Tension between 1st, 6th Amendments reflected in Moot Court ’04

Monday, March 1, 2004

NASHVILLE, Tenn. — Western New England College School of Law captured first place at the 14th annual National First Amendment Moot Court Competition, co-sponsored by the First Amendment Center and the Vanderbilt University Law School.

The Feb. 26-27 competition featured two-person teams from 32 law schools across the country, arguing a hypothetical U.S. Supreme Court First Amendment case before panels of lawyers, law professors and judges. The demanding competition requires the students to engage in the art of appellate advocacy — writing an appellate brief and answering challenging legal questions from the judges. The event requires a thorough understanding of First Amendment law, poise under pressure and mental gymnastics.

The case
The fictional consolidated cases of Jones v. State of Maryland and Parker v. State of Maryland presented the issue of whether a trial court could issue a gag order preventing members of the press from interviewing jurors from a death penalty case that ended in a deadlock. In the hypothetical situation, reporter Widen Parker sought to interview juror Elizabeth Jones, who wished to convey her thoughts about the unsavory tactics of the Baltimore Police Department. Parker and Jones argued the gag order violated their First Amendment rights, while the state argued that it was protecting the right of the defendant in the underlying criminal case to an impartial jury protected by the Sixth Amendment to the U.S. Constitution.

The problem, as First Amendment Center Executive Director Ken Paulson said, represents an issue on “the cutting edge of First Amendment law — the ongoing tension between the First and Sixth Amendments.”

Final four
The final four teams were Western New England College School of Law; University of Georgia School of Law; Benjamin N. Cardozo School of Law, Yeshiva University; and Moritz College of Law, Ohio State University.

The first semifinal pitted Adam Schwartz and Megan Byrnett of Ohio State representing petitioners Parker and Jones against Beth Cavagnolo and Susannah Rogers of the University of Georgia, who represented the state of Maryland.

In the second semifinal, Thomas Marino and Dennis Egan of Western New England represented the petitioners against Joni Kletter and Shannon Stallings of Benjamin Cardozo School of Law, representing the respondent State of Maryland.

The semifinalists argued before a four-judge panel of Sidney A. Fitzwater, U.S. district judge for the Northern District of Texas; Bernice B. Donald, U.S. district judge for the Western District of Tennessee; and William J. Haynes and Aleta A. Trauger, U.S. district judges for the Middle District of Tennessee.

The judges uniformly praised the competitors’ efforts and hard work. “I am confident that the First Amendment is secure,” Judge Donald told the competitors after witnessing their oral advocacy.

Western New England and Georgia advanced to the final round.

Final-round arguments
One of the most difficult features of this competition is that the competitors often have to switch sides from round to round. In the final round, Western New England had to argue the case for the respondent, the state of Maryland, whereas in the semifinal they had argued for the petitioners. Likewise, the Georgia team of Cavagnolo and Rogers had to switch from respondent to petitioner from the semifinal to the final.

The competitors argued before a five-member “Supreme Court” that consisted of distinguished jurists, including:

  • Judge Martha Craig Daughtrey, 6th U.S. Circuit Court of Appeals
  • Judge Robert Echols, U.S. District Court for the Middle District of Tennessee
  • Judge A.A. Birch, Tennessee Supreme Court
  • Judge Gilbert S. Merritt, 6th U.S. Circuit Court of Appeals
  • Judge Julia S. Gibbons, 6th U.S. Circuit Court of Appeals

“This case concerns the First Amendment rights of a dismissed juror (Elizabeth Jones) to speak on matters of public concern,” Cavagnolo told the judges. She argued the gag order was an invalid prior restraint on First Amendment freedoms.

Her co-counsel and teammate Rogers told the court that the case implicated “the public’s right to receive information and ideas needed to evaluate actions by public officials.”

Marino argued first for Western New England. “The case concerns the state’s affirmative duty to minimize the effects of prejudicial pretrial publicity,” he said. His co-counsel, Egan, urged the court not to allow the First Amendment to trump the Sixth Amendment right to an impartial jury, especially when a criminal defendant faces the death penalty.

The judges peppered the student advocates with many challenging questions, showcasing a Socratic dialogue between judges and attorneys and implicating the often-tenuous balance between the First and Sixth Amendments. They questioned whether juror speech could be limited to the same extent as attorney speech. They also asked the student advocates about the record, standards of review and various legal tests from Supreme Court cases and public policy.

All the advocates performed well under the pressure of seeing their faces projected upon the big screen above the judges. Marino, who was runner-up for best oralist in the competition, showed particular poise in employing a conversational style in his argument. The judges announced that the Western New England team of Marino and Egan had captured top honors.

Finalists’ reaction
“It was an incredible experience,” Marino said of arguing before panels of distinguished judges. “The fact pattern for this problem was thought-provoking and very relevant.”

“I don’t have enough pages on which to write how much I learned about the First Amendment from this competition,” Egan said. Asked their reaction to winning, Egan said “humbling” and Marino said “overwhelming.”

The runner-ups also praised the competition. “I learned a lot about the First Amendment,” Rogers said. “It was a very timely topic and I enjoyed the experience.” Cavagnolo agreed, saying the competition reinforced for her how fundamental First Amendment rights are in our society.

All four finalists said that the competition would help them immensely when they graduated into the real world of practicing law.

Judges’ reflections
“Usually these arguments, as … was (the case) this year, are better than the normal arguments we get in the appellate courts,” Judge Merritt told the finalists. He stressed the importance of oral argument and the “Socratic dialogue” that takes place between attorneys and judges.

Judge William Haynes said each Moot Court competition proves to be a learning experience for him as well as the students. “This year’s competition was particularly interesting for a district judge like myself because as a district court judge you pick juries, you preside over jury trials and you may be confronted with a request for a gag order.”

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