Campus speech rules are hurting students. They deserve recompense — even if it’s just $1.
By George F. Will,
Until Chike Uzuegbunam sued Georgia Gwinnett College, this public institution had performed the public service of instituting a speech code so restrictive that it exposed the entire idea of such codes to wholesome ridicule. When the college pivoted 180 degrees, embracing free speech, Uzuegbunam did not drop his suit. He wanted to make a point: that college officials could be held accountable. So, he pressed on, no longer seeking injunctive relief from the college’s flagrantly unconstitutional conduct, but still seeking nominal damages. A dollar would do, and if the college had paid it, this might have prevented the chief justice of the United States from mistakenly disagreeing with his eight colleagues. It would, however, have deprived the nation of an instructive story about the expressive function of the law.
Uzuegbunam is an evangelical Christian who takes seriously Jesus’ directive to “teach all nations.” He wanted to start with Gwinnett, where he was a student, but the college responded: Never mind the nations, you can proselytize only on the 0.0015 percent of our 260 acres where advocacy speech is permitted — but only if you reserve a spot and your speech does not disturb anyone’s “comfort.” Uzuegbunam spoke in the prescribed place and stopped when a campus police officer said someone had complained.
It is difficult nowadays to be on the cutting edge of academic absurdity, but Gwinnett got there two ways. First, it stipulated that the First Amendment covers only wee slivers of campus: “free speech expression areas” available only four hours Monday through Thursday, and two hours on Friday, and which individual speakers could reserve only once every 30 days. Then Gwinnett argued that Uzuegbunam’s discussion of gentle Jesus meek and mild was “contentious” language with “a tendency to incite hostility,” and hence constituted “fighting words” unprotected by the Constitution.
When Gwinnett realized that it was not drawing beneficial attention to itself, it scrapped its entire speech-restricting rigmarole, probably expecting that Uzuegbunam would be mollified. He was not.
This child of Nigerian immigrants has acquired this country’s litigious spirit, and he pressed his case for nominal damages. A district court held that his claim was insufficient to keep his case alive after Gwinnett surrendered on the speech restrictions. A circuit court agreed, saying that because Uzuegbunam was not seeking compensatory damages, his claim for nominal damages was insufficient to establish his standing to sue.
Last Monday, the Supreme Court, considering not Gwinnett’s conduct but the two lower courts’ rulings, disagreed with them. It held 8-to-1 that Uzuegbunam had been injured by Gwinnett’s conduct, and that the nominal damages he sought would redress his injury. In an opinion joined by everyone but Chief Justice John G. Roberts Jr., Justice Clarence Thomas rejected the idea that nominal damages are “a mere judicial token that provides no actual benefit to the plaintiff.” They provide a plaintiff with “relief on the merits of his claim.” Including a claim, as Justice Samuel A. Alito Jr. said in January’s oral argument in this case, when the violation “can’t be easily monetized.”
Roberts, dissenting, noted that the Constitution restricts judicial power to the resolution of “cases” and “controversies,” and he said the Uzuegbunam episode no longer qualifies as either. He said: When, as in this case, plaintiffs “allege neither actual damages nor the prospect of future injury, an award of nominal damages does not change their status or condition at all. Such an award instead represents a judicial determination that the plaintiffs’ interpretation of the law is correct — nothing more.”
That, however, is not nothing. It confers on the plaintiff the status of a vindicator of rights, and it puts on notice those who are, or might contemplate, acting on incorrect interpretations of the law.
Justice Elena Kagan addressed this point in January’s oral argument. Citing the case in which a jury awarded Taylor Swift the $1 she sought from a Denver radio host she accused of groping her, Kagan suggested that this was Swift’s thinking: “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 said Swift sought the dollar because it would “say that she had been harmed. Why not?”
Just so. On innumerable campuses, students are being harmed by speech-restriction regimes that chill the free flowing of intellectual differences. A nominal award from Georgia Gwinnett College to Uzuegbunam would acknowledge his injury and stigmatize the college’s behavior, and similar behavior elsewhere, as unconstitutional. Neither consequence would be nominal.
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Read more: Chike Uzuegbunam: My college tried to stop me from speaking about religion. Now, we’ll meet in the Supreme Court. George F. Will: Biden charged the people of this republic with fixing it. So the people need to grow up. Charles Lane: Keep government hands off free speech Jennifer Rubin: 10 rules to preserve common sense in the debate about free speech E.J. Dionne: Biden is leading a quiet revolution
