L1: I like it when SCOTUS hits us with odd divisions and unexpected alliances. I love a good Sotomayor/Gorsuch team-up for the rights of criminal defendants, or a strategic John Roberts machination. This week, we have a brand new 8-1 that has the Chief standing alone against his brethren and sistren in a case about First Amendment rights on college campuses.
Actually, our case of the week, Uzuegbunam, et. al., v Preczewski, et. al., involves some legal nuances more than any substantive issue about First Amendment rights. The Plaintiff Uzuegbunam is an evangelical Christian who attended Georgia Gwinnett College. He was on campus giving a speech about his faith and handing out literature pertinent to his religion when a campus security guard made him stop, directing him to two “free speech zones” on the campus (which still required a permit.) Uzuegbunam obtained the permit and resumed his public proselytizing, but once again he was asked to stop, this time due to complaints by other students who apparently found his message offensive. He had spoken for only 20 minutes when he was informed that speech which “disturbs the peace and/or comfort of persons” was prohibited in the free speech zones. Under threat of discipline, the plaintiff stopped his speech. Another student sharing his faith, Joseph Bradford, decided not to give a similar public demonstration after learning of Uzuegbunam’s predicament.
Both students sued the college on First Amendment grounds, seeking nominal damages and injunctive relief. The college initially defended their policy, describing Uzuegbunam’s speech as “fighting words”, but ultimately opted to end their policy at the heart of the dispute. The college believed this effectively ended the suit as moot, but the students maintained that their request for nominal damages kept the suit alive, even if injunctive relief was no longer in play. The District Court disagreed and dismissed the case as moot, a decision affirmed by the Eleventh Circuit. The Circuit Court conceded that nominal damages can, in some instances, keep an otherwise moot case alive, but not in this case because the plaintiffs did not seek compensatory damages.
The Supreme Court granted certiorari to determine whether a plaintiff who has suffered a “completed injury” and who 1)establishes injury and 2)makes a showing that the injury is traceable to the defendant’s conduct can show the third prong of standing, the availability of a remedy, by requesting nominal damages. More briefly, the question before the Court is are nominal damages a remedy to a constitutional violation?
Justice Thomas wrote the majority opinion. The Court examined the use of nominal damages as a form of relief in common law. The college argued that nominal damages addressed only ongoing or future injury. The Court illustrated this with an example of a case involving the diversion of water onto the property of another. If a property owner took no action against this type of trespass on his land, he could lose the right to do so at a later date through adverse possession or prescriptive easement. If the landowner could secure a declarative judgment and nominal damages from the court, he could protect his future interest. But the college maintains that nominal damages are not appropriate to remedy a past injury.
Justice Thomas and the majority disagree, citing historic precedent. At one point, actual damages had to be proven in order to sustain a case. Eventually, however, that changed, as Courts recognized that any legally recognized injury causes damage, even if not compensatory, statutorily defined, or punitive. In these cases, nominal damages were awarded, even in the absence of a future or ongoing injury. This was the practice prior to and subsequent to the Constitution. Citing Lord Holt in Ashby v White England in 1703 and Justice Story in the 1838 case of Webb v. Portland Mfg. Company, Thomas points out that the law requires only proof of an injury, not provable damages; “nominal damages are available ‘wherever there is a wrong’.”
The college – and the dissent – next argued that nominal damages are intended for those who have claimed compensatory damages but failed to prove a specific dollar amount. The Court says this is backwards; nominal damages are the default, unless a plaintiff proves a specific dollar figure. The Court concedes that there is some precedent that nominal damages are meant to be purely symbolic. They are damages in name only, hence nominal. But though a few cases have taken that position, “this view is against the weight of the history discussed above, and we have already expressly rejected it.” A person who has been awarded nominal damages has succeeded on the merits of his claim.
Justice Kavanaugh concurred with the majority, writing separately to state his belief that a defendant should be able to accept a judgment against him for nominal damages, “and end the litigation without a resolution on the merits.”
