If Georgia Gwinnett College wanted to foster greater unity in its use of “free speech zones,” it succeeded in prompting a near unanimous Supreme Court in ruling against it in favor of free speech this week. The Court voted 8-1 that two former students should be able to sue for nominal or symbolic damages to avoid mootness on their challenges. Only Chief Justice John Roberts stood against the ability of the two former students to sue over the loss of free speech rights.
For the record, I have been a longtime critic of “free speech zones” which many professors and administrators pushed to limit the ability of groups and individuals to speak on campus. This case involves Chike Uzuegbunam, a former Georgia Gwinnett College student who wanted to share his religious views with other students. He was prevented twice by campus police in 2016 from handing out religious literature. He was told by the director of the college’s Office of Student Integrity that he had to apply for a permit and confine his speech to two designated “free speech expression areas.” Yet, when Uzuegbunam received a permit, he was again prevented from speaking because a security office told him that students had complained that he was disturbing the peace. A second student also claims to have been prevented from speaking under the policies and permitting.
Georgia Gwinnett College seemed to grasp for any claim to keep the students from speaking. It first said that their speech constituted incitement akin to “fighting words.” It then eliminated the policies and sought to dismiss the lawsuits as moot. It is a common pattern where universities will force students or academics to go to court and then later drop the cases when it is clear that they may lose.
The Supreme Court has now said enough. Literally. Nominal damages are enough to allow citizens to litigate the loss of free speech rights.
Associate Justice Clarence Thomas wrote in Uzuegbunam v. Preczewski that “it is undisputed that Uzuegbunam experienced a completed violation of his constitutional rights when respondents enforced their speech policies against him. Because ‘every violation [of a right] imports damage,’ nominal damages can redress Uzuegbunam’s injury even if he cannot or chooses not to quantify that harm in economic terms.”
Roberts dismissed the interest in vindicating such rights and insisted that if plaintiffs asked for a dollar for damages, they should just be given a dollar and sent on their way: “Going forward, the judiciary will be required to perform this function whenever a plaintiff asks for a dollar. For those who want to know if their rights have been violated, the least dangerous branch will become the least expensive source of legal advice.”
Yet, Roberts would again elevate Article III over free speech rights. His approach would continue to allow schools and other entities to avoid accountability because all that was lost was speech and not something more tangible like a scooter or a scanner.
Thomas disagreed with Roberts on the historical treatment of nominal damages by figures like Justice Story and further noted:
That this rule developed at common law is unsurprising in the light of the noneconomic rights that individuals had at that time. A contrary rule would have meant, in many cases, that there was no remedy at all for those rights, such as due process or voting rights, that were not readily reducible to monetary valuation. … By permitting plaintiffs to pursue nominal damages whenever they suffered a personal legal injury, the common law avoided the oddity of privileging small-dollar economic rights over important, but not easily quantifiable, nonpecuniary rights.
This is a great decision for the vindication of free speech.
Here is the opinion: Uzuegbunam v. Preczewski