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Georgia prevails in case on reporter's privilege

By David L. Hudson Jr.
First Amendment Center research attorney

Front row: Judge Tacha; winners Caplan and Geller; Judge Daughtrey. Back: Judges Haynes, Echols, Merritt, Gibbons.

NASHVILLE, Tenn. — The University of Georgia Law School captured first place in the 16th Annual National First Amendment Moot Court Competition at the First Amendment Center at Vanderbilt University Feb. 24.

The Feb. 23-24 competition featured two-person teams from more than 30 law schools arguing a hypothetical U.S. Supreme Court First Amendment case about reporter's privilege 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. Making the problem even more challenging, the student-teams were required to argue both sides of the case in different rounds.

The case
Reflecting the realities of today, the fictional case of Lawrence v. West Virginia presented the issue of whether a journalist has a First Amendment-based privilege to withhold a confidential source’s name from a grand jury inquiry.

Ridge County, W.Va., prosecutors subpoenaed student journalist Jessica Lawrence after a confidential source — a whistleblowing employee at Empire Steel Corporation — revealed that the company was polluting the environment despite a much-publicized settlement with the state’s Department of Environmental Quality for prior pollution problems.

The Ridge County prosecutor asserted that the government needed the name of the confidential source in order to further the state's compelling interests in combating crime and protecting the health, safety and welfare of the public. Lawrence refused, citing a confidentiality agreement with her anonymous source. She contended that forcing her to testify and reveal her source would chill First Amendment-protected newsgathering.

The problem, written by Vanderbilt Moot Court Board member Aja Hicks under the direction of Vanderbilt University Law School Professor Tom McCoy, was particularly timely in the face of increasing numbers of subpoenas in high-profile cases, such as the CIA leak case involving reporters Judith Miller of The New York Times and Matthew Cooper of Time.

The competitors had to deal with the U.S. Supreme Court’s highly fractured journalist-privilege decision of Branzburg v. Hayes, in which Justice Byron White wrote in 1972: “Until now the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution [408 U.S. 665, 690] is the Fifth Amendment privilege against compelled self-incrimination. We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do.”

However, the opinion becomes less than clear in part because Justice Lewis Powell wrote a short concurring opinion, saying that courts must engage in “case-by-case” balancing of these “vital constitutional and societal interests.” The lower courts have read Branzburg in different ways, created a complex legal canvas for the student advocates.

Final four
On the eve of March Madness, the final four teams were the University of Georgia School of Law, the University of California, Davis School of Law, American University, Washington College of Law and Saint John’s University School of Law.

The first semifinal pitted Paul Stern and Genevieve Johnson of American University representing petitioner Jessica Lawrence against Mike Caplan and Warren Geller of Georgia representing respondent the state of West Virginia.

In the second semifinal, Faith Lovell and Andrew Wenzel of Saint John’s represented petitioner Lawrence, while Danny Barak and Chad Mahalich of UC-Davis represented the state of West Virginia.

The semifinalists argued before a three-judge panel of Cornelia A. Clark of the Tennessee Supreme Court; Bernice Donald, U.S. District Court for the Western District of Tennessee; and Sidney A. Fitzwater, U.S. District Judge for the Northern District of Texas.

The judges uniformly praised the skill and aplomb of the student advocates, who faced a bench that fired tough questions at a rapid pace. “In all the years I’ve participated as a judge in this program,” Fitzwater said, “these four teams were as close in ability as I’ve seen.”

Donald echoed those comments, adding that “the issues in this case have a lot of currency.”

Georgia and UC-Davis advanced to the championship round.

University of Georgia School of Law's Mike Caplan making his case during final round.

Final-round arguments
The Moot Court competition requires the student-advocates to argue both sides of the case in different arguments. For the final round, the UC-Davis team had to switch sides from its semifinal position and argue in favor of petitioner Lawrence, while the Georgia team again represented the respondent state.

