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STEPHEN BREYER: We'll now hear the case of Laura Tanner
versus The State of Ames. Counsel.
JOHN AUGUST: This is the 110th Anniversary of the Ames Competition
but it is the very first we are doing entirely virtually.
MATTHEW ARONS: Mr. Chief Justice,
and may it please the court.
Ames can seek to protect its citizens from the harms
of nonconsensual pornography, but it cannot set aside
the First Amendment to do so.
JOHN AUGUST: To start from the beginning,
the Ames competition is the Moot Competition
at Harvard Law School.
It starts in the first year.
And then folks who really like it
try out our qualifying round.
And then from there, they can go on
to the semifinals, which is only four teams,
and the finals, which is only two teams.
So from the beginning, they're working on an appellate case.
And by the time they get to the final round,
they've taken it all the way to the Ames Supreme
Court, which is what we call our fix database.
AMEZE BELO-OSAGIE: I got to see Ames
for the first time my 1L year.
And I never really seen anything like it.
I never got to see a full appellate argument before.
And I kind of immediately thought this is something
that I might want to do.
DUSTIN FIRE: There's just so much attention on it
and so much excitement.
And, you know, the campus is just all
surrounding this one event.
DAVIS CAMPBELL: What's most fun to me about Ames
is the opportunity to come up with legal arguments
and to exercise creativity in that way.
TRAVIS FIFE: The research, the collaboration,
the back and forth process of building an argument.
COLLEEN O'GORMAN: So really I just wanted
to do Ames because I wanted to talk about hard legal issues
with my friends.
MAX BLOOM: The coin toss is traditionally
the way-- the two sides of the argument allocated.
So the side that wins the coin toss
gets to determine whether they'll
be petitioner or respondent.
They don't know the issue yet, but they
do know whether they're defending the decision below
or critiquing decision below.
JOHN AUGUST: So Lloyd Gaines Memorial team
will be calling the coin toss.
That is by tradition.
JASON BELL: Whoever was the respondent
in the semifinal round gets to call the coin toss.
JOHN AUGUST: I see heads.
I'll bring it up here.
That was a heads.
OK, Jason, Lloyd Gaines Memorial team calls it.
What would you like to be?
A petitioner or a respondent?
JASON BELL: We choose respondent.
JOHN AUGUST: Fantastic.
JASON BELL: Petitioner has to write two briefs,
and petitioner has one oralist who argues twice.
MAX BLOOM: And we were actually quite happy with that.
We would have chosen to be the petitioners.
It's decided that we did last time.
We're more familiar with it and it was probably preferred.
DUSTIN FIRE: I think one thing that is both a lot of fun
and really challenging about being the petitioner
is that you see what's in the lower court.
And so you want to frame your argument in a way that's
an affirmative--
all the reasons you should support me.
But you also have to deal with the fact
that at least some other court--
I mean, here is an actual court but at least some other court
disagrees with you and thinks that the other side
should have won.
So you're both playing that defense,
but you also really want to put forward
an affirmative argument for all the reasons
that you should win--
not the reason that you shouldn't lose.
JASON BELL: Part of me at the moment
was like my intuition was to switch to petitioner but I--
I couldn't do that once our team had already decided
to go with the respondent.
AMEZE BELO-OSAGIE: The petitioner kind of
gets to frame how the case comes out.
They get first shot at, here are our best argument.
And so the respondent is a bit of a tricky position
because you both have to anticipate
what are the worst possible things that
could come up in the brief.
So the first stage of our thinking
is sort of if we were the petitioner,
what would we really want to argue?
And what would we be nervous about the respondents bringing
up?
And then figuring out how to frame
our kind of counter arguments along
with our offensive arguments.
It's a tough thing to get to do in the space of one brief
especially because we know we only have one shot at it.
The petitioner has an initial brief
and then they have a reply brief.
JOHN AUGUST: So the record this year is Tanner versus Ames.
So that would be Laura Tanner suing the state of Ames,
and she is suing over the Ames Nonconsensual Pornography Act.
