MEMORANDUM OPINION AND ORDER
In December 1992 David Cady ("Cady") brought this action under 42 U.S.C. § 1983 against two public defendants (City of Chicago and Commissioner Jay Franke of its Department of Aviation) and two nonpublic defendants (the Archdiocese of Chicago and Father John Jamnicky, Chaplain of the O'Hare Airport Chapel). Cady wanted to display religious literature in a public forum (a literature rack located in the shelf area outside of the chapel at O'Hare Airport), but he had been deterred from doing so because the public defendants had imposed a requirement of prior approval by Father Jamnicky. There were no standards whatever to cabin the grant or denial of such approval, but Father Jamnicky had told Cady that in any event he would not approve any literature that had anything negative to say about any other religion.
Thus faced with a challenge to their censorship of any religious materials that contained any such negative statements (especially anything critical of Roman Catholicism, the religion maintained and fostered by the Archdiocese and Father Jamnicky), defendants chose to finesse the problem by simply removing the literature rack entirely on February 5 of this year. With no continuing controversy then before it for adjudication, this Court accordingly dismissed the action as moot on February 18. Cady has now moved for an award of fees as the asserted "prevailing party" under 42 U.S.C. § 1988 ("Section 1988"), and the parties have briefed that issue.
There is of course no question that defendants have suffered a detriment by changing their pre-litigation course of conduct. It is equally unquestionable that Cady's lawsuit was the catalyst that caused defendants to do so--but for his filing of the Complaint, assuredly defendants would still have been doing business at the same old stand.
But unlike the law of contracts, where the requirement of consideration for a contractual promise may be satisfied either by a benefit obtained by the promisor or a detriment sustained by the promisee, the "prevailing party" under Section 1988 must have attained at least part of the goal that was sought to be accomplished by filing the lawsuit. In this case what Cady wanted was the ability to exercise his own First Amendment rights
--to get an uncensored forum for distribution of his own religious literature. Instead what defendants did was to remove the forum itself, so that it was no longer available either to Cady or to anyone else (including the Archdiocese).
Thus Cady himself derived no benefit from this action, except perhaps the purely psychic satisfaction of having forced defendants to understand that their prior practice had violated the Constitution and therefore had to be abandoned.
But the establishment (or the inferential establishment) of such a negative abstraction is not compensable under Section 1988, any more than was the theoretical victory obtained by plaintiff in Farrar v. Hobby, 121 L. Ed. 2d 494, 113 S. Ct. 566, 572-73 (1992): There has been no "material alteration of the legal relationship of the parties" within the meaning of Texas State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93, 103 L. Ed. 2d 866, 109 S. Ct. 1486 (1989).
In sum, even though Cady may perhaps have stimulated an intangible public good by triggering defendants' abandonment of an unconstitutional course of conduct, he was not a "prevailing party" in the Section 1988 sense. Accordingly his motion for an award of fees must be and is denied.
Milton I. Shadur
Senior United States District Judge
Date: August 24, 1993