San Diego team captures first place in Moot Court competition

Monday, March 20, 2000

Front row: Trev...
Front row: Trevor Rush, Judge Gilbert S. Merritt, U.S. Court of Appeals for the Sixth Circuit; Justice Sandra Day O’Connor of the United States Supreme Court; David LaSpaluto and Associate Justice Adolpho A. Birch Jr., Tennessee Supreme Court. Back row: Judge Martha Craig Daughtrey, U.S. Court of Appeals for the Sixth Circuit; Judge Richard S. Arnold, U.S. Court of Appeals for the Eighth Circuit and Michael Faircloth.

NASHVILLE, Tenn. — The presence of U.S. Supreme Court Justice Sandra Day O’Connor as “chief justice” highlighted this weekend’s 10th annual National First Amendment Moot Court Competition, co-sponsored by the First Amendment Center and the Vanderbilt University School of Law.

“Only in my wildest dreams did I ever think I would argue before a United States Supreme Court Justice,” said David LaSpaluto of the winning team from the University of San Diego School of Law. “It is an overwhelming experience, one that will I talk about for the rest of my life.”

The two-day competition featured participants from 41 law schools arguing the fictitious case of Flanders v. Mayhem Entertainment. The hypothetical forced students to tackle the question of whether the First Amendment should shield manufacturers of a violent video game marketed to children from civil liability for allegedly causing an 11-year-old student to shoot his gym teacher.

“The problem was inspired by today’s headlines and clearly foreshadows future litigation,” said First Amendment Center Executive Director Ken Paulson, referring to the tragic school shootings in Littleton, Colo., and Paducah, Ky., among others.

Kent Syverud, Vanderbilt Law School dean, agreed: “The Moot Court problem was superb and extremely relevant for today.”

The students engaged in the process of appellate advocacy, which required them to present legal arguments and answer probing questions designed to test their poise under pressure as well as their legal knowledge.

Teams from the University of San Diego School of Law and the South Texas College of Law emerged from the field of 41 law schools from across the country to reach the finals. The team from San Diego prevailed, though both teams faced tough questioning from a bench that included O’Connor, 6th U.S. Circuit Court of Appeals Judges Gilbert Merritt and Martha Craig Daughtrey, 8th U.S. Circuit Court of Appeals Judge Richard Arnold and Tennessee Supreme Court Justice Adolpho Birch.

Final round arguments
The final round pitted Kristi Belt and Joshua Fuchs from South Texas against Trevor Rush and David LaSpaluto from San Diego. Belt and Fuchs represented petitioner Eric Flanders, while Rush and LaSpaluto represented respondent Mayhem Entertainment. Michael Faircloth was also a member of the San Diego team, although he did not argue in the final round.

Belt opened the arguments by telling the justices that the fictitious video game “Maximum Carnage,” in which players score points by killing authority figures, should receive no First Amendment protection because it is neither speech nor expressive conduct protected by the First Amendment.

O’Connor immediately challenged Belt, asking, “Doesn’t your whole case depend on the fact that the violent video game communicated a specific idea” to the boy playing the game?

Belt responded that there must be “a subjective intent to convey a message” in order for the video game to qualify as speech or expressive conduct in First Amendment jurisprudence. The inherent message through the playing of “Maximum Carnage” falls far below the standard of the clear messages conveyed through the symbolic speech or expressive conduct in such Supreme Court cases as the burning of the American flag as a means of political protest (Texas v. Johnson) or sleeping in parks (Clark v. Community for Creative Non-Violence), she said.

Belt contended that the court should apply the U.S. Supreme Court’s two-part test for determining whether expressive conduct should receive First Amendment protection, established in the 1974 case of Spence v. Washington.

Under the Spence test, there must be an intent to convey a specific message, and there must be likelihood that the message would be understood by the audience.

“The record in this case is completely devoid of any intent to convey a particularized message,” Belt argued.

