WASHINGTON (BP) – The U.S. Supreme Court considered Tuesday (Jan. 12) whether Americans can gain vindication for government violations of their free speech and religious freedom rights even if only by gaining “nominal damages.”
The high court heard oral arguments for more than 90 minutes regarding a lawsuit filed by Alliance Defending Freedom (ADF) after Georgia Gwinnett College blocked a student in 2016 from sharing the Gospel of Jesus Christ in a free-speech zone on campus. The state school, located in Lawrenceville, Ga., revised its policy after the suit was filed, and a federal judge and the 11th Circuit Court of Appeals ruled in favor of the college as a result.
ADF appealed to the Supreme Court on behalf of Chike Uzuegbunam, the student whose witness was halted on campus, and Joseph Bradford, a student who decided not to speak out after observing the school’s threat of discipline against Uzuegbunam. The appeal seeks to vindicate the men’s First Amendment rights and to prevent future government violations, even if it results in “nominal damages” of only $1.
When Georgia Gwinnett authorities stopped the students “from sharing their faith, the officials caused concrete injuries,” ADF General Counsel Kristen Waggoner told the court. “Chike and Joseph lost forever the chance to get those days back and speak their message to their peers. No policy change can ever restore that lost opportunity.”
As the high court has said in previous decisions, “the appropriate remedy to redress those past times is nominal damages,” she told the justices.
The Southern Baptist Ethics & Religious Liberty Commission (ERLC) affirmed the need for the Supreme Court to support the rights of free speech and free exercise of religion.
“The government should be held accountable when it violates our fundamental rights,” Travis Wussow, the ERLC’s general counsel and vice president for public policy, said Tuesday. “We hope the court issues a strong ruling that will prevent the state from escaping accountability by changing its rules on the eve of the court hearing.
“This case is important not just for free speech and religious freedom on college campuses but a number of other circumstances, including public health orders during a pandemic.”
The ERLC signed onto a friend-of-the-court brief in support of the plaintiffs’ First Amendment rights.
In her rebuttal during oral arguments, Waggoner responded to some justices’ questions about the purpose of “nominal damages” by pointing in part to their symbolism.
“Yes, they’re symbolic in the sense that there is an intrinsic value to the lost constitutional right that far exceeds the one, 10 or 100 dollars that is afforded in response for that,” she said.
The Department of Justice argued in support of Uzuegbunam and Bradford.
Hashim Hoopan, counselor to the U.S. solicitor general, told the justices, “Recognizing that the deprivation of a personal right is generally not harmless, common law courts have long awarded nominal damages as partial redress, and Congress incorporated that practice” into law.
Andrew Pinson, an Atlanta lawyer representing the college, told the high court “the way that this case was resolved is a good thing.”
The lawsuit “prompted college officials to review their policies, and just 10 weeks later to revise them in a way that maximizes and respected First Amendment rights on campus” and “led to an enduring, state-wide policy change for every public college in Georgia,” he said. “That kind of early out-of-court resolution should be encouraged.”
Southern Baptist lawyer Michael Whitehead, who listened to the oral arguments that were conducted by telephone conference because of COVID-19, expressed hope about the court’s decision.
“We are cautiously optimistic that the court will rule for Chike and Joseph, and may adopt a rule that keeps federal courts open to people of faith who have significant constitutional rights that must be measured in something more than money damages,” he said in a written statement.
Whitehead and his son Jonathan, who live in the Kansas City, Mo., area, provide legal counsel for the Missouri Baptist Convention and some of its entities.
The ERLC and the National Association of Evangelicals joined the U.S. Conference of Catholic Bishops in a brief urging the high court to defend freedom of speech and religion by awarding nominal damages for “a past injury that has caused an unquantifiable harm.”
The violation of free speech and free exercise rights often “causes no quantifiable economic loss,” the brief said. “Yet, their invasion cuts to the core of our constitutional freedoms. Anyone whose right to religion or free expression is infringed by the government experiences a fundamental harm.
“While the freedoms of religion and speech are priceless, their denial always bears a cost — even if not economic.”
A broad array of organizations supported Uzuegbunam and Bradford in friend-of-the-court briefs. They included the American Civil Liberties Union, Christian Legal Society, American Humanist Association, Students for Life of America, Americans United for Separation of Church and State, Becket, Council on American-Islamic Relations and Child Evangelism Fellowship.
In 2016, Uzuegbunam gained permission from Georgia Gwinnett College to speak at a specific time in one of two small speech zones on the school’s campus. After he began sharing the Christian faith, police officers stopped him because of a student’s complaint. They threatened Uzuegbunam with discipline if he continued to speak.
The justices are expected to issue an opinion in the case, which is Uzuegbunam v. Preczewski, before the court adjourns this summer.