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Saturday, January 23, 2021

What is the price of free speech?

The Supreme Court heard oral arguments on Tuesday in what could become a landmark case about free speech.

In Uzuegbunam v. Preczewski, the justices asked tough questions about nominal damages for free speech violations that highlighted this dilemma: If a person’s free speech rights have been violated, should he receive damages? If so, how much?

The case involves Chike Uzuegbunam, a student who attended Georgia Gwinnett College, a public institution. School officials stopped him from handing out religious pamphlets on school grounds, even when he was in a school-designated “free speech zone.”

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After he and another student filed a lawsuit against the college for violating their free speech rights, the college changed its policy. Several lower courts found the case moot, as the policy had been changed.

“Colleges and universities are supposed to be places where we are free to explore and debate ideas, but my college silenced me and are getting away with it,” Uzuegbunam said in a statement. “Now that they have heard my story, I am hopeful that the Supreme Court will affirm my rights and the rights of all Americans, and that courts should hold officials accountable for violating our constitutional rights.”

Most of the justices hinted that nominal damages could satisfy this need for vindication, including Justice Brett Kavanaugh, Justice Amy Coney Barrett, and even Justice Elena Kagan.

In a rare mention of pop culture, Kagan brought up “the most famous nominal damages case I know of in recent times, which is the Taylor Swift sexual assault case.”

In 2017, Swift sued a Denver radio host over sexual assault. The case went to trial, and she won. Swift asked for merely $1 to convey that the harm done to her could not be made right by a vast sum of money.

It often feels like Supreme Court justices exist in some other ethereal universe where lawsuits only run parallel to each other. This reference to Swift’s suit shows that they don’t, and it is positively satisfying. Kagan’s reference to the Swift suit was spot on.

Barrett followed Kagan. “What Taylor Swift wanted was, you know, vindication of the moral right, the legal right, that sexual assault is reprehensible and wrong,” Barrett said. Justice Neil Gorsuch commented on Swift’s case, too. Justice Samuel Alito also seemed to support the concert of nominal damages, recognizing they can satisfy the need for vindication of “a real concrete violation that can’t be easily monetized.”

The justices’ questions during oral argument about the nuances of damages, nominal and compensatory, were noteworthy, but the most compelling aspect was what a case like this really means from a bird’s eye view: What is the price of free speech if it gets taken away?

America thrives on its origin story. Many came to this land in search of religious freedom. Later, free speech, freedom of the press, and other rights were enshrined in our founding documents. It’s a unique concept to history that this particular democratic republic was founded on liberty. Without it, America might as well cease to exist.

Patriots have died so that people can rely on their First Amendment rights. Death is sometimes the price of freedom. But is there a price for others if they take those freedoms away, if only temporarily? That is the essence of Uzuegbunam v. Preczewski. May the Supreme Court answer “yes.”

Nicole Russell (@russell_nm) is a contributor to the Washington Examiner’s Beltway Confidential blog. She is a journalist who previously worked in Republican politics in Minnesota.



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