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Eric Roytman ’21 prevailed on a free speech matter in the final round of the 2021 Dean’s Cup, held by Zoom before a panel of three federal appellate judges Tuesday evening.

Roytman and runner-up Maurice Baynard ’21 argued a fictional Supreme Court appeal of the D.C. Circuit’s 2018 decision in Archdiocese of Washington v. Washington Metropolitan Area Transit Authority. The question was whether the public transportation system’s policy of refusing advertisements that promote or oppose religion or reflect a religious perspective violates the First Amendment’s freedom of speech clause. The judges praised both students for the quality of their oral advocacy.

“It’s not surprising to us why the two of you were left standing to present the argument,” said Carl E. Stewart of the U.S. Court of Appeals for the Fifth Circuit, who served as chief justice. “You both have poise and confidence and are nimble on your feet, especially answering judges’ questions. It’s a hot bench and we’re well-prepared.”

Introduced by Dean Kerry Abrams, the panel also included Morgan Christen of the U.S. Court of Appeals for the Ninth Circuit and Barbara Lagoa of the U.S. Court of Appeals for the Eleventh Circuit.

In the case, the Archdiocese of Washington sought to run an ad on the exterior of Washington metro-area buses during Advent season with the words “Find the Perfect Gift” and a link to the Archdiocese’s website. The transit authority, known as WMATA, rejected the ad under a guideline prohibiting ads that promote or oppose religion that it had adopted in 2015 to avoid provoking controversies.

Representing petitioner the Archdiocese of Washington, Roytman argued that WMATA would not have rejected the ad had it been submitted by a commercial entity such as Macy’s rather than the Archdiocese, and that constituted viewpoint discrimination.

“This Court has held three times that the government cannot use a ban on religious content to exclude religious viewpoints on subjects the forum otherwise permits. And that is what WMATA does here,” he said.

He also said WMATA’s exclusion was unreasonable, noting that it had accepted 17 ads soliciting donations to the Salvation Army, also a religious organization. “The standard is inherently slippery,” Roytman said. “We’d like the Court to hold that Guideline 12 is incapable of reasoned application.”

Baynard, representing the transit authority, countered that “non-public forums exist so that states can effectuate the various purposes of the forums they operate, and this Court has encouraged states to prohibit some speech when the alternative is prohibiting false speech. And that’s what WMATA did here.”

Responding to Christen’s concerns over the transit authority’s “exceptionally broad” guidelines and “unfettered discretion” to reject ads, he argued that WMATA’s limited commercial purpose exempted it from having to accommodate a wide range of viewpoints, including religious viewpoints, and said its guidelines were intentionally broad to prohibit any and all issue-oriented ads, regardless of viewpoint.

In his rebuttal, Roytman picked up on Baynard’s contention that the ad would have been acceptable if it had had a commercial purpose. “The problem here is that that’s not in their guidelines and that was never part of their rationale until they got here to the Supreme Court,” he argued.

In the end, the judges were persuaded by Roytman but complimented both on their grace under pressure and knowledge of case law that allowed them to respond to queries without referring to notes.

“One of the most important things for an advocate is the ability to listen. If you’re not listening you can’t do the follow-up,” Lagoa said. “Both of you did a really good job in pivoting and answering our questions. I’m really impressed, and look forward to having you both as advocates in the Eleventh Circuit.”

Added Christen: “To have your argument before three circuit judges and to have to do it by Zoom is asking a lot. So the good news is that it’s all downhill. From here they will all be easier.”

Roytman and Baynard were the finalists out of 24 second- and third-year students who competed this year. The other semifinalists were Kaytlan Anderson ’22, Christian Bale ’21, Katie Hillyer ’21, James Lavery ’21, Jenny Wheeler ’22, and Maisie Wilson ’21.

Baynard is a dual-degree student pursuing a masters of public policy along with his JD. After graduating, he will work in litigation at a firm in Chicago before clerking on the Seventh Circuit.

Roytman will begin his career at Hogan Lovells in Washington, D.C., this fall and plans to specialize in appellate litigation work. He credited Clinical Professor Sean Andrussier, director of the Appellate Litigation Clinic and faculty advisor for the Duke Law Moot Court Board, for his guidance throughout the year on brief writing and oral argument skills.

“Zoom moot court is an interesting experience. Reading the judges’ faces over Zoom is particularly difficult,” Roytman said.

“That said, Zoom moot court is better than no moot court at all. I am really thankful I got to participate in Dean’s Cup this year, and I appreciate the Law School’s efforts to make this competition excellent in the new format.”

The Dean’s Cup, initiated in 1963 by Deans E.R. Latty and J.D. Johnston, is Duke Law’s premier oral advocacy competition and centers around a case taught in the Appellate Practice class offered every fall. Past judges of the final round have included U.S. Supreme Court Justices Samuel Alito and Antonin Scalia.