In 2003, peace activists in Florida brought a free-speech challenge to a state statute prohibiting them from holding a nude protest rally, in which they planned to form a peace sign with their bodies. The district court granted their request for a preliminary injunction, allowing them to hold the rally behind a cloth screen. Later, after trial, the district court denied the protesters’ request for a permanent injunction. Because they had not stayed behind the screen during the rally, the court found that it could not fashion an injunction to permit nude protests but still allow the state to shield unwilling observers from public nudity. The court awarded attorneys’ fees to the plaintiffs for obtaining the preliminary injunction, and the Eleventh Circuit affirmed. The U.S. Supreme Court took review of the case to determine whether winning a preliminary injunction in a civil-rights suit entitles the plaintiffs to attorneys’ fees as a "prevailing party" under the civil-rights laws even if the final judgment in the case is in favor of the defendant. We filed an amicus brief in April 2007, explaining that Congress created a statutory right to attorneys’ fees in order to encourage the filing of civil-rights suits (by creating an incentive for lawyers to take the cases), and that the issuance of a preliminary injunction very often ends the case. Thus, we argued, plaintiffs should be treated as prevailing parties and attorneys’ fees should be available for obtaining a preliminary injunction — unless a court later reverses the preliminary injunction or undermines the legal or factual basis for awarding it. In a unanimous decision, the Supreme Court held, narrowly, that attorneys’ fees are unavailable where the basis for the preliminary injunction is undermined by a later ruling. Although the Court did not decide the broader question whether attorneys’ fees are otherwise available for obtaining preliminary injunctions, certain language in the opinion suggested that the Court would be receptive to the rule we proposed in our amicus brief.
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