Amicus Curiae Brief — Gerald F. Lackey, in His Official Capacity as the Commissioner of the Virginia Department of Motor Vehicles, Petitioner v. Damian Stinnie, et al.

Supreme Court briefAug 12, 2024

Ask Donna

What actually matters in this document.

Text

No. 23-621

In The

Supreme Court of the United States

GERALD F. LACKEY, IN HIS OFFICIAL CAPACITY AS THE

COMMISSIONER OF THE VIRGINIA DEPARTMENT OF

MOTOR VEHICLES,

Petitioner,

DAMIAN STINNIE, ET AL.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

BRIEF OF AMICI CURIAE FOUNDATION FOR

INDIVIDUAL RIGHTS AND EXPRESSION AND

FIRST AMENDMENT LAWYERS

ASSOCIATION IN SUPPORT OF

RESPONDENTS AND AFFIRMANCE

EDWARD S. RUDOFSKY

First Amendment

Lawyers Association

5 Arrowwood Lane

Melville, N.Y. 11747

JOSHUA A. HOUSE

Counsel of Record

Foundation for Individual

Rights and Expression

700 Pennsylvania Ave.

Suite 340

Washington, DC 20003

(215) 717-3473

joshua.house@thefire.org

Counsel for Amici Curiae

TABLE OF CONTENTS

TABLE OF CONTENTS ............................................. i

TABLE OF AUTHORITIES ...................................... iii

INTEREST OF AMICI CURIAE ................................1

SUMMARY OF ARGUMENT .....................................3

ARGUMENT ...............................................................5

Many Civil-Rights Cases—Especially

First Amendment Cases—Conclude After

a Preliminary Injunction. ...................................5

Because speech delayed is often speech

destroyed, preliminary injunctions are

critical to protecting free expression. .............6

First Amendment cases are often won

or lost at the preliminary-injunction

stage. ..............................................................10

II.

Barring Attorney’s Fees for Preliminary

Injunctions Will Raise the Cost of

Vindicating First Amendment Rights,

Encourage Strategic Mootness, and

Promote Needless Litigation.............................14

Many First Amendment Practictioners

Depend on Fee-Shifting to Take Cases. .......15

Without the threat of fees, government

defendants will strategically moot

cases. ..............................................................18

Removing the prospect of attorney’s

fees will encourage unnecessary

litigation and appeals....................................23

CONCLUSION ..........................................................30

iii

TABLE OF AUTHORITIES

Page(s)

Cases:

A.C.L.U of Ill. v. City of St. Charles,

794 F.2d 265 (7th Cir. 1986) ...............................7, 8

Adler v. Duval Cnty. Sch. Bd.,

112 F.3d 1475 (11th Cir. 1997)..............................12

Bair v. Shippensburg Univ.,

280 F. Supp. 2d 357 (M.D. Pa. 2003) ....................21

Blum v. Stenson,

465 U.S. 886 (1984)............................................5, 15

Board of School Commissioners of

Indianapolis v. Jacobs,

420 U.S. 128 (1975)................................................12

Bravo v. City of Santa Maria,

810 F.3d 659 (9th Cir. 2016) ...........................17, 24

Bridges v. California,

314 U.S. 252 (1941)..................................................6

Buckley v. Valeo,

424 U.S. 1 (1976)....................................................26

Burns v. Elrod,

757 F.2d 151 (7th Cir. 1985) .................................11

Carroll v. President & Comm’rs of

Princess Anne,

393 U.S. 175 (1968)..................................................6

Christian Legal Soc’y v. Walker,

453 F.3d 853 (7th Cir. 2006) ...................................9

City of Riverside v. Rivera,

477 U.S. 561 (1986)..........................................17, 24

Cole v. Oroville Union High Sch. Dist.,

228 F.3d 1092 (9th Cir. 2000)................................12

Corder v. Lewis Palmer Sch. Dist. No. 38,

566 F.3d 1219 (10th Cir. 2009)..............................12

Davis v. City & Cnty. of San Francisco,

135 F. Supp. 3d 1053 (N.D. Cal. 2015) .................16

Doe v. Madison Sch. Dist. No. 321,

177 F.3d 789 (9th Cir. 1999) .................................12

Elrod v. Burns,

427 U.S. 347 (1976)........................................6, 9, 11

Fed’n of Advert. Indus. Reps., Inc. v.

