Appellate Advocacy Blog

Guest Post: The Appellate Project

This is a guest post by Juvaria Khan, Founder of The Appellate Project.

Launched in September 2020, The Appellate Project (TAP) is the first organization focused on empowering law students of color to enter the appellate field. We are driven by a belief that our highest courts should reflect our communities, and we are excited to work with the appellate bar to make that belief a reality.

The need for diversity in the appellate bar

Appellate courts hear and decide cases that affect almost every aspect of our lives: our ability to vote, how we are policed, our religious freedom, the quality of our education, our workplaces, healthcare, immigration protections, and much more. The attorneys who argue these cases exert great influence as they shape, brief, and ultimately frame the issues before these courts. Although these cases affect all Americans—and, not infrequently, have a disproportionate impact on communities of color—there is a dearth of minority attorneys in the appellate field.

Although the decades since desegregation have allowed more people of color to pursue legal careers, systemic inequalities continue to create barriers to entry at the appellate level. Unlike trial-level work, appellate litigation has long been considered a specialized practice, reserved only for the most elite litigators, with the most successful among them often forming the pool from which judicial nominees are selected.

Barriers to entry start early on. Many students of color, especially those who are first-generation or from lower socioeconomic backgrounds, do not grow up in communities with lawyers, much less appellate lawyers. As a result, many of these students—unaware of the strict requirements needed to succeed in the appellate field—do not take the requisite steps to position themselves for a career in appellate work. Other students are discouraged from seeking appellate-related opportunities for a host of reasons. Some self-select out after not seeing many attorneys in the field who look like them. Others lack mentors or are discouraged by law schools that overlook them.

The result is a staggering lack of diversity in the appellate space. For the few attorneys of color who do pursue appellate work, this lack of diversity can create a difficult environment with implicit—and at times, explicit—biases. And the appellate field’s insular character can make networking opportunities particularly challenging.

This lack of diversity has serious consequences. It erodes trust in our highest courts, particularly for the communities most impacted and least represented. It signals to law students of color that these are spaces where they do not belong. And it means appellate courts are deciding matters of law without being informed by the full range of diverse perspectives and lived experiences that equal justice under law requires.

The Appellate Project

 

The Appellate Project aims to change that. Our Mentorship Program is the first national effort focused on empowering law students of color to pursue appellate work. We pair law students of color interested in appellate practice with mentors in the appellate field. We also provide students with appellate-focused resources throughout the year: clerkship support, networking opportunities with the appellate bar, skill-building workshops, guidance on appellate job opportunities, and more. We have been grateful to work with an incredibly passionate and diverse group of volunteers from the appellate bar who help make this work possible. The students in our inaugural class have already felt the impact of these efforts, and we look forward to continuing to grow as our resources expand.

We have also developed innovative appellate training opportunities, such as partnering with Howard University School of Law to bring an appellate focus to their historic Civil Rights Clinic. Taught by appellate attorneys Tiffany Wright and Ed Williams, students work on civil rights appellate cases that center the development of social justice issues. In the first two semesters of the Clinic, the students filed 10 appellate briefs in civil rights cases around the country, including to the United States Supreme Court.

If you know any law students of color who enjoy legal research and writing and may be interested in appellate work, please encourage them to apply to our Mentorship Program by September 6. More information, including a link to the application, is available here. This video also has more information.

Finally, as a new nonprofit our work is made possible thanks to our volunteers and donors. If you would like to donate, get involved as a sponsor, or work with our students, please visit our website. We look forward to working with you!

Appellate Advocacy Blog Weekly Roundup Sunday, August 29, 2021

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• The Supreme Court struck a CDC moratorium on evictions during the pandemic. An earlier nationwide moratorium lapsed on July 31, prompting the CDC to impose its own moratorium. This CDC moratorium temporarily halted evictions in counties with “substantial and high levels” of virus transmissions. The Court’s decision allows evictions to resume. The decision held that the CDC lacks the authority to act without explicit congressional authorization and ruled that, “[i]f a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.” See the per curium order and reports from the Associate Press, NPR, and The Washington Post.

• The Supreme Court revived the previous administration’s “remain in Mexico” asylum policy, refusing to stay a ruling that banned the Biden administration’s attempt end the policy. The policy requires asylum seekers to remain in Mexico while they await hearings in the United States. The Court stated that the decision to end the policy appeared to be arbitrary and capricious. The decision leaves in place the lower court’s ban, which will be heard by an appeals court. See the order and reports from Reuters, The New York Times, APNews, and NPR.

Appellate Court Opinions and News

• In a rehearing on the issue, the Second Circuit let stand a lower court’s refusal to grant an injunction against anti-abortion protestors, finding that the district court did not abuse its discretion. New York State sued 13 protestors arguing that protesters crowded women, made death threats against escorts, and blocked the path with posters, which violated the Freedom of Access to Clinic Entrances Act, New York State Clinic Access Act, and New York City's Access to Reproductive Health Care Facilities Act. The district decision rejected the injunction motion, finding that the state had not shown that it would face irreparable harm. The panel on rehearing did not rule on the merits because it found that the lower court did not abuse its "considerable discretion" in denying the injunction. See the order and reports from Reuters and Courthouse News.

• The Ninth Circuit affirmed a lower court’s ruling that denied a motion for preliminary injunction by a landlord group attempting to stop Los Angeles from enforcing an eviction moratorium. The court determined that the group could not show a likelihood of success on the merits, finding that, “even if the eviction moratorium was a substantial impairment of contractual relations,” the city “fairly tied the moratorium to its stated goal of preventing displacement from homes” during a pandemic. See order and reports from Bloomberg and The California Globe.

• The Fourth Circuit affirmed the death sentence for the gunman who killed nine members of a Black Charleston church in a racially motivated shooting. The court stated that “[n]o cold record or careful parsing . . . can capture the full horror of what [the shooter] did” and that “[h]is crimes qualify him for the harshest penalty that a just society can impose.” The court rejected the argument that the gunman should have been ruled incompetent. The gunman is the first person in the US to be sentenced to death for a federal hate crime. See the ruling and reports from NPR, The Washington Post, and USA Today.

Effective Appellate Advocacy

On September 2, the Ninth Circuit and the Federal Bar Association are sponsoring a free program featuring Judge Margaret McKeown.  Judge McKeown will discuss effective brief writing and oral argument. Find information here. 

What To Do When Faced With Adverse In-Circuit Precedent

In my last post, I reviewed arguments employed in three different Supreme Court briefs seeking reconsideration of three separate precedents. The arguments attempted there in favor of overruling precedent as unworkable are equally applicable to adverse in-circuit precedents.

In the federal circuits, however, the process usually requires two-steps: first, an argument before the usual three-judge panel; and, second, upon the granting of a petition, argument en banc. The double argument occurs because one panel cannot overrule a prior panel’s precedential holding.[1] In the Eleventh Circuit, this practice is known as the “prior panel precedent rule.”[2] Some state courts of appeal follow the same rule.[3] Yet, other states permit one panel to overrule an earlier one on the same issue, but advise that it is an authority that should be exercised reticently.[4]

The Fifth Circuit has dubbed the practice the “rule of orderliness,” which holds that “one panel of our court may not overturn another panel’s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.”[5] It also means that, “to the extent that a more recent case contradicts an older case, the newer language has no effect.”[6]

If an advocate is unable to distinguish the prior precedential holding, part of the argument before the initial panel must suggest the problematic decision is wrong and warrants rehearing en banc for purposes of reconsideration. A panel’s opinion, or even a judge’s dissent, that suggests the precedent was wrongly decided, even when those judges are obliged to follow it, provides a substantial boost to a petition for rehearing en banc.

Still, not every unfavorable in-circuit decision qualifies as controlling precedent. Even where a case is not otherwise distinguishable, it may be possible to characterize the prior decision’s problematic passage as obiter dicta. In those circumstances, the contrarian language “could have been deleted without seriously impairing the analytical foundations of the holding and being peripheral, may not have received the full and careful consideration of the court that uttered it.”[7] For example, if no party briefed and argued the point, the panel was deprived of arguments that might have caused it to avoid the issue or decide it differently. For that reason, there were no analytical foundations, and the dicta is not binding.[8]

State courts, too, hold that dicta is not binding. In California, for example, “dictum is a general argument or observation unnecessary to the decision which has no force as precedent.”[9] Instead, only the ratio decidendi, the “principle or rule which constitutes the ground of the decision,” serves as stare decisis.[10] Under that approach, a “decision is not authority for what is said in the opinion but only for the points actually involved and actually decided.”[11]

Recently, that same issue of what constituted stare decisis came up in the U.S. Supreme Court. In Ramos v. Louisiana,[12] the Court was asked to overrule cases that held the Sixth Amendment right to jury trial did not require a unanimous verdict to convict a defendant of a serious offense. Instead of overruling the earlier precedents, it abrogated them. The majority opinion by Justice Gorsuch denied that the earlier decisions constituted precedent because the result was the product of a fragmented Court. That characterization generated some controversy. Justice Kavanaugh, another member of the majority, vocally treated the prior decision as precedent, but precedent that deserved to be overruled. The dissenters insisted that adherence to stare decisis was necessary, even if they might have reached a different decision if the issue was first being presented.

