When Georgia Gwinnett College wanted to promote greater unity in the use of “free speech zones,” it managed to get a near-unanimous Supreme Court ruling against it this week in favor of free speech. The court voted 8: 1 that two former students should be able to seek nominal or symbolic damages in order to avoid disputes over their challenges. Only Chief Justice John Roberts opposed the two former students’ ability to complain about the loss of freedom of speech.
I have been a longtime critic of “free zones” that many professors and administrators enforced to limit the ability of groups and individuals to speak on campus. In this case, it is Chike Uzuegbunam, a former Georgia Gwinnett College student who wanted to share his religious views with other students. In 2016 he was prevented twice by the campus police from distributing religious literature. The director of the college’s Office of Student Integrity told him to apply for approval and limit his speech to two designated areas for free expression. However, when Uzuegbunam was given permission, he was again prevented from speaking because a security bureau told him that students had complained that he was disturbing the peace. A second student also claims to have been prevented from speaking according to guidelines and permission.
Georgia Gwinnett College seemed to be looking for a claim that would keep students from speaking. It was initially said that her speech represented incitement that resembled “fighting words”. It then removed the guidelines and attempted to dismiss the claims as in dispute. It’s a common pattern where universities force students or academics to go to court and later drop the cases when it’s clear they could lose.
The Supreme Court has said enough now. Literally. Nominal damage is enough to allow citizens to sue for loss of freedom of speech.
Associate Justice Clarence Thomas wrote in Uzuegbunam v. Preczewski: “It is undisputed that Uzuegbunam experienced a total violation of his constitutional rights when the interviewees enforced their speech policies against him. Because ‘every injury [of a right] Import damage, ‘nominal damage can make good Uzuegbunam’s injury, even if he cannot or does not want to quantify this damage in economic terms.’
Roberts denied interest in justifying such rights, insisting that if plaintiffs demand one dollar in damages they should only receive one dollar and be dispatched: “In the future, the judiciary must perform this role if a Plaintiff asks this for a dollar. For those who want to know if their rights have been violated, the least dangerous industry becomes the most affordable source of legal advice. “
Yet Roberts would again raise Article III on freedom of expression. His approach would continue to allow schools and other institutions to avoid accountability, since all that was lost was language rather than something more tangible like a scooter or scanner.
Thomas disagreed with Roberts regarding the historical treatment of nominal damage by numbers like Justice Story, further noting:
That this rule was developed under common law is not surprising, given the inefficient rights that individuals had at the time. A rule to the contrary would in many cases have meant that there was no remedy at all for those rights such as due process or voting rights, which could not easily be reduced to monetary valuation. … By allowing plaintiffs to seek nominal damages for any bodily harm, common law prevented the weirdness of privileging economic rights in small dollars over important, but not easily quantifiable, non-financial rights.
This is a great choice for justifying free speech.
Here is the opinion: Uzuegbunam v. Preczewski