The advocates argued before a six-member “Supreme Court” of distinguished jurists:

  • Judge Martha Craig Daughtrey, 6th U.S. Circuit Court of Appeals
  • Judge Robert Echols, U.S. District Court for the Middle District of Tennessee
  • Chief Judge Deanell R. Tacha, 10th U.S. Circuit Court of Appeals
  • Judge Julia S. Gibbons, 6th Circuit
  • Judge William J. Haynes, U.S. District Court for the Middle District of Tennessee
  • Judge Gilbert S. Merritt, 6th Circuit

    Barak began the final found for UC-Davis, arguing that the First Amendment should afford journalists like Lawrence a qualified privilege to keep her source confidential. He soon faced a barrage of questions, asking whether Lawrence, as a student, even qualified as a journalist deserving of consideration for a privilege.

    Barak's co-counsel and teammate Mahalich then argued that Lawrence should prevail  because “the grand jury investigation was conducted in bad faith,” an exception to Branzburg’s central holding of no privilege for reporters.

    Caplan then began speaking for the respondents, contending that there is no qualified or absolute privilege under Branzburg. Caplan employed a conversational style, showing great poise even under heavy fire from the bench.

    His teammate Geller then argued that there was no bad faith in the investigation because the whistleblower’s comments revealed the possibility of a “massive threat to the environment” that justified the state’s good-faith calling of Lawrence to testify before the grand jury.

    Barak made a short rebuttal, closing with a colorful argument: “It’s like in the Wizard of Oz, the company is trying to say, ‘Pay no attention to the man behind the curtain,’ but the man behind the curtain only takes Toto to open it up. The grand jury in this case did absolutely nothing to find that man behind the curtain, did nothing to find the pollutants in the air.”

    The judges gave the students the experience of facing what “Chief Justice” Tacha called a “very hot bench,” firing challenging question after challenging question. These included whether Lawrence as a student journalist qualified as a member of the press, whether Justice Powell’s enigmatic concurring opinion was the controlling opinion of the Court’s fractured decision; whether the fact that many more states have reporter shield laws now than in 1972 should cause the Court to re-evaluate its holding in Branzburg; and what is the legal standard that should be used to evaluate whether a reporter should be forced to reveal her sources.

    All the judges praised the competitors for their hard work and skill at handling what Tacha referred to as a “barrage of questions.” Tacha announced that after “a lively discussion,” the panel selected the respondents as the winners.

    “This is a more difficult environment for student advocates I think than the real environment in oral arguments in appellate courts … because you have a group of judges interested in giving you an intellectual workout,” Gibbons said.

    Finalists’ reactions
    The finalists uniformly praised the quality of the competition and the final rounds. “I am still in a state of disbelief," said Caplan of the winning team from Georgia. “I’m still soaking it up right now. It is an immense honor to argue in front of such a distinguished panel of federal judges. It definitely is one of the highlights of my legal education.” Caplan, the son of a New Orleans lawyer, said he appreciated the opportunity to hone his skills before a panel of real-life federal judges.

    Geller echoed the sentiments of his colleagues: “It was nerve-wracking and intimidating but it was also incredibly exciting.” When asked how he was able to maintain his poise, he said, “That’s an act.”

    Runner-up team member Barak of UC-Davis, who also made the Moot Court semifinals last year, said: “It was a great panel and a great experience. I agreed with the panel that our opponents did a marvelous job and deserved to win.” When asked how he was able to become probably the first person in the history of the competition to advance to the semifinals in two straight years, he replied: “Good partners.”

    In a later interview Judge Tacha said: “The performance of these student advocates gives me great optimism for the future of the profession.”

  • Related

    Moot Court examines reporter's privilege

    16th annual First Amendment competition focuses on hypothetical case involving college journalist's refusal to identify source. 02.23.06

    University of Georgia law school takes top honors

    UC-Davis is runner-up in 16th annual competition; hypothetical case involves college journalist's refusal to identify source. 02.24.06

    Branzburg v. Hayes, reporters’ privilege & circuit courts

    By Bill Kenworthy A guide to how circuit courts have ruled on reporters’ privilege in protecting confidential sources. 07.12.05

    Ongoing confidential-sources cases
    By Bill Kenworthy Compilation tracking current cases involving efforts to force journalists to disclose confidential sources. 08.04.05

    George Mason team wins in a tricky case
    By David L. Hudson Jr. Competition hypothetical explores commercial-speech issue of how attorneys may or may not advertise. See Legal Times blog 02.26.07

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