The bottom line is that there are a variety of tools available to an advocate who finds an adverse precedent in the way of a favorable result. Understanding the concerns that a court has expressed and the rules it follows can provide a blueprint for building that case. And, sometimes, when you notice disagreement within the U.S. Supreme Court about what constitutes binding precedent, a door may open to some arguments a lower appellate court has not previously considered.

 

[1] See, e.g., United States v. Salazar, 987 F.3d 1248, 1254 (10th Cir. 2021).

[2] Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001).

[3] See, e.g., Nat'l Med. Imaging, LLC v. Lyon Fin. Servs., Inc., No. 3D20-730, 2020 WL 5228979, at *1 n.2 (Fla. 3d D.C.A. Sept. 2, 2020).

[4] See, e.g., Roberts v. Roberts, 2014 UT App 211, ¶ 44, 335 P.3d 378, 391.

[5] Jacobs v. Nat'l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).

[6] Arnold v. U.S. Dep’t of Interior, 213 F.3d 193, 196 n.4 (5th Cir. 2000).

[7] Int’l Truck & Engine Corp. v. Bray, 372 F.3d 717, 721 (5th Cir. 2004) (internal quotation marks and citation omitted).

[8] Bruce v. Estelle, 536 F.2d 1051, 1059 n.5 (5th Cir. 1976), cert. denied, 429 U.S. 1053 (1977).

[9] United Steel Workers of America v. Bd. of Ed., 162 Cal.App.3d 823, 834 (1984).

[10] Bunch v. Coachella Valley Water Dist., 214 Cal.App.3d 203, 212 (1989).

[11] Childers v. Childers, 74 Cal.App.2d 56, 61  (1946) (emphasis in original).

[12] 140 S. Ct. 1390 (2020).

In COVID-Era Law School, the New Boss Is the Same As the Old Boss

    As law students around the country return to the classroom this week and next, they face many challenges that seem unique to the COVID-19 era. In addition to the typical stresses of law school, students must navigate public health orders that seem to shift by the hour; course delivery methods that use unfamiliar or confusing technology that can obfuscate the underlying legal doctrine; and relationships with peers and professors who may be tentative or confused while working behind the virtual and physical barriers in place to manage the pandemic.

    These challenges seem unique and insurmountable. But they are species of the same challenges law students already faced every day under “ordinary” conditions. Students can overcome them with the same skills they have already developed to succeed in law school.

    First, navigating shifting public health protocols can make students feel like their desks are mounted on quicksand. Whiplash from changing distancing, masking, and contact tracing requirements causes more neck pain than PowerPoint slides in size 10 font. But the shifting requirements to interact in person are striking similar to the substantive legal doctrine students must learn in those classes. Core concepts in nearly any legal discipline, from constitutional law to intellectual property, are in flux over time. Students must be mentally pliable, accommodating and understanding how doctrine evolves over time. To manage changing public health orders without stress, students can lean on the very same skills they have used to adjust to uncertainty in the materials they are studying.

    Second, course delivery methods rely more and more upon new technologies and platforms. The variation between the different tools for presenting material and the ways different professors utilize them can distract students from the complex information those tools are designed to deliver. But even when technologies are stabler, students must adjust to the rhythms of different classrooms. Professors play to their strengths as instructors, relying on some pedagogical techniques that others might ignore. Part of the game of law school is for students to adjust their approach to each professor’s style of presentation and assessment. Though technology adds a different wrinkle to that game, the basic rules are the same. As always, students must tailor their approach to each class and communicate with instructors to jointly optimize their learning. That team-based approach, with professors and students united to conquer difficult material, is vital to success no matter how a course is delivered.

    Third, personal relationships are under constant strain from the pandemic, to the detriment of study groups, office hours, and even formative assessment. When all parties are uncertain how to interact safely, they may choose to reduce interacting at all to avoid confusion and stress. But we can conquer these divides with the same basic humanity that students and professors rely upon to overcome the generational and political chasms that often separate us. Seeing everyone as human, acknowledging their differing challenges and lived experiences, and approaching interactions with fundamental respect for the dignity of others is vital, no matter how relationships are built. When students and professors rely on that shared humanity, they can overcome the fear and uncertainty of the COVID era and learn to enjoy building relationships again.    

    As professors and students today, we must overcome these challenges; we have no other choice. But the good news is that we have the skills we need to push forward and be successful. As much as COVID-19 has changed the learning environment, we can rely on what we know to get through what is new.

Social Media, State Action, and the First Amendment

In a climate of extreme partisanship and polarization, platforms such as Facebook and Twitter – with the express authorization of Congress under Section 230 of the Communications Decency Act – exercise unprecedented power to censor the content and viewpoints that individuals express on these platforms, particularly concerning political speech. And social media platforms have done precisely that, censoring views that they subjectively deem objectionable or inappropriate – with no repercussions whatsoever. In so doing, social media platforms thwart the robust exchange of opinions and thus undermine the marketplace of ideas that is so essential to a properly functioning democracy and a diverse society.

If the federal government engaged in such conduct, it would unquestionably violate the First Amendment. Social media platforms, however, are private companies, not government (state) actors, thus rendering the First Amendment inapplicable and enabling social media to engage in content and viewpoint-based discrimination with impunity.  

That has to change – now.

For the reasons set forth below, the United States Supreme Court should hold that social media platforms such as Facebook and Twitter are state actors and, as such, prohibited from engaging in conduct that would violate individuals’ free speech rights.

1. Through Section 230 of the Communications Decency Act, Congress gave (and delegated to) social media the power to engage in                            content-based discrimination.

A private company can be deemed a state actor when there is a close relationship between the private party's actions and the government's objectives, or when the private party performs a traditional government function. In Skinner v. Railway Labor Executives’ Association, for example, Congress empowered private companies to conduct drug tests of their employees.[1] The Labor Association objected, arguing that the drug tests violated the Fourth Amendment's protection against unreasonable searches and seizures.[2] The Supreme Court held that, although the railroad was a private company, the tests, which the government explicitly authorized, rendered the railroad  a state actor for this purpose.[3] Additionally, in Marsh v. Alabama, the Court held that when a private company exercises powers that are traditionally reserved to the states, it is engaging in a public function and thus must respect constitutional safeguards.[4]

Based on Skinner, social media can arguably be deemed a state actor. Through Section 230, Congress explicitly authorized social media platforms to do precisely what the First Amendment prohibits: censor information based on content or viewpoint.  As one commentator explains:

Section 230 … grants a … “good Samaritan” immunity to online platforms as well. In this second immunity, Section 230 authorizes internet platforms to block content deemed “lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable, whether or not such material is constitutionally protected.” Section 230 explicitly exempts websites from most civil and state criminal liability for any action they take in a “good faith effort” to exclude such “offensive” material.[5]

As Professor Dawn Nunziato states, “Congress encouraged private Internet actors to do what it could not do itself—restrict harmful, offensive, and otherwise undesirable speech, the expression of which would nonetheless be protected by the First Amendment.”[6]  

Simply put, Section 230 “effectively immunizes and induces private conduct that would be unconstitutional if governmental actors did it themselves.”[7] And that is the problem. Congress should not be permitted to evade First Amendment protections simply by giving social media platforms – the modern-day marketplace of ideas – the power to do that which it could never do.

2.    Social media is the new public forum and the modern-day marketplace of ideas.

Most citizens do not express their political views on Main Street, in public parks, or in the public square. Rather, they express their views online, such as on their Facebook and Twitter pages. Indeed, the views that millions of social media users express often relate directly to political and public policy issues, such as judicial nominees, abortion, climate change, campaign finance reform, and infrastructure. To be sure, a person need spend only a few minutes on Facebook or Twitter – or read Alexandria Ocasio Cortez’s Twitter feed (among others in both parties) – to realize that these platforms are the primary vehicle by which users express a diverse array of political views and engage in often heated debates on public policy issues.

Put simply, the marketplace of ideas – the forum in which diverse ideas on matters of public concern, however unpopular or distasteful, are welcome – is now located on social media platforms.

By censoring information that it subjectively and arbitrarily deems “objectionable,” social media is compromising the marketplace of ideas by doing precisely what the First Amendment prohibits – engaging in content and viewpoint discrimination. If legislators are to remain committed to respecting all points of view, rejecting discrimination and arbitrariness, and recognizing that unpopular ideas are essential to public discourse, they should conclude that social media platforms, particularly due to the power Section 230 grants, are state actors.

3.    A robust public discourse – including welcoming offensive and unpopular ideas – is essential to democracy, liberty, and diversity.

Politics and public discourse have become so divisive and polarized that diverse and unpopular viewpoints – regardless of political affiliation – are often met with scorn and ridicule.  By censoring diverse views that challenge widely accepted and prevailing views, social media exacerbates this problem.

It encourages groupthink.

It discourages critical analysis of public policy issues.