Kavanaugh’s caveat is also mentioned in the dissent by Chief Justice Roberts, among several other things. Roberts first points out that in addition to having no actual damages, the plaintiffs are no longer students at Gwinnett College, and the complained-of policy is no longer in effect. Chief Justice Roberts says there is no longer any relief available to the plaintiffs, and thus their case is moot. He then takes a sort of “slippery slope” argument tact, warning that the majority view will lead to federal courts being overburdened by suits in which the plaintiff seeks a single dollar, and because he “would place a higher value on Article III”, he dissents.
Deciding a moot case, Roberts says, puts the courts in the position of writing advisory opinions, which it is not to do. Uzuegbanum’s status or condition is not effected by an award of nominal damages, in Roberts’ opinion, and is nothing more than an affirmation of the plaintiff’s interpretation of the law. It is no remedy. He says the majority’s opinion turns federal courts into “advice columnists”.
In Chief Justice Roberts’ view, the majority’s reliance on historical common law is misplaced because in this instance, it is incompatible with the “tripartite allocation of power” created by the Constitution. “We likewise should know that a bare request for nominal damages is not justiciable because the plaintiff cannot “benefit in a tangible way from the court’s intervention.” The requirements of Article III are not met merely because a party has asked the Court to declare his or her rights, Roberts says.
Though the majority stated that nominal damages are not intended to be a consolation prize, Chief Justice Roberts believes that is exactly what they are: a consolation for a litigant who has been unable to prove any dollar amount of damages. He is not persuaded by the majority’s reference to Justice Story and Lord Holt in holding that the law requires nothing more that proof of injury. He points out the Lord Holt was the lone dissenter in Ashby (quipping there is “no shame there”) and that Story made contradictory statements elsewhere, and therefore does not give the idea much weight.
Chief Justice Roberts finds the majority’s decision to be an unwise expansion on the power and purview of federal courts:
Five years after Hamilton wrote Federalist No. 78, Secretary of State Thomas Jefferson sent a letter on behalf of President George Washington to Chief Justice John Jay and the Associate Justices of the Supreme Court, asking for advice about the Nation’s rights and obligations regarding the ongoing war in Europe. Washington’s request must have struck him as reasonable enough, since English sovereigns regularly sought advice from their courts. Yet the Justices declined the entreaty, citing “the lines of separation drawn by the Constitution between the three departments of the government.” (Citation omitted.) For over two centuries, the Correspondence of the Justices has stood as a reminder that federal courts cannot give answers simply because someone asks.
The Judiciary is authorized “to say what the law is” only because “[t]hose who apply [a] rule to particular cases, must of necessity expound and interpret the rule.” Marbury v. Madison, 1 Cranch 137, 177 (1803) (emphasis added). Today’s decision abandons that principle. When a plaintiff brings a nominal damage claim in the absence of past damages or future harm, it is not “necessary to give an opinion upon a question of law.” San Pablo, 149 U. S., at 314. It is instead a “gratuitous” exercise of the judicial power, Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 38 (1976), and expanding that power encroaches on the political branches and the States. Perhaps defendants will wise up and moot such claims by paying a dollar, but it is difficult to see that outcome as a victory for Article III. Rather than encourage litigants to fight over farthings, I would affirm the judgment of the Court of Appeals.
L2: Is it expression protected by the First Amendment, or is it revenge porn? Guess what former Rep. Katie Hill thinks?
L3: Chinese authorities charged 47 “democracy advocates” with conspiring to subvert state power – by participating in an election.
L4: The trial of former Minneapolis Police Officer Derek Chauvin is underway. Chauvin is the officer whose knee George Floyd died last summer. It seems the case is likely to boil down to which expert the jury finds more credible. Those in the know fear the prosecution has a big hill to climb.
L5: Florida AG Ashley Moody is suing the Biden Administration over what she describes as “thumbing its nose” at federal law regarding its refusal to deport alleged criminals. “Come on man, do your job!” Moody implored on Fox and Friends.
