Inconsistent circuit rulings complicate Moot Court case

Tuesday, February 26, 2008

By Josh Tatum

NASHVILLE — A pair of students from the University of Georgia topped 34 other teams from around the country in the 18th Annual National First Amendment Moot Court Competition, sponsored by the First Amendment Center and Vanderbilt University Law School.

The Georgia team beat out adversaries from University of Washington School of Law in the final round to bring the top honors to the Athens school for the second time in three years. The finalists answered an array of questions from a panel of seven judges, which included four U.S. Courts of Appeals judges, two U.S. district judges and a Tennessee Supreme Court justice. In addition, to get to the final round the finalists had to argue before a panel of four federal district judges and one federal bankruptcy judge.

First Amendment case
The Feb. 21-22 competition involved questions regarding First Amendment protections for groups who seek specialty license plates to advance their causes. To address these questions, students examined legal concepts such as government speech, public forums, and viewpoint neutrality. In the fictional case of New Jersey Motor Vehicle Commission v. Stone, an immigrant-advocacy organization and one of its members filed suit against the New Jersey Motor Vehicle Commission after the commission denied its request for a specialty plate. The organization, the United Federation for Amnesty and Immigration Rights, or UnFAIR, sought a plate stating, “Xenophobia is UnFAIR.” The commission denied the plate, determining that its message was a contentious political slogan that it was against commission policy to approve.

In an attempt to get the commission to change its own ruling, UnFAIR argued that the plate was not contentious because xenophobia, the fear of foreigners, did not directly relate to the immigration debate and, alternatively, that the commission should approve the plate as a counter to one previously approved that stated “America for Americans,” which UnFAIR argued was anti-immigrant. The “America for Americans” plate, however, was adopted under a different process, which included the incorporation of the dedicated plate into New Jersey’s statutes and requiring a vote by the state Legislature. The commission rejected the application again, and the group filed suit alleging that the statute allowing the “America for Americans” plate was unconstitutional if New Jersey refused to allow a plate for an opposing view. The federal district court granted the commission’s motion for summary judgment, but UnFAIR won an appeal in the 3rd U.S. Circuit Court of Appeals, and the U.S. Supreme Court granted certiorari.

To decide the case, the justices had to determine whether the license-plate message was government speech, protected private speech or some combination of the two. Those arguing for New Jersey, the petitioners, aimed to convince the court that the license plates constituted government speech, and therefore were immune from First Amendment challenge. In the alternative, if the plates were private speech, they argued, denial of approval constituted permissible content discrimination in a limited or nonpublic forum.

Further complicating matters, the Supreme Court would have to adopt a test to evaluate whether or not the plates were government speech, as there is currently no consensus among the lower federal courts.

Part of the challenge competitors faced, then, was persuading judges to adopt a test that favored their arguments.  The petitioners advocated use of the test from the U.S. Supreme Court’s decision in the compelled-speech case Johanns v. Livestock Marketing Association (2005). The respondents advocated using a test employed by several lower courts, including the 4th U.S. Circuit Court of Appeals in Rose v. Planned Parenthood (2004). The problem for competitors is that the tests have produced inconsistent results. In the hypothetical case, the trial judge and the appellate court concluded that the same four-pronged test compelled different results on all four of the standards.

That four-part test asks:

  1. What is the central purpose of the program at issue?
  2. Who has editorial control?
  3. Who are the literal speakers?
  4. Who has ultimate responsibility over what is expressed?

The Johanns test asks whether the government sets the “overall message to be communicated” and approves every word that is disseminated.

If the court were to determine, by whatever test it adopted, that the speech is in fact private speech, then the government must not favor one speaker over another, particularly if the government sets up a program to facilitate private speech, known as a public forum. The lower appellate court based its decision that New Jersey had set up a public forum that discriminated against private speakers on the fact that it interpreted the “America for Americans” plate as expressing nativism and distaste for immigrants.

Final four
Of the four teams that advanced to the semifinals, three came from schools that had finalists in previous years. The eight semifinalists faced a five-judge panel of Bernice Donald, U.S. district judge for the Western District of Tennessee; Sidney A. Fitzwater, chief U.S. district judge for the Northern District of Texas; Marian F. Harrison, U.S. bankruptcy judge for the Middle District of Tennessee; William J. Haynes Jr., U.S. district judge for the Middle District of Tennessee; and Susan Webber Wright, U.S. district judge for the Eastern District of Arkansas.

In the first round, Loyola, last year’s runner-up, argued for respondent, Stone, against the University of Washington. In the second round, the University of Georgia (which won the competition in 1997 and 2006) met up against New York University School of Law, which had a team finish second in 1993, arguing for the petitioner.

New York University’s Andy Artz commented on facing five federal judges seeking to test the limits of his arguments. “It’s always nerve-wracking to go in front of such a distinguished group of judges,” he said. “But at the same time I do think that as you continue through the competition and do different arguments, you just become more familiar with what you’re going to say and it’s easier to join in repartee with the judges and not be so nervous.”

Final-round arguments
Once the two advancing teams were determined, they both switched sides for the finals, with Georgia arguing for New Jersey and Washington for Stone and UnFAIR, the parties for which both teams had respectively submitted briefs. The two teams argued before a panel of seven judges: Cornelia Clark, Tennessee Supreme Court justice; Steven M. Colloton, 8th U.S. Circuit Court of Appeals; Martha Craig Daughtrey, 6th U.S. Circuit Court of Appeals; Robert L. Echols, district judge for the Middle District of Tennessee; Julia Smith Gibbons, 6th Circuit; Gilbert S. Merritt, 6th Circuit; and Reggie B. Walton, U.S. district judge for the District of Columbia.

