Vanderbilt
University Law Prof. Tom McCoy presents winner trophy to Samantha Mortlock and
Al Clarke, George Mason University School of Law.
NASHVILLE, Tenn. — Founding father George Mason, who first called for a Bill
of Rights to be added to the U.S. Constitution near the end of the historic
convention in September 1787, likely was smiling this weekend.
Two students from the law school that bears his name captured top honors at
an advocacy competition devoted to the first 45 words of the Bill of Rights —
the First Amendment.
George Mason University School of Law won first place in the 17th Annual
National First Amendment Moot Court Competition, co-sponsored by the First
Amendment Center and Vanderbilt University Law School.
The Feb. 22-23 competition featured two-person teams from 35 law schools
across the country arguing a hypothetical U.S. Supreme Court case before panels
of lawyers, law professors and federal judges. The competition requires
competitors to engage in the challenge of oral advocacy — answering difficult
legal questions posed by the judges. It also requires an understanding of the
First Amendment, thorough knowledge of case law, quick thinking, poise under
pressure and mental gymnastics.
First Amendment case
The fictional case of Ussery v. State Bar
of Georgia presented the student competitors challenging First Amendment
legal issues surrounding the punishment of a lawyer for refusing to identify a
flier as an attorney advertisement.
The flier contained many seemingly political statements that warned people in
a small, rural community of the dangers of illegal immigration and a failing
social security system, but also contained the words “Come See Me” with the
attorney’s office address.
Laura Cocus, left,
and Katie Francioni of Loyola University New Orleans College of Law receive
runner-up trophy from Tom McCoy.
Competitors had to argue whether the flier constituted fully protected
political speech or commercial speech, a type of speech the U.S. Supreme Court
has said holds a “subordinate position in the scale of First Amendment values.”
They also had to address whether the speech, if commercial, was misleading;
whether the Court should abandon its long-standing test for regulations of
commercial speech in Central
Hudson Gas & Elec. Corp. v. Public Service Comm’n of N.Y. (1980);
and whether the state could compel the attorney to post a disclaimer signifying
the flier’s commercial content.
The problem carried current significance, as various restrictions on attorney
advertising have been treated differently in the lower courts and the Supreme
Court continues to struggle with the application of its commercial-speech
doctrine.
"The problem this year is particularly complex because of the continuing
development and refinement of the commercial-speech doctrine by the U.S. Supreme
Court,” said Gene Policinski, vice president and executive director of the First
Amendment Center. “The problem uniquely presents students with many intricate
arguments and questions.”
Final four
By the middle of the second day of competition, the
field had been narrowed to the final four — George Mason University School of
Law, Loyola University New Orleans College of Law, Brooklyn Law School (winner
of the 1999 competition), and the University of Georgia School of Law (winner of
the 2006 competition). The first semifinal round featured Brooklyn, representing
petitioner Ussery, against George Mason, the State Bar of Georgia. The second
semifinal pitted Georgia, representing Ussery, against Loyola, representing the
state bar.
The semifinalists argued before a three-judge panel of Sidney A. Fitzwater,
U.S. District Judge for the Northern District of Texas; Marian F. Harrison, U.S.
Bankruptcy Court for the Middle District of Tennessee and Aleta A. Trauger, U.S.
District Court for the Middle District of Tennessee.
All four teams performed well, prompting Fitzwater, a mainstay jurist in this
moot-court program, to tell the student advocates that “it is encouraging to see
how capable future lawyers are — that you are head and shoulders above a lot of
the practitioners we see in court on a daily basis.”
George Mason and Loyola advanced to the final round. For the finale, the
Loyola team of Laura Cocus and Katie Francioni had to switch sides from
respondent to petitioner Ussery, while George Mason’s team of Al Clarke and
Samantha Mortlock was able to maintain its standing as the respondent state
bar.
The advocates faced a seven-member panel of distinguished federal and state
judges:
Justice Cornelia A. Clark, Tennessee Supreme Court
Judge Steven M. Colloton, 8th U.S. Circuit Court of Appeals
Judge Martha Craig Daughtrey, 6th U.S. Circuit Court of Appeals
Judge Julia S. Gibbons, 6th Circuit
Judge Robert Echols, U.S. District Court for the Middle District of
Tennessee
Judge William J. Haynes, U.S. District Court for the Middle District of
Tennessee
Justice Gary R. Wade, Tennessee Supreme Court
Final-round arguments
Loyola, as petitioners, presented first.
Francioni argued that Ussery’s flier was predominantly political speech entitled
to the full protection of the First Amendment.
“Mr. Ussery distributed this flier at a political rally,” she began before
facing a barrage of questions from Judge Gibbons and others.
Her co-counsel Cocus contended that the state’s rule compelling advertising
disclaimers did not apply to Ussery’s flier and that, if it did, it violated his
First Amendment rights. She argued that “each generation must reaffirm the
guarantees of the First Amendment, as more and more regulations attempt to
whittle away our rights.”
Next, the respondent team of Clarke and Mortlock presented their arguments to
the bench. Clarke contended the “this case concerns state’s ability to protect
consumers from false and misleading advertising that is presented under the
guise of political activism.” He argued that the advertisement was commercial
speech.
