Here's a bit more on the case mentioned in my opening post, Uzuegbunam v. Preczewski
, argued last week before the Supreme Court (recording of oral argument available at link). Apparently, what the case is about is whether the 11th Circuit should be brought into line with the rest of the country when it comes to declaring cases moot--to wit, whether the claim for nominal damages alone is enough to keep a case moot. For the 11th Circuit alone the answer is "no," leaving organizations--both public and private--a way to dodge being publicly held to account for their violations of people's rights:The Supreme Court, Taylor Swift and Religious Freedom
The question of whether people whose freedom has been illegally curtailed can be vindicated when they only seek nominal damages may seem nothing more than a legal technicality. Trust me: It isn’t.
Why did Taylor Swift insist on receiving nominal damages of a dollar against a radio host who groped her? And why is it so important to Chike Uzuegbunam, a Christian student outrageously harassed by his college authorities for sharing his faith with classmates on campus?
The Supreme Court on Jan. 12 heard Chike Uzuegbunam v. Preczewski, and it will soon decide whether officials at Georgia Gwinnett College, a state-run college 30 miles northeast of downtown Atlanta, can use legal tricks to avoid being held accountable in court for violating Uzuegbunam’s rights. It’s a crucial case for the future of civil rights — especially religious freedom.
In 2016, when Uzuegbunam was a junior at Gwinnett College, he began evangelizing in a plaza outside of the school’s library. Gwinnett officials stopped him and told him that he had to get advance permission to use one of the two, tiny “speech zones” on campus. On top of this, any individual or organization who obtained permission had to “wait at least 30 calendar days after the last date of use” before submitting another request to engage in expressive activity.
Uzuegbunam obliged with this dystopian request, hoping to share the message about his Christian faith with interested classmates.
Despite having reserved a speech zone, two campus police officers approached Uzuegbunam, saying that someone had complained. They ordered the student to stop speaking and threatened him with discipline if he continued. Exercising Uzuegbunam’s constitutional rights was “disturbing the peace.”
It’s worth noting that while Uzuegbunam wanted only to quietly talk and hand out fliers about Jesus to people on campus, other students talked about other matters and played music in public areas without having to ask for permission from the university to do so. Fearing disciplinary action, he stopped.
Uzuegbunam, along with another Gwinnett student who also wanted to evangelize on campus, decided to stand up for his rights and filed a lawsuit in federal court. At first, the college vigorously defended their unconstitutional speech zone policy and unfair treatment of its student. Eventually, however, officials relented and adjusted their unconstitutional policies. The school’s lawyers quickly filed papers in court to dismiss Uzuegbunam’s case.
A quick review of what federal courts can and cannot do is helpful here: Article III of the Constitution limits the authority of the federal courts to decide “cases and controversies.” Our courts don’t issue advisory opinions. When further legal proceedings will have no effect, courts must dismiss a case as being moot.
Uzuegbunam’s attorneys at Alliance Defending Freedom — the Christian religious freedom law firm that represented Masterpiece Cakeshop owner Jack Phillips — rightly note that Uzuegbunam’s case hasn’t been fully resolved by Gwinnett’s change in policy. Still outstanding is his claim for nominal damages. But the 11th Circuit, the legal jurisdiction where Uzuegbunam’s case was filed, has a unique rule that a claim for nominal damages alone isn’t enough to keep a case like Uzuegbunam’s alive. And so his case was dismissed.
Where does Taylor Swift fit into this? After all, she wasn’t complaining about a violation of her First Amendment rights. Significantly, her name was brought up during the Supreme Court review of Uzuegbunam’s case, by Justice Elena Kagan.
During last week’s oral argument, Uzuegbunam’s lawyer Kristen Waggoner spoke of the symbolic importance of nominal damages.
“The amount of money pales in comparison to the harm. It’s not that the dollar means so little; it’s that the violation means so much,” Waggoner explained to the court. Kagan connected Waggoner’s explanation to Swift’s request for nominal damages. Kagan characterized Swift’s damage request as equivalent to the pop star saying to her assailant: “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.”
Kagan, a former solicitor general and Harvard Law School dean, was spot on.
Another important moment during oral arguments occurred when Gwinnett College’s attorney argued that the symbolic value of a claim for nominal damages of one dollar was “trivial.”
Justice Samuel Alito pushed back. “Well, what if it’s $10? What if it’s not $1? What if it’s 10?” This may seem like a rather cryptic question but it reveals Alito’s appreciation of the intrinsic value of our rights under the Constitution.
Uzuegbunam’s case finds widespread support among advocacy groups that span the ideological spectrum. One amicus curiae brief in support of him with the Supreme Court was filed on behalf of the conservative Americans for Prosperity and Institute for Justice and the not-so-conservative American Civil Liberties Union and Americans United for Separation of Church and State.
“Civil-rights plaintiffs in myriad constitutional contexts, and of all political persuasions and beliefs, share one common thread: they have suffered real harms that transcend easy price tags. Nominal damages are often the only avenue available to remedy that wrong,” the groups explain.
And in a brief filed with the court in support of Uzuegbunam, the U.S. solicitor general adds that “Article III does not permit the defendant to avoid adjudication of the lawfulness of its past conduct if it is not willing to provide the plaintiff with the legally authorized redress for the injury caused by that conduct.” Translation: After violating the Constitution, Gwinnett College is now trying to manipulate it.
Why does the court’s consideration of Uzuegbunam v. Preczewski matter so much? It’s partly a matter of an unfair standard in one of the country’s legal circuits. This may seem like something that only concerns lawyers, but on such legal technicalities hang crucial constitutional rights — including the promise of religious freedom.
Governments—and corporations—believe free speech is a marvelous thing, so long as “free” is defined as “responsible” and “responsible” is defined by them.
In the United States we privatize everything, including censorship.