City of Chicago,

326 F.3d 924 (7th Cir. 2003) .................................20

Fikre v. F.B.I.,

904 F.3d 1033 (9th Cir. 2018)..........................19, 20

Flores v. Bennett,

No. 22-16762, 2023 WL 4946605

(9th Cir., Aug. 3, 2023) ............................................2

Fox v. Bd. of Trustees of State Univ. of N.Y.,

42 F.3d 135 (2d Cir. 1994) .....................................13

Gray v. Bostic,

720 F.3d 887 (11th Cir. 2013)................................16

Hensley v. Eckerhart,

461 U.S. 424 (1983)................................................17

Husain v. Springer,

193 F. Supp. 2d 664, 670 (E.D.N.Y. 2002),

aff’d, 494 F.3d 108 (2d Cir. 2007) ..........................19

Klein v. City of San Clemente,

584 F.3d 1196 (9th Cir. 2009)..................................8

Los Angeles Cnty. v. Davis,

440 U.S. 625 (1979)................................................19

Lowry v. Watson Chapel Sch. Dist.,

540 F.3d 752 (8th Cir. 2008) .................................15

Masterpiece Cakeshop v. Colo. Civil Rights Comm.,

No. 16-111, 584 U.S. 617 (filed Sept. 7, 2017) ........2

Moody v. NetChoice, LLC,

144 S. Ct. (filed Dec. 6, 2023) .................................1

Near v. Minnesota,

283 U.S. 697 (1931)..................................................7

Neb. Press Ass’n v. Stuart,

427 U.S. 539 (1976)..................................................7

O’Connor v. Huard,

117 F.3d 12 (1st Cir.1997) .....................................16

Opulent Life Church v. City of Holly Springs,

697 F.3d 279 (5th Cir. 2012) ...................................9

Perdue v. Kenny A.,

559 U.S. 542 (2010)................................................15

Prison Legal News v. Fed. Bureau of Prisons,

944 F.3d 868 (10th Cir. 2019)................................19

Ramirez v. Collier,

595 U.S. 411 (2022)..................................................9

Roman Cath. Diocese of Brooklyn v. Cuomo,

592 U.S. 14 (2020)....................................................9

Sapp v. Renfroe,

511 F.2d 172 (5th Cir. 1975) .................................13

Se. Promotions, Ltd. v. Conrad,

420 U.S. 546 (1975)..................................................7

Sossamon v. Lone Star State of Tex.,

560 F.3d 316 (5th Cir. 2009) .................................19

Speech First, Inc. v. Schlissel,

939 F.3d 756 (6th Cir. 2019) .................................22

Stinnie v. Holcomb,

77 F.4th 200 (4th Cir. 2023) ........................ 3, 14, 23

Sutton v. Evans,

918 F.2d 654 (6th Cir. 1990) ...................................9

Town of Portsmouth v. Lewis,

813 F.3d 54 (1st Cir. 2016) ....................................19

Troiano v. Supervisor of Elections,

382 F.3d 1276 (11th Cir. 2004)..............................19

Volokh v. James,

656 F. Supp. 3d 431 (S.D.N.Y. 2023) ......................2

Washington Post Co. v. Keogh,

365 F.2d 965 (D.C. Cir. 1966) ..................................9

Winter v. Natural Resources Defense

Council, Inc.,

555 U.S. 7 (2008)......................................................9

vii

Statutes and Other Authorities:

U.S. Const., amend I ....................... 1-12, 14-17, 25-30

28 U.S.C. § 1292(a)(1) ...............................................10

42 U.S.C. § 1983 ..................................................13, 24

42 U.S.C. § 1988 .................................... 4, 5, 13, 24, 30

4 William Blackstone, Commentaries.........................7

11A Charles Alan Wright & Arthur R. Miller,

Fed. Prac. & Proc. Civ. § 2949 (3d ed. June

2024) .......................................................................10

Administrative Office of the U.S. Courts,

United States District Courts—National

Judicial Caseload Profile (March 31, 2024),

https://www.uscourts.gov/sites/default/files/

data_tables/fcms_na_distprofile0331.2024.pdf ....12

After FIRE’s Intervention, Florida city ditches

unconstitutional restrictions on political

protests, FIRE (Jan. 25, 2024), https://

www.thefire.org/news/after-firesintervention-florida-city-ditchesunconstitutional-restrictions-politicalprotests ...................................................................29

After FIRE’s intervention, Ohio city lifts ban

on sale of ‘faith based items’ at Apple Butter

Day festival, FIRE (Oct. 13, 2023), https://

www.thefire.org/news/after-firesintervention-ohio-city-lifts-ban-sale-faithbased-items-apple-butter-day-festival ..................28

viii

Alabama A&M Univ., Procedure 6.10: NonDiscrimination and Anti-Harassment Policy

at 2 (June 5, 2012), https://www.aamu.edu/

about/policies-procedures/_documents/6.10non-discrimination-and-anti-harassmentpolicy.pdf ................................................................26

All Cases, https://www.thefire.org/cases/

?limit=all ................................................................27

Bay City, MI, implements rules restricting

public comments at city commission

meetings—Case Overview, https://

www.thefire.org/cases/bay-city-miimplements-rules-restricting-publiccomments-city-commission-meetings ...................29

Br. of FALA Supp. Resp’t, Lee v. Tam,

No. 15-1293, 582 U.S. 218 (filed

Dec. 16, 2016) ...........................................................2

Br. of FIRE Supp. Pet’rs in No. 22-555 &

Resp’ts in No. 22-277, Moody v. NetChoice,

LLC, 144 S. Ct. 2393 (filed Dec. 6, 2023) ................1

Br. of FIRE, et al. Supp. Pet’r, N.R.A. v. Vullo,

No. 22-842, 602 U.S. 175 (filed Jan. 16, 2024) .......1

Bristol, TN, restricts protected speech on the

city’s social media pages—Case Overview,

https://www.thefire.org/cases/bristol-tnrestricts-protected-speech-citys-socialmedia-pages ...........................................................29

Compl. ¶ 2, Sinapi-Riddle v. Citrus Cmty. Coll.

Dist., No. 14-cv-05104 (C.D. Cal. July 1,

2014), https://www.thefire.org/complaint-insinapi-riddle-v-citrus-communitycollegeet-al/ .................................................................20, 21

Compl. ¶ 12, Stevens v. Citrus Cmty. Coll.

Dist., No. 2:03-cv-03539 (C.D. Cal. May 19,

2003), https://www.thefire.org/complaintagainst-citrus-college-may-19-2003/ .....................20

Compl. ¶ 28, Christian Fellowship of

Shippensburg Univ. of Pa. v. Ruud, No.

4:08-cv-00898 (M.D. Pa. May 7, 2008),

https://www.thefire.org/legal-complaintagainstshippensburg-university-2008 ..................21

Fed. Prac. & Proc. Civ. § 2949

(3d ed. June 2024) ..................................................10

FIRE, Spotlight on Speech Codes 2024, https://

www.thefire.org/sites/default/files/2024/01/

Speech%20Code%20Report_2024_final.pdf ..........24

Flores v. Bennett—Settlement Agreement,

https://www.thefire.org/research-learn/

flores-v-bennett-settlement-agreement ................16

H.R. Rep. No. 94-1558 ...............................................17

Lake Superior State Univ., Posting Policy,

https:// www.lssu.edu/campus-life/stayinformed/student-handbook/#toggle-id-5 ..............26

Portland State Univ., Prohibited

Discrimination & Harassment Policy at 3

(Apr. 14, 2021), https:// drive.google.com/file/

d/14E3p-c2qunpA6H3-GFGLmEcL0nxovajc/

view ........................................................................26

Press Release, FIRE, A Great Victory for Free

Speech at Shippensburg (Feb. 24, 2004),

https://www.thefire.org/a-greatvictory-forfree-speech-at-shippensburg .................................21

Press Release, FIRE, LAWSUIT: FIRE sues

Texas university president illegally blocking

charity drag show (March 24, 2023), https://

www.thefire.org/news/lawsuit-fire-suestexas-university-president-illegallyblocking-charity-drag-show ...................................25

Resolution of the Citrus Coll. Bd. of Trs. (June

5, 2003), https://www.thefire.org/resolutionof-the-citrus-collegeboard-of-trustees-june-52003/ .......................................................................20

S. Rep. No. 94–1011 ..............................................5, 15

Settlement Agreement, Sinapi-Riddle v. Citrus

Cmty. Coll. Dist., No. 14-cv-05104 (C.D. Cal.

Dec. 3, 2014), https://www.thefire.org/

settlement-agreement-sinapi-riddle-vcitruscollege/ ..............................................................20, 21

Settlement Agreement, Speech First, Inc. v.

