With Spotlight on Abortion Ban, Naked Protestors Case Goes Unnoticed

Media coverage of the Supreme Court this week rightly focused on the 5-4 ruling upholding a federal ban on an abortion procedure, which, as Justice Ruth Bader Ginsburg noted, signals that the Court majority seems willing to abandon decades of precedent upholding a woman's right to choose. That ruling vividly demonstrates the devastating impact of Justice Samuel Alito's confirmation to replace Justice Sandra Day O'Connor, and signals the need for an energetic discussion about the future of the Supreme Court as Americans consider presidential candidates.

But it's also worth looking at a case that came before the Court this week with little notice from the media, because it highlights how aggressively the Bush administration has tried to limit Americans' ability to seek justice in the federal courts.

It's not exactly a surprise that the Bush administration would take a dim view of naked peace activists, but it is disturbing that the administration is urging the Supreme Court to use the activists' case as a vehicle for stripping all Americans of the right to attorneys' fees in certain important cases - fees that are often essential in order for Americans to be able to take important constitutional and civil rights cases into court in the first place.

On Tuesday, April 17th, the Supreme Court heard oral argument in Sole v. Wyner. The case specifically presents the question of whether a plaintiff who obtains a preliminary injunction, but then does not win a final ruling on the merits, is able to recover attorneys' fees from the defendant for the preliminary injunction. The plaintiffs in this case are a group of anti-war protestors who wanted to perform a nude peace symbol on a Florida beach, despite no-nudity rules.

Even if the Court decided to rule against the protestors, which it should not, it could issue a narrow ruling that would not have a very broad impact. However, the Bush administration - consistent with its modus operandi of trying to deny ordinary Americans access to justice - has urged the Court to adopt a very expansive rule that would prohibit plaintiffs from obtaining attorneys' fees for winning a preliminary injunction if they don't later secure final relief on the merits, no matter why there was no final ruling in the plaintiffs' favor.

That sort of blanket rule would be disastrous for Americans seeking relief from violations of their constitutional or civil rights. That's why People For the American Way Foundation and other groups including Americans United for Separation of Church and State, the Rutherford Institute, and the Institute for Justice - groups that often disagree with each other - jointly filed an amicus brief in the case, setting out examples of when a plaintiff might secure a preliminary injunction but later be precluded from obtaining a final judgment.

For example, a high school senior might learn a week before her graduation that there was to be school-sponsored prayer at the ceremony. She could quickly go to court and obtain a preliminary injunction prohibiting the prayer, but then graduate and have the case mooted out. The student would have obtained significant legal relief and - under the relevant federal statutes and the congressional intent behind them - would be entitled to attorneys' fees. The Bush administration, however, whose argument was presented stridently by Assistant Solicitor General Patricia Millett, disagrees.

Despite the significance of the issues in the case and the efforts of the Bush administration to close the courthouse doors to Americans seeking access to justice, the case has flown under the radar. There were hardly any reporters at the Court for the oral argument. But we know exactly what the Bush administration is trying to do here and will continue to expose it.

As a bonus for those who have read this far, here is my favorite line from the oral argument, delivered by the plaintiffs' attorney when asked whether his clients had obtained the relief they had been seeking through the preliminary injunction. His answer: "They got the right to be naked on the beach." Not exactly a sentence you hear uttered in the Supreme Court very often!

A decision is expected in the case by the end of June.

For more information on our ongoing campaign to preserve a fair and independent judiciary, please visit pfaw.org.