Legal Docket - What is campus free speech worth?

MARY REICHARD, HOST: It’s Monday morning and we roll up our sleeves for another week of The World and Everything in It. Today is the 18th of January, 2021.

Good morning to you, I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. 

A unanimous Supreme Court handed down a win for the City of Chicago last week. 

The question concerned the return of vehicles the city impounded because the owners had left fines unpaid. Specifically, owners who’d filed for bankruptcy.

The justices said the law makes no requirement that the city return impounded vehicles when their owners go bankrupt.

During oral argument, several justices pointed to Congress not the Court as the party responsible to fix problems with the bankruptcy code.

REICHARD: Now onto the single oral argument we’ll cover today that was argued last week.

ROBERTS: We will hear argument this morning in Case 19-968, Uzuegbunam versus Preczewski.

Thank you, Mr. Chief Justice, and may it please the court, the first party in the lawsuit pronounces his last name Uzuegbunam, so it’s Uzuegbunam versus Preczewski.

EICHER: I can’t count the number of times you’ve caught the chief justice mispronouncing the case caption!

REICHARD: That’s right! Now it’s a difficult name for sure, but little sidebar here: I’ve got a whole folder of people’s names that Chief Justice John Roberts mispronounced and we can count them at some point.

EICHER: Not to be so mean because in the rush to produce this daily program we do sometimes mispronounce and listeners are gracious to offer gentle correctives.

REICHARD: In the spirit of the gracious listener to The World and Everything in It, I offer a respectful corrective to the chief!

EICHER: Duly noted! So Uzuegbunam in this case refers to one Chike Uzuegbunam. His family is originally from Nigeria.

Listen to him lay out the facts of his case that arose in 2016 at Georgia Gwinnett College: GGC, as he calls it. 

This audio comes from a press conference by his legal team at Alliance Defending Freedom.

UZUEGBUNAM: When I was a student at GGC, I desired to share my faith with other students. But college officials stopped me twice. First they said I could only speak in…the two tiny speech zones, and even then at only prescribed times and with a reservation. Later, when I was standing in a speech zone I had reserved, they told me I could not speak at all. All I wanted to do was share the good news of Jesus Christ and how he offers us eternal life freely.

REICHARD: Uzuegbunam sued four years ago. He asked for a few forms of relief: one, for the courts to rule that Georgia Gwinnet’s speech code violated the Constitution. Two, for the courts to order the school to stop violating speech and religious freedom rights in the future.

EICHER: And here’s where things get dicey. Before any judge got around to a ruling in the case, the college changed its policy. Now the college had barred itself from censoring students. No more unconstitutional speech codes at Georgia Gwinnett College, for Uzuegbunam or anyone else. So: No foul, no harm.

That meant the case had to change.

By the time he got to the Supreme Court, the remedy he requested morphed from telling the school to stop violating students’ rights—because it had stopped—to something else: He wanted a declaration that what had happened to him four years ago was wrong, and award damages—in this case, one dollar. Making the point: this is not about money; it’s about the principle.

REICHARD: So the question now is: Can his lawsuit proceed, given that he only wants a token amount? In other words, is this case now moot? Meaning, no longer a live controversy because the school changed its ways?

Uzuegbunam’s lawyer, Kristen Waggoner:

WAGGONER: It’s not that the dollar means so little; it’s that the violation means so much.  That’s why we award the damages in those instances.

But Justice Clarence Thomas had a question about that.

THOMAS: We’ve said that an injury has to be real and substantial. But if you’re only asking for a dollar for nominal damages, doesn’t that seem to undermine the real and substantial requirement? 

WAGGONER: I don’t think so…

Waggoner pointed out that civil rights cases don’t require a certain amount of money. And the high court has held that vindicating constitutional rights is of utmost importance. 

Here’s a brief primer on damages. They’re meant to restore someone to how he or she was before the incident. 

Compensatory damages are meant to compensate: like I crash into your car so I have to pay to repair it. 

Punitive damages are likewise just as they sound: to punish the wrongdoer for willful or malicious actions, and to leave an example as a warning to  others. You may recall when McDonalds had to pay punitive damages for serving coffee so hot that it burned a woman in the drive-through lane. 

This case is about nominal damages. They’re awarded when the value of a loss is too hard to calculate a dollar amount. You still get a judgment the other side is wrong, so it’s in the legal record. 

Georgia Gwinnett’s lawyer argued this isn’t the right case for nominal damages, though, because those are meant to discourage future behavior. And here, the college fixed the speech code so there won’t be future problems. 

