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Saturday, February 27, 2021

College That Restricted Campus Speech Liable for Damages Even If It Drops the Policy, Supreme Court Hears

The Supreme Court was urged to allow a First Amendment lawsuit from former students in which a Georgia college belatedly expanded free speech on campus after Christian students ran afoul of its constitutionally suspect campus “speech zone” policy.

The court heard oral arguments in the case known as Uzuegbunam v. Preczewski. The hearing lasted 92 minutes, exceeding the scheduled 60 minutes. The Trump administration weighed in on behalf of the petitioners, former students at the college.

The case goes back to 2016 when Chike Uzuegbunam, a student at Georgia Gwinnett College, a public college in Lawrenceville, Georgia, was on campus handing out literature and sharing his Christian beliefs when a college official stopped him, informing him that he was breaking the rules by not speaking within the boundaries of an approved campus “speech zone.” The policy allegedly chilled speech on campus. Joseph Bradford, another student who is also a petitioner in the lawsuit, censored himself after learning how officials treated his fellow student.

Uzuegbunam had been unaware that while he was engaging in free speech, he had not been standing within the boundaries of the school’s two tiny speech zones where students were allowed to express themselves.

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“Open only about 10% of the week, the zones comprised one patio and one sidewalk—the size of a legal pad on a football field compared to the entire campus. To speak their views at all other times or places, students had to obtain a permit. Even to use the zones, students had to obtain a reservation by submitting a form and any leaflets in advance, and four officials would then decide, with no criteria to guide them, whether to allow it,” according to his lawyers at the Scottsdale, Arizona-based Alliance Defending Freedom (ADF).

Uzuegbunam went through the permitting process. He spoke a second time and believed he was complying with campus rules. Someone complained to campus security and within minutes of beginning his talk, Uzuegbunam was again confronted by college officials. They accused him of “disorderly conduct,” which they defined as any expression that “disturbs the peace and/or comfort of person(s).”

This effectively left Uzuegbunam without a voice on campus, his lawyers say.

Lacking a speech permit, he wasn’t allowed to speak in the 99.99 percent of campus space situated outside the speech zones. Even if he were to reserve time in one of the approved speech zones, he would only be allowed to say things that didn’t make anyone uncomfortable, a task that ADF says is both impossible and incompatible with the free-speech protections of the First Amendment.

Georgia Gwinnett College eventually modified its student speech policies after a lawsuit was filed against it on behalf of Uzuegbunam and Bradford. The college decided to allow for speech in any outdoor area of campus. This policy change and the fact that as time wore on Uzuegbunam graduated from the college, led a federal district court to dismiss the case, a ruling that was upheld by the 11th Circuit Court of Appeals.

But the damage to her clients’ constitutional rights was already done, their lawyer Kristen Waggoner of ADF told the Supreme Court during oral arguments Jan. 12.

“When Georgia Gwinnett officials stopped Chike Uzuegbunam and Joseph Bradford from sharing their faith, the officials caused concrete injuries,” she said.

“Chike and Joseph 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.”

The college, represented by Georgia Solicitor General Andrew Pinson, shrugged off the petitioners’ claims.

The nominal damages sought are not justified because the college changed the offending policy, which means “there’s no longer any threat that a plaintiff’s injury will recur in the future,” he said.

Several justices discussed the issue of nominal damages, suggesting such token awards can be the best way of dealing with certain kinds of cases.

Justice Elena Kagan raised pop star Taylor Swift’s sexual assault lawsuit, in which she sought $1 in damages because she wanted a judgment that would draw attention to the harm done to her and other women. In August 2017, a Denver jury found in favor of Swift who claimed former radio host David Mueller groped her during a meet-and-greet.

It was “the most famous nominal damages case” she knew of in recent times, Kagan said.

“And she said I’m not really interested in your money,” the justice said. “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. And that’s what happened. The jury gave her a dollar.”

“Nobody thinks that being sexual assaulted is really only worth a dollar. … It’s worth a lot more than that. … She wanted to prove a point.”

Pinson pushed back.

Swift “had the ability to seek compensatory damages for that,” Pinson said. “The proving the point, however, is … not something that federal courts exist to do, however important that dollar is to Taylor Swift or … anyone else in constitutional claims or otherwise.”

Justice Clarence Thomas told Waggoner that the court has found that “an injury has to be real and substantial. But, if you’re only asking for … a dollar or nominal damages, doesn’t that seem to undermine the real and substantial requirement?”

Waggoner replied, “I don’t think so.”

“Congress has held that under Section 1983 [of the Civil Rights Act] the vindication of civil rights is so significant that it did away with the amount in controversy. And 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.”

ADF senior counsel Kate Anderson was upbeat after the hearing.

“Many of the justices’ questions recognized that nominal damages are often the best way to vindicate those whose constitutional rights have been violated and to provide a court remedy in many contexts,” she said.

With additional reporting from Mark Tapscott

 

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