How much is your freedom of speech worth? If a dollar value can’t be placed on it, does that mean it’s worthless—or at least not worth the federal judiciary's time? Can the government avoid answering for infringing your right to speak unless you can prove the infringement also affected your wallet? The answer, of course, is that freedom of speech is priceless. Thanks to the Supreme Court’s March 2021 ruling in Uzuegbunam v. Preczewski, plaintiffs' ability to seek vindication in court for infringement of speech rights is secure, even where the plaintiff cannot prove monetary harm.
The question before the Court was a narrow one with broad ramifications: is a request for $1 in nominal damages sufficient to invoke the jurisdiction of federal courts where the plaintiff’s claim is based on a completed violation of a constitutional right? It’s a question that has united civil liberties advocates from the Americans for Prosperity Foundation (where we work) to the ACLU and others ranging from the U.S. Conference of Catholic Bishops to the American Humanist Association.
The Court’s answer? Yes. Plaintiffs who lost their ability to seek an injunction because the government either changed its policy or waited for the facts to change can still get their day in court. In the campus speech context, where students often graduate while their case is pending, the time-is-on-our-side strategy has been particularly effective for rights-infringing state actors.
In Chike Uzuegbunam’s case, he sought to share his Christian beliefs with his fellow students by speaking and distributing literature on a public college campus in an outdoor plaza. When the college stopped him, citing its speech zone policy, he reserved space in the campus’s tiny speech zone – a space that was just .0015% of the campus. But when he stood in the designated area, at the reserved time, and spoke publicly about his beliefs, a college police officer stopped him and told him that his speech constituted “disorderly conduct” in violation of the speech code. After twice being stopped from exercising his First Amendment rights, Uzuegbunam filed suit.
A few months later, the college doubled down, insisting that his mere religious speech was tantamount to “fighting words.” But then, in March 2017, it changed course, claiming that the college had adopted new policies that eliminated its speech code and modified its speech zone policy, mooting the case. Over a year later, the district court ruled that Uzuegbunam’s graduation mooted his prospective relief claims and that nominal damages claims were “insufficient to save this otherwise moot case,” allowing the college to avoid a ruling on its policies and leaving a gap in judicial guidance relative to whether such policies violate the First Amendment.
This is an all-too-common story in campus speech litigation where, despite dozens of lawsuits every year and a judiciary generally protective of First Amendment rights, major questions affecting campus speech remain unanswered. The predictable result of this indeterminate status of First Amendment law on campus is that over 85% of universities maintain written speech policies that violate the First Amendment. And new polling of campuses shows at least a correlation between schools’ speech policies and the culture for free expression on those campuses.
On review, the Supreme Court held that Uzuegbunam’s claim for nominal damages is sufficient to establish standing to address a past injury as long as the other elements of standing have been satisfied. Because “Uzuegbunam experienced a completed violation of his constitutional rights when respondents enforced their speech policies against him. Nominal damages can redress Uzuegbunam’s injury even if he cannot or chooses not to quantify that harm in economic terms.”
In the long run, this ruling should result in greater protections for free speech on campus. And that should produce more campuses where speech rights are treated as essential and students are prepared to take that understanding with them when they graduate. It will also positively affect the development of the caselaw that is so necessary to cabining qualified immunity for government agents who violate constitutional rights. Though qualified immunity is often thought of in connection with criminal law, it is also critically important for campus speech litigation where universities rely upon gaps in case law to avoid judicial decisions that their actions violated the First Amendment—perpetuating the problem. The Uzuegbunam decision may make it more difficult for universities to strategically moot cases, allowing courts to “clearly establish” more campus speech law.
The 8-1 ruling shows the value the Court places on the vindication of constitutional rights. Far from the “fight over farthings” lamented in Chief Justice Roberts’ solo dissent, the majority recognized that deciding whether the government has violated its citizens' fundamental rights is among the most crucial roles of the federal courts.