A gag rule of a different sort

by Paul Alan Levy

Recently I had the pleasure of participating in a moot court at Georgetown Law Center’s Supreme Court Institute for the upcoming Supreme Court argument in Octane Fitness v. Icon Health & Fitness, in which the Court will have the opportunity to nix the very restrictive standard applied by the Federal Circuit in deciding whether losing patent lawsuits are “exceptional” and hence qualify for an award of attorney fees to the prevailing defendant.

I was less pleased, though, when a reminder of the upcoming moot court date, with a copy of the reply brief attached, included this paragraph:

The SCI has an absolute confidentiality rule that covers the moot court itself, and a more limited rule of reason regarding making adverse comments about the advocate's position in the case before it is decided. Thus, if you have attended or participated in a moot court, you should not, without the approval of the advocate, post an entry on a blog or publish an article in a newspaper, magazine, or other periodical publication while the case is pending in the Court if the entry or article could reasonably be regarded as contrary to the interests of the advocate.

I didn’t have any interest in blogging about this case before the decision comes out, but I thought long and hard about whether, as a matter of principle, I should withdraw as a moot court judge. In the end, I was filling in for a colleague on this moot court, and I felt it was inappropriate to dump the case back in my colleague’s lap at such a late date. So I went through with the moot court (and was glad I did).

Still, the publishing limit sticks in my craw (the SCI web site shows that the rule also applies to anyone who sits in the audience for the moot courts). The first clause of the first sentence causes me no problem – the moot court judges are given a preview of the advocate’s strategy, and insights into how she might respond to hard questions, and it would be an outrageous betrayal of confidence to reveal such matters.  I could even see asking moot court judges to refrain from commenting on the upcoming argument, between the time of the moot court and the actual argument. Speaking about those subjects, when the author was in the moot court, runs some risk of implicitly disclosing tactical discussions at the moot court.

But the final clause of that first sentence, and the entirety of the second sentence, seem to me to be more problematic. These moot courts draw some top Supreme Court practitioners, not to speak of experts in the specific areas of law at issue in the arguments, and it is hard to understand any legitimate reason to censor their post-argument public comments about the issues in the case, so long as they don’t reveal confidences about what happened during the moot court, or even play up the attention that their comments receive by alluding to the fact that they were in the moot court. And giving veto power to the advocate over publications about a recently completed Supreme Court argument strikes me as especially problematic.

I was curious about the origins of the rule, which was apparently adopted just this year, and learned that it was in response to an incident last year, in which an advocate who had presented his argument to a Georgetown moot court panel was incensed by a column authored by one of the moot court judges.  I inquired about the specific incident, and the column was described to me specifically enough that I was able to locate it, and read it.  Unfortunately, I have been asked not to reveal the column to avoid embarrassing the specific individuals involved as being the source of this bad rule; so readers will have to take my word for my characterization of the column: it contained a fairly gentle suggestion that the advocate had not been successful at persuading certain justices to the advocate’s point of view. If the author was upset about this column, this advocate must be exceptionally thin-skinned.  If you are going to argue at the Supreme Court, and especially if you are a public official as this advocate is, it just seems to be that you have to be willing to accept seeing criticisms of your argument in print.  Why has Georgetown adopted such an overbroad rule because one of its customers was an eggshell plaintiff?

Even worse, to my mind, is that this restriction has been imposed by a law school.  Why a law school would be in the business of limiting scholarly output about the major legal issues that are at issue in many Supreme Court arguments is beyond me.  If the operators of the Georgetown Supreme Court Institute feel that they have to impose such censorship rules to stay competitive in the field of hosting moot courts, then it seems to me they should go private instead of housing themselves at a top law school.

Not that I see any likelihood that Georgetown’s SCI needs this rule to stay in business. Getting accepted for the Georgetown moot is highly competitive, so much so that the SCI has special rules akin to the appellate first filing rules to determine which side in any Supreme Court case gets this plum; most advocates see it as a very valuable part of their preparation. Indeed, although Public Citizen’s Supreme Court Assistance Project also holds moot courts (only for the public interest side, as we see it!), we consistently recommend to advocates we are advising that they apply to the Georgetown program as soon as their case is granted so that they can, at least, get into a coin flip to decide which advocate gets the moot.  (The loser has to "settle" for one of the other law school SCOTUS moot court programs).

Consequently, if Georgetown were to decide that, as a law school, it is not part of its business to insist that moot court judges refrain from publishing non-confidential opinions and information, subject to the veto of the advocate, I find it hard to believe that it would lose top cases to the other law schools in the area that similarly run moot court programs for upcoming Supreme Court arguments.