First Amendment Moot Court Competition Is Year-Long Collaborative Effort

When Samantha Mortlock and Al Clarke of George Mason University were pronounced winners of the 2007 First Amendment Moot Court Competition, their triumph was the culmination of months of planning by a team of Vanderbilt law students, supported by the Freedom Forum First Amendment Center at Vanderbilt University.

(At right: Professor and First Amendment scholar Tom McCoy is honored for by John Seigenthaler of the First Amendment Center.)

Teams from 35 law schools from throughout the U.S. came to Vanderbilt February 22 and 23 to compete in the annual competition. Each competing team participated in a minimum of four rounds, arguing a hypothetical case based on a current First Amendment controversy before panels of accomplished jurists, legal scholars and attorneys.

The 2007 case examined a fundamental First Amendment principle — the public’s right to receive information and ideas — through the prism of a state regulation on attorney advertising. Although attorney advertising necessarily focuses attention on the legal profession, the First Amendment implications affect the public at large. Student advocates had to address several questions, including:

• Is the attorney advertisement a form of fully protected political speech or a form of commercial speech, which assumes a “subordinate” rank in the scale of First Amendment values?
• If the speech is commercial, then is it false or misleading?

The case also required that each team address the oft-criticized Central Hudson test used by the Supreme Court to examine the constitutionality of regulations on commercial speech.

Final and semi-final round arguments are judged by panels of state and federal judges, and more than 200 attorneys, judges and law professors serve as early-round judges. To organize the 2007 competition, Executive Justice Ashley Alfonso, a 3L who will join the litigation firm Swift, Currie, McGhee & Hiers in Atlanta after graduation, coordinated a team of three associate judges – Bryan Cantrell, who handled the logistical challenge of scheduling matches for 35 teams; Eric Meehan, who administered the competition’s rules and scoring system; and Elizabeth Gonser, who recruited and scheduled judges. The student justices work closely with the staff at the First Amendment Center, which promotes the competition, secures high-profile judges for the final and semi-final competition rounds, and handles mailings, lodging and catering for the event. “It’s a year-long collaborative process,” Alfonso says. “Planning for the next year starts as soon as this year’s competition ends.”

A noted First Amendment scholar, Professor Tom McCoy, has served as the Faculty Editor for the problem and for the bench brief since the competition’s inception in 1993. In the early 1990s Professor McCoy and R. B. Quinn then Legal Director of the First Amendment Center, conceived the idea of cosponsoring a national moot court competition. Each April for the past 14 years, Professor McCoy and a team of student problem editors have met with scholars at the First Amendment Center to discuss current cases and ideas for the problem for the following year.

After last April’s meeting, executive problem editor Joy Royes worked with associate problem editors Ashley Ebersole and Natalie Rowland over the summer to research the most promising ideas. After meeting with First Amendment Center scholars last fall to choose the problem topic, Professor McCoy and his team of student editors created characters and a story that would present the chosen constitutional issues and wrote several lower court opinions, both majority and dissent, to provide the record for appeal to the U.S. Supreme Court. Finally, with Professor McCoy’s guidance, Royes drafted the bench brief for the competition judges.

Professor McCoy, who is retiring this spring after 39 years on the law faculty, was honored for his key role in the annual competition by First Amendment Center Director John Seigenthaler at the competition’s conclusion. “He’s been an integral part of the competition since the beginning, and his contributions and commitment to First Amendment scholarship have been a tremendous asset to the Center and the law school,” Seigenthaler said.

“I very much enjoyed my years as a law student, and 39 years ago, I chose to teach law in order to recreate that experience for subsequent generations of law students,” Professor McCoy said. “The great experiences I’ve had working with my students and visiting competitors during these competitions have been a true confirmation of my choice of careers. “

Sarah Luppen, who will serve executive justice for the 2008 competition, has already begun the planning process with her team of three Associate Justices, Kevin Chastain, Elizabeth Hyon and Jeff Sand, and problem editors Erin Kaiser, Hugh Hill and Blair Preiser. “I’m looking forward to being a part of the tradition of this competition,” Luppen said. “It has earned its place as one of the legal community’s most distinguished moot court forcompetitions.”

 The Case: Ussery v. the State Bar of Georgia

The 2007 First Amendment Moot Court case required competitors to explore the extent to which the First Amendment protects a lawyer who asserts controversial political positions on printed handbills advertising his professional services.

The case concerned a small-town Georgia attorney, Christian Ussery, who designed and distributed a one-page printed flyer to solicit business containing the following: “DID YOU KNOW that Social Security will go bankrupt in the near future? DID YOU KNOW that the government is considering making it easier for illegal aliens to get your hard earned Social Security benefits? ARE YOU OUTRAGED by what they are doing with your money? COME SEE ME and let’s talk about your rights, before it is too late.” The word “Advertisement” did not appear at the top of the page as required by a state bar rule, and the flyer included Ussery’s name and contact information.

In a formal complaint to the Governor’s Office of Consumer Affairs, Calesa Weaver alleged that Ussery’s flyer constituted a false, deceptive and misleading advertisement in violation of the Georgia False Advertising Statute. The Office of Consumer Affairs responded to Weaver’s complaint by filing a grievance with the State Bar of Georgia that ultimately resulted in a recommendation that the Georgia Supreme Court suspend Ussery’s license to practice law in the State of Georgia for one year.  Ussery’s exception was rejected by the Georgia Supreme Court in a 3-2 decision, and his license to practice was suspended as recommended by the Bar. Ussery then appealed to the Supreme Court of the United States.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

—    First Amendment to the Constitution of the United States 

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