DUSTIN FIRE: The two issues in this case-- one of them
concerns a First Amendment issue and the other
is a Fifth Amendment issue.
So the First Amendment issue to consider is whether a state,
in enacting a law that criminalizes
the nonconsensual sharing pornography-- something that's
come to be called revenge porn, whether they violated the First
Amendment in doing so.
JASON BELL: And the second issue is whether compelled decryption
violates the Fifth Amendment.
So whether the police can force you to enter your passcode
into your phone when they're searching
for evidence on your phone.
SAM STRATTON: They're both obviously
live issues that are pretty important to people's lives
and that have sort of important normative
considerations on both sides.
AMEZE BELO-OSAGIE: I think our first step
was to figure out who in the team
was going to work on what issue.
So we've generally split like three and three
on issue one an issue two.
TRAVIS FIFE: Preparation experience and process
is definitely like my favorite part of Ames.
Let's figure out what the cases say.
Let's figure out what the possible universe of arguments
is.
And then as we go along, we'll keep refining and narrowing.
DUSTIN FIRE: You know, in the beginning,
we're very, very busy 'cause we're preparing to actually write
something but also just getting to know
the doctrine, the facts of the case,
and just trying to familiarize yourself with everything
but also simultaneously make sure
we can get something on the page.
COLLEEN O'GORMAN: I would say that we're all pretty tired.
We've had a lot of late nights this week.
But our brief is due in about two hours,
so we spent the morning doing our final polishing.
I have a really detail oriented team
so it's great to be able to read through a draft in the morning
and find no typos or errors.
That was really exciting.
SAM STRATTON: This round, in particular,
we were pretty intentional about leaving some arguments out
from the opening brief because we
didn't want to sort of make their arguments for them
and then have to argue against them.
So there were a few points in particular that we wrote
and then removed from the opening brief
and then saved for the reply.
COLLEEN O'GORMAN: I think we have
a lot of respect for each other's intelligence
and ideas on the team.
So I think even as we're tired and we've worked really hard,
I think we're really proud of the product we're
turning in this afternoon.
So it feels great.
JASON BELL: When you're doing a Supreme Court argument today,
you know who your nine justices are.
The famous phrase is count to five.
With Ames though, we have absolutely no idea
who our judges are going to be.
So that really changes the calculation
about how you write your brief.
And it depends a lot more as respondent on what
petitioner argument argues.
AMEZE BELO-OSAGIE: We've already written
a fair amount of our briefs, so we'd
like placeholders and trying to guess
what they might be going at.
TRAVIS FIFE: The only thing that really
changed was just that they spent less time developing
their argument and a few sections
where we thought that they were going to spend more time.
And we thought that that kind of opened up
some opportunities for us.
DAVIS CAMPBELL: Their opening brief,
I don't feel like it anticipated our arguments very much in part
because our arguments were so--
I don't know.
I'm really excited about our arguments, but they're not--
they're novel.
They're novel arguments.
COLLEEN O'GORMAN: Once we have the respondent's brief,
we have another week to write a shorter reply brief.
I know last round, that was my team's favorite part
of the competition where you get to have the punchiest version
of your argument.
The last word is really fun.
SAM STRATTON: It was fairly surprising.
I think it was pretty clear that we were thinking
of all of the issues pretty differently than they
were thinking of the issues.
Not just sort of point counterpoint but more
of a matter of difference in terms
of how to address the issues.
COLLEEN O'GORMAN: When you're not an oralist,
a lot of your preparation is sort
of getting to be mean to your teammates who
are preparing to be an oralist,
we mooted for hours every day for the weeks going up
to oral argument.
SAM STRATTON: The mooting is fun.
It's a chance to poke holes in our own argument
and having sort of lived with it for the past two months.
We know where the soft spots are.
Also, always fun to pretend to be a judge for a few minutes
and to get to ask some tough questions to one's friends.