Schlissel, No. 18-cv-11451 (E.D. Mich. Oct.

25, 2019), https://speechfirst.org/wp-content/

uploads/2019/10/Settlement-Agreementsigned.pdf ...............................................................22

Twin Ridge Elementary School: Staff and

students compelled to participate in the

Pledge of Allegiance—Case Overview,

https://www.thefire.org/cases/twin-ridgeelementary-school-staff-and-studentscompelled-participate-pledge-allegiance...............29

Univ. of Alaska—Anchorage, Acceptable Use

Policy, https://www.uaa.alaska.edu/about/

administrative-services/policies/informationtechnology/acceptable-use.cshtml .........................27

Univ. of Massachusetts Lowell, Acceptable

Use Policy at 3 (Oct. 1, 2016), https://

www.uml.edu/service/Apps/HR/PolicyPortal/

Policies/Download?id=12 .......................................26

Univ. of Texas at San Antonio, 9.09 University

Posting of Materials (Nov. 29, 2023), https://

www.utsa.edu/hop/chapter9/9-9.html ...................25

University of Colorado, Boulder: DEI

Statement Required for Faculty Positions—

Case Overview, https://www.thefire.org/

cases/university-colorado-boulder-deistatement-required-faculty-positions ...................28

Will Creeley, FIRE, Victory for Free Speech at

Shippensburg: After Violating Terms of 2004

Settlement, University Once Again

Dismantles Unconstitutional Speech Code

(Oct. 24, 2008), https://www.thefire.org/

victory-for-free-speech-at-shippensburgafterviolating-terms-of-2004-settlementuniversity-once-againdismantlesunconstitutional-speech-code/ ...............................21

xii

William Brannon & Deb Roy, The speed of

news in Twitter (X) versus radio, 14 Sci.

Reps., No. 11939 (2024), https://doi.org/

10.1038/s41598-024-61921-7 ...................................7

INTEREST OF AMICI CURIAE1

The Foundation for Individual Rights and

Expression (FIRE) is a nonpartisan, nonprofit

organization dedicated to defending the individual

rights of all Americans to free speech and free

thought—the essential qualities of liberty. Since 1999,

FIRE has successfully defended First Amendment

rights on college campuses nationwide through public

advocacy, targeted litigation, and amicus curiae

filings in cases that implicate expressive rights. In

June 2022, FIRE expanded its public advocacy beyond

the university setting and now defends First

Amendment rights both on campus and in society at

large. See, e.g., Br. of FIRE, et al. Supp. Pet’r, N.R.A.

v. Vullo, No. 22-842, 602 U.S. 175 (filed Jan. 16, 2024);

Br. of FIRE Supp. Pet’rs in No. 22-555 & Resp’ts in

No. 22-277, Moody v. NetChoice, LLC, 144 S. Ct. 2393

(filed Dec. 6, 2023).

In lawsuits across the United States, FIRE seeks

to vindicate First Amendment rights without regard

to the speakers’ political views. FIRE’s clients rely on

swift access to federal courts, often moving for

1 Pursuant to Rule 37.6, amici affirm that no counsel for a

party authored this brief in whole or in part, and that no person

other than amici or their counsel contributed money intended to

fund preparing or submitting this brief.

preliminary injunctions to secure meaningful and

lasting legal remedies for the irreparable harm of

censorship. See, e.g., Flores v. Bennett, No. 22-16762,

2023 WL 4946605 (9th Cir., Aug. 3, 2023) (affirming

preliminary injunction); Volokh v. James, 656 F.

Supp. 3d 431 (S.D.N.Y. 2023) (granting preliminary

injunction).

The First Amendment Lawyers Association

(FALA) is an Illinois nonprofit corporation with some

150 members throughout the United States, Canada,

and Europe. Its membership consists of attorneys

whose practices emphasize the defense of First

Amendment rights and related civil liberties. For

more than half a century, FALA members have

litigated cases concerning a wide spectrum of such

rights, including free expression, free association,

defamation, and related privacy issues. FALA has

frequently appeared as amicus curiae before

numerous state and federal courts to provide its

unique perspective on some of the most important

First Amendment issues of the day. See, e.g., Br. of

FALA Supp. Pet’rs, Masterpiece Cakeshop v. Colo.

Civil Rights Comm., No. 16-111, 584 U.S. 617 (filed

Sept. 7, 2017); Br. of FALA Supp. Resp’t, Lee v. Tam,

No. 15-1293, 582 U.S. 218 (filed Dec. 16, 2016).

SUMMARY OF ARGUMENT

Plaintiffs-Respondents brought this case against

the Commissioner of Virginia’s Department of Motor

Vehicles to vindicate their constitutional rights, and

they succeeded. This case was fully litigated—indeed,

as this brief will show, it was as fully litigated as any

number of civil-rights cases could be. After multiple

rounds of defeats, the government threw in the towel.

But the Commissioner now wants to avoid the

consequences of his loss. The Fourth Circuit was

unreceptive, and rightly so.

The trial court originally dismissed this case under

Rule 12(b)(1), but the Fourth Circuit reversed.

Stinnie v. Holcomb, 77 F.4th 200, 203 & n.1 (4th Cir.

2023). Plaintiffs-Respondents then successfully

moved for a preliminary injunction. Id. Yet after

cross-motions for summary judgment, and just before

trial, the Commissioner sought a stay pending a

legislative resolution. That resolution passed—so the

case is now moot. Id. And if the Commissioner had his

way, Plaintiffs-Respondents would be left high and

dry.

A similar story lies for First Amendment cases

across the country. The government violates the First

Amendment, litigates a case until suffering defeat at

the preliminary-injunction stage, then gives up the

ghost. Withholding attorney’s fees from victims of

these First Amendment violations would be

devastating—not just for them individually, but for

access to justice more broadly. This runs counter to

Congress’ primary motivation for Section 1988:

encouraging citizens and their attorneys to defend

constitutional rights against government abuse.

Letting the government off scot-free will only

embolden such abuses and make them harder to fight,

for two primary reasons.

First, many civil-rights cases, but especially First

Amendment cases, conclude naturally at the

preliminary-injunction stage. The effectiveness of

speech and even the ability to speak at all can be time

sensitive. Preliminary injunctions are often the only

relief available to many plaintiffs. Barring fee

recovery for cases concluding in preliminary

injunctions would be tantamount to prohibiting any

fee recovery for a large swathe of civil-rights cases.

Along with those fees goes any shot at securing

competent counsel.