Don’t be fooled by the claim that social media platforms are simply preventing the dissemination of “misinformation.” That determination is subjective and arbitrary. It is also anathema to the principle that liberty, democracy, and diversity depend on tolerating speech that we hate and views that we abhor.  Ultimately, welcoming all viewpoints and eschewing discrimination vindicates every individual’s interest in having a voice in democracy. As Erwin Chemerinsky stated:

Freedom of speech is defended both instrumentally—it helps people make better decisions—and intrinsically—individuals benefit from being able to express their views. The consensus is that the activity of expression is vital and must be protected. Any infringement of freedom of speech, be it by public or private entities, sacrifices these values. In other words, the consensus is not just that the government should not punish expression; rather, it is that speech is valuable and, therefore, any unjustified violation is impermissible. If employers can fire employees and landlords can evict tenants because of their speech, then speech will be chilled and expression lost. Instrumentally, the “marketplace of ideas” is constricted while, intrinsically, individuals are denied the ability to express themselves. Therefore, courts should uphold the social consensus by stopping all impermissible infringements of speech, not just those resulting from state action.[8]

Upholding the social consensus – and the First Amendment’s original purpose – supports a finding that social media platforms, due both to Section 230 and their status as the new public forum, are state actors. 

***

The solution to this problem is simple: social media should retain immunity for the comments posted by its users. However, social media should only be prohibited from censoring speech that the Court has held receives no First Amendment protection. This includes, for example, obscenity and speech that incites violence.

Otherwise, the marketplace of ideas should remain a place where diverse and unpopular ideas are welcomed.  

 

[1] 489 U.S. 602 (1990)

[2] See id.

[3] See id.

[4] See id.

[5] Jed Rubenfeld, Are Facebook and Google State Actors? (Nov. 4, 2019), available at: Are Facebook and Google State Actors? - Lawfare (lawfareblog.com) (emphasis in original).

[6] Id.

[7] Id.

[8] David L. Hudson, Jr., In the Age of Social Media, Expand the Reach of the First Amendment, available at:    In the Age of Social Media, Expand the Reach of the First Amendment (americanbar.org) (quoting Erwin Chemerinsky) (emphasis added).

The Next Supreme Court Justice: A Case for Greater Diversity

For the Supreme Court, the question of the summer has been whether Justice Stephen Breyer will retire or remain on the Court. Aware that both racial and gender diversity have been historically lacking on the Court, President Biden has promised to nominate an African-American woman if Justice Breyer leaves. Although racial and gender diversity are the most important and most visible considerations in having a diverse Court, President Biden should consider other matters of diversity as well in selecting a nominee.

Racial diversity is a top priority. Only two African-Americans have sat on the Supreme Court, and neither has been a woman. One Hispanic, Justice Sonya Sotomayor, has been a member of the Court. But no Asians or Native Americans have served on the Court.

Gender diversity also is an essential consideration. When asked how many women on the Court would be enough, Justice Ruth Bader Ginsburg famously answered "nine." Although the Court has as many women now as it ever has had at one time, only five women have been justices in the history of the Court. 

The more diverse the Court is the more it will reflect the diversity of the nation. This will benefit the Court by adding different perspectives and by increasing the bar's and the general public's faith in the Court. But the president should not stop at just racial and gender diversity. In addition to race and gender, he should consider other attributes of a prospective justice: experience, geography, education, and religion.

Experience. Recent appointments to the Supreme Court have overwhelmingly come from federal appellate courts (the only current justice not to have been a federal appellate judge is Justice Elena Kagan, who was the Solicitor General before her appointment). The last state court judge appointed to the Court was Justice Sandra Day O'Connor (also the first woman on the Court), who had been on the Arizona Court of Appeals (and also in the state legislature). While it has been said that a federal judge is someone who knows a Senator and a state judge is someone who knows a Governor, there obviously are differences between the two. That being said, many cases come to the Supreme Court directly from the highest court of a state. Having a justice who has worked in a state court system would be a plus.

And who says that Supreme Court justices need to already be judges anyway? It has been quite a while since the appointment of a practicing attorney or academic without judicial experience.

Although Justice Sotomayor was a federal prosecutor, there also generally has been a lack of justices with criminal law experience. How about the appointment of a Public Defender to bring a different perspective?

Geography. It was essential in the early years of the Court that there be geographical diversity because the justices were required to ride the circuits. In recent memory, though, the Court has been the domain primarily of justices who either were from the Northeast or worked there a considerable portion of their careers. When Justice Ginsburg and Justice Antonin Scalia were on the Court, there were four justices from New York City (at least each was from a different borough).

There are two Southerners by birth currently on the Court, Justice Clarence Thomas (Georgia) and Justice Amy Coney Barrett (Louisiana). This is the most representation the South has had on the Court in recent memory. And the appointment of Justice Neil Gorsuch to the Court added a justice originally from a mountain state (Colorado), giving the Court that added perspective.

Although it no longer is necessary to have justices from different regions in order to ride the circuits, the Court best reflects the nation when it reflects the nation's geographic diversity. Further, some matters that come before the Court are unique to certain areas of the country. A justice from one of these areas would be able to contribute knowledge and perspective that other justices may lack.

Education. When Justice Barrett joined the Court, the dominance of Ivy League law schools in producing Supreme Court justices was diminished ever so slightly. Justice Barrett graduated from the University of Notre Dame law school, leaving an even split of law school alma maters among the other justices between Harvard University and Yale University. But it has been many years since any member of the Court has been a graduate of a public university's law school. There certainly must be excellent jurists from top public law schools like the University of California, the University of Michigan, and the University of Virginia who could be nominated. While diversity in law schools attended may not make much difference in perspective, it could help in dispelling the notion that the Court is elitist or somehow out of touch with those who are not.

Religion. Prior to Justice Gorsuch joining the Court, it was composed of six Catholic justices and three Jewish justices. Justice Gorsuch became the first Protestant on the Court since Justice John Paul Stevens. The Court has never had a Muslim justice or any justice who did not identify as Christian or Jewish, nor at least recently has it had a justice that did not identify with some religion. While religious affiliation does not necessarily produce monolithic perspective among justices (see, for instance, Justice Thomas and Justice Sotomayor, both Catholic), diversity in this area would increase confidence in the Court's decisions related to religious matters.

  ***

In the end, perfect diversity is neither required nor achievable. After all, the Court is not a representative body. Even so, the standing of the Court in the eyes of a more and more diverse citizenry would increase if it better reflected this increasing diversity. And the Court itself would benefit from greater diversity of experience, geography, education, and religion as it deals with the difficult and complex issues that come before it.

Although Justice Breyer may not retire this year, a new justice will be nominated sooner or later. When that happens, the President should consider a variety of diversity matters in addition to race and gender.

Oral Argument Preparation

The things that helped me most as a law student and young attorney were learning how attorneys that I admired did things--what concrete things did they do to get ready for trial, to understand a record, to prepare for oral argument, etc. I've kept mental (and sometimes written) lists of those things over the years and have tried to pass them on to law students and young attorneys. Here's a checklist I've put together for oral arguments:

1. Prepare an outline, go over it a few times the night before.

Just like law school—get your case down to its essence and get out all of the points you want to hit.  Odds are you won’t get to everything, and almost certainly not in the order you want to get to it, but it isn’t about you, it’s about the court and its concerns.

Some necessary elements:

                    a. Decide the points you want/need to make, and make them prominent—put them first, in bold, highlighted, etc.

                    b. Include record cites and case names after assertions you’re likely to get questions/pushback on.

                    c. Leave space to write in questions/answers that come up during opposing counsel’s argument.

2. Re-read the relevant parts of the record—trial transcript, pleadings, jury instructions, etc. What you read will depend on the case.  If it’s a small record, re-read everything; if it’s a large one, then just read pertinent parts. It helps to have all the stuff in the case fresh in your mind when you go to court.

3. Re-read the briefs. You’ll be surprised how much you forget about even your own arguments. If you find good cites here, include them in your outline.

4. Re-read important cases, statutes, and rules. Memorize if central to appeal issues.

5. Spend at least one full day coming up with questions. This was some of the most helpful advice I got when I started out. Don’t neglect very basic questions like what happens to the case if you win/lose.

6. Find a quiet place to just think things through and strategize about argument. In normal times, I would come up with really good stuff on the train ride into work, mostly staring out the window and thinking.

7. Explain the case to a non-lawyer, see how well you have it boiled down.

8. Say your opening out loud—in the car, in the shower, in your office, wherever—just practice somewhere.

9. Practice giving your argument while being interrupted with questions (this was John G. Roberts’s approach when he was an appellate attorney).

10. Watch other oral arguments—find what style works for you.

11. Keep issues on the backburner in your mind—you’ll be surprised what answers come at random times. Write them down when they come

12. Have a good argument decompression ritual—get your favorite sandwich, take a walk, do something to get the adrenaline out.

13. Come back and listen online to your argument about a week later. Listen for what worked, what did not.  Then work on verbal tics (“um,” “so,” “you know,” etc.), pacing, responses, interruptions, etc., and incorporate these into your prep for next time.

 

Digging into the Special Issue of the Journal of Appellate Practice and Process

Last week I blogged about the recently released special issue of The Journal of Appellate Practice and Process. The issue focuses on what lawyers and judges can do to ameliorate the division in our country.