Mortlock contended that the flier constituted misleading speech and that a
disclaimer was an appropriate requirement. She showed great aplomb and managed
to engage in a conversation with the judges without a show of nerves.
All four advocates faced tough questioning from a “hot” bench, as attorneys
say when judges become sharply engaged with oral arguments.
Verdict from the bench
Moot Court “Chief Justice” Daughtrey
announced that the panel had voted for George Mason. She praised all the
finalists for their “excellent” performance, noting that it was “difficult to
declare a winner” and the decision was “very close.”
Judge Gibbons said that “it was difficult to know who benefits the most from
this round of oral advocacy,” emphasizing that the justices gain greatly from
hearing such fine advocacy skills. “It is a very affirming experience for all of
us,” she said.
Justice Wade told the competitors that their advocacy skills “stands up
against the best” he had encountered in his 20 years on the Tennessee Supreme
Court.
Reaction from finalists, others
The George Mason team of Clarke and
Mortlock expressed gratitude for their victory.
“It was an intimidating experience but also it was a truly great honor to
argue in front of a panel of such distinguished jurists,” said Clarke. “I really
enjoy having a legal discussion and I enjoyed the argument/advocacy process very
much.”
Added Mortlock: “I’m taking a First Amendment class this semester and next
week we are discussing commercial speech — I think I’ll be ready to talk in
class on the subject.” Asked how she managed to maintain her poise under heavy
fire, she replied: “I’ll talk to anybody.”
Both winners praised the problem, the judges and the competition as a
whole.
Mortlock and Clarke said they could not even estimate how much time they
spent preparing for the problem. “We spent a full month on the brief,” she
said.
Clarke said he gained greater appreciation for the 45 words of the First
Amendment and for how issues surrounding freedom of expression are “always
contentious.”
The finalists from Loyola — two second-year law students — also expressed
appreciation for the competition.
“It was a really intense and amazing experience,” said Cocus. “It was very
interesting to study the First Amendment and I learned that it has major
implications for everyone.”
Their coach, Rachel P. Catulanotto, is a third-year law student who competed
in Moot Court last year. “It is just an amazing competition that features
interesting topics that mean something in this world,” he said.
The competition featured several former participants returning to coach teams
from their alma maters. Mike Caplan, who led Georgia to victory in the 2006
competition, helped coach another talented team from Athens. The Georgia team of
Bret Hobson and Lauren Mock won the award for best brief and advanced to the
semifinals.
Asked why he returned, Caplan, who now clerks for U.S. District Judge Richard
Story in Atlanta, said: “I had a great experience last year and am just excited
to be a part in helping this year’s team.”
Honoring Prof. Tom McCoy
In the awards ceremony, First Amendment
Center founder John Seigenthaler and others paid special tribute to the man
described as the “cornerstone of the competition.” Vanderbilt Law School Prof.
Tom McCoy has “guided every problem,” Seigenthaler noted.
Vanderbilt Law Prof. Tom McCoy receives honors and congratulations upon his retirement from First Amendment Center Founder John Seigenthaler as Moot Court justices applaud.
McCoy will retire at the end of this academic year, after serving nearly 40
years on the Vanderbilt law faculty. Every year he was the driving force that
created the complex First Amendment Moot Court problem. More than anyone else,
he provided the intellectual engine that drove the competition to its finish
lines.
McCoy also helped many local attorneys by teaching a continuing legal
education class — organized by Tiffany Villager, director of First Amendment
studies at the First Amendment Center — to many local attorneys who served as
judges for the competition.
“His leaving creates a void that will not be filled,” said Seigenthaler, who
publicly thanked McCoy for his “talent as a teacher” and for his “embrace of the
Bill of Rights.”
Accepting the honors, McCoy said he had "really enjoyed his own law school
career” and sought to “replicate that experience for future students” throughout
his career.
"We will miss having Professor McCoy’s insight as we develop the moot court
problem," said Villager, who also supervises the competition each year. "His
depth of First Amendment knowledge has helped in the development of a strong and
substantive Moot Court competition."
In an earlier interview, McCoy described the value of the First Amendment
Moot Court: “It has been a pedagogical exercise and an opportunity to reach lots
of students beyond the Vanderbilt law-school community. It allowed me a chance
to stimulate these many students’ interest in the First Amendment.” He added
that developing the problem provided him with the “closest thing to creative
writing” he experienced in his legal career. Saying he considered the
competition a form of teaching, he added: “Teaching in any form is very
rewarding.”
Awards, closing remarks
A total of $5,000 in prizes was awarded
to:
Winning team ($2,000): George Mason University School of Law
Runner-up ($1,000): Loyola University New Orleans College of Law
Semi-finalists ($500 each): Brooklyn Law School and University of Georgia
School of Law
Best brief ($500): University of Georgia School of Law
Best oralist ($500): Ryan Faulconer, University of Virginia School of Law
Receiving gavels:
Runner-up best brief: Brooklyn Law School
Runner-up best oralist: Kyle Unser, University of Arkansas School of Law
In his closing remarks, Seigenthaler urged all the student-advocates to
appreciate and fight for this country’s “independent judiciary” which he called
“unique among the nations.” He reminded the students to exercise their “precious
gift” of First Amendment rights to defend that tradition.
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