Second, the threat of fees keeps government

defendants honest. Without fee-shifting, governments

know their victims will struggle to find counsel to

defend against unconstitutional behavior. That

violates Section 1988’s stated purpose, “to attract

competent counsel” to civil-rights cases. Blum v.

Stenson, 465 U.S. 886, 897 (1984) (quoting S. Rep. No.

94–1011, at 6 (1976)). It also creates perverse

incentives. Governments will strategically moot cases

after preliminary injunctions. Enjoined government

defendants can simply change policies and make cases

disappear free of charge, leaving the plaintiff to foot

the litigation bill. They will similarly defend blatantly

unconstitutional policies, taking their chances in

litigation until just after issuance of a preliminary

injunction (and any interlocutory appeals). This not

only contradicts Section 1988’s main purpose, but also

acts as a drain on court resources. This Court should

therefore affirm the Court of Appeals’ decision

reversing the denial of attorney’s fees.

ARGUMENT

I. Many Civil-Rights Cases—Especially First

Amendment

Cases—Conclude

After

Preliminary Injunction.

Amici are First Amendment litigators and

advocates intimately familiar with how civil-rights

cases proceed. The fact is they often end after the

preliminary-injunction stage. Most speech isn’t

relevant forever, and if a case’s long windings through

the court system make that speech obsolete, litigants

have no real recourse for violations of their First

Amendment rights. That’s why “[t]he loss of First

Amendment freedoms, for even minimal periods of

time, unquestionably constitutes irreparable injury.”

Elrod v. Burns, 427 U.S. 347, 373 (1976).

A. Because speech delayed is often

speech destroyed, preliminary

injunctions are critical to

protecting free expression.

As any journalist, speechwriter, or comedian can

attest: Timing is everything. See Bridges v. California,

314 U.S. 252, 268 (1941) (“public interest is much

more likely to be kindled by a controversial event of

the day”). That’s even truer in our social-media-fueled

news cycle. Studies have shown news on social media

“circulates faster, fades faster,” and that “audiences

may encounter faster shifts in focus [and] less

attention to each news event.”2

“The timeliness of political speech,” this Court

has recognized, “is particularly important.” Elrod, 427

U.S. at 374 n.29. “A delay of even a day or two may be

of crucial importance in some instances.” Carroll v.

President & Comm’rs of Princess Anne, 393 U.S. 175,

182 (1968). Thus, “[s]peech delayed may be speech

2 William Brannon & Deb Roy, The speed of news in Twitter

(X) versus radio, 14 Sci. Reps., No. 11939 (2024), https://doi.org/

10.1038/s41598-024-61921-7.

destroyed; political speech . . . often is addressed to

transitory issues, and becomes stale when the issues

pass away.” A.C.L.U of Ill. v. City of St. Charles, 794

F.2d 265, 274 (7th Cir. 1986); see also Neb. Press Ass’n

v. Stuart, 427 U.S. 539, 609 (1976) (Brennan, J.,

concurring) (“delay . . . could itself destroy the

contemporary news value of the information”).

Any government-imposed delay on speech

threatens to make government the final arbiter of

acceptable speech. The First Amendment requires

“prompt judicial review” of restrictions on speech, lest,

“by reason of delay or otherwise, [government]

determination[s] may in practice be final.” Se.

Promotions, Ltd. v. Conrad, 420 U.S. 546, 561–62

(1975) (emphasis added).

For those reasons, the First Amendment protects

the right to speak without delay. Our legal tradition

has long abhorred “previous restraints” that might

forestall or otherwise chill speech. Near v. Minnesota,

283 U.S. 697, 713 (1931) (quoting 4 William

Blackstone, Commentaries *151–52). This Court

rigorously scrutinizes temporary restrictions on

speech, even those purported to uphold other

constitutional rights. See Neb. Press Ass’n, 427 U.S. at

543, 570 (invalidating as unconstitutional court order

banning reporting

impaneled”).

case

“until

jury

was

Preliminary injunctions play a crucial part in

First Amendment jurisprudence. “[C]aselaw clearly

favors granting preliminary injunctions to a plaintiff

. . . who is likely to succeed on the merits of his First

Amendment claim.” Klein v. City of San Clemente, 584

F.3d 1196, 1208 (9th Cir. 2009). Preliminary

injunctions are especially well-suited to addressing

potential violations where “ongoing enforcement of

the potentially unconstitutional regulations would

infringe . . . free expression interests.” Id. (quotation

marks omitted). This rationale extends to all First

Amendment freedoms, not just those of speech or the

press: “If preliminary injunctions were not available

in cases brought to enforce the establishment clause,

government might be able to erode the values that the

clause protects with a flood of temporary or

intermittent infringements.” A.C.L.U. of Ill., 794 F.2d

at 275.

If it’s likely a defendant has violated the First

Amendment, courts typically consider the remaining

preliminary-injunction elements satisfied.3 First

3 To successfully move for a preliminary injunction, First

Amendment plaintiffs must show “that their First Amendment

Amendment violations always impose irreparable

harm. “The loss of First Amendment freedoms, for

even minimal periods of time, unquestionably

constitutes irreparable injury.” Roman Cath. Diocese

of Brooklyn v. Cuomo, 592 U.S. 14, 19 (2020) (per

curiam) (quoting Elrod, 427 U.S. at 373). And

“injunctions protecting First Amendment freedoms

are always in the public interest.” Opulent Life

Church v. City of Holly Springs, 697 F.3d 279, 298 (5th

Cir. 2012) (quoting Christian Legal Soc’y v. Walker,

453 F.3d 853, 859 (7th Cir. 2006)) (emphasis added).

Federal courts thus recognize that, “[i]n the First

Amendment area, summary procedures are even more

essential.” Washington Post Co. v. Keogh, 365 F.2d

965, 968 (D.C. Cir. 1966).4

claims are likely to prevail, that denying them relief would lead

to irreparable injury, and that granting relief would not harm

the public interest.” Roman Cath. Diocese of Brooklyn v. Cuomo,

592 U.S. 14, 16 (2020) (citing Winter v. Natural Resources

Defense Council, Inc., 555 U.S. 7, 20 (2008)). In First Amendment

cases, Winter’s “balance of equities” often collapses into the

public interest analysis. See, e.g., Ramirez v. Collier, 595 U.S.

411, 434 (2022) (“the balance of equities and the public interest

favor his requested relief”).

Courts also often issue preliminary injunctions in First

Amendment cases without the usual requirement that the

moving party post security. See, e.g., Sutton v. Evans, 918 F.2d

654, 655–56 (6th Cir. 1990).

