The underlying case, Husain v. Springer, received less than universal support. At Volokh Conspiracy, Eugene wasn’t a fan.
What makes this a strange First Amendment case, of course, is that the newspaper wasn’t ordered to stop speaking. Nor was it threatened with loss of funding or any other tangible loss for not speaking. Rather, it was threatened with frustration of its purpose — “if you keep endorsing candidates, we’ll make sure that your endorsed candidates don’t get elected.”
I’m unaware of any First Amendment case that remotely reaches this sort of “chill[ing of] speech”; and such behavior by the government seems quite far from the sort of government actions that the law has recognized as triggering the First Amendment. This alone, it seems to me, should have led to the conclusion that the president enjoyed qualified immunity (something the Second Circuit did not conclude).
FIRE took a more generous view of the First Amendment rights at stake.
Even if Volokh is ultimately correct that President Springer’s actions were immune to First Amendment scrutiny because she did not target the student journalists’ speech itself, the intent—however benign—of an administrator’s policies must be scrupulously balanced against their tangible effects when the subject of regulation is something as delicate, yet consequential, as free speech rights.
And the two-judge majority of the Second Circuit held that the actions of the President of Staten Island College, who canceled the 1997 student elections in response to the college paper’s editorial about them, was undeserving of qualified immunity because it may have violated a clearly established right.
The third judge on the panel, Chief Judge Dennis Jacobs, not only disagreed, but announced in his dissent that the case was so unworthy of the court’s time that he didn’t bother to read the majority decision.
Chief Judge Jacobs wrote a dissent where he noted he did not read the majority opinion, insisted that “[t]his is a case about nothing,” that the case was a “slow-motion tantrum by children,” and that the newspaper in question was “illiterate piffle.”
Judge Jacobs felt the case was about “nothing” because the students had already graduated and were only asking for nominal damages of one dollar each.
Illiterate piffle or not, there was a lawyer who made the decision to take on the cause on behalf of the campus paper, and the First Amendment. His name is Ron McGuire. No one has made a Lifetime movie about him or the 19 years he spent, pro bono, representing the students who challenged the president of Staten Island College. No one calls him a “First Amendment badass,” or offers an homage for his efforts.
The case resolved, in part, by the college using a procedural ploy available under New York State law, agreeing to pay the compensatory damages without conceding fault, and thus circumventing the dispute. Except the damage demand was for $1 per plaintiff, for a grand total of $9. Under § 1983, the lawyer representing the prevailing plaintiffs would be entitled to attorneys fees. McGuire took a huge personal chance in taking on the case, as there is never a guarantee of winning, and did so without an assurance he would ever get a dime for his efforts.
But he won. Ron McGuire won. Despite Eugene. And now, 19 years later, his circumstances were somewhat dire.
McGuire, 67, who dedicated his career to representing CUNY students and others pro bono for 25 years, faced serious health issues in recent years, and looked forward to the anticipated fee award to wind down his practice to concentrate on his health and to provide funds for his retirement. Instead, because of Judge Jacobs’ decision, he says he is facing poverty and ruin.
On the one hand, you can say, “hey, you rolled the dice and lost. Too bad for you.” But he didn’t lose. And what makes this a bad thing for the rest of us?
It was a stern warning to any lawyer who considers defending the rights of students on a pro bono basis: Take their case and you’ll get the equivalent of poverty wages.
It also gave autocratic administrators, like those at the City University of New York, a huge incentive to deny students their constitutional rights. Why not? No one competent will represent them in court if that lawyer will get stiffed on fees.
In making a decision to take on a case, to pursue the vindication of a constitutional right, the best an attorney can do is to determine that he believes sufficiently in the efficacy of the case that there will be a reasonable expectation of a fee award at the end. Hard as it may be for people to imagine, not every attorney is filthy rich, such that he can dedicate 19 years of his life to a cause of some societal importance, and not every case will make an attorney rich, as appears to be the religious belief of every commenter at reddit.
Ron McGuire got into the case to do the right thing. He did not get into it to become personally impoverished so that society could benefit from his efforts. He took a chance, based upon his estimate of the validity of the cause, and he was proven right. Yet, he still got screwed.
The Queens Free Press reports that the 2nd Circuit’s paltry $38,000 award to Ron McGuire – for 19 years of uncompensated work that he estimated at $750,000 – threatens to make him a sickly indigent.
While the $750,000 fee request might strike the unwary as a big number, amortized over 19 years it amounts to just under $40,000 per year. And from that, it returns to McGuire the expense accumulated and paid out of pocket for all the stuff that is needed to maintain a law practice, a law suit. It’s not an unhealthy return, but it’s hardly an outrageous return. Instead, he gets $2000 per year, almost enough to pay for lunch.
The problem, of course, is that there may be no lawyer willing to champion a right at risk when the outcome, even should he win, may be impoverishment. When you reach out for a pro bono lawyer to take on your constitutional rights, no matter how important you think they may be, consider what Ron McGuire will use to pay for his medical care in his old age.
And that is why no lawyer is champing at the bit to take on the risk of fighting your battle, so many critical causes can find no champion. It’s not that your complaint lacks merit, even if Eugene disagrees or Judge Jacobs dismisses it as a case about “nothing,” but what lawyer wants to find himself indigent and forgotten decades later?