TRAVIS FIFE: Intellectually, I just also
think it's really challenging to think
through the full implications of your answers.
So if I say something, Mike and Lauren and the other three team
members on the other issue will be quick to be like,
hey, we'll have you totally thought
through how that could set you up two questions down the line.
And I think just like the level of precision
that is required to do a successful oral argument,
I think, it's something that is challenging, and fun,
and I learn a lot from.
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JASON BELL: I mean, it's just amazing to have
Justice Breyer on the panel.
He's done Ames a number of times.
He has a reputation for having a very
individual, jurisprudential style and oral argument style.
We are, like, we need to practice.
You know mooting more Justice Breyer style questions.
TRAVIS FIFE: So it probably took me like 20 minutes
to walk the campus due to COVID tests and then like sit down.
And you're in this kind of conference room type thing.
And it's kind of bizarre like, you know,
Jason was right next door.
JASON BELL: It was really weird.
It's really-- I think the weirdest
part was being able to communicate with our team
beforehand.
And it really felt like you are in a spaceship,
kind of, before lift off.
Everybody in their little pod talking to each other.
We're two minutes to go.
JOHN AUGUST: All persons having business before the honorable--
The Supreme Court of the United States
are admonished to draw near and give their attention
for the court is now sitting.
STEPHEN BREYER: Counsel.
TAYLOR CUSTOR: Thank you, Mr. Chief Justice and may
it please the court.
The Fifth Amendment guarantees that no person
shall be compelled in any criminal case
to be a witness against themselves.
But the--
COLLEEN O'GORMAN: One thing we worked
really hard on was preparing our oralists
for these long, winded, hypothetical questions,
especially from Justice Breyer because he's sort of known
for these long, really interesting,
almost law school hypotheticals.
STEPHEN BREYER: I have all the evidence in my house--
10,000 pounds of cocaine.
And where it is, is it in the base--
and by the way, I have the basement totally locked,
and I have the key.
TAYLOR CUSTOR: Two differences here I'd like to point out,
your honor.
First, when you hand over the key in your hypothetical,
you don't actually say anything explicitly.
That's different than the case where you say your password.
COLLEEN O'GORMAN: It really made it
feel like we were at a real Supreme Court argument
in that he was treating us like petitioners he actually sees
in the real Supreme Court,
so that was really fun.
STEPHEN BREYER: Their client--
recieved what we normally consider
a pretty obscene picture.
And she said it to the executives--
and she said, look at this, my friends.
Look what goes on here.
That message is designed to change the world that she's in.
It is hard to think how this statute doesn't
put her in jail for doing it.
TRAVIS FIFE: Your honor, the First Amendment
does not straitjacket the state to be unable to respond
to crucial social problems.
It, in fact, strikes a balance between petitioners
need to express herself.
And the other social harms that this speech endanger--
The straight line was actually an allusion to a plurality
opinion he wrote, I didn't want to actually cite the name
of the case or be, like, Justice Breyer,
as you said-- because I--
like the facts of that case were kind of different,
and plurality and his name was really long.
But I just said that word as--
I don't know, maybe, subtly being like, you know,
you kind of agree with me on this general principle.
STEPHEN BREYER: It was very difficult
for us to make a decision.
The best oralist, after discussion,
we decided was Travis Fife.
The best brief of we decided was the petitioners.
And the overall best team, we decided was the respondent.
And it could have been the other way around, I promise you,
but very, very good for all you.
JASON BELL: It was surreal, honestly.
Like, I think if you had said to me on the first day of law
school, you're going to win Ames, I'd be like,
what are you talking about?
That's like the craziest thing I've ever heard.
Win or lose, it's very cool to be part of this tradition.
It's, I think, one of the best things about Harvard Law
School--
COLLEEN O'GORMAN: Having six people write a brief together,
I think is a really unique experience
and you learn a lot about what makes
you a good team member and sort of like how
you fit into a team dynamic.
And I think this was a really special year
and that we worked really hard.
And I'm really proud of us for rising to the challenge.
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