Speech must be timely to be effective.

Preliminary injunctions are thus tailor-made for

addressing likely violations of the First Amendment.

B. First Amendment cases are often

won or lost at the preliminaryinjunction stage.

Because First Amendment cases are so wellsuited for preliminary injunctions, they often resolve

at that stage of the proceedings. A successful movant

must establish likelihood of success after legal

argument and the presentation of evidence, whether

at a hearing or on the papers. See 11A Charles Alan

Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. §

2949 (3d ed. June 2024). Preliminary-injunction

proceedings thus provide a window into plaintiffs’

chances at ultimately prevailing in the case—

especially when so much of the evidence presented

will reappear on the merits. See id. § 2950.

Unsuccessful litigants can even appeal, 28 U.S.C.A.

§ 1292(a)(1), previewing how appellate courts may see

each side’s claims.

All told, the parties vigorously litigate the

preliminary-injunction stage. And those on the losing

end rightly intuit their diminished odds for victory.

The wise ones try to get out of Dodge.

That’s what happened following this Court’s

seminal decision in Elrod v. Burns. There, a plurality

of this Court held a sheriff’s office patronage system,

which hired and fired employees based on political

view, violated the First Amendment. 427 U.S. at 373.

The plaintiffs had therefore demonstrated likelihood

of success on their claims, and the Court affirmed that

the district court should have granted a preliminary

injunction. Id. at 374. On remand, the case was

effectively over. The district court entered the

injunction, and then, “[b]efore the case went to trial,

the parties reached a tentative settlement.” Burns v.

Elrod, 757 F.2d 151, 152 (7th Cir. 1985). Further

litigation concerned only class-settlement procedures.

See id. at 154.

Even if litigants do not quit after the resolution

of preliminary-injunctive relief, sometimes so much

time will have passed as to moot the litigation. This is

exactly what amicus FIRE has seen in its own work,

particularly on university campuses. Students’ claims

for prospective declaratory or injunctive relief

evaporate at graduation. Restrictions on student

speech often do not inflict financial injuries, so

compensatory damages may not be available or may

be difficult to prove. See Part II.A., infra. That means

the only practical relief—injunctive—is also the most

time-sensitive.

The median length of time for resolution of a civil

case in federal district court is between 7.8 and 35.4

months, depending on whether the case goes to trial.5

For students, that means claims are regularly mooted

by graduation. Take Board of School Commissioners

of Indianapolis v. Jacobs, where this Court held

graduation mooted students’ declaratory judgment

claims that school officials unconstitutionally

restricted a student newspaper. 420 U.S. 128, 129

(1975) (per curiam). Because the students had

graduated, there was “no longer” a “case or

controversy . . . between the named plaintiffs and the

[school board] with respect to the validity of the rules

at issue.” Id. Lower courts have held the same in other

cases concerning students’ First Amendment rights.6

5 See Administrative Office of the U.S. Courts, United States

District Courts—National Judicial Caseload Profile (March 31,

2024), https://www.uscourts.gov/sites/default/files/data_tables/

fcms_na_distprofile0331.2024.pdf.

6 See, e.g., Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d

1219, 1225 (10th Cir. 2009) (valedictorian’s graduation mooted

her equitable-relief claims challenging graduation-speech

policy); Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 791–98

(9th Cir. 1999) (en banc) (graduation mooted declaratory and

injunctive-relief claims against policy permitting student

prayers during graduation ceremony); Cole v. Oroville Union

High Sch. Dist., 228 F.3d 1092, 1098–99 (9th Cir. 2000)

(graduation mooted students’ equitable-relief claims challenging

prohibition on sectarian graduation speeches); Adler v. Duval

Cnty. Sch. Bd., 112 F.3d 1475, 1478 (11th Cir. 1997) (graduation

Colleges and universities can—and in amici’s

experience do—take advantage of this reality to

insulate themselves from liability by prolonging

litigation until student-plaintiffs graduate.

With so many Section 1983 cases ending after

preliminary injunctions, Section 1988 can serve

Congress’s purposes only if attorney’s fees are

available after those injunctions. Ruling otherwise

would create a massive exception to Section 1988:

Attorney’s fees would be unavailable in civil-rights

cases that move quickly, or that are time-constrained

and must move quickly. As explained next, such a

loophole—besides conflicting with the statute’s

intent—would also hamper access to justice.

mooted students’ declaratory- and injunctive-relief claims

challenging policy allowing student-initiated prayer at

graduation ceremonies); Fox v. Bd. of Trustees of State Univ. of

N.Y., 42 F.3d 135, 140 (2d Cir. 1994) (graduation mooted

equitable relief claims challenging regulation preventing

cookware demonstration in university dormitory); Sapp v.

Renfroe, 511 F.2d 172, 175 (5th Cir. 1975) (graduation mooted

equitable-relief claims challenging mandatory ROTC training).

II.

Barring Attorney’s Fees for Preliminary

Injunctions Will Raise the Cost of

Vindicating First Amendment Rights,

Encourage

Strategic

Mootness,

and

Promote Needless Litigation.

With so many First Amendment cases ending

after a preliminary injunction, it is no wonder Courts

of Appeals “have little difficulty finding prevailing

party status in such circumstances.” Stinnie, 77 F.4th

at 215. Though “preliminary” in name, the relief is

effectively permanent. Whatever “haggling over fees”

may have concerned the dissent below, id. at 230

(Quattlebaum, J., dissenting), the alternative is

worse.

That is so in at least three ways. First, it

substantially raises the costs of vindicating First

Amendment rights. Because so many First

Amendment cases effectively end after preliminaryinjunction proceedings, eliminating fees for successful

motions eliminates any prospect of fees at all. And

without fees, plaintiffs will struggle to find or afford

competent counsel. Second, removing the threat of

fees will encourage preliminarily enjoined defendants

to strategically moot cases to avoid fees, with no real

intention of permanently ceasing the enjoined

conduct. This poses a particular hazard in cases

against municipalities or colleges, which can often

enact, retract, and re-enact policies with impunity.

Third, for similar reasons, eliminating the prospect of

fees will encourage unnecessary litigation and

appeals. Fees incentivize defendants to consider the

costs of litigation in the first place, or of further

litigation on appeal. The threat of litigation carries

less weight when fees are off the table.

A. Many

First

Amendment

Practictioners Depend on FeeShifting to Take Cases.

