The United States Supreme Court will soon decide whether a college that ordered a Christian student to cease preaching on campus can be punished even though the administration has since changed the institution's free speech policies.
The Supreme Court heard oral arguments on Tuesday in the case of Uzuegbunam v. Preczewski, which is centered on George Gwinnett College’s treatment of student Chike Uzuegbunam.
Gwinnett punished Uzuegbunam for preaching outside of an on-campus free speech zone, prompting the student to file a lawsuit which resulted in Gwinnett changing its policies.
At issue was whether the college was responsible for compensating Uzuegbunam for its previous policy restrictions. Another student named Joseph Bradford joined the lawsuit.
Kristen Waggoner of the Alliance Defending Freedom, which is representing the plaintiffs, argued before the high court that the students “lost forever the chance to get those days back and speak their message to their peers.”
“No policy change can ever restore that lost opportunity,” said Waggoner, “the appropriate remedy to redress those past times is nominal damages.”
“For centuries, English and American courts have awarded nominal damages when no future threat exists, even after a plaintiff waives compensatory damages.”
In response, Justice Clarence Thomas asked if the plaintiffs were “only asking for a dollar or nominal damages” if that seems “to undermine the real and substantial requirement?”
“I don't think so,” responded Waggoner. “This court has held that vindicating constitutional rights is of the highest importance and that it is an injury in and of itself to have the government engage in misconduct and not redress that injury, no matter how insignificant the damage award might be.”
Justice Sonia Sotomayor critically asked why Bradford was part of the lawsuit, as “there was never enforcement against him” when the college had stricter free regulations.
Waggoner replied that “his injury was that his speech was chilled,” citing Susan B. Anthony List v. Driehaus, in which the Supreme Court unanimously ruled against an Ohio law barring supposed “false statements” during political campaigns.
Andrew Pinson, arguing for the defendants, said that “nominal damages can't serve as independent redress for purely past injuries,” such as those experienced by the students.
“Petitioners haven't cited a single common law case that decided the merits of a legal claim where a plaintiff had sought only nominal damages and awarding them couldn't affect the plaintiff's ongoing legal rights or interests,” continued Pinson.
“Without a working theory for how nominal damages can actually redress past injuries or historical evidence for that claim, the conclusion has to be that they aren't retrospective relief that saves the case from mootness when there's no longer a threat of continuing injury.”
Justice Stephen Breyer talked about the challenge of quantifying damages, citing as an example a college saying that a student cannot pray at a given location, which is unconstitutional.
“And suppose he was stopped from praying. What's the damage? Can you say there was no damage? There was. But what is it? How do you measure it? I don't know,” Breyer said.
“And the same with speech. He wanted to speak there. He was … unconstitutionally forbidden to do it. Well, he was about to give his speech. What's the damage? Now, don't nominal damages have a place right there where there is damage but it's just impossible to measure?”
Pinson responded that nominal damages do not, adding that he believed the plaintiffs “want nominal damages to redress harms that are difficult or impossible to quantify.”
In July 2019, a three-judge panel of the U.S. Court of Appeals for the 11th Circuit issued a per curiam decision against the students, affirming a lower court decision labeling the case moot.