Springfield News-Sun

A $1 lesson on preserving free speech at colleges

- 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 of $1.

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: You can proselytiz­e only on the 0.0015% of our 260 acres where advocacy speech is permitted — but only if you reserve a spot and do not disturb anyone’s “comfort.”

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 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.

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.

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 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 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 the Uzuegbunam episode no longer qualifies as either. He said: When 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.

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 acknowledg­es his injury and stigmatize the college’s behavior, and similar behavior elsewhere, as unconstitu­tional. Neither would be nominal.

George F. Will writes for The Washington Post.

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