L6: Trump to GOP: Stop using my name and likeness to raise money! Trump to GOP voters: Give me your money.
L7: Another one bites the dust: Trump’s defamation lawsuit against the New York Times for its characterization of Trump’s relationship with the Russians was dismissed, with the Court finding the former president had proven neither knowledge of falsity nor malice.
L8: Four men spent almost two decades in prison for murder before prosecutors admitted it was a mistake and released them – but not before requiring each of them to sign a promise not to sue. The men did sue, alleging they were coerced into signing the agreements in exchange for freedom. A lower court dismissed the lawsuits, but the Circuit Court reversed. SCOTUS has declined to intervene, paving the way for their suit to proceed.
I’m probably in the absolute minority here but as repugnant as I find ‘free speech zones’ and the pathetic ideology behind them I agree with the CJ here. These battles need to be fought on the legislative front. It’s a public school after all.Report
The whole point of having the Bill of Rights is that there are certain things that the legislature simply isn’t allowed to do. The boundaries of what those are is exactly the kind of question that should be left to the courts.
Anyway, I could be wrong, but I don’t think that’s really what Roberts is saying. His main objection seems to be that the Supreme Court should only be ruling on concrete cases, not abstract questions. This seems kind of silly to me—why make people try to guess what’s Constitutional and what isn’t when you can just tell them how you’d rule in future cases?—but I haven’t really looked into the arguments for this position.Report
Roberts is first and foremost concerned about his legacy as Chief Justice, followed a close second by preserving his version of what SCOTUS should and shouldn’t be about. As we have seen numerous times in his court he’s generally loathe to set new precedents and equally loathe to stick to former ones that he thinks will move his legacy negatively. Seen through that lens its entirely unsurprising that he wouldn’t support proscriptively ruling.Report
You’re misunderstanding me about the legislative solution. Public schools are established and funded by the states. There are only ‘free speech zones’ and the like at these schools because state governments tolerate them.
As for the case and controversy requirement there isn’t enough room in a comments section to explain it. It comes from Article III of the constitution and there are cases interpreting it and its parameters, including why the court does not issue advisory opinions. However I will point out that the issue here wasn’t whether P had been wronged it was whether the claim was moot. And hey 8 out of 9 still said nominal damages were sufficient for it not to be.Report
“Roberts first points out that in addition to having no actual damages, the plaintiffs are no longer students at Gwinnett College, and the complained-of policy is no longer in effect.”
So if you run out the clock on a legal action, you can prevail by default? Cool. “The plaintiff has filed a lawsuit against the Chicago Police Department for wrongful imprisonment because they grabbed him off the street and held him in jail for a night after a cop thought he was looking at her funny. However, plaintiff’s presence in the courtroom means that he is clearly no longer in prison, therefore he is clearly no longer wrongfully imprisoned! Defendant’s motion to dismiss is upheld.”Report
Although it’s interesting to note that the Roberts court has made a large number of important judgements on the basis of “you can’t show actual damages therefore you have no case”, so I can see how Roberts would be very motivated to keep intact the notion that showing actual damages (and requesting specific restitution for same) would be an important part of any legal proceeding.Report
This more or less happened with the majority of suits against Trump in his capacity as President. E.g. for alleged violations of the emoluments clause.
The suits were filed in the first year of the Trump admin, but by the time they had reached their way to the Supreme Court, it was past Jan 20 2021, and they were dismissed as moot.
Which makes the timing of the decision in this particular suit, with it’s eight vote agreement, kinda curious. In hindsight, the various state AG and advocacy groups I guess should have included some nominal damage claimReport
It does seem to leave open the whole, “Agents of the government can mess with you in significant ways, but as long as they stop, don’t leave marks, and make conciliatory gestures to update policy, it’s all good.”