“Section 1988 serves an important public

purpose by making it possible for persons without

means to bring suit to vindicate their rights.” Perdue

v. Kenny A., 559 U.S. 542, 559 (2010). It does this by

“attract[ing] competent counsel” to civil-rights cases.

Blum v. Stenson, 465 U.S. 886, 897 (1984) (quoting S.

Rep. No. 94–1011 (1976)).

Attorney’s fees are critical in First Amendment

cases, where monetary awards may be limited or

nonexistent and the only real relief is injunctive. Free

speech is often “not readily reducible to a sum of

money.” Lowry v. Watson Chapel Sch. Dist., 540 F.3d

752, 765 (8th Cir. 2008). There is accordingly only an

uncertain basis, at best, for contingency fee

agreements. This leaves attorney’s fees as the only

“incentive to attorneys to represent civil-rights

litigants whose claims may not result in substantial

monetary compensation.” Gray v. Bostic, 720 F.3d

887, 897 (11th Cir. 2013) (citing O’Connor v. Huard,

117 F.3d 12, 18 (1st Cir.1997)).

Many practitioners therefore rely on fees to take

First Amendment cases, even ones destined to end

after preliminary injunctions. In one case litigated by

a member of amicus FALA, the trial court granted a

preliminary injunction as to some relief while leaving

undecided other potential issues. Davis v. City &

Cnty. of San Francisco, 135 F. Supp. 3d 1053, 1059

(N.D. Cal. 2015). But even this partial preliminary

injunction decided the meat of the case: The plaintiff

political activists needed a permit for a march

scheduled the very next weekend. Id. at 1055. After

the court’s decision—handed down one day before the

event—the parties settled the case for attorney’s fees.

Amicus FIRE likewise has resolved cases after

preliminary injunctions. Following a preliminary

injunction and its associated appeal, FIRE recently

entered a settlement agreement that included

$250,000 in attorney’s fees and costs.7

Flores v. Bennett—Settlement Agreement, https://

www.thefire.org/research-learn/flores-v-bennett-settlementagreement; see also Flores v. Bennett, No. 1:22-cv-01003-JLT7

Those settlements were possible because

attorney’s fees were a live issue following the

preliminary injunction. And, importantly, such

settlements provide an incentive for competent

attorneys to take these cases. If government

defendants could avoid paying fees simply by ceasing

their activities after an injunction issues, there would

be little incentive for private attorneys to take these

sorts of cases.

Section 1988 is not a get-rich-quick scheme for

the plaintiffs’ bar. “Congress intended that statutory

fee awards be adequate to attract competent counsel,

but not produce windfalls to attorneys.” City of

Riverside, 477 U.S. at 580. Congress merely

acknowledged the reality that, without fee-shifting,

many meritorious constitutional claims will go

unlitigated. Fee-shifting “encourage[s] access to the

courts to redress often economically unviable injuries

to fundamental rights.” Bravo, 810 F.3d at 668 (citing

City of Riverside, 477 U.S. at 574–77). It is a matter of

“effective access to the judicial process.” Hensley v.

Eckerhart, 461 U.S. 424, 429 (1983) (quoting H.R.

Rep. No. 94-1558, p. 1 (1976)). As so much First

Amendment litigation happens at the preliminaryHBK (E.D. Cal., Aug. 4, 2024) (Doc. 74) (granting stipulated

judgment).

injunction stage, barring fees means less access to the

judicial system and, ultimately, jeopardizes

constitutional rights.

B. Without the threat of

government defendants

strategically moot cases.

fees,

will

Fees incentivize good behavior. If the

government enforces an unconstitutional policy, it

knows it’s on the hook after losing in court. But if it

can quickly moot any cases without the threat of fees,

it will have little incentive not to enforce

unconstitutional policies. Preliminary injunctions

give the government a sneak peek at the

constitutionality of its policy. Without fees, if it loses,

the government can simply change its policy and

make the litigation disappear, free of charge—or, put

differently, saddle the plaintiff with the cost of

vindicating constitutional interests.

Amicus FIRE has witnessed precisely that with

colleges and universities, which will strategically

moot cases by revising or disavowing policies after the

start of litigation. One such policy change mooted

students’ claims even though the college expressly

refused to commit to the change “indefinitely into the

future.” Husain v. Springer, 193 F. Supp. 2d 664, 670

(E.D.N.Y. 2002), aff’d, 494 F.3d 108 (2d Cir. 2007).8

Students’ constitutional claims against public

entities are vulnerable to strategic mootness because

courts more readily accept government claims of

repentance. Granted, the general rule is voluntary

cessation of a policy moots a case only if “there is no

reasonable expectation . . . that the alleged violation

will recur.” Los Angeles Cnty. v. Davis, 440 U.S. 625,

631 (1979) (cleaned up). But courts apply “a

rebuttable presumption that the objectionable

behavior will not recur” when a governmental

defendant voluntarily rescinds a challenged policy.

Troiano v. Supervisor of Elections, 382 F.3d 1276,

1283 (11th Cir. 2004).9 Such treatment is premised on

the “good faith” and trustworthiness of government

8 The Second Circuit reviewed the case on its merits because

the students also pursued claims for nominal damages. See

Husain, 494 F.3d at 121–34.

9 See also, e.g., Prison Legal News v. Fed. Bureau of Prisons,

944 F.3d 868, 881 (10th Cir. 2019); Fikre v. F.B.I., 904 F.3d 1033,

1037 (9th Cir. 2018) (“Where that party is the government we

presume that it acts in good faith.”); Town of Portsmouth v.

Lewis, 813 F.3d 54, 59 (1st Cir. 2016); Sossamon v. Lone Star

State of Tex., 560 F.3d 316, 325 (5th Cir. 2009).

actors. See, e.g., Fikre v. F.B.I., 904 F.3d 1033, 1037

(9th Cir. 2018).10

Yet governments do not consistently live up to

this trust. Public colleges and universities in

particular will reinstitute unconstitutional policies

after revoking them to end litigation. After a student

sued California’s Citrus College, for instance, the

college revoked its policies of limiting expressive

activities to three small “free speech areas” and

subjecting

students

advance-notice

requirement—policies

that

are

clearly

unconstitutional. But sometime later the college

adopted a nearly identical policy.12 It required yet

Accord Fed’n of Advert. Indus. Reps., Inc. v. City of

Chicago, 326 F.3d 924, 929 (7th Cir. 2003) (“[W]hen the

defendants are public officials . . . we place greater stock in their

acts of selfcorrection, so long as they appear genuine.”); 13C

Wright & Miller, supra, § 3533.7 (“Courts are more likely to trust

public defendants to honor a professed commitment to changed

ways . . . .”).