Like I did for the last issue of the Journal, I plan on blogging on the individual articles. Today my focus will be on the prefaces. 

The first preface was written by retired California Appellate Judge George Nicholson. Judge Nicholson has devoted a significant part of his career toward educating the public about what judges do and encouraging judges to participate in civic education. In fact, he was the driving force behind the issue--using his vast network of contacts to recruit most of our authors. While his preface discusses the topic of civic education and outreach, his two appendices are a wealth of information--a how-to manual of sorts--for conducting court/community and court/clergy outreach.

The second preface was written by Vice Chief Justice Ann A. Scott Timmer. In her preface, Justice Timmer notes how decreased faith in government risks "adherence to the rule of law and democracy itself." She writes, "it is incumbent on those who have devoted their careers to upholding the rule of law and promoting equal justice to work towards shoring up faith in our institutions even as we disagree on how they should operate and what improvements are needed." She provides an excellent overview of the issue, discussing each of the individual pieces.

The third preface was written by Kenneth B. Morris, Jr., who is a descendant of Frederick Douglass and Booker T. Washington. I have already written a bit about Mr. Morris's preface in an article on Governing.com. As I wrote there,

Guided by history, Morris emphasizes the importance of collaboration between the judiciary and other groups to “restore faith, increase understanding and promote public confidence in the integrity of our system of justice and fairness.” He invites judges to partner with his organization, the Frederick Douglass Family Initiatives, to help address this very challenge. Undoubtedly, there is a role for state and local government in those efforts.

The final preface was written by noted legal journalist Tony Mauro.  Mr. Mauro offers a few suggested for how appellate judges can help the new media, including writing with more clarity, talking to journalists, and understanding the role that they play when they report on opinions.

I commend each of these prefaces to you, as well as my short foreword, which provides some timeless advice from my toddler.

Requesting Reconsideration of Precedent

In rapid succession, the Supreme Court recently received three briefs asking it to overturn different precedents. The one that got widespread national attention was Mississippi’s brief in the high-profile case being heard next term, Dobbs v. Jackson Women’s Health Org.,[1] which asks the Court to overturn Roe v. Wade.[2] Then, on the heels of that brief, a petition for certiorari asked the Court to overrule Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.[3] Soon afterwards, Oklahoma filed a petition seeking reconsideration of the Court’s one-year-old, 5-4 ruling in McGirt v. Oklahoma.[4]

The unusual spate of requested nullifications of existing precedent plainly reflects a calculation that the Supreme Court’s new majority is less tied to stare decisis than their predecessors. Still, each brief makes an effort to provide grounds why stare decisis should not insulate the targeted decisions from reassessment. A review of the arguments against simply following precedent provides lessons for appellate counsel confronting an unavoidable but adverse controlling decision.

To be sure, the doctrine of stare decisis remains a “foundation stone of the rule of law” and the “preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”[5] The Court has deemed that following precedent “is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.”[6] Still, stare decisis is not an “inexorable command” or “‘mechanical formula.’”[7] In constitutional cases, stare decisis has less gravitational pull because “correction through legislative action is practically impossible.”[8]

 Dobbs presents the politically voluble issue of abortion, which has percolated for years, dominated national politics at times, and influenced Supreme Court appointments and confirmations. The potential impact of the issue in the political arena is inseparable from the legal arguments made, simply because the conversations in both playing fields have merged. That happenstance probably allows counsel to undertake a more opinionated and overtly political argument than might be prudent in other cases, particularly when some of the justices have expressed similarly strong opinions on the relevant jurisprudence.

In that vein, Mississippi’s brief asserts that both Roe and the subsequent decision in Planned Parenthood of S.E. Pa. v. Casey,[9] “are egregiously wrong” and lack any “basis in text, structure, history, or tradition, leading to a hopelessly unworkable” legal framework. The brief’s unworkability argument is not a traditional one, though. In most instances, unworkability focuses on why an adopted test or stance fails to resolve recurring problems or issues. It asserts that the lower courts do not apply it consistently so that application of the precedent produces inconsistent results.

Mississippi’s brief frames its unworkability argument in terms of the frustration that States experience when they seek to end or heavily regulate abortion, blaming the application of heightened scrutiny when, it claims, rational-basis analysis should apply. The argument reminds a reader of the “heckler’s veto” in First Amendment law, because it relies on the sustained objections of opponents as a basis for claiming that the Court should recede from precedent. In this instance, it asserts that Roe and Casey have not contributed to a settled state of the law because they tend to block laws that Mississippi favors. In this brief, unworkability appears only as an obligatory nod. Mississippi’s argument really depends on justices’ agreeing that abortion should not receive constitutional protection so that laws restricting it are reviewed by the most deferential form of scrutiny.

Egbert v. Boule[10] seeks the abandonment of an equally longstanding precedent, Bivens, but one that has had a lower public profile. Still, it boasts a vocal set of opponents in government and academia. Bivens and its progeny implied a direct cause of action under the Constitution for federal officer violations of the Fourth and Eighth Amendments, as well as due process.  Yet, more recently, the Court has taken a narrowing view of Bivens and even suggested that the current Court would not have reached the same decision as the Bivens Court about implying a cause of action.[11]

The petition’s unworkability argument emphasizes the Ninth Circuit’s more expansive view of Bivens in the case submitted for review to show that Bivens is irreconcilable with more recent precedent and therefore provides an uncertain basis for implying a constitutional cause of action that the lower courts cannot uniformly apply. Coming in the context of a lawsuit against a Border Patrol agent stationed near the Canadian border for First and Fourth Amendment violations, the petition claims “that judicially crafted Bivens actions could skew agents’ decision-making about whether and how to investigate suspicious activities in carrying out their important national-security mission.” Playing to the jurisprudential predilections of a majority of the Court, the petition asks that it “bring this important area into line with the Court’s modern jurisprudence respecting the separation of powers and recognizing Congress’ primacy in creating causes of action.”

Oklahoma’s petition in Oklahoma v. Bosse[12] attempts a rare, though not unheard of feat: the overruling of a fresh precedent. Only last year, in McGirt, the Supreme Court held a large swath of Oklahoma remained part of the Muscogee (Creek) Reservation and subject to federal, not state, criminal law jurisdiction under an 1885 statute. What makes the Bosse petition credible was the immediate impact that McGirt had on future criminal prosecutions in Oklahoma, even if the effect on past prosecutions was expected.

The Bosse petition asserts that McGirt was wrong and has already had disastrous consequences, sending thousands of crime victims on a mercurial adventure to “seek justice from federal and tribal prosecutors whose offices are not equipped to handle those demands.” At the same time, it tells the justices that public safety is endangered as “crimes are going uninvestigated and unprosecuted,” confirming the worst fears of the McGirt dissenters.

The overruling of a recent Supreme Court decision, as Oklahoma seeks in Bosse, is not unprecedented. One prominent example occurred in the Flag Salute Cases. In 1940, the Supreme Court decided Minersville Sch. Dist. v. Gobitis, holding that a school district did not violate the rights of several schoolchildren who were expelled because they had religious objections to participating in the school’s morning flag-salute ceremony. Those objections led to accusations that Jehovah’s Witnesses, the religion of the expelled schoolchildren, were unpatriotic, releasing a wave of terrorism against its followers. The intolerance generated by the decision caused three members of the Gobitis majority to re-think their position. When joined by new appointee, the formerly 8-1 decision turned around to uphold a right to object to pledging allegiance as a right of conscience in West Virginia Bd. of Ed. v. Barnette.[13]  Remarkably, the new decision also ended the terroristic attacks on the Witnesses. Still, Bosse may have a higher climb than Barnette had to swing a member of the majority to the other side.

Each of these briefs demonstrate three things when asking a Court to overrule prior precedent. First, know your audience. If a court has expressed misgivings about a precedent, that become fodder for your request to abandon stare decisis. Second, explain why the precedent fails to achieve the stability that stare decisis is supposed to bring about. Third, make the consequences of staying with precedent seem as dire and bleak as possible. There is no guarantee that checking these boxes will bring about your desired result, but their absence almost guarantees failure. Advocates, no doubt, will watch developments in these cases closely to see if they succeed.    

 

[1] No. 19-1392, Br. for Petitioners (S.Ct. Jul. 22, 2021).

[2] 410 U.S. 113 (1973).

[3] 403 U.S. 388 (1971).

[4] 140 S. Ct. 2452 (2020).

[5] Payne v. Tennessee, 501 U.S. 808, 827 (1991).

[6] Id. (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting)).

[7] Id. at 828 (quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940)).

[8] Id. (quoting Burnet, 285 U.S. at 407 (Brandeis, J., dissenting)).

[9] 505 U.S. 833 (1992).

[10] 21-147, Pet. for Certiorari (S.Ct. Jul. 30, 2021).

[11] Ziglar v. Abbasi, 137 S. Ct. 1843, 1856 (2017).

[12] No. 21-186, Pet. for Certiorari (S.Ct. Aug. 6, 2021).

[13] 319 US 624 (1943).

