429 F. App'x 55
2d Cir.2011Background
- Plaintiff Alexandra Coe challenged several Blooming Grove Town and Washingtonville Village codes regulating use of Town/Village property for First Amendment activity.
- Lawn at issue was used for military-related speech, including events by the VFW, without requiring liability insurance for them.
- Coe sought a peace rally at the Lawn and was told she needed $1 million liability insurance, which she could not afford, and her waiver request was denied.
- District Court held the Lawn was a traditional public forum and invalidated several provisions, awarding Coe $41,503.25 in attorney’s fees under §1988(b).
- The Town/Village appealed on multiple grounds, including forum status, the insurance requirements, and the Small Group Permit Requirement.
- Coe cross-appealed the District Court’s partial fee reduction; the case was remanded for further fee determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Lawn was a traditional or limited public forum and whether access was unconstitutionally viewpoint-discriminatory. | Coe contends Lawn was opened to private speech and access was restricted by viewpoint-based insurance denial. | Town/Village argue the Lawn was not fully open to private expression and access could be limited by forum status and conditions. | Limited public forum with viewpoint discrimination found; access denied to Coe on viewpoint grounds. |
| Validity of the Small Group Permit Requirement. | The permit requirement is overbroad and suppresses protected speech. | The requirement serves legitimate regulatory interests for use of town property. | Injunction invalidating the Small Group Permit Requirement affirmed. |
| Validity of the Village liability insurance requirement and its scope for indigent or non-building use. | Village liability insurance requirement is unconstitutional as applied to Coe when speech is outside a building and indigent. | Village provision as applied targets applicable uses and conditions for insurance. | District Court’s invalidation of Village insurance requirement vacated; issue remanded for proper construction. |
| Amount and propriety of attorney’s fees under §1988(b) after partial success and consideration of prior appeal. | Coe seeks full lodestar amount for successful claims, including prior appeal. | Court properly reduced fees for limited overall success; prior-appeal costs may be denied. | Fees awarded with partial reduction; however, must reimburse full attorney’s fees and costs for prior appeal. |
Key Cases Cited
- Hotel Emps. & Rest. Emps. Union, Local 100 v. City of N.Y. Dept. of Parks & Recreation, 311 F.3d 534 (2d Cir. 2002) (describes limited public forum concept)
- New York Magazine v. Metro. Transp. Auth., 136 F.3d 123 (2d Cir. 1998) (limits on forum for expression within public services)
- Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995) (viewpoint discrimination in limited forum contexts)
- Amandola v. Town of Babylon, 251 F.3d 339 (2d Cir. 2001) (viewpoint discrimination in limited public forums)
- Virginia v. Hicks, 539 U.S. 113 (2003) (restrictive restrictive access to expressive activity; substantial speech regulation)
- Farrar v. Hobby, 506 U.S. 103 (1992) (prevailing party status under §1988(b))
- Kassim v. City of Schenectady, 415 F.3d 246 (2d Cir. 2005) (fee-shifting considerations under §1988)
- Fox v. Vice, 131 S. Ct. 2205 (2011) (district courts may adjust attorney’s fee awards; lodestar considerations)
- LeBoeuf, Lamb, Greene & MacRae, L.L.P. v. Worsham, 185 F.3d 61 (2d Cir. 1999) (finality of appeal and award of fees where damages undecided)