11 See Compl. ¶ 12, Stevens v. Citrus Cmty. Coll. Dist., No.

2:03-cv-03539 (C.D. Cal. May 19, 2003), https://www.thefire.org/

complaint-against-citrus-college-may-19-2003/; See Resolution of

the Citrus Coll. Bd. of Trs. (June 5, 2003), https://

www.thefire.org/resolution-of-the-citrus-collegeboard-oftrustees-june-5-2003/.

12 See Compl. ¶ 2, Sinapi-Riddle v. Citrus Cmty. Coll. Dist.,

No. 14-cv-05104 (C.D. Cal. July 1, 2014), https://www.thefire.org/

complaint-in-sinapi-riddle-v-citrus-communitycollege-et-al/.

another constitutional lawsuit for the college to again

revise its policy.13

A similar pattern unfolded at Pennsylvania’s

Shippensburg University. There, after students

challenged the university’s speech code, a federal

district court preliminarily enjoined its enforcement.

See Bair v. Shippensburg Univ., 280 F. Supp. 2d 357,

373–74 (M.D. Pa. 2003). The university then settled

the suit, agreeing to repeal the challenged policies.14

Within five years, however, the university readopted

the same policies verbatim.15 Students challenged the

speech code a second time, and yet again the

university settled and agreed to revise its policies.16

13 See Settlement Agreement, Sinapi-Riddle v. Citrus Cmty.

Coll. Dist., No. 14-cv-05104 (C.D. Cal. Dec. 3, 2014), https://

www.thefire.org/settlement-agreement-sinapi-riddle-vcitruscollege/.

14 See Press Release, FIRE, A Great Victory for Free Speech

at Shippensburg (Feb. 24, 2004), https://www.thefire.org/agreatvictory-for-free-speech-at-shippensburg.

See Compl. ¶ 28, Christian Fellowship of Shippensburg

Univ. of Pa. v. Ruud, No. 4:08-cv-00898 (M.D. Pa. May 7, 2008),

https://www.thefire.org/legal-complaint-againstshippensburguniversity-2008.

16 See Will Creeley, FIRE, Victory for Free Speech at

Shippensburg: After Violating Terms of 2004 Settlement,

University Once Again Dismantles Unconstitutional Speech

Code (Oct. 24, 2008), https://www.thefire.org/victory-for-free-

More recent litigation against the University of

Michigan’s speech code shows that public entities, left

unchecked, will reinstate challenged policies. In

Speech First, Inc. v. Schlissel, a group of students

challenged the university’s prohibition against

“bullying and harassing behavior,” which the

university defined as including “annoy[ing]” someone

“persistently,” or “frighten[ing]” a “smaller weaker

person.” 939 F.3d 756, 762 (6th Cir. 2019). Although

the university rescinded the challenged restriction, in

part because of the lawsuit, it “continue[d] to defend

its use of the challenged definitions” and refused to

make a commitment not to reenact them. Id. at 769–

70. The district court denied a preliminary injunction,

but the Sixth Circuit vacated that denial, holding the

university had “simply not [provided] a meaningful

guarantee” its new definitions “will remain the same

in the future.” Id. at 769, 771. Only after the appellate

ruling did the university promise not to reinstate its

policy.17

speech-at-shippensburgafter-violating-terms-of-2004settlement-university-once-againdismantles-unconstitutionalspeech-code/.

17 See Settlement Agreement, Speech First, Inc. v. Schlissel,

No. 18-cv-11451 (E.D. Mich. Oct. 25, 2019), https://

speechfirst.org/wp-content/uploads/2019/10/SettlementAgreement-signed.pdf.

The Fourth Circuit’s opinion below was alert to

these sorts of hijinks: “Faced with a suit challenging a

potentially or even very probably unlawful practice, a

defendant may freely litigate the case through the

preliminary injunction phase . . . . And when the court

confirms the likely merit of the plaintiff’s claim, the

government will have ample time to cease the

challenged conduct, moot the case, and avoid paying

fees.” Stinnie, 77 F.4th at 210. In this very case, the

government intentionally mooted the case to avoid

fees, deliberately structuring the policy change “so

that it would result in the pending litigation being

dismissed, relieving the government’s obligation to

incur costly legal fees.” Id. (quotation marks omitted).

The availability of attorney’s fees will not

completely prohibit governments from strategically

mooting cases. But it will make the practice pricier,

thereby protecting constitutional rights and reducing

unnecessary litigation.

C. Removing the prospect of

attorney’s fees will encourage

unnecessary

litigation

and

appeals.

Attorney’s fees do not just incentivize civil-rights

litigation; they deter unnecessary litigation. Like

damages awards, attorney’s fees “significantly”

dissuade “civil rights violations in the future.” City of

Riverside v. Rivera, 477 U.S. 561, 576 (1986). Sections

1983 and 1988 are “designed to deter civil rights

violations and encourage access to the courts to

redress often economically unviable injuries to

fundamental rights.” Bravo v. City of Santa Maria,

810 F.3d 659, 668 (9th Cir. 2016) (citing City of

Riverside, 477 U.S. at 574–77).

Without the threat of fees, governments will feel

emboldened to cross constitutional lines and more

willing to roll the dice in litigation. Amicus FIRE has

encountered this first-hand in its work with public

colleges and universities.

Many public colleges continue to retain

constitutionally deficient speech codes, even when the

law is clear.18 These policies tend to be vaguely

worded, overbroad, or both. The restrictions grant

campus administrators discretion to silence or punish

FIRE’s latest report, Spotlight on Speech Codes 2024,

reveals that eighty-five percent of the 489 institutions surveyed

maintain either a “severely restrictive” speech policy that

“clearly and substantially restricts protected speech” or a policy

that could easily be applied to suppress or punish protected

expression. Spotlight Report at 1, https://www.thefire.org/sites/

default/files/2024/01/Speech%20Code%20Report_2024_final.pdf.

This includes public institutions, which should be upholding the

First Amendment.

a stunning range of student speech the administrators

may deem inconvenient, disagreeable, objectionable,

or simply unwanted—everything from satire and art

to political debate. Administrators will even censor

protected speech in the same breath that they

acknowledge doing so is unconstitutional.19

Many colleges, for instance, prohibit offensive

expression irrespective of whether it constitutes

actionable obscenity, defamation, or harassment.

