Rottenborn is lead and they look like they are going with the first amendment rights.
A potential flaw in this approach is, it you go over the transcript, Rottenborn made the First Amendment argument in his opening and closing argument... but not in the dismissal at the closing of the plaintiff's case.
Were I an appeal court judge, I would have to ask why he made the appeal to the jury twice, but not the judge?
Specifically pointing out that the jury can make their decision on the basis of anything they like (
within reason and instructions), but a judge can only do so by reference to the law.
And knowing this, why didn't Rottenborn cite the First Amendment at the dismissal?