Using a Nice Example of Persuasive Writing, the Fifth Circuit Cautions Us to Check Our Spam Folders

Every few years, I ask my first-year writing students to analyze a problem on defaults, motions to cure, and the like.  When I teach upper-division students, I always include some exercise on malpractice and default judgments.  On August 9, the Fifth Circuit gave us a new spin on checking dockets and calendars, as well as our email spam folders, in Rollins v. Home Depot USA, Inc., __ F.4th __ , 2021 WL 3486465 (5th Cir. 2021).  See also Debra Cassens Weiss, 5th Circuit warns of “cautionary tale for every attorney” as it refuses to revive lawsuit, ABA Journal (Aug. 11, 2021).  The concise opinion also gives us a new example of the persuasion in writing straightforward facts, using clear topic sentences, and following fairly strict CRAC-style organization.

Judge James C. Ho started the opinion with a great “hook,” explaining:  “This is a cautionary tale for every attorney who litigates in the era of e-filing."  Judge Ho followed with a concise, easy-to-read fact summary, in just a few sentences: 

Kevin Rollins brought suit against his employer for personal injury.  The employer filed a motion for summary judgment on the eve of the parties’ agreed deadline for dispositive motions.  But Rollins’s counsel never saw the electronic notification of that motion.  That’s because, by all accounts, his computer’s email system placed that notification in a folder that he does not regularly monitor.  Nor did he check the docket  after the deadline for dispositive motions had elapsed. 

As a result, Rollins did not file an opposition to the summary judgment motion.  So the district court subsequently entered judgment against Rollins.

Rollins, __ F.4th at __, 2021 WL 3486465 at *1. 

According to the opinion, Rollins was injured while moving a bathtub for his employer, Home Depot.  Id.  Rollins then sued Home Depot in state court.  In one of the less-helpful parts of the opinion, the court uses passive voice—"The case was subsequently removed to federal court”—so we do not know which party asked for removal, but we can presume it was Home Depot. 

In the federal district court, counsel for Rollins, Aaron Allison, agreed to receive filings “through the court’s electronic-filing system via the email address he provided, as attorneys typically do in federal courts across the country.”  Id.  The parties later agreed to a scheduling order requiring that all dispositive motions be filed by May 11, 2020 and providing a 14-day period for responses to any motions.

On May 7, Home Depot filed its motion for summary judgment.  Allison explained the e-notification for the summary judgment motion filing “’was inadvertently filtered into a part of Rollins’ counsel’s firm email system listed as “other,” instead of the main email box where all prior filings in the case were received.’”  Id.   As a result, Allison did not see the electronic notification of Home Depot’s motion, and Home Depot did not mention the motion when Allison “contacted Home Depot’s counsel a few days later to discuss the possibility of a settlement.”  Id.   

Allison told the ABA Journal his firm had never had a problem with e-filing or with the email system.  He noted “opposing counsel never separately notified Allison of the filing and continued settlement talks with the apparent knowledge that Allison wasn’t aware of the pending motion.”  See Weiss, 5th Circuit warns of “cautionary tale for every attorney.”   In fact, after Allison learned of the granted summary judgment motion, “his firm checked and scanned all emails and found the motion in an ‘obscure part’ of the email system.”  Id.  The firm tried to open the email, but it had been corrupted.  Id. 

Nonetheless, “without any response from Rollins, the district court reviewed the pleadings, granted Home Depot’s motion for summary judgment, and entered final judgment on May 27.”  Rollins, __ F.4th at __, 2021 WL 3486465 at *1.  On June 3, Allison again contacted Home Depot’s counsel to discuss settlement, but Home Depot’s counsel informed him the district court had already entered a final judgment.  Id.  Allison then filed a FRCP Rule 59(e) motion to alter or amend the court’s judgment against Rollins.  The district court denied the motion, and Rollins appealed.

The Court of Appeals explained it would review “only” for an abuse of discretion, using one word to stress the deferential standard of review.  Id. at *2.  The court then set out the law in the nice, persuasive rule statements we all try to use, starting with phrases like, “But our court has explained” Rule 59(e) motions are for a “narrow purpose.”  Judge Ho stated Rule 59(e) is “not for raising arguments” which “could, and should, have been made before the judgment issued” or where there is no intervening change of law.   Id.   

On the merits, the court began:  “To be sure, we do not question the good faith of Rollins’s counsel. But it is not “manifest error to deny relief when failure to file was within [Rollins’s] counsel’s ‘reasonable control.’”  Id.  Although reasonable minds can disagree on the application of the rules here, the court then succinctly applied its stated rules to Rollins and found no abuse of discretion.  The court reasoned “Rollins’s counsel was plainly in the best position to ensure that his own email was working properly—certainly more so than either the district court or Home Depot.”  Interestingly, the court placed an affirmative burden of checking online dockets on counsel, even if counsel is not expecting any filings.  According to the court, “Rollins’s counsel could have checked the docket after the agreed deadline for dispositive motions had already passed.”  Id.   

In his interview with the ABA Journal, Allison called the ruling a “‘lawyer beware’ decision.”  He and his client are discussing a possible motion for reconsideration en banc, and if that is denied, a cert petition to the U.S. Supreme Court.  See Weiss, 5th Circuit warns of “cautionary tale for every attorney.”

I plan to share this opinion with my students, not only for the substantive points on e-filings, but also for the opinion’s lessons in persuasion.  And, we can all watch online dockets to see if Rollins decides to move forward. 

Summer 2021 Issue of the Journal of Appellate Practice and Process

The Journal of Appellate Practice and Process – Summer 2021 Issue Now Available

The Summer 2021 issue of The Journal of Appellate Practice and Process (Volume 21, Issue 2) is now available. This double-length special issue is dedicated to what lawyers and judges can do to help ease our country’s deep divisions along racial, ethnic, religious, political, and socio-economic lines. This issue features the following articles:

• Foreword: “Perfect Harmony,” by Tessa L. Dysart
• Preface: A Judicial Role in Calming Our Divided Nation, by Hon. George Nicholson
• Preface: Toward a Civil Discourse, by Hon. Ann A. Scott Timmer
• Preface: A Mighty Struggle, by Kenneth B. Morris, Jr.
• Preface: Journalists, Justices, Obama Judges, and Trump Judges, by Tony Mauro
• The Non-United States of America, by Erwin Chemerinsky
• Duty of Fairness and Healing, by Hon. JoAnn B. Jayne
• Of Cases and Controversies Once More, by Michael S. Greve
• Giving Our Better Angels a Chance: A Dialogue on Religious Liberty and Equality, by Thomas C. Berg & Alan Brownstein
• Lawyers as Peacemakers, by Lance B. Wickman
• Servants to Justice, by Hon. Shama Hakim Mesiwala
• Judicial Words Matter, by Hon. Therese M. Stewart
• An LGBTQ Jurist’s Perspective on the Crisis in the Judicial System, by Hon. Joshua D. Wayser
• Civic Education and Civil Discourse: A Role for Courts, Judges, and Lawyers, by Kari C. Kelso and J. Clark Kelso

For questions about The Journal or to submit an article, please feel free to email me.

How To Make a ‘Bad’ Argument Better -- and Persuasive

In law school or in law practice, many students will hear this statement: “if the law isn’t on your side, argue the facts; if the facts aren’t on your side, argue the law.”

Well, guess what?

Sometimes, neither the law nor the facts support your argument.  

In your career, you will find yourself in the unenviable position of having to make a ‘bad’ argument before a court. To be sure, a ‘bad’ argument is not a frivolous argument. Rather, a ‘bad’ argument is one where the relevant precedent doesn’t support your position. It is one where the facts and equities are unfavorable to your client. In short, a ‘bad’ argument is one where your chances of winning are about as good as O.J. Simpson admitting that he killed Nicole Brown and Ronald Goldman.

So, what should you do to make a ‘bad’ argument better? Consider the following hypothetical:

You are representing a congressman – and former professor at a prestigious college – who is suing a newspaper for allegedly defamatory statements that the newspaper made during the congressman’s unsuccessful reelection campaign, where he lost by less than 500 votes. Specifically, four days before the election, the newspaper published an article titled “Congressman receives a grade of ‘F’ from former students.” In that article, the newspaper quoted several negative reviews from the congressman’s former students that were anonymously posted on www.criticizemyprofessor.com. The reviews included statements that the congressman was a “stupid and awful professor,” a “narcissistic jerk who based grades on whether he liked you,” “an insensitive elitist who routinely made statements in class that offended students and created an uncomfortable learning environment,” and “a man who has caused lasting trauma to his students.” When publishing this article, the newspaper contacted the college to inquire about the congressman’s performance, but the college declined to comment. Additionally, the newspaper failed to include numerous reviews from another website – www.praisemyprofesssor.com – where many former students anonymously and unanimously posted excellent reviews of the congressman.

After the election, the newspaper acknowledged that it “could have done better” by including the statements from www.praisemyprofesssor.com but stated that “we had no reason to believe that the statements posted on www.criticizemyprofessor.com were false” and posted them “with full confidence in their truth.” Indeed, there is no evidence to suggest that the comments made on either website are false.

As the attorney representing the congressman, you obviously have an uphill battle.  

