First Amendment Flight: Students Jet to Miami as Federal Court Hears Their Case

20170124 Volokh Arias 2When three UCLA School of Law students travel to Miami on Thursday to watch professor Eugene Volokh deliver oral argument before the U.S. Court of Appeals for the Eleventh Circuit, they will get a rare opportunity to see their own work play out in federal court.

Third-year students Artin Afkhami, Elizabeth Arias (pictured with Volokh) and Eugene Lim dove into Tobinick v. Novella, a libel suit involving two doctors, through UCLA Law’s Scott & Cyan Banister First Amendment Clinic. There, they honed their legal research, analysis and drafting skills as they assembled an amicus curiae brief on behalf of several academics with deep interest in the issues at the core of the matter: open dialogue in the medical arena.

“This was one of the coolest experiences I have had at UCLA Law,” Afkhami says. “Not only did we argue for free speech but we argued for a concerned scientist’s right to criticize a questionable but profitable medical treatment. So we defended free speech and public health at the same time.”

The case arose after Dr. Steven Novella posted online articles criticizing Dr. Edward Tobinick’s use of a drug called Embrel for treating Alzheimer’s disease and strokes. Tobinick, a California resident, filed a libel suit against Novella in Florida. The district court dismissed the case, and Tobinick appealed.

Volokh, UCLA’s Gary T. Schwartz Distinguished Professor of Law, and his students then entered to offer their First Amendment expertise on behalf of several law professors and the University of Baltimore’s Center for Medicine and Law. They have two arguments: that Novella’s speech is not commercial and thus deserves the highest constitutional protection available; and, more controversially, that California’s anti-SLAPP statute, which deters lawsuits that chill free speech, should apply in federal court.

“It’s often helpful to have somebody representing impartial third parties who don’t have a dog in the fight,” Volokh says of amici. He adds that oral arguments by amici are “relatively rare,” and whether one occurs often depends on the desires of the judges or the quality of the amicus brief. “If they look at the brief and they say, ‘Hmm, these people have something valuable to add,’ then the court is more inclined.”

This appearance is the latest success for the four-year-old clinic, which has filed briefs in about 50 cases in federal and state courts across the country. Volokh has delivered oral arguments in 11 of those cases.

To have students observe in person, he says, is tremendously valuable. “To be there in the court and see the lawyers, see the judges, see something that you’ve never really seen before that vividly in real life — students are understandably enthusiastic about that.”

Update: February 15, 2017

The Eleventh Circuit issued its ruling, affirming the district court’s dismissal of the case. In its decision, the appeals court determined that Dr. Novella’s speech was not commercial; this aligns with the arguments that the students made in their brief and professor Volokh made in court. Read the Eleventh Circuit’s decision here.