Huge attorneys' fees award in nominal damages First Amendment case

You don't see a lot of pure free speech cases, involving people who are trying to assemble or speak out in public but prevented from doing so by the government. This case involves religious speech, where the police told the plaintiff to move from one side of the street to the other when he was expressing his religious views during gay pride celebrations. The jury awarded him a dollar against the police officer, but plaintiff appeals the trial court's ruling that the municipality is off the hook.

The case is Deferio v. City of Syracuse, a summary order issued on May 8. Plaintiff is a Christian evangelical who spreads his religious beliefs at gay pride events, holding up a sign with Bible verse. He also uses sound amplification. It appears plaintiff has used some offensive language during his protests. This case went to trial. Plaintiff wins against the officers, but he also wants to find the City liable also. He cannot do so. This case teaches us a lesson that civil rights lawyers already know: it is nearly impossible to hold a municipality liable for a civil rights violation, as you have to show a "custom or policy" resulted in the violation of your rights. We call that a Monell claim. While plaintiff says the City maintained a policy that gave private actors (like those who have a permit to speak) censorial control over the speech of other people (like the plaintiff-dissenter), there actually is nothing in writing that allows private speakers any authority over someone else's speech. The news is not that plaintiff cannot show a municipal policy under Section 1983; it would be news if he had been able to prove such a policy.

The more interesting angle on this case is found in the district court's ruling on attorneys' fees. Normally, when plaintiffs win only one dollar at trial, they get no fees, as per a Supreme Court ruling, Farrar v. Hobby (1992), which says the result is usually too trivial to justify fee-shifting. But there are exceptions to that rule. NDNY Judge Kahn does not devote much time to this issue, but he rejects the City's citation to Alvarez v. City of New York, 2017 WL 6033425 (SDNY Dec. 5, 2017), where the plaintiff got only one dollar after suing for big money and rejecting a $150,001 settlement offer on the eve of trial. But in Deferio's case, he "largely got what he asked for," and "an award of nominal damages 'recognizes the importance to organized society that constitutional rights be scrupulously observed.'" Plaintiff also got "practical" relief because the City's violation "will not be repeated again." I am not sure about this reasoning, and I have seen other First Amendment victors get peanuts after winning only a dollar. But every case is different. Plaintiff's lawyers in this case get $117,789.50 in fees from the City of Syracuse.

The fee award in the district court makes this a good case for plaintiff's lawyers who bring cases like this that do not involve large damages but involve constitutional principles, usually involving free speech. One dollar in damages may be worth more than $100,000 in legal fees.