Not surprisingly, the trial court recently granted a motion to dismiss in the newspaper’s favor. The court held that under New York Times v. Sullivan, the congressman could only succeed on his defamation claim if he proved that the statements were false and made with actual malice, namely, with knowledge of their [the statements’] falsity or with reckless disregard for the truth or falsity of the statements. Based on the newspaper’s statements, its attempt to contact the congressman’s former employer regarding his performance, and the lack of evidence that the statements were false, the court held that this standard was not met.

The congressman decided to appeal and now you are preparing for oral argument. Given the facts, the actual malice standard, and the lack of evidence of falsity, you have a very ‘bad’ argument.

So, what can you do to make this ‘bad’ argument as persuasive as possible?

1.    Create a nuanced argument that renders governing precedent less controlling

When you are presenting a bad argument, the worst approach is to be reactive. Don’t spend your time trying to explain away or distinguish controlling precedent, or trying to depict facts and evidence in an unjustifiably favorable light. Instead, admit that the law does not support your position. Acknowledge the unfavorable facts. After all, when you have to make a ‘bad’ argument, your credibility is the first and essential step to making a ‘bad’ argument persuasive. You don’t want the court to think that you are asking it to ignore precedent or accept implausible justifications to distinguish that precedent. You don’t want the court to think that you are minimizing or ignoring unfavorable facts.

Instead, develop a nuanced and original argument that renders precedent a little less controlling and the unfavorable facts a little less damaging. In so doing, you will enhance the likelihood of convincing the court that the rule or outcome for which you advocate is novel and neither inconsistent with nor contrary to existing law.

Consider the above example. With respect to the actual malice standard, how would you address the argument that the newspaper’s conduct doesn’t even remotely satisfy this standard?  

Well, you could argue that the court should clarify its interpretation of “reckless disregard” for the truth or falsity of a statement. In so doing, you could argue that providing an incomplete, inaccurate, and thus distorted view of the facts to the public is a “reckless disregard” for the truth because it portrays an individual in a false and potentially defamatory light. By way of analogy, what the newspaper did is tantamount to a newspaper publishing an article stating that the congressman had previously been convicted of sexual assault while omitting that the conviction was overturned on appeal for lack of sufficient evidence. Furthermore, recklessness can be inferred because the newspaper could have easily discovered and published the statements on www.praisemyprofesssor.com; the newspaper’s choice not to portrayed the congressman in a false and defamatory light.  

This is not to say, of course, that the above argument is persuasive and will lead to a successful result. It is to say, however, that it will likely make a ‘bad’ argument better and more palatable to the court.

Put simply, think outside of the box. Take a chance. Be creative. And in so doing, convince the court that the rule or outcome you seek is not a radical departure from existing law.  

2.    Ask questions that put your opponent on the defensive and expose weaknesses in your opponent’s argument

When you have to make a ‘bad’ argument, you should take an offensive, not defensive approach. Specifically, you should confront directly the weaknesses in your opponent’s argument. One way to do so is by posing simple questions that show how your opponent’s argument would lead to an unjust and unfair result, and constitute bad law and bad policy.

Below are a few examples relating to the above hypothetical:

So, it’s ok for a newspaper to selectively and with impunity publish facts about a public official that portray that official in a false and defamatory light?

So, it’s permissible for a public official’s reputation to be irreparably damaged because a newspaper concocted a false and misleading narrative by omitting student reviews that undermined that narrative – and suppressed the truth?

So, the court’s interpretation of ‘reckless’  means that it is perfectly fine for a newspaper to cherry-pick its sources to propagate a fake narrative that irreparably damages a public official and influences an election?

These questions aren’t perfect, but you get the point. By asking direct questions, you put your opponent on the defensive. You enable the court to view the issue in a different light. And you allow the court to answer the questions in a way that will lead to a favorable outcome.

3.    Forget the straw man – attack and undermine your opponent’s best argument

Never, never, never avoid the elephant in the room. And never make a straw man argument.

Instead, attack your opponent’s best argument. Explain how the rule your opponent supports will lead to unfair and unjust consequences in this and future cases. For example, regarding the hypothetical above, explain why your opponent’s argument makes it nearly impossible for public officials to ever obtain remedies for defamatory statements, and why it makes it nearly always possible for newspapers to publish misleading information with impunity.

4.    Use quantitative and qualitative data to maximize the persuasive value of your argument

Quantitative and qualitative data enhances the persuasive of any legal argument and can sometimes transform a ‘bad’ argument into a relatively persuasive argument. For example, regarding the above hypothetical, consider the following use of empirical data relating to the actual malice standard:

In the last ten years, relevant empirical data shows that the country’s ten most widely circulated newspapers published over 1,000 articles that contained false and misleading information about public officials. Despite over 100 lawsuits by public officials seeking damages for defamation, only one lawsuit led to a finding in the public official’s favor. This data reveals a disturbing fact: newspapers can publish false and misleading information with impunity because the actual malice standard – particularly the stringent interpretation of “reckless disregard” – serves as an impenetrable shield to any accountability whatsoever.

Although this argument obviously isn’t perfect, it does give the court something to think about, namely, that the actual malice standard over-protects newspapers and under-protects individuals who are damaged by the dissemination of incomplete and misleading information.

5.    If the court isn’t likely to agree with anything you say, make sure that you get the court to agree with something you say

When presenting a ‘bad’ argument in a brief or at an oral argument, you will in many instances know with relative confidence whether the court is likely to respond with skepticism and even hostility to your position.

Consider the hypothetical above. An appellate court will almost certainly hold that the newspaper’s conduct does not even remotely support a defamation claim because there is no evidence that the statements were false or, even if they were false, that the newspaper’s conduct satisfies the actual malice standard. Indeed, you may have a nightmare on the eve of oral argument in which a judge on the appellate panel says something like this:

So, um, counselor, how can you honestly and with a straight face argue that the newspaper’s statements, which you don’t contend are false, can miraculously show a ‘reckless disregard for truth’ and satisfy the actual malice standard? What is wrong with you? How could you possibly present such a ridiculous argument to this court?

Uh oh. I wouldn’t want to be that attorney.

So, what should you do?

Well, you can decide to not show up for court, immediately quit the legal profession, and become a comedian. Or you can respond by getting the judge to agree with you on at least one proposition. For example, you could respond as follows:

I’m glad that you asked that question. To begin with, I think we can all agree that disseminating false, incomplete, and misleading information about any individual to the public can cause substantial and irreversible reputation harm. And we can probably also agree that a healthy democracy demands that newspapers have the right – indeed the obligation – to publish statements that criticize and reveal unfavorable facts about public figures. But I respectfully disagree with your contention that the statements aren’t false. When read in isolation, that may be true, but when read in context, the statements are decidedly untrue. Put simply, disseminating incomplete and thus misleading statements about an individual unquestionably portrays that individual in a false and defamatory light, thus making the message conveyed by the statements – that the congressman was a terrible professor – demonstrably false. Consider, for example, what a reasonable person would have thought of the congressman if the newspaper had published the statements on both www.criticizemyprofessor.com and www.praisemyprofesssor.com. The answer should be obvious: a reasonable person would view the congressman in a more favorable – and truthful – light. And that is the problem. Consequently, the dissemination of incomplete and misleading information is itself false and defamatory.

Now, this answer is undoubtedly not perfect and the flaws are obvious. It may not sway the judge and it almost certainly will not convince the court that the newspaper’s statements support a defamation claim. But remember that you are stuck with a ‘bad’ argument and trying to make it good enough to convince the court to reconsider the merits of your position. This response does raise an interesting point that may cause the court to pause for a moment and rethink its opinion concerning whether the statements could be construed as defamatory.

6.    Argue with emotion and confidence

Perception matters. Confidence and passion matter. Especially when you are the underdog.

When presenting an oral argument, for example, you should use verbal and non-verbal techniques to show that you believe passionately and confidently in your argument, and in the outcome you seek. It doesn’t matter that you are presenting a ‘bad’ argument. What matters is that you advocate intelligently and forcefully as if your argument is and should be considered meritorious.  When you exhibit confidence and passion (and make a well-structured argument),  you enhance the likelihood that the court will think twice and question its preconceived notions or assumptions about your argument’s validity.

7.    Appeal to the court’s sense of fairness and justice

Judges want to do the right thing. And judges will often engage in legal gymnastics to arrive at the outcome that they believe is just. If you doubt that, read Griswold v. Connecticut and Roe v. Wade, where the United States Supreme Court interpreted the Fourteenth Amendment’s Due Process Clause in a constitutionally indefensible manner to reach results that arguably reflected the majority’s policy predilections.

Regardless, because constitutional provisions, legal rules, and statutes are often broadly phrased, and precedent is often distinguishable, a court can in, many instances, reach a variety of justifiable outcomes. You can bet that the outcome a court reaches will reflect the court’s belief about what constitutes the fairest and most just result. After all, judges are not robots. They don’t just mechanically apply the law. They want to do the right thing -- or simply reach outcomes that reflect their policy preferences.  

***

Ultimately, these strategies may not always be successful, but they will make your ‘bad’ argument better and increase the likelihood of succeeding on the merits.