Justice Stephen Breyer wasn’t so sure about that. He issued one of his famous hypotheticals:

BREYER: Jones owns Blackacre. Smith, his hostile neighbor, regularly picnics on Blackacre, and then he dies or some unfortunate thing. He’s never going to do it again. Well, what’s the damage? I mean, all he did was picnic. Pretty hard to measure. And so nominal damages. Or a college says: You can’t pray here, young student. And imagine that policy 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. Now, don’t nominal damages have a place right there where there is damage, but it’s just impossible to measure?

PINSON: Justice Breyer, they do not.

Georgia Solicitor General Andrew Pinson pointed to Article III of the U.S. Constitution that says courts must consider mootness to avoid wasting time in the judicial system.

Besides that, other ways exist to remedy constitutional violations, like an injunction or declaratory judgment.  

Pinson had a hard go of it. Listen to this exchange with Justice Elena Kagan in which she brings up a famous nominal damages case brought by singer Taylor Swift.

KAGAN: She brought a suit against a radio host for sexually assaulting her. And she said I’m not really interested in your money. I just want a dollar. And that dollar is going to represent something both to me and to the world of women who have experienced what I’ve experienced. That’s what happened. The jury gave her a dollar. And…it was unquestionable physical harm, but she just asked for this one dollar to say that she had been harmed. Why…not?

PINSON: A couple things, Justice Kagan. First of all, that sounds like compensatory damages.

…Pinson going on to say Swift could have asked for compensatory damages under the facts of her case because she had a physical injury.

Justice Kagan pressed further:

KAGAN: I thought you might say that, but then why isn’t that the same as this? The Petitioner here said he was harmed. He wasn’t able to speak when he should have been able to speak. And, you know, whether it’s hard to monetize or it’s not hard to monetize, he is just asking for a dollar to redress that harm.

Pinson replied there’s a difference in the law between small damages and no damages. Justice Samuel Alito pushed on that, too:

ALITO: Well, what if it’s ten dollars? What if it’s not one dollar; what if it’s ten?

PINSON: I — I think it’s a hard line-drawing problem, and — and —

ALITO: Well, that’s why I’m asking the question, because I need help with this hard line-drawing problem.

PINSON: Right. And — and Justice Alito, again, what I’d say is I — I  think if — if you can reasonably say that that’s compensation…

Pinson reiterating that Article III requires that damages be compensatory for the courts to resolve the problem. 

Justice Kagan took that up in a question for Uzuegbunam’s lawyer, Waggonner:

KAGAN: I guess I always thought that our Article III  requirements meant that people can’t bring a suit for pure vindication alone, for just saying, you know what, I was right, you were wrong, for the psychic satisfaction that it gives to hear a court say that. And I guess I wonder, if this is not, by your own admission, compensatory damages, how is it that we’re not in that world, … where the suit really is one for, you know, just… a declaration that somebody else committed a wrong?

WAGGONER: Well, it is compensatory in that it’s requiring a defendant … to pay a plaintiff money. And that’s currency. Chike can go out and buy a package of tracts for 1, 10 or 20 dollars. Certainly, in that sense, it is. But I think the overall purpose is that because we can’t measure how harmful a violation of speech is or how harmful an unreasonable search and seizure is, we want to ensure that some redress is provided in that to the plaintiff for the past injury, and damages do that.

This case came out of the 11th Circuit, the rare appeals court likely to rule against Uzuegbunam on the narrow question of nominal damages. And the Supreme Court could have let that stand if it had wanted to. 

On that basis, I think he’s likely to prevail, but I’ve been surprised before. 

Yet colleges across this country have under the standard sought here unconstitutional speech policies in place right now.  I’ll let Chike Uzuegbunam have the final word on what a ruling in this case means:

UZUEGBUNAM: It’s wrong for government officials to violate the Constitution with no accountability. Our right to speak freely, to assemble, to share our faith, to receive due process? These rights are priceless for all Americans. And if we live in a country where government officials silence speech without consequence, we no longer have free speech.

Or, as nominal-damages winner and occasional Grammy winner Taylor Swift declared: Someday I’ll be big enough that you can’t hit me and all you’re ever gonna be is mean.

LYRICS: Why you gotta be so mean?

And that’s this week’s Legal Docket.

LYRICS: All you are is mean … and mean and mean and mean. But someday I’ll be big enough so you can’t hit me and all you’re ever gonna be is mean. Yeah. Someday I’ll be big enough so you can’t hit me (why you gotta be so) and all you’re ever gonna be is mean. 

Why you gotta be so mean?

(AP Photo/J. Scott Applewhite, File) In this Nov. 5, 2020, file photo the Supreme Court is seen in Washington. 

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