Belt’s co-counsel then contended that even if the court should consider the video game to be speech, the game still should not receive First Amendment protection because it fits within the narrowly defined exception of advocacy of illegal conduct outlined in the 1969 U.S. Supreme Court decision Brandenburg v. Ohio.

In Brandenburg, the high court wrote that advocacy of illegal conduct is protected “except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”

Fuchs argued that the high court should relax the Brandenburg standard because the producers of “Maximum Carnage” had specifically targeted children.

O’Connor questioned whether this would be a “substantial change in legal doctrine.” Fuchs conceded that it would be a significant change but that such change was necessary, in part due to the fact that “violence is now replete in our society among our youth.”

Trevor Rush argued for Mayhem Entertainment that “Maximum Carnage” was indeed speech and thereby entitled to First Amendment protection. When asked by Justice Arnold what James Madison would have thought of this video game, Rush answered that, while Madison would probably have disapproved of the violence in it , he would have recognized the First Amendment interest in the free exchange of ideas and that the game should not be excluded from the marketplace of ideas.

Rush argued that the jury finding against Mayhem Entertainment for its game “Maximum Carnage” was not consistent with the First Amendment. “When infringing on First Amendment freedoms, one must use a scalpel, not a meat cleaver,” he said.

“This video game is analogous to movies, books and music,” Rush said. The jury “disregards the fact that violence has always had a place in American society.”

Rush’s co-counsel David LaSpaluto argued that “Maximum Carnage” did not constitute incitement of imminent lawless action under the Brandenburg standard.

LaSpaluto likened the violent video game to a “political manifesto” and to classic movies such as West Side Story, The Outsiders and Easy Rider.

“To allow a relaxing of the Brandenburg standard because of children would create too loose and great an exception in First Amendment law,” he argued.

On rebuttal, Fuchs emphasized to the court that it was dealing with the “impressionable minds of children.” He also cited Justice William Douglas’ dissenting opinion in the 1952 decision Dennis v. United States for the proposition that the First Amendment does not protect “the teaching of methods of terror.”

Justices’ verdict
O’Connor announced that by a “divided vote,” the judges selected the team for San Diego as the winner. The judges uniformly praised the competitors for their performance.

“Each one of you performed extremely well and it was indeed hard for the judges to declare a winner,” O’Connor said. “In the Supreme Court, we see advocates all the time looking at the clock, perhaps looking for some relief. Your performances are a hopeful sign for future advocacy.”

Arnold went so far as to say that “I’ve been judging Moot Court competitions for the past 22 years, and this is the best one I have ever heard.”

Merritt praised the competitors for their “depth and knowledge of the law,” while Daughtrey said that “they were well-qualified to argue before an appellate court.”

Birch noted that the arguments were so finely crafted that “it was difficult to remember that this was a moot court competition, instead of a real-life appellate argument.”

The participants all expressed the honor they felt in arguing a case before the panel of judges and particularly before a sitting U.S. Supreme Court Justice.

“I was really intimidated and I’m in shock,” Rush said. “This is by far the best moot court competition. We had been told that it was the best one, and it did not disappoint.”

Fuchs said “the problem was intellectually stimulating and the judges were extremely knowledgeable.”

Belt echoed her co-counsel’s comments, calling the competition “the highlight of my law school career.”

The competitors all said that the problem led them to have a greater understanding and appreciation for the First Amendment.

First Amendment Center founder John Seigenthaler said that furthering such understanding and appreciation was one of the primary purposes behind the competition.

“It is sad but true that in many of the nation’s top law schools, First Amendment law is not a subject that gets much attention in the classroom. At the same time, it is getting substantial attention in the nation’s courtrooms,” he said.

“That, in my view, is why the Vanderbilt Law School Moot Court competition is so unique,” Seigenthaler said. “It gives law students from 41 universities the opportunity to research and argue contemporary First Amendment problems that many of them will confront in their future practices.”