Lawyers who made a First Amendment difference this term

Wednesday, July 6, 2011

Ask someone to name a First Amendment lawyer. If an answer is forthcoming, the chances are nearly perfect that the response will be Floyd Abrams. Then ask the same person (lawyer, judge, or professor) to name another such lawyer, living or dead. Pause. Silence. Nothing.

Such is life in the law — we remember case names and occasionally the Supreme Court justices who wrote the opinions, but almost never the lawyers. (Thurgood Marshall’s advocacy in Brown v. Board of Education is an exception. But even on that score, who remembers that he was the government’s lawyer in Miranda v. Arizona (1966)?)

Incredibly, the names of the lawyers who argue cases before the Supreme Court are no longer listed in the online opinions posted by the Court, Findlaw, and the Legal Information Institute at Cornell. Of course, it was not always that way — see here, for example. It would be salutary to return to the old practice, and to give credit where credit is due. Until then, let us recognize and honor those who prevailed in free-expression cases decided this past term.

2010-2011 term: The lawyers & their victories
Shortly after the violent video-games case, Brown v. Entertainment Merchants Association, was argued, veteran Supreme Court reporter Lyle Denniston made the following observation:

“If there was one strategic error by counsel in [Brown] v. Entertainment Merchants Association, it was by the video game industry’s lawyer, contending under questioning that there simply is no problem that legislatures need to try to solve nor is there any way constitutionally that they could craft a solution if they tried. By the time Paul M. Smith offered those thoughts, the Justices appeared well on their way to believing just the opposite.”

In retrospect, the operative word is “If.” That is, there was no “strategic error.” Paul M. Smith, the EMA lawyer, prevailed by a comfortable 7-2 score. Not only that, but the case is chock-full of wonderful First Amendment dicta, or maxims, from the concurring justices, some of which echo the arguments Smith offered both in oral arguments and in his briefs to the Court.

Smith, a partner at Jenner and Block, is as good as they come. He has argued 14 cases in the Supreme Court, including the landmark gay-rights case, Lawrence v. Texas (2003) — another victory others thought unlikely.

Protection for commercial speech got a big boost this term thanks to Thomas Goldstein’s dazzling oral arguments (and they were that!) in Sorrell v. IMS Health, the data-mining case. He prevailed 6-3, with Justice Anthony Kennedy writing a majority opinion replete with freedom-expanding potential. Sorrell was the 23rd case Goldstein has argued before the Court. (He also successfully argued, with Lee Levine, Bartnicki v. Vopper (2001), another important First Amendment case.)

Snyder v. Phelps, the funeral-protest case, was the case that no lawyer really wanted to argue. But Margie J. Phelps, the Westboro Baptists’ attorney and family member of the respondent, stepped up and did a rather impressive job for a novice. When Phelps was done, the Court, per Chief Justice John Roberts, declined to create a “funeral exception” to the First Amendment. Better still, it did so on a whopping 8-1 vote. Here again, the majority opinion contained a treasure trove of First Amendment dicta.

And then there is Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, the 5-4 campaign-finance case in which the Court struck down a state law that gave extra public funding to candidates who faced self-funded opponents. William R. Maurer, executive director of the Institute for Justice, successfully argued the case and thereby buttressed his reputation as a “Washington [State] Superlawyer” — this according to Law and Politics Magazine. After his victory in Bennett, the appellation may take on more of a national flavor.

A few friends
Many valuable amicus or friend-of-the-court briefs were presented to the Court this term in First Amendment cases. In my mind, at least two stand out: the one tendered by Robert Corn-Revere (Davis Wright Tremaine) in Brown v. Entertainment Merchants Association and the one submitted by John P. Elwood (Vinson & Elkins) in the same case. Both briefs, to their credit, did not do what the vast majority of amicus briefs do, namely, crunch cases with a cut-and-paste surfeit tailored to reflect ideological views.

Corn-Revere (joined by Ronald London) submitted his brief on behalf of the Comic Book Legal Defense Fund, while Elwood (joined by Ilya Shapiro) submitted his on behalf of the Cato Institute. Both briefs contained considerable information about the history of violence in various print and electronic media. Justice Antonin Scalia, author of the majority opinion in Brown, thought both briefs important enough to credit them by name and likewise to draw on several of the examples proffered in them. The First Amendment sorely needs more such friends.

For the online record
Let the online record show that six lawyers made a First Amendment difference this term in free expression cases: Paul M. Smith, Thomas Goldstein, Margie Phelps, William Maurer, Robert Corn-Revere, and John Elwood.

Color them, if you will, “friends of the First Amendment.”  For in their own ways — all controversial, to be sure — they advanced that freedom we as Americans call First.

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