In January 2017, we covered a lawsuit filed by a Gwinnett College student objecting to so-called “free speech” zones which restricted free speech to certain locations, Christian Student Sues College for Right to Preach on Campus.
As Fox News reported at the time:
A Christian student is suing a college in Georgia for allegedly violating his free speech rights by severely limiting his preaching on campus.Chike Uzuegbunam filed a complaint on Monday against officials with Georgia Gwinnett College in the U.S. District Court for the Northern District of Georgia, Atlanta Division.In the complaint, Uzuegbunam took issue with GGC’s “Freedom of Expression Policy,” which the suit says “restricts all types of student speech to two small speech zones that occupy less than 0.0015 percent of campus.”“To use these speech zones, students must submit a ‘free speech area request’ form three days in advance and submit any publicity materials and literature they want to distribute to administrators for review,”
We further reported when the Trump administration backed the student, Trump Administration Joins Battle Against Restricting Campus Free Speech.
The U.S. Supreme Court issued an Opinion authored by Justice Thomas on March 8, 2021, in the case, with the issue turning on whether someone who claimed only “nominal” damages was able to sue. The Court held that such a free speech denial was actionable, with only Chief Justice Roberts dissenting.
The problem for a student who sues is that in a matter of a small number of years, the student graduates while the lawsuit can linger. The issue is whether once the student graduates, the student still has a personal interest in the case sufficient to satisfy the “standing” requirement. Here, the student claimed nominal damages as a continuing injury.
Justice Thomas and seven other Justices agreed the student could maintain the lawsuit. From the Thomas majority opinion:
At all stages of litigation, a plaintiff must maintain a personal interest in the dispute. The doctrine of standing generally assesses whether that interest exists at the outset, while the doctrine of mootness considers whether it exists throughout the proceedings. To demonstrate standing, the plaintiff must not only establish an injury that is fairly traceable to the challenged conduct but must also seek a remedy that redresses that injury. And if in the course of litigation a court finds that it can no longer provide a plaintiff with any effectual relief, the case generally is moot. This case asks whether an award of nominal damages by itself can redress a past injury. We hold that it can.
After reviewing the common law history of nominal damages, Justice Thomas wrote:
Respondents and the dissent thus get the relationship between nominal damages and compensatory damages backwards. Nominal damages are not a consolation prize for the plaintiff who pleads, but fails to prove, compensatory damages. They are instead the damages awarded by default until the plaintiff establishes entitlement to some other form of damages, such as compensatory or statutory damages. See, e.g., Dods, 15 C. B. N. S., at 621, 627, 143 Eng. Rep., at 929, 931 (prevailing plaintiff entitled to nominal damages as a matter of law even where jury neglected to find them); see also Stachura, 477 U. S., at 308 (rejecting the argument that courts could presume, without proof,damages greater than nominal).The argument that a claim for compensatory damages is a prerequisite for an award of nominal damages also rests on the flawed premise that nominal damages are purelysymbolic, a mere judicial token that provides no actual benefit to the plaintiff…. Despite being small, nominal damages are certainly concrete….The next difficulty faced by respondents and the dissent is their inability to square their argument with established principles of standing. Because redressability is an “‘irreducible’” component of standing, Spokeo, 578 U. S., at 338, no federal court has jurisdiction to enter a judgment unless it provides a remedy that can redress the plaintiff ’s injury. Yet early courts routinely awarded nominal damages alone. Certainly, no one seems to think that those judgments were without legal effect. Those nominal damages necessarily must have provided redress….Because nominal damages were available at common law in analogous circumstances, we conclude that a request for nominal damages satisfies the redressability element of standing where a plaintiff’s claim is based on a completed violation of a legal right.
The Roberts dissent argued:
Petitioners Chike Uzuegbunam and Joseph Bradford want to challenge the constitutionality of speech restrictions at Georgia Gwinnett College. There are just a few problems: Uzuegbunam and Bradford are no longer students at the college. The challenged restrictions no longer exist. And the petitioners have not alleged actual damages. The case is therefore moot because a federal court cannot grant Uzuegbunam and Bradford “any effectual relief whatever.” Chafin v. Chafin, 568 U. S. 165, 172 (2013) (internalquotation marks omitted).The Court resists this conclusion, holding that the petitioners can keep pressing their claims because they have asked for “nominal damages.” In the Court’s view, nominal damages can save a case from mootness because any amount of money—no matter how trivial—“can redress a past injury.” Ante, at 1. But an award of nominal damages does not alleviate the harms suffered by a plaintiff, and is not intended to. If nominal damages can preserve a live controversy, then federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar. Because I would place a higher value on Article III, I respectfully dissent.
Had the standing issue be resolved the way Roberts wanted, it would have made suing colleges for free speech violations very difficult. There often are no compensatory damages from being prevented from speaking, and injunctive relief may not be available to someone no longer a student and who therefore has no continuing interest in what happens on campus. Also, given how long litigation can take, many student litigants will graduate before the case is over. So nominal damages may be the only continuing interest, and if that were not enough, colleges would escape all accountability.
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