First Amendment Clinic
Campus speech database expands clinic’s mission in second year
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uke Law School’s First Amendment Clinic, in which students provide free representation for clients who cannot afford an attorney in cases involving freedom of speech, press, and assembly, had a busy first year. Students who started in the clinic last fall saw a case move from intake to settlement over the course of two semesters and made it to the discovery stage in other matters after surviving motions to dismiss and other litigation obstacles. The clinic has also expanded its mission with the launch of a comprehensive database relating to free speech disputes on U.S. college campuses.
Enthusiastic student response The clinic’s caseload includes the representation of individuals in actions involving political speech; alleged defamation stemming from comments on social media; and a well-publicized lawsuit, now dropped, against the Chicago Bears for violating the plaintiff’s First and 14th Amendment rights after the team refused to let him wear clothing with the Green Bay Packers insignia at Soldier Field. The clinic is also representing two journalists who are being barred from reporting activities, as well as several individuals who seek to speak publicly about their experiences of sexual harassment in light of the #MeToo movement. Students participated in every facet of their cases, including client meetings, discussions with opposing counsel, depositions, and researching and drafting court filings and amicus briefs, under the supervision of Professor H. Jefferson Powell, the clinic’s director, and Supervising Attorney and Lecturing Fellow Nicole Ligon ’16. While enrollment in the clinic’s first year was initially capped at four students per semester, the class grew when three fall-semester students opted to stay on through the spring. Bryant Wright ’19 called his yearlong clinic experience his best at Duke Law, noting that the experience of serving clients and working with a team offered good preparation for doing just that as an associate in the copyright and false advertising and trademark litigation group at Proskauer Rose in New York. In the fall semester, Wright and 2019 classmates Luke Morgan, Michael Fisher, and Joe Bianco authored an amicus brief which was submitted to the U.S. Supreme Court in support of a certiorari petition in Abbott v. Pastides, a campus free speech case originating at the University of South Carolina. The clinic also filed an amicus brief with the Supreme Court in Rucho v. Common Cause, a case from the last term regarding partisan gerrymandering, and another with the criminal court in Dallas County, Texas, on whether a Twitter message that was intended to and did cause its recipient to have a seizure constitutes protected speech under the First
Amendment when sent to a known epileptic. The clinic argued that such an “assault-by-internet” is not protected. Morgan, who argued a motion to dismiss filed by the clinic in a federal district court in South Carolina, also worked with Fisher, Wright, and Austin Brumbaugh ’20 on the case that settled in April before trial. Now clerking with the U.S. District Court for the District of Connecticut before beginning an appellate clerkship with the Second Circuit Court of Apppeals, Morgan called the clinic “an incredibly rewarding experience” that fits with his goal of crafting an academic career focused on First Amendment issues. “I feel really passionate about the defamation cases, in particular,” he said. “There are important purposes for it, but I feel that a lot of times defamation law is used to silence critics of powerful people just for expressing a political opinion.”
Database tracks campus speech disputes The clinic’s Campus Speech Database aims to document every free speech occurrence on college campuses nationally, as well as how any resulting litigation was resolved. It also includes events that raised potential First Amendment concerns and were settled out of court, as well as events that received public backlash but no further activity. Such a resource is sorely needed because the Supreme Court has issued little guidance on free speech issues on campus, Ligon said. “It’s really ripe for review and there is a dearth of guidance on how university administrators should be approaching campus speech issues,” she said. “Ultimately, we hope that it provides administrators and other university personnel with guidance on what might constitute a constitutionally permissible regulation or restriction on campus speech. We also hope it helps students better understand their free speech rights, including knowing when conduct might fall out of the First Amendment’s purview.” The repository will also provide guidance for practitioners litigating a campus speech claim, she added. The database is funded by a grant from the Stanton Foundation, which also provided the initial funding for the clinic and others at numerous law schools around the country. The Campus Speech Database “embodies both the clinic’s specific mission and its participation in the wider purposes of Duke,” said Powell. “As a legal clinic dedicated to the First Amendment, we are always concerned with advocating the protection of freedom of thought and expression in American life. And any part of Duke University is committed to free speech and free thought, by definition. We are very grateful to the Stanton Foundation.” d
Duke Law Magazine • Fall 2019
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