So, waterboarding is on!Report
Well, no. If you were waterboarded, you will have suffered emotional, and, likely, physical distress for which you can get money. Even if the waterboarders stopped, apologized, and promised never to do it again. If the plaintiffs in this case had alleged emotional distress for what had already been done to them and asked for money to compensate them for it, the case would clearly not be moot. But they didn’t ask for money. And since they were no longer students, they were no more entitled to injunctive relief against the college than, say, I am or you are. None of this is close to being legally controversial. So they had to argue that the nominal damages claim kept the case alive.Report
The issue I see is that the school was in the wrong, but they have a way to wiggle free. They can make sure the issue takes long enough to resolve that the students are no longer students, and they can alter policy. This makes the issue moot, except that there is nothing stopping the school from reinstating the policy as soon as things quiet down.
I mean, rationally, getting slapped down once should be enough to convince the school that reinstating the policy is a bad idea, yet other schools have had similar free speech issues struck by the courts, and Gwinnet still held fast to theirs until it was challenged, so bad ideas seem awful sticky.
Ergo, I think there is value in the court being a bit of an advice columnist if it helps firm up precedent.Report
You’re entitled to think that, and you may be right in some cosmic sense, but the Supreme disagrees with you, and has for over 200 years.Report
I think what you’re really arguing here is for a broader definition of harm, which the court may have implicitly accepted with this holding. That’s not the same as saying the court should just spout off about whatever whenever. Roberts is saying the nominal damages analysis sets the stage for a pretext to do what are in effect advisory opinions. Obviously the majority disagrees but I’d be shocked to hear any serious jurist call for those. Even if there wasn’t a constitutional restriction the court only has its legitimacy and the best way I can think to lose it would be to start issuing holdings on hypotheticals.Report
Except it’s not a hypothetical. It happened, no one disputes that. The fact that the school opted to roll it back, or that the students are no longer impacted doesn’t actually answer the question raised. Now, if asking for nominal damages is a way to make sure the question(s) get answered, I think that’s fine. It is a legal/constitutional question, after all, which is one of the reasons the SCOTUS exists, is it not?
I mean, this isn’t a contract dispute where the plaintiff was paid the value of the contract, but still wants the court to rule on some esoteric clause that was under contention. Free speech zones on public property is a rather fundamental constitutional questionReport
That’s still just an argument that the issue is ripe, not that there should be advisory opinions.Report
Perhaps I am not understanding the ruling then. Taking in the comments downthread, the only thing the court ruled on was whether or not a claim for nominal damages can survive a challenge for mootness?
Do I have that right?Report
Yes.Report
Pretty sure they don’t want to have the Supreme Court look at whether Free Speech Zones can be limited to the quad next to Armpit Of Campus.
Pretty sure the Supreme Court doesn’t want to have to look at that either.Report
The longstanding constitutional issue is that SCOTUS cannot look at that question in a vacuum. But if someone is harmed by it, meets the requirements for standing,.appeals all the way up etc., etc. then they can address it. I believe there is some case law on the subject though one of our 1st Amendment scholars would have to weigh in as to whether any is on point.Report
Saying “you’re not being harmed by this policy anymore due to you graduating, therefore we don’t have to look at it even if the school is still doing it” strikes me as…
Well.
The Justice System ain’t covering itself in glory.Report
I think you’re letting the particulars of this case (which let’s remember, is being allowed to proceed) lead you to some overly broad conclusions about the law. It’s not like SCOTUS and lower courts have never dealt with time, manner, place restrictions before. I also think it’s fair to assume they will continue to do so.Report
Roberts didn’t think it should have.
But, yes. I’m pleased that the other 8 weren’t… whatever the hell the term is for Roberts happens to be.Report
this rule against advisory opinions in general is a mistake of the American system. They’re used elsewhere when there’s something important to be done in legally tricky areas so guidance on what the court thinks saves everyone a ton of doubt and misplaced effort.Report
Deciding a moot case, Roberts says, puts the courts in the position of writing advisory opinions, which it is not to do. Uzuegbanum’s status or condition is not effected by an award of nominal damages, in Roberts’ opinion, and is nothing more than an affirmation of