LOS ANGELES—The Entertainment Merchants Association (EMA) won a Supreme Court victory in its First Amendment case against a California law that banned the sale of violent video games to minors—and now its attorneys want the high court to make the state pony up in excess of $1 million in legal fees for forcing the association to fight the onerous law all the way up the legal ladder.
Terming the fee motion a "highly unusual plea," legal analyst Lyle Denniston reported on SCOTUSblog.com while "the custom in American law is for each side to pay its own legal fees in a lawsuit ... federal laws, including a civil rights law relied upon in this new motion, sometimes allow a 'prevailing party' to recover its fees from the losing side."
There's no doubt that the EMA's attorneys, the prominent D.C. firm of Jenner & Block, have a good case, considering that California's attempt to limit non-obscene speech to minors would have required the Supreme Court to carve out a new exception to the First Amendment's unqualified ban on laws "abridging freedom of speech, or of the press."
Indeed, the fee motion states that, "California persisted in defending a law that [the industry] warned the Legislature was unconstitutional before it was passed; that was previously found to be unconstitutional by the district court and a unanimous panel of the Ninth Circuit and that is similar to at least eight other laws invalidated as unconstitutional prior to the time that California sought certiorari in this case. Despite all of this, California chose to seek further review in this Court, and this Court has now confirmed the act's unconstitutionality."
Part of the recovery sought by Jenner & Block is the expense for staging a "moot court" prior to the actual Supreme Court argument, for which the firm hired former U.S. Solicitors General Paul D. Clement and Theodore B. Olson, both Republicans, and First Amendment specialist Lee Levine to prepare the arguing attorneys. However, the fee motion is careful to point out that, "The fees charged by these firms were based on the standard billing rates they customarily charge clients and encompassed only the handful of hours required to review the briefs and participate in the moot court."
"The standard manual on Supreme Court practice, popularly known as Stern and Gressman ... says explicitly that these federal fee-shifting laws 'may encompass attorneys' fees incurred in connection with Supreme Court cases'," Denniston wrote. "The manual cites a 1970 precedent, Perkins v. Standard Oil, as directing a lower court—when the case was returned there—to consider a possible fee shift for the Supreme Court work." He goes on to note that while fee-shifting requests are common in lower courts, they're much more rare in cases that reach the Supreme Court.
However, an example of a similar fee request occurred in Free Speech Coalition v. Ashcroft, the 2002 Child Pornography Prevention Act case, where FSC attorney H. Louis Sirkin sought attorney fees from the government after the high court struck down the concept of "virtual child porn"—but the request was made to the trial court in San Francisco, not to the Supreme Court itself.
What the Supremes will think of the unusual (and unusually high) fee request remains to be seen, and Denniston noted that, " It is unknown whether the fact that the Supreme Court agreed to hear the state's appeal—something it had the discretion not to do—would play a part in its consideration of the motion."