Examining the Wreckage: When Oral Argument Goes Wrong
July 13, 2016 (Fault Lines) — Mark W. Bennett, the Texas Tornado, came into Atlanta on July 11th to attack a rarely enforced Georgia statute, making it a misdemeanor for anyone to remain on school property after being asked to leave if they have “abused,” “insulted” or “upbraided” a school employee in the presence of a pupil. At oral argument before the Supreme Court of Georgia, Mark reasoned that the law was a content-based restriction on speech, since it allowed a teacher to kick a parent off school grounds for being insulting, while allowing a parent to remain for even the most disruptively effusive praise.
It’s not a bad argument. In fact, as Justice Benham pointed out, similar statutes have been struck down in Arkansas, California, Florida and Kentucky (though none of these require the parent to remain after being asked to leave before a prosecution can ensue).
So Mark’s opponent, the elected Solicitor of Glynn County, probably had to establish one of two things to win:
- While the statute has a content-based element, it is really designed to allow teachers to kick potentially disruptive parents off of school property. Thus, it’s closer to a law that prevents you from burning draft cards than a law that prevents you from burning flags. The trespassing element separates it from all the other statutes that got knocked down.
- Even if it is a content-based restriction on speech, it’s narrowly tailored to protect children because a parent only need talk to a teacher outside of a pupil’s presence to speak his or her mind.
Lesson One: Know the law
This might seem obvious. But when you show up to oral argument, it’s not enough to be ready to mention a case or two. You have to be prepared to discuss relevant cases, and to distinguish legally between one example and another. But here, when questioned, the Solicitor seemed to flounder.
For instance, when asked whether someone would violate the statute merely by saying,“[y]ou are a terrible, terrible bus driver and I hate you,” she replied that the standard was whether “an average person would say ‘I’m gonna call the police and sign out a warrant.’”
It’s not just that this isn’t the standard for this particular First Amendment question. It’s not the legal standard for any legal question. It’s hard to argue that people have the right to free speech only insofar as they don’t offend people enough to make them want to go to the authorities. Or, as Justice Nahmias pointed out: “It’s not the average person, it’s you. It’s your prosecutorial discretion to do what you feel like…based on the content of speech.” That’s the danger of a content-based law.
Given opportunities to explain potential problems with her position, the Solicitor seemed to frustrate the justices by confusing the issue. For instance, when the Solicitor argued that the statute only applies to parents who are being disruptive, Justice Blackwell responded by asking, “[w]here in [the statute] does it say anything about disruption?”
At another point, asked how she could distinguish cases saying that you can’t rely on the discretion of prosecutors to salvage an unconstitutional law, she replied by saying “They’re distinguished because they’re not me, for one thing…”
Lesson Two: Policy arguments are for dessert, not the main course.
As Judge Kozinzki once aptly noted, judges love policy arguments. If you make them a centerpoint of your legal writing, then
[s]ometime after the briefing is completed, you’ll receive an order notifying you that your case has been submitted on the briefs. Once you get this notice, you can kick off your shoes, relax, and start working on your cert petition; an unpublished disposition flushing your case is practically in the mail.
In other words, policy arguments should be a way of helping judges pick between two reasonable legal options. It’s not an excuse to veer wildly off the reservation.
The Solicitor ran into trouble here by making policy arguments the center piece of her appeal. Here’s the conclusion from her brief:
The point of school statute Georgia §20-2-1182 is to ensure the safety and well being of school children and school personnel. The era in which we live today is rampant with school shootings from intruders who had no business on campus. Let us not forget the tragedies of Columbine and Sandy Hook.
At argument, she continued the theme:
To take it a step further, the dangers we’ve incurred in recent years through school shootings—if those children don’t have faith and confidence in that bus driver or that school teacher, they’re not gonna listen when the time comes and they say “go in that bathroom and lock the door and I’ll come get you.”
The problem with all these arguments is that Georgia has reasonable laws that let you kick a parent off campus if he’s being disruptive. They just don’t discriminate between parents who are being disruptive because they love the school and those who get a little too critical at a PTA meeting.
Given a reasonable interpretation of the law to go along with these policy arguments, the Court might very well have found them persuasive—but without the legal underpinning, it was tough to take them seriously. As is, Justice Nahmias was compelled to point out that even he had violated the law:
Is this the first time that anyone has insulted a teacher in front of students? I think I’ve done that, by the way. Could I have been charged?
Lesson Three: Take your opponent’s argument seriously
This is how the Solicitor begins her argument:
The Appellant feels that in some way that his First Amendment rights have been curtailed because he was unable to use profanity, to cause, show his anger, and to actually show out on a school bus in Glynn County.
The problem with this argument is that West was making an “as written” challenge, challenging the statute under all circumstances. He was saying the law itself was unconstitutional. So the specific facts of his case wouldn’t matter. The Solicitor was trying to turn a purely legal question into something appropriate for trial by pointing out how unreasonable she believed the Appellant was being.
While this can be an effective strategy in front of a jury, judges are compelled to at least try to take your opponent’s argument seriously. If you cast it in the most ridiculous light, you might not help them reach the right decision. Worse, you might be missing the strong points you need to address because you’re treating your opponent like he isn’t making any sense.
Lesson Four: Silence can be a powerful weapon
Mark Bennett had read his opponent’s brief and had a good idea what she would argue. It’s difficult to win an appeal at oral argument, but with the right concessions, it is possible to lose it. So he chose the best of all worlds. He spoke for five minutes, and then reserved the rest of his time for rebuttal.
By limiting his own opportunity to make mistakes, and maximizing his opportunity to rebut any points his opponent made for the first time before the judges, Bennett gave himself the best chance for success. While some people struggle for the courage to speak up, lawyers often have to grasp for the self-control to shut up when appropriate. Tactical silence can win cases.
Lesson Five: Despite all this, courts try to look at the law, not the advocates.
Listen, there’s no doubt that strong advocacy can win cases. Would the Supreme Court so confidently have stated that being on a sex offender registry wasn’t a punishment if the position wasn’t being pushed by John Roberts, one of the best appellate litigators of all time?
On the other hand, courts pride themselves on not being in the business of simply handing the win to the best lawyer. Before the Supreme Court of Georgia strikes down a statute, it is going to want to make damn sure that all the best arguments have been explored. Assuming the Solicitor didn’t do that, some poor clerk is going to get the job.
In a strange way, lower-quality advocacy can actually place more of a burden on one’s opponent. The best arguments, the ones you might want to prepare a detailed response to, might not come from a brief you can read or a question at oral argument. They might come, instead, from some brilliant law clerk you’ve never met whose job it is to write a readable memo to help his judge decide the case.
So let’s not crow for the demise of the upbraiding statute just yet. Whatever the State’s best arguments are, they’re probably being made in chambers.
 Click on West v. The State to view.
 Or, from an example in the Solicitor’s brief:
A reasonable person standard is the guide in these situations. For example, in the presence of children, a parent feels a bus driver is driver is driving too fast and tells the bus driver, I think you are driving a little too fast, is a lot different than saying you dumb ass slow the fxxx [sic] down.