Villanova takes first place in First Amendment Moot Court Competition
|The Villanova team of Andrew Lennox and Erin Ginsberg won the moot court competition.
NASHVILLE, Tenn. — Villanova University School of Law captured top honors at the 12th Annual National First Amendment Moot Court Competition this weekend, co-sponsored by the First Amendment Center and the Vanderbilt University Law School.
The Feb. 22-23 competition featured two-person teams from 32 law schools across the country arguing a hypothetical U.S. Supreme Court case before panels of attorneys, law professors and judges.
The ‘hypothetical’ Supreme Court case
Central Boston Community College v. Fahrami presented the question of whether a public community college (CBCC) violated the First Amendment rights of Abdullah Fahrami, its sole food-service contractor, when it terminated Fahrami after his political affiliation with “Friends of a Free Palestine” created uproar.
After an inflammatory campus newspaper article revealed Fahrami’s association with the FFP and its anti-Israel stance, many students engaged in a series of protests on campus. Utilization of campus food services dropped 60%, class attendance decreased by 15% and many students were distracted from their academic studies.
The college terminated Fahrami shortly after the protests, fearing that the disruptions on the campus had detracted from its ability to efficiently provide food services and fulfill its educational mission.
The moot court problem, in the words of First Amendment Center Executive Director Ken Paulson, “anticipated the headlines.” Paulson noted the problem, drafted before the terrorist strikes of Sept. 11, “proved prescient,” as the University of South Florida recently announced that it plans to terminate Sami Al-Arian, a tenured professor, for his highly controversial political views.
The two-day competition forced the participants to argue both sides of the case against other teams. The competition requires quick thinking, command of complex case law and the ability to answer challenging questions, asked in rapid-fire succession.
A major challenge confronting all participants was convincing the judges which line of Supreme Court case law to apply. The judges could analyze the problem under the traditional public employee First Amendment free-speech line of cases, such as Pickering v. Board of Education (1969) and Connick v. Myers (1983). Or the judges could analyze the case under free-association cases dealing with political patronage, such as Elrod v. Burns (1976) and Branti v. Finkel (1980).
|A law student faces the music at the moot court competition.|
The final four teams were Northwestern University School of Law, Ohio State University Moritz College of Law, Villanova and the University of San Diego School of Law.
The first semifinal round featured Ohio State, representing petitioner CBCC, against Northwestern, representing respondent Fahrami. The second round pitted San Diego, representing CBCC, against Villanova, representing Fahrami.
The semifinalists argued before a three-judge panel of Sidney A. Fitzwater, U.S. District judge for the Northern District of Texas; William J. Haynes, U.S. District judge for the Middle District of Tennessee; and Cornelia A. Clark, administrative director of the Tennessee Court System.
Villanova and Northwestern advanced to the final round. The Villanova team of Andrew Lennox and Erin Ginsberg had to switch sides and represent petitioner CBCC, while the Northwestern team of Christopher Varas and Laura Wood represented respondent Fahrami. The finalists faced a 5-member panel of distinguished jurists:
- Judge Richard S. Arnold, 8th U.S. Circuit Court of Appeals.
- Associate Justice Adolpho A. Birch, Jr., Tennessee Supreme Court.
- Judge Julia S. Gibbons, U.S. District Court for the Western District of Tennessee.
- Judge Gilbert S. Merritt, 6th U.S. Circuit Court of Appeals.
- Judge Robert D. Sack, 2nd U.S. Circuit Court of Appeals.
Final round arguments
Villanova, as petitioners, presented first. The petitioners faced tough questioning from the bench, including:
- “How can we live by a rule that allows hecklers and hell raisers to disrupt the university and then say that if the disruption is serious enough, then certain speech can be banned?”
- “Are you saying that the First Amendment has a lower rank than the equal protection clause?”
Lennox told the judges that the case concerned “to what extent a public college may direct its own affairs when faced with substantial disruption.” He asserted that Fahrami’s firing should be upheld, in part because Fahrami’s speech came close to a type of speech that warrants a low degree of First Amendment protection.
Ginsberg followed her colleague by asserting that Fahrami “must prove that CBCC acted with specific intent to punish him because of his speech and association.”
Respondents also faced a “live” bench and rapid-fire questioning. Varas asked the judges to extend the Elrod/Branti analysis to cover Fahrami’s associational activities. “This case plainly deals with association,” he asserted.
Sack asked Varas if any lower court had ever applied Elrod/Branti to a speech or association case outside of the pure political patronage context. Varas responded that courts in the 7th and 9th Circuits had done so. Sack then replied: “Well, then you are asking us to do something we’ve never done before — uphold the ruling of the 9th Circuit.”
The exchange drew laughter from the crowd filled with attorneys and law students because the U.S. Supreme Court in the past several years has regularly overruled decisions by the 9th Circuit.
Another humorous exchange occurred when Varas said that the CBCC v. Fahrami case was “analytically a cousin” to the Elrod/Branti political patronage line of cases.
Birch then asked: “But it is not a brother?”
Varas replied, “Well it is a first cousin, your honor.”
Wood, Varas’ co-counsel and teammate, forcefully argued that Fahrami should prevail because the university could have taken many alternatives, or less restrictive means, short of terminating her client’s contract.
“Showing Mr. Fahrami the door and silencing student speech is not the least restrictive means,” she said. “This court has recognized that when political association or expression occurs outside the workplace, the analysis weighs in favor of the employee.”
Petitioner reserved two minutes for rebuttal. During this time, Lennox returned to the podium and told the justices that they should analyze the case under the deferential balancing test laid out in Pickering: “Trust Pickering, Pickering works, it will work in this case.”
Verdict from the bench
Merritt, who served as “chief justice,” announced that the petitioner, Villanova, had prevailed by a 3-2 vote. “It was extremely close and there was violence done in the conference room,” referring to the difficulty the judges had in selecting a winner.
All the judges complimented the students for their high level of advocacy, saying their performances exceeded the performances of most attorneys practicing in their courts. Merritt went so far as to say that the level of advocacy was probably higher than most seen in the U.S. Supreme Court, except for that of a John W. Davis or Judge Sack.
Sack, an acclaimed First Amendment lawyer/scholar before his ascension to the bench, thanked the participants for “an hour of fun.” He also said it was an honor to serve on this panel, which he termed “one hell of a court.”
“It was a wonderful treat to hear the First Amendment being discussed with such great skill here today,” Arnold said. “There is nothing more fundamental to our very system of government than the First Amendment. It was a thrilling experience for this panel of judges.”
Reaction from the winners
The winning Villanova team was overwhelmed by the outcome, particularly since they had to switch sides from the semi-final to final round. “It was an incredible experience,” Lennox said. “I am in awe of these judges. You spend three years reading the opinions of these people and then argue before them. It was simply incredible.”
Ginsberg agreed, calling the moot court problem and competition an “incredible intellectual exercise.”
She said it was “very difficult” for them to switch positions and advocate on behalf of respondent and then petitioner in such a short amount of time. “But we had at least 6 practice arguments and spent hundreds of hours in preparation for this competition.”
Their hours of preparation paid off with their first-place victory.
First Amendment Center founder John Seigenthaler summed up the competition: “This was as good as any First Amendment competition we’ve ever had.”