As petitioner, Georgia argued first. Leslie Horne began by arguing that New Jersey’s license-plate program, which included both the statutory adoption and the commission’s approval process, constituted government speech that was immune from First Amendment challenges because New Jersey retained final authority over the content in all cases. In response to a question from Justice Clark about how the plates differed from bumper stickers, Horne used the respondent’s reaction to the plate to illustrate why the plates were in fact government speech: “Potentially that is why Ms. Stone became so angered when she saw the ‘America for Americans’ plate because, as she had seen it, her state, New Jersey, was endorsing what she thought was an anti-immigration message, so obviously there is a certain amount of weight behind having your organization be approved and supported by the state. That is presumably why the respondent would want an organization plate here.”

In case the court did not agree that the plates were strictly government speech, Horne’s partner Emily Shingler tried to convince the jurists that excluding UnFAIR’s plate was not viewpoint discrimination. A key to her argument was that the “America for Americans” plate was not intended to have an anti-immigration message and that no reasonable person could understand it as such. She argued that the plate “is no more a message about immigration than the American flag is.”

Next Washington’s Nelissa Milfeld took the podium for respondent. Milfeld characterized New Jersey’s specialty license-plate program as setting up a public forum for drivers to express their viewpoints. Judge Merritt questioned whether the state’s choosing a controversial license plate is any different than a legislature’s voting on a controversial resolution. “The key difference here,” Milfeld replied, “is that the government is allowing people to choose the position they advocate.”

Judge Echols asked, “Under your test, the state would have to come up with 10,000 license plates, wouldn’t it?” Milfeld replied, “There shouldn’t be any sort of numerical limit on where that line is drawn.” At the end of Milfeld’s time, Judge Merritt asked her, “What percentage of the public would you guess knows what the word ‘xenophobia’ means?” Amid laughter in the courtroom at the John Seigenthaler Center, she declined to take a guess, as another judge humorously called the question “unfair.”

Travis Weaver, Washington’s second team member, finished up the respondent’s arguments by expanding the claim that New Jersey had unconstitutionally discriminated against UnFAIR’s political viewpoint. “The government is in a sense involving private individuals to disseminate its own message.” The plate program “creates First Amendment concerns because it strikes to the heart of what it means to skew debate and to create an unlevel playing field in which Maria Stone wishes to contend,” Weaver said.

Finally, in rebuttal, Shingler summed up the petitioner’s argument, restating that the plates were government speech and, even if they were not, New Jersey had not violated the First Amendment by permitting the “America for Americans” plate but not UnFAIR’s.

Verdict from the bench
Serving as the competition’s chief justice, Judge Merritt announced that the oral advocates from the University of Georgia had prevailed in the final round. He praised both teams and admitted it was a difficult decision. He also told the contestants, “You can see from our questions that the law in this area is certainly in a mess.” In response, Merritt’s 6th Circuit colleague, Judge Daughtrey, quipped that “the Sixth Circuit hasn’t done much” to resolve the legal issues presented in the problem.

Reaction from finalists, others
In preparation for the competition, contestants spend countless hours writing briefs and practicing oral arguments, trying to learn what for many is an unfamiliar area of law and to come up with convincing arguments. Weaver, of runner-up University of Washington, said after the competition, “There wasn’t much on the First Amendment in my con law class. The main reason I entered was to learn more about the First Amendment.”

The team from Loyola noted that it, like many other teams, had worked through the winter break and then afterwards six days a week to get ready. Asked how they prepared for the weekend, Loyola’s Sarah Kemeny Broussard replied, “Hours of researching the case law.”

Both University of Georgia teammates agreed that the panel of judges was “a tough bunch.” Shingler added that she enjoyed the barrage of questions they asked. “They show that the judges are interested in what you’re saying,” she said, even though “it can be difficult” to get back on track after responding to one.

Most competitors found the competition rewarding. Loyola’s Broussard said it was “phenomenal and very well-run. It was wonderful to come here and compete —” she said, as her partner Laura Ashley jumped in, “— and stand up for the First Amendment.”

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

    Winning team ($2,000): University of Georgia School of Law

  • Runner-up ($1,000): University of Washington School of Law
  • Semi-finalists ($500 each): New York University School of Law and Loyola University New Orleans College of Law
  • Best brief ($500): Connie Choi and Cynthia Kopka, Boston University School of Law
  • Best oralist ($500): Laura Ashley, Loyola University New Orleans College of Law

Receiving gavels were:

  • Runner-up best brief: Leslie Horne and Emily Shingler, University of Georgia School of Law
  • Runner-up best oralist: Stuart Mitchell, J. Reuben Clark Law School – Brigham Young University

After the awards were announced, First Amendment Center Founder John Seigenthaler gave some closing remarks. He acclaimed the advantages of an independent judiciary, emphasizing its centrality to protecting First Amendment freedoms. The United States is set apart by “a system that from John Marshall to John Roberts has provided a way to resolve disputes, to keep our country safe, to keep it secure, but also most importantly of all, to keep it free,” he said. And Seigenthaler called for competitors to use those First Amendment freedoms by speaking out in support of the judiciary’s independence, especially when it is under attack.

Josh Tatum, a third-year law student and Master’s of Divinity candidate at Vanderbilt University, will clerk for Chief Justice Randall T. Shepard of the Indiana Supreme Court beginning in fall 2008.

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