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Casey Witte ’24 prevailed in the final round of the 2024 Dean’s Cup moot court competition Tuesday night, successfully appealing a Fourth Circuit decision in Speech First, Inc. v. Sands, 69 F.4th 184 (4th Cir. 2023).

It was Witte’s third win in his Duke Law career as an individual moot court competitor. He won both the Jessup Cup and the Hardt Cup in his 1L year and was a member of the second place team in the 2022 Twiggs-Beskind Mock Trial Cup.

“Arguing in the final round with my friend Kyle [Gantz] was a fantastic experience that will stay with me long after I’ve left Duke Law," Witte said after the verdict.

Witte represented Speech First, a national student free speech organization that challenged the constitutionality of two anti-bias initiatives at Virginia Tech. Kyle Gantz ’24 argued for the respondent, Timothy Sands, the president of Virginia Tech. Dean Kerry Abrams introduced the program.

The two finalists presented before a fictional Supreme Court consisting of three federal judges: Julia Gibbons of the U.S. Court of Appeals for the Sixth Circuit, who acted as chief justice; Sarah Merriam MJS ’18 of the U.S. Court of Appeals for the Second Circuit; and Andrew Oldham of the U.S. Court of Appeals for the Fifth Circuit. 

Rendering the verdict in favor of Witte, the judges heaped praise on the two advocates.

“The level of skill and truly persuasive activity was at a level far higher than that of many — most, I would say — virtually all — of the experienced appellate advocates that we see,” said Gibbons, who acted as chief justice.

“I would love to see you all in our court. I would hire you as my own lawyer,” Oldham added. “Both of you are a huge testament to this law school. You did a really spectacular job.”

Gantz and Witte addressed two issues: whether Speech First has Article III standing to challenge Virginia Tech’s policy for allowing students to report incidents of bias to a panel of university administrators called the Bias Intervention and Response Team, and whether the university’s restrictions on leafletting and signature gathering violates the First Amendment.

“This is a case about two things: free speech and fear,” Witte opened. “Specifically, this is a case about students seeking to exercise their First Amendment right in the heart of the marketplace of ideas — the college campus — and how Virginia Tech both chills and abridges that freedom of speech through a complex regulatory scheme of implicit threats, indirect sanctions and prior restraints.”

Asking the judges to reverse the Fourth Circuit decision, he said the bias reporting protocol effectively chills speech “through its indirect sanctions, implicit threats and vague text.” The Bias Intervention and Response Team can not only send letters that could be construed as intimidating, Witte said, but also refer complaints against students to offices dealing with student conduct and student housing, creating the threat of various punishments including loss of housing.

“When a student receives a letter directly from the bias committee, someone that is either the dean of students or director of student conduct ... you can see that the message is clear to the reasonable college student regarding their speech: Stop it.”

Questioned whether the committee could do real harm to a student over a mere complaint, Witte replied, “The students all fear that they will be prosecuted under the bias committee because they want to speak ‘unpopular opinions about illegal immigration.’ And the bias committee has referred exactly that, in the past, to student conduct.”

He further argued for a preliminary injunction against the university’s activities policy regarding leafletting and petitions, saying it fails to meet the “objective, narrow, and definite standards” test required to overcome the First Amendment’s protection against prior restraint on speech and “fails to provide substantial alternative means of communication” required to overcome an unreasonable speech restriction.

“This court spoke clearly in McIntyre when it said, ‘There is no form of speech entitled to greater constitutional protection than the distribution of politically controversial leaflets,’ Witte said. “And that’s precisely what the students want to do here today.”

Arguing for Virginia Tech, Gantz told the panel that universities face constant demands on their space and resources, and the Bias Intervention and Response Team and informational activities policy were created to effectively allocate resources for speech. The bias incident policy merely provides a definition and doesn't say that engaging in such incidents can result in penalties, he said.

On the question of standing, “Speech First has not shown standing to challenge the team because the team cannot prohibit or compel speech or action, and lacks the threatening characteristics of the government commissions that have supported an Article III injury in previous cases,” Gantz said.

Further, he argued, the information policy is “a viewpoint-neutral and reasonable reservation system, not an unconstitutional prior restraint.”

Responding to questioning by Oldham, Gantz acknowledged that protected speech could come under the definition of a bias incident, but countered that the policy contains no prohibition or proscription on the speech.

“At Virginia Tech, that appears in the code of conduct or that appears in the criminal code of the jurisdiction. It does not appear in the bias incident (policy),” he said.

Merriam questioned why the university keeps records of bias incident complaints against students at all, calling the idea that a record could one day resurface and be used against a student  “a fearsome sanction.”

Universities necessarily document many different kinds of interactions with students, Gantz replied, and argued that fear of a future detrimental action resulting from such records does not meet the threshold for standing.

Responding to a question from Oldham, Gantz acknowledged that on two occasions the Bias Intervention and Response Team had referred a complaint against protected speech to the student conduct office, but that office had recognized the speech as protected and halted further action, providing a second level check on the bias team.

“Virginia Tech does not adjudicate protected speech,” Gantz asserted. “It's not what it exists to do. It's not what the team or the code of conduct office is trying to do.”

Returning from deliberations, Gibbons said the panel was sorry to have to choose a winner from two outstanding performances. But, she added, the quality of the advocates filled her with “great happiness and hope for the future of our profession."

“It's obvious how much how much time and effort you have put into this process. And we are grateful to you and to Duke for giving us this opportunity.”

Witte graduated from the University of Florida and has interned for Judge Robin Rosenberg JD/MA ’89 of the U.S. District Court for the Southern District of Florida. At Duke Law he has been active in the Moot Court Board, Government & Public Service Society, First Generation Professionals, and Law Students for Accessibility.

Gantz graduated from the University of California San Diego. At Duke Law he has been involved in the Clemency Project, Innocence Project, and Duke Law Journal, and has clerked for the Institute for Justice and worked as a summer associate at Jones Day.

“Dean’s Cup was a wonderful intellectual exercise, and I was honored to share the experience with my good friend, Casey Witte," Gantz said. "I am now convinced that my passion lies with the researching, writing, and arguing of appellate work.”

The Dean's Cup, initiated in 1963 by Deans E.R. Latty and J.D. Johnston, is Duke’s premier oral advocacy competition. Organized by the Moot Court Board for second- and third-year students, the competition centers around a case taught in the Appellate Practice class offered every fall.

This year, 28 competitors argued the first issue of standing in preliminary rounds judged by a panel of judges consisting of two faculty members, alumni, or local practitioners. Eight competitors who advanced to the semifinals submitted a brief on behalf of the party they were assigned and competed in four oral argument rounds judged by a panel of three faculty members.