgia
    School of Law
  • Best brief ($500): University of Georgia School of Law
  • Best oralist ($500): Ryan Faulconer, University of Virginia School of LawReceiving gavels:
  • Runner-up best brief: Brooklyn Law School
  • Runner-up best oralist: Kyle Unser, University of Arkansas School of LawIn his closing remarks, Seigenthaler urged all the student-advocates to appreciate and fight for this country’s “independent judiciary” which he called “unique among the nations.” He reminded the students to exercise their “precious gift” of First Amendment rights to defend that tradition.
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