Without nominal damages, plaintiffs would obtain no remedies for the difficult-to-value harms they already suffered, and governments could re-enact similar, unconstitutional policies with impunity...Nominal damages are often the only avenue available to remedy that wrong. And as a form of retrospective relief, nominal damages allow these plaintiffs to proceed when governments change their policies going forward but have not redressed a past wrong, or when other intervening events make prospective relief unavailable but leave a past wrong unremedied.
(You can read here about how the Supreme Court justices responded today to the arguments presented in this case.)
By Tyson Langhofer
Every area of life operates on a simple maxim: If you violate the rules, there are consequences. An employee who is consistently late for work will eventually be terminated. A driver who is caught speeding will receive a ticket. A student who fails to turn in an assignment will receive a failing grade. This is for good reason. Without a penalty, rules would be flouted and become meaningless.
Imagine a basketball game where fouls were prohibited, but there was no penalty for committing them and no limit on the number of fouls a player could commit. Both sides would foul all the time, on every play. The game would look drastically different—more like football or wrestling than basketball as we know it.
So consequences ensure compliance with the rules. The government recognizes this principle when it enacts and enforces laws. That is why it imposes penalties for committing crimes. Without punishments for violating laws, crime would skyrocket.
Given the ubiquity of this principle, it stands to reason that it should also apply when the government violates the rights of its citizens, especially constitutional rights. Unfortunately for those who live in Alabama, Florida, or Georgia, the U.S. Court of Appeals for the 11th Circuit recently held in Alliance Defending Freedom’s case Uzuegbunam v. Preczewski that the government cannot be held responsible for violating a constitutional right unless you suffer some monetary harm. In other words, the government can violate its citizens’ most cherished rights without any consequence if the violation did not cause any injury that can be measured in dollars and cents.
Eight other federal courts of appeal have reached the opposite (and correct) conclusion. Each of them allows a person to bring a suit for constitutional violations that do not involve monetary harm. As these courts recognize, constitutional rights are invaluable, and the government must be held responsible for violating them even if the violation did not cause a financially measurable injury. These courts recognize that once such a right has been taken away, even for a moment, it can never be truly replaced.
Today, the U.S. Supreme Court will hear an appeal of the Uzuegbunam decision to resolve this dispute between the circuits. The issue before the high court is whether the government can be held responsible for constitutional violations that do not cause monetary damages—like many government infringements of free speech or religious liberty.
ADF represents two now-former students at Georgia Gwinnett College, Chike Uzuegbunam and Joseph Bradford. In 2016, Chike was standing outside in a public area on campus, handing out literature and sharing his Christian beliefs, but a college administrator stopped him. Why? Because he was not standing in one of the two small “speech zones” where the college allowed students to speak publicly.
These zones consisted of one patio and one sidewalk—a miniscule 0.0015% of campus—and were only open about 10% of the week. If the entire campus were the size of a football field, those zones—the only places students could exercise their First Amendment rights—would be the size of a piece of notebook paper. A student that wanted to speak any other time or place was required to obtain a permit before doing so. Even to use the zones, students had to obtain a reservation by submitting a form and any leaflets in advance. Four officials would then decide, with no criteria to guide them, whether to grant the reservation.
Undeterred, Chike went through this burdensome process to reserve a speech zone. He began speaking in one of them and sharing the faith that Christians have taught for 2,000 years. To his dismay, campus security stopped him within minutes, telling him that someone had “complained.” College officials classified Chike’s speech as “disorderly conduct,” which they defined to include any expression that made someone feel uncomfortable.
As a result of these policies, Chike was unable to speak about his faith anywhere on campus. He was banned from speaking in the over 99.99% of campus outside the speech zones unless he first obtained a permit. But even when he reserved a speech zone, he could only say things that didn’t make anyone uncomfortable—an impossible task that is incompatible with the First Amendment. Fellow student, Joseph Bradford, censored his speech to avoid punishment after he saw how college officials treated Chike.
After ADF filed a federal lawsuit, the college changed its unconstitutional policies. But it refused to do anything to address its repeated violations of Chike’s and Joseph’s constitutional rights. Even more concerning, the district court and the 11th Circuit let these officials off with no punishment. Both courts held that since the college changed its policies and Chike graduated, the officials did not have to accept responsibility for their unconstitutional actions.
This is wrong, as we trust the Supreme Court will conclude. Our constitutional rights are vitally important. We the people must be able to hold government officials accountable when they violate those priceless freedoms. Without such accountability, officials would be free to violate them without consequence and these rights would become meaningless.