Delaware State University bans use of its information

technology systems—including the campus Wi-Fi

network—in ways that would “cause offense to others”

or result in the university’s “embarrassment.”20 The

University of Texas at San Antonio likewise prohibits

posting signs that contain “vulgar” material, without

limiting this restriction to speech unprotected by the

First Amendment.21 These are not isolated examples.

Lake Superior State University prohibits “postings

deemed offensive, sexist, vulgar, discriminatory or

Press Release, FIRE, LAWSUIT: FIRE sues Texas

university president illegally blocking charity drag show (March

24, 2023), https://www.thefire.org/news/lawsuit-fire-sues-texasuniversity-president-illegally-blocking-charity-drag-show.

20 Spotlight Report, supra n.18, at 6.

21 The Univ. of Texas at San Antonio, 9.09 University Posting

of Materials (Nov. 29, 2023), https://www.utsa.edu/hop/chapter9/

9-9.html.

suggestive.”22 Portland State University prohibits

“sexual or derogatory comments.”23 Alabama A&M

University’s policies ban “[e]xplicit or degrading

verbal comments” and “[i]nsulting or obscene

comments or gestures.”24 And the University of

Massachusetts Lowell has adopted rules prohibiting

use of its technology resources to transmit “offensive

material.”25

On occasion, public university policies go so far

as to prohibit political speech, which this Court has

long considered to lie at the core of the First

Amendment’s protection. See Buckley v. Valeo, 424

U.S. 1, 14 (1976). For example, the University of

Alaska Anchorage’s policy governing e-mail and other

Lake Superior State Univ., Posting Policy, https://

www.lssu.edu/campus-life/stay-informed/studenthandbook/#toggle-id-5.

Portland State Univ., Prohibited Discrimination &

Harassment Policy at 3 (Apr. 14, 2021), https:// drive.google.com/

file/d/14E3p-c2qunpA6H3-GFGLmEcL0nxovajc/view.

24 Alabama A&M Univ., Procedure 6.10: Non-Discrimination

and Anti-Harassment Policy at 2 (June 5, 2012), https://

www.aamu.edu/about/policies-procedures/_documents/6.10-nondiscrimination-and-anti-harassment-policy.pdf.

25 Univ. of Massachusetts Lowell, Acceptable Use Policy at 3

(Oct.

2016),

https://www.uml.edu/service/Apps/HR/

PolicyPortal/Policies/Download?id=12.

information-technology systems bans

related to partisan political activities.”26

“[c]ontent

The mere existence of these policies (and the

concomitant threat of discipline) chills student

expression. Even worse, officials are actively enforcing

these unconstitutional policies. Since its founding in

1999, FIRE has received thousands of reports of

censorship on public college and university campuses.

FIRE has successfully defended student and faculty

rights in more than six hundred cases, nationwide.27

FIRE directly litigates cases, yet sometimes all it

takes to change a public entity’s mind is a strongly

worded letter. But that’s because that letter is backed

by the implicit threat of litigation, including the

potential for attorney’s fees. Last year, FIRE wrote

the University of Colorado, Boulder, explaining that

forcing faculty members to agree with its “diversity,

equity, and inclusion” statement violated the First

Amendment. The university responded, agreeing to

implement FIRE’s suggested changes, including

Univ. of Alaska—Anchorage, Acceptable Use Policy,

https://www.uaa.alaska.edu/about/administrative-services/

policies/information-technology/acceptable-use.cshtml.

27 See All Cases, https://www.thefire.org/cases/?limit=all.

incorporating diversity of thought and the value of

different perspectives into its framework.28

Sometimes these letters can change a policy in

mere days. Last October, FIRE wrote the City of

Groveport, Ohio, explaining that its ban on “faith

based items” and “socially offensive language” at its

annual Apple Butter Day Festival violated the First

Amendment – and just two days later, it agreed to

reconsider, and to expressly permit the items at the

festival.29 These letters can also result in amicable

collaborations. In Bellaire Beach, Florida, FIRE

confronted a city ordinance banning “political” or

“organized” gatherings on public property, closing off

all public spaces—parks, sidewalks, streets—to even

small political protests or rallies. In response the city

quickly pledged to amend its ordinance, and it worked

28 University of Colorado, Boulder: DEI Statement Required

for Faculty Positions—Case Overview, https://www.thefire.org/

cases/university-colorado-boulder-dei-statement-requiredfaculty-positions.

29 After FIRE’s intervention, Ohio city lifts ban on sale of ‘faith

based items’ at Apple Butter Day festival, FIRE (Oct. 13, 2023),

https://www.thefire.org/news/after-fires-intervention-ohio-citylifts-ban-sale-faith-based-items-apple-butter-day-festival.

with FIRE over the next months to craft a new

ordinance that protects First Amendment rights.30

We could go on.31 But the point is simple: When

constitutional violations cost something, governments

are less likely to maintain or enforce unconstitutional

policies. Removing the cost of litigation would

greenlight governments to defend even the most

blatantly unconstitutional policies. They could litigate

and appeal cases all the way to this Court. As long as

they don’t go beyond the preliminary-injunction stage,

they’re off the hook for fees. Conversely, with fees as

a possibility, governments are more likely to come to

the table and discuss how to avoid or resolve

After FIRE’s Intervention, Florida city ditches

unconstitutional restrictions on political protests, FIRE (Jan. 25,

2024),

https://www.thefire.org/news/after-fires-interventionflorida-city-ditches-unconstitutional-restrictions-politicalprotests.

See, e.g., Twin Ridge Elementary School: Staff and

students compelled to participate in the Pledge of Allegiance—

Case

Overview,

https://www.thefire.org/cases/twin-ridgeelementary-school-staff-and-students-compelled-participatepledge-allegiance; Bay City, MI, implements rules restricting

public comments at city commission meetings—Case Overview,

https://www.thefire.org/cases/bay-city-mi-implements-rulesrestricting-public-comments-city-commission-meetings; Bristol,

TN, restricts protected speech on the city’s social media pages—

Case

Overview,

https://www.thefire.org/cases/bristol-tnrestricts-protected-speech-citys-social-media-pages.

litigation. Not only does this serve Section 1988’s core

purposes, it conserves judicial resources.

CONCLUSION

Letting government defendants escape fees after

defeat at the preliminary-injunction stage grants

them a “get out of jail free” card at the start of each

case. It would both give government the upper hand

and flatly contradict Section 1988’s animating

purpose. Attorneys should have a reason to take FirstAmendment cases and shouldn’t go in knowing the

deck is stacked against them. This Court should

therefore affirm the decision below and preserve the

availability of fees in preliminary-injunction cases.

August 12, 2024

Respectfully Submitted,