May 15, 2019 Duke Law News
Professor Jeff Powell, director, and Nicole Ligon, supervising attorney, stand with Clinic students Luke Morgan ’19, Michael Fisher ’19, and Bryant Wright ’19 on the steps of the U.S. District Court for the District of South Carolina in Charleston after arguing a motion to dismiss a defamation lawsuit against their client (third from left.)
Duke Law School’s First Amendment Clinic, in which students provide free representation for clients who cannot afford an attorney in cases involving freedom of speech, press, and assembly, wrapped up a busy first year. Students who started in the clinic in the fall saw a case move from intake to settlement over the course of two semesters and made it to the discovery stage in other matters after surviving motions to dismiss and other litigation obstacles. Over the summer months the clinic will expand its mission with the launch of a comprehensive database relating to free speech disputes on U.S. college campuses.
Clinic receives enthusiastic student response
The clinic’s caseload includes the representation of individuals in actions involving political speech; alleged defamation stemming from comments on social media; and a well-publicized lawsuit against the Chicago Bears for violating the plaintiff’s First and Fourteenth Amendment rights after the team refused to let him wear clothing with the Green Bay Packers insignia at Soldier Field. The clinic is also representing two journalists who are being barred from reporting activities, as well as several individuals who seek to speak publicly about their experiences of sexual harassment in light of the #MeToo movement.
“There’s a real lack of pro bono First Amendment services,” Supervising Attorney and Lecturing Fellow Nicole Ligon said of the clinic’s busy docket. “And the skills the students are learning here are really translatable to any type of litigation work.”
Students participated in every facet of their cases, including client meetings, discussions with opposing counsel, depositions, and researching and drafting court filings and amicus briefs, all under the supervision of Ligon and Professor H. Jefferson Powell, the clinic’s director. While enrollment in the clinic’s first year was initially capped at four students per semester, three fall-semester students opted to stay on through the spring, bringing the class size to eight.
Bryant Wright ’19 called his yearlong clinic experience “the best thing I’ve done at Duke Law by far.” He said learning to serve clients and work as part of a team will let him hit the ground running when he joins the Copyright and False Advertising & Trademark litigation group at Proskauer Rose in New York.
In the fall semester, Wright and 2019 classmates Luke Morgan, Michael Fisher, and Joe Bianco authored an amicus brief which was submitted to the U.S. Supreme Court in support of a certiorari petition in Abbott v. Pastides, a campus free speech case originating at the University of South Carolina.
The clinic also filed an amicus brief with the Supreme Court in Rucho v. Common Cause, a case challenging partisan gerrymandering that was argued in March, and an amicus brief in Dallas County, Texas, criminal court in State v. Rivello, a case that concerns whether a Twitter message that was intended to and did cause a seizure in the recipient constitutes protected speech under the First Amendment when sent to a known epileptic. The clinic’s brief argued that such an assault-by-Internet is not protected.
Morgan, Fisher, Wright, and Austin Brumbaugh ’20 also worked on the case that settled in April, allowing the parties to avoid trial.
“It was great to see the case from beginning to end. And seeing the personal benefit to our client was really moving, because you see the effect that the litigation has on them and how much it means to them that you’re representing them,” Fisher said.
Morgan said he appreciated the opportunity to argue a motion to dismiss filed by the clinic in the federal district court in South Carolina, and found the experience paid off in February when he argued before three federal appellate judges in the final round of the Dean’s Cup Moot Court Tournament; he and his partner won.
Morgan, who will clerk first with the U.S. District Court for the District of Connecticut and then with the U.S. Court of Appeals for the Second Circuit in Brooklyn, called the clinic “an incredibly rewarding experience” that fits with his goal of crafting an academic career focused on First Amendment issues.
“I feel really passionate about the defamation cases, in particular,” he said. “There are important purposes for it, but I feel that a lot of times defamation law is used to silence critics of powerful people just for expressing a political opinion.”
Database tracks campus speech disputes, resolution
When completed, the clinic’s Campus Speech Database will document every free speech occurrence on college campuses nationally and how any resulting litigation was resolved. It will also include events that raised potential First Amendment concerns and were settled out of court, as well as events that received public backlash but no further activity.
Such a resource is sorely needed because the Supreme Court has issued little guidance on free speech issues on campus, Ligon said. “It’s really ripe for review and there is a dearth of guidance on how university administrators should be approaching campus speech issues,” she said. “Ultimately, we hope that it provides administrators and other university personnel with guidance on what might constitute a constitutionally permissible regulation or restriction on campus speech. We also hope it helps students better understand their free speech rights, including knowing when conduct might fall out of the First Amendment’s purview.” The repository will also provide guidance for practitioners litigating a campus speech claim, she added.
With design of the database completed, research assistants will spend the summer fleshing it out with case material.
The database is funded by a grant from the Stanton Foundation, which also provided the initial funding for Duke’s First Amendment Clinic and similar clinics at numerous other law schools around the country.
The Campus Speech Database “embodies both the clinic’s specific mission and its participation in the wider purposes of Duke,” said Powell. “As a legal clinic dedicated to the First Amendment, we are always concerned with advocating the protection of freedom of thought and expression in American life. And any part of Duke University is committed to free speech and free thought, by definition. We are very grateful to the Stanton Foundation.”
“What Duke is putting together is a resource that will benefit the nation and all supporters and believers in free speech,” said Steve Kidder, a spokesman for the foundation named for former CBS President Frank Stanton who was known for his principled defense of First Amendment press protections. “It is a dramatic new step forward so we are thrilled by it.
“Any time you’re able to actually have this kind of information readily available, it’s going to ripple out in a way that will promote the ideas that are at the heart of what Frank Stanton was about. This is exactly the kind of result that one always hopes for in philanthropy and the kind of impact that shows that these dollars were very well spent.”