Appellate Advocacy Blog Weekly Roundup, Friday, August 6

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at [email protected] or on Twitter (@Daniel_L_Real) or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

Appellate mentorship opportunity for law students from The Appellate Project:

The Appellate Project is an organization striving to increase diversity in the appellate bar with programming "designed to empower law students of color, particularly those most underrepresented, to become the next generation of lawyers and judges in our highest courts." According to The Appellate Project's website, over thirty percent of students enrolling in law school are students of color, but very few end up in appellate practice.  The Appellate Project Mentorship Program is a national effort focused on empowering law students of color to pursue appellate work by pairing law students of color interested in appellate practice with mentors in the appellate field.  Applications are now open for the 2021-2022 Mentorship Program.  More information and the application are available on the website.  The deadline for applying is September 6, 2021. There are also opportunities to volunteer if you are an appellate attorney, current or recent law clerk, or judge.

Supreme Court News:

A recent poll released by Marquette University School of Law indicates that the Supreme Court's standing in the eyes of the public has dipped over the past year.  The poll indicated that 60% of Americans approve of the job being done by the Court, which is down approximately 6 points from a similar survey in September 2020 shortly before the passing of Justice Ruth Bader Ginsburg.  More information is available from Politico.

Federal Appellate Court Opinions and News:

This week, the 8th Circuit Court of Appeals issued an opinion in a case with an interesting jurisdictional discussion.  In Kohlbeck v. Wyndham Vacation Resorts, Inc., plaintiffs sought to appeal an order of the United States District Court for the Western District of Missouri to the 8th Circuit.  Unfortunately, the notice of appeal "inexplicably appealed to and from two nonexistent courts" when it indicated the appeal was from the "United States District Court for the Southern District of Missouri" and was to the "United States Court of Appeals for the Southern District of Missouri." In another recent case the 8th Circuit found a similar notice of appeal entirely deficient and ineffective for conferring appellate jurisdiction. See Newcomb v. Wyndham Vacation Ownership, Inc., 999 F.3d 1134 (8th Cir. 2021). In the current case, the court found that it had jurisdiction, distinguishing from the prior case on the basis of the notice of appeal more clearly identifying a specific order that was actually entered and providing defendants notice of what was actually being appealed.

Appellate Practice Tips and Tricks:

Did you know that if you run a word count on a document using Google and then run the same word count using Microsoft you are likely to receive different results?  In the day of word counts replacing page limits, that's potentially significant.  See this article for more information about the matter.

What Is Rhetoric, Anyway? And Why Should the Appellate Lawyer Care?

Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.

The Rhaw Bar Is Back

The Rhaw Bar is back from its long hiatus.  Thanks to the Appellate Advocacy Blog for allowing me to return.  Once a month, we’ll savor a little bite of rhetoric and law.  I hope you’ll share your thoughts, too, in the comments, and let me know what law and rhetoric topics you’d like me to write about in future posts. 

This Month’s Topic:  What is Rhetoric, Anyway? And Why Should the Appellate Lawyer Care?

Rhetoric and rhetorical skills are a topic of interest for lawyers.  But, what are we really talking about when we talk about rhetoric?

 Look at these titles for the different ways rhetoric is used:

• A Bar Magazine: 5 Persuasive Rhetorical Techniques
• A Law Review Article: Significant Steps or Empty Rhetoric? Current Efforts by the United States to Combat Sexual Trafficking near Military Bases
• A Book Chapter: A Night in the Topics:  The Reason of Legal Rhetoric and the Rhetoric of Legal Reason
• An Article by a Rhetoric Scholar: Critical Legal Rhetorics:  The Theory and Practice of Law in the Post- Modern World

What’s going on here?  Does “rhetoric” mean the same thing in every title?  Not really.  Instead, the titles provide four ways for understanding rhetoric in relation to the law and legal practice.

Rhetoric Is a Set of Strategies for Producing Arguments. The first title, 5 Persuasive Rhetorical Techniques points us toward a definition of rhetoric as productive art, as a means of producing persuasive arguments.  In other words, rhetoric is the way in which we use language (or symbols) to persuade others to adopt a perspective (e.g., the First Amendment does not apply in this case) or to take a desired action (e.g., affirm the trial court). When we think of rhetoric in this sense, the focus is on how we will persuade audiences through our messages.  How to use rhetorical techniques like deductive and inductive reasoning, stylistic devices, analogy, and metaphor fall into this category.  How to invent arguments falls into this category, too.  Rhetorical scholar Gerald Hauser’s definition puts an even finer point on this we he describes rhetoric as a way of doing something with words: “Rhetoric,” he says, “is an instrumental use of language. One person engages another person in exchange of symbols that accomplish some goal.”

Rhetoric Is a Deceitful Way of Communicating.  The law review article Empty Rhetoric draws attention to rhetoric as words that are false, deceptive, misleading, or disingenuous.  Enlightenment philosopher John Locke, for example, called rhetoric “that powerful instrument of error and deceit.”  Two millennia prior to Locke, Plato was equally skeptical of “false” rhetoric, calling it “cookery” or “flattery.” The law review title is an apt example of the “rhetoric as false” definition:  The Navy says it’s eliminating sex trafficking, but is it?  Do its words mean anything at all? Are the words disconnected from reality?

This interpretation of rhetoric is common—we hear about the false rhetoric of one politician or another all the time. Central to this meaning is that rhetoric has no (or very little) role in producing truth; instead, rhetoric leads us away from the truth.  That is, those who use rhetoric must be misleading the audience, seeking to convince others in a way that is inconsistent with reality.  (Below, you’ll see I reject this idea.)

“Legal Rhetoric” Is a Particular Kind of Rhetoric. The title, A Night in the Topics:  The Reason of Legal Rhetoric and the Rhetoric of Legal Reason, directs us to the idea that law is not only produced by rhetoric, but is a rhetoric itself.  In other words, law is a discipline that uses language in a particular way to accomplish particular ends; it has its own discourse commitments.

Legal scholar James Boyd White famously said this about the law: “[Law is a] branch of rhetoric . . .by which community and culture are established, maintained, and transformed. So regarded, rhetoric is continuous with law, and like it, has justice as its ultimate subject.”  (Read White’s article here.)  In other words, if law is continuous with rhetoric, then law is a rhetoric: a way of describing, categorizing, understanding and knowing the world through discipline-specific rhetorical commitments.  Other rhetorics exist, too.  For example, the rhetoric of science is a well-studied subject in which scholars look for the rhetorical commitments of scientific discourse. 

Legal Scholar Gerald Wetlaufer, in his article, Rhetoric and Its Denial in Legal Discourse, argues that law as a rhetoric includes

commitments to a certain kind of toughmindedness and rigor, to relevance and orderliness in discourse, to objectivity, to clarity and logic, to binary judgment, and to the closure of controversies. They also include commitments to hierarchy and authority, to the impersonal voice, and to the one right (or best) answer to questions and the one true (or best) meaning of texts. Finally, the rhetoric of our discipline reveals our commitment to a particular conception of the rule of law.

Wetlaufer suggests that understanding the rhetoric of law as a rhetoric can help us understand the advantages and shortcomings of that rhetoric.  In other words, by recognizing that the law “speaks” in a particular way, we can carefully look at the implications of that way to our understandings of justice, power, lawyers’ reputation, argument, and the rule of law. To get a better sense of law as a set of rhetorical commitments, I recommend Wetlaufer’s article as well as A Night in the Topics:  The Reason of Legal Rhetoric and the Rhetoric of Legal Reason, by Jack Balkin, which suggests that law can be understood as a rhetorical “topics.” (You can decide if you agree with either of them.)

Rhetoric Is a Theory and Method for Analysis and Critique.  The last title, Critical Legal Rhetorics:  The Theory and Practice of Law in the Post- Modern World, draws attention to rhetoric as a theory and method for analyzing and critiquing legal discourse.  Thinking about rhetoric in this way means thinking like a contemporary rhetoric scholar—using rhetoric to study, explain, theorize, and criticize symbol use.  In this context, for example, judicial opinions, statutes, and other legal documents become artifacts for study-- critics apply rhetorical theory and use rhetorical methods to gain insight into the ways in which the discourse works.

Beyond its title alone, Critical Legal Rhetorics is an example of this way of thinking about rhetoric.  Rhetoric scholar Marouf Hasian argues that not only do we need more rhetorical critique of Supreme Court opinions for their political and contradictory features, but also that rhetorical critics need to examine the discourse of less powerful others whose rhetoric is not recorded in the judicial record.  He calls this a “critical legal rhetoric” approach. Hasian says that by situating official legal discourses in the larger public sphere of argument, we can better understand how rhetorical choices impact fundamental rights.  Hasian’s article is just one example of how rhetorical theory and method can be developed to analyze legal texts.  (If you want to better understand the basics of rhetorical criticism, here’s a great book for novices.)

So why should appellate advocates care about these four meanings of rhetoric?

The work of appellate advocacy is centered on reading and writing legal arguments, and rhetoric is, perhaps above all else, a particular kind of sensibility in reading and writing.  Developing a rhetorical sensibility can enable appellate lawyers to have a more nuanced approach to reading and writing. 

First, and probably most obviously, appellate lawyers can write more effective legal arguments if they understand rhetoric as the strategies and tactics of persuasion.  That is, by learning rhetoric, we can learn more about how to write arguments.   

And second, but perhaps not as obviously, if appellate lawyers understand law as a rhetoric that can be critiqued with rhetorical theory and methods, then they can be more sophisticated readers of the law, improving their abilities to “see” and critique legal argument.  In addition, appellate lawyers might also be more attuned to the law’s relationship to justice.  Remember what White said?  Law is a rhetoric with “justice as its ultimate subject.”  I think, as an ethical matter, appellate lawyers should better understand that connection between law, rhetoric, and justice, and reading law as a rhetoric can help develop that understanding.  (If you want to read more, I’ve written here about the connection between the lawyer’s skill of rhetorical criticism and the lawyer’s special responsibility for justice.)

Finally, what about the meaning of rhetoric as empty or false?  I suggest that as lawyers, we reject the idea of “empty rhetoric” and instead consider as more accurate the idea that lawyers produce rhetorical knowledge.  Rhetorical knowledge is not false; it is a way of knowing the world through the enterprise of argument.  As legal scholar Jay Mootz suggests, rhetorical knowledge is generated through legal practice and is relevant to the historical contingencies, controversies, and communities of the human condition.   Mootz convincingly argues that for centuries, we have neglected “the unavoidable role of rhetorical persuasion in legal meaning . . . .  [W]e should return to a conception of legal meaning as rhetorical knowledge.” I think he’s right.

What have I missed in my definitions of rhetoric as they relate to the law? What do you think about appellate lawyers being rhetorical critics? Your thoughts are welcome in the comments below.

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at [email protected].

Appellate Advocacy Blog Weekly Roundup Sunday, August 1, 2021

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• High School SCOTUS blog founder, Anna Salvatore, moderated "Reporting on the Supreme Court" this week. The event, presented by The Daily Princetonian and the American Whig-Cliosophic Society, featured panelists Chris Geidner, MSNBC columnist and previous legal editor at BuzzFeed; David Lat, Founder of Original Jurisdiction and Above the Law; and Kimberly Robinson, Supreme Court correspondent for Bloomberg Law.

• Reuters posted a review of the Supreme Court’s “shadow docket” this week. Find it here.

• A July Gallup poll reports a 49% approval rating for the Supreme Court, which is the first time since 2017 that the rating has been below the majority level. See the Gallup New report.

 Appellate Court Opinions and News

• The Ninth Circuit reversed and remanded a district court ruling that had upheld California’s school closure during the pandemic. In reversing, the court held that the closing of private schools violated parents’ Due Process rights to determine the forum of their children’s education and determined that the closure ruling should be held to strict scrutiny. The court held that the “right of parents to make decisions concerning the care, custody, and control of their children is a fundamental liberty interested protected by the Due Process Clause,” which includes the right to choose the “educational forum itself.” See the opinion and a report from the LA Times.

• The Sixth Circuit ruled that the CDC had exceeded its authority when it temporarily halted evictions during the pandemic. The CDC’s order replaced and expanded Congress’s 120-day moratorium on rental properties that participated in federal assistance programs or that had federally backed loans. Now set to expire on July 31, the CDC’s order applied to all rental properties nationwide.  See the order and reports from ABA Journal, The Hill, and Reuters.

• The Tenth Circuit rejected a wrongful death claim against a Colorado recreation company and ruled that the lower court properly applied Colorado law to determine that the decedent had waived liability against the company. The plaintiff argued that Texas law should apply since the decedent, a resident of Texas, signed the waiver while in Texas. The court reasoned: "If we applied Texas law because it is the state where [the decedent] signed the liability release, we would essentially allow the other forty-nine states to regulate a key industry within Colorado. Such an approach is impractical and illogical." See the decision and report in The Gazette.

• The Ninth Circuit rejected a meat industry appeal that challenged California’s animal confinement standards as unconstitutional. California’s Proposition 12 (the “Farm Animal Confinement Initiative”) is a voter-approved law that regulates the production of veal, pork, and eggs sold in California; it forbids the sale of meat from animals not housed within its “stand-up-turn-around” requirement. The challenge argued that the regulation had the effect of controlling nationwide meat production standards, which violates the Extraterritoriality Doctrine of the Commerce Clause. The court rejected the argument, narrowly interpreting extraterritoriality as applying only to laws that dictate the prices of products. The court reasoned: “It is undisputed that Proposition 12 is neither a price-control nor price-affirmation statute, as it neither dictates the price of pork products nor ties the price of pork products sold in California to out-of-state prices.” See the decision and reports from Bloomberg Law and Courthouse News.

Do Rhetorical Flourishes Have a Place in Judicial Opinions . . . or Appellate Briefs?

Judges have considerable freedom to write opinions as they like. They write for a broad audience. A judicial opinion speaks not just to the case’s lawyers and their clients, but to other judges, the legal academy, and perhaps, most importantly, the lay public. Even though most judicial opinions will not penetrate the public consciousness, the decision in a case should seek to demonstrate the elements we associate with thoughtful and considered judging. Still, in a world where social media champions the clever turn of phrase and even the burning insult, readers should not be surprised when judges adopt a vernacular not often associated with legal writing.

Some subject matters will not open the door to that type of accessible writing. Justice Elena Kagan once announced the opinion of the Court on a rather dry issue concerning the Anti-Injunction Act with: “If you understand anything I say here, you will likely be a lawyer, and you will have had your morning cup of coffee.” On the other hand, as an inveterate comic book superhero enthusiast, Kagan could not resist throwing in a gratuitous line in a patent infringement case involving “Spider-man”: “The parties set no end date for royalties, apparently contemplating that they would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can)”[1] and citing an issue of the comic book as authority elsewhere in the opinion.[2]

Indeed, her late colleague, Justice Antonin Scalia, is remembered as much for his pointed barbs and colorful jargon as he is for his dedication to a form of originalism in interpreting the Constitution. For example, lamenting the much-criticized Establishment Clause test from Lemon v. Kurtzman,[3] Scalia memorably described its usage after a long period in hybernation as being “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, . . . frightening the little children and school attorneys of [defendant school district].”[4]

Yet, the same reasons that cause some of us to remember that opinion prompted University of Wisconsin law professor Nina Varsava to write that judicial writing that turns opinions into a “compelling and memorable narratives” ill serves the “integrity of the judicial role and the legitimacy of the adjudicative process” in a forthcoming law review article.[5] Professor Varsava recognizes that commentators love a lively and engaging style that seems to burnish the judicial reputations of those who write in a striking style all their own. Nonetheless, she advocates a more “even-keeled and restrained institutional style.” She rationalizes this plea by critiquing more stylistic writing as “ethically dubious” because it undermines a judge’s “most fundamental professional responsibilities.” To Professor Varsava, judicial opinions are not in the persuasion business, but instead serve a more pedagogical purpose. 

Tellingly, Professor Varsava disagrees with Justice Kagan, who has said that “[t]here’s no rule against fun in [opinions].” The professor argues that “perhaps there should be such a rule.” Indeed, Professor Varsava imagines that judges could be constrained by enforceable regulations in the form of “internal court rules, rules of judicial conduct, or even statutory requirements.”

However interesting Professor Varsava’s take on opinion-writing is, and there is great reason to believe that enforcing it through rules or statutes is a dog that won’t hunt, to use a phrase the professor would surely reject, does her plea for more balanced and straightforward writing hold any value for the appellate advocate?

Unlike a judicial opinion, a brief targets a very specific and limited audience: the panel of judges who will decide the case. In many instances, the panel of judges who will hear the case is often unknown until after briefing is complete and suggests a certain amount of caution. Rhetorical flourishes and witty allusions may make for good reading, but can also detract from the persuasiveness of an otherwise well-founded argument. It may well put off a judge who equates the infusion of colloquial speech into the brief as disrespectful or an attempt to lend cover to a weak case.

To be sure, unlike Professor Varsava’s view of judicial opinions, briefs are written to persuade. To hammer home a point and perhaps make it more memorable, an occasional flashy phrasing or telling metaphor can serve a highly useful purpose. Still, there are limits that lawyers must recognize in an exercise of professional judgment.

Even so, judicial rhetoric can provide some license for flights of fancy in briefs. A Brandeis, writing a judicial opinion, might usefully explain why irrational fears cannot justify the suppression of speech by stating that “[m]en feared witches and burnt women,”[6] but it is difficult to imagine how those words could have been made in a brief – except by quoting and citing the Brandeis opinion.

 

[1] Kimble v. Marvel Ent., LLC, 576 U.S. 446, 450 (2015) (emphasis added).

[2] Id. at 465 (“Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “Spider–Man,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”)).

[3] 403 U.S. 602 (1971).

[4] Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J., concurring).

[5] Nina Varsava, Professional Irresponsibility and Judicial Opinions,  __ Hous. L. Rev. __ (forthcoming, 2021), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3825848.

[6] Whitney v. California, 274 U.S. 357, 376  (1927) (Brandeis, J., concurring), overruled in part by Brandenburg v. Ohio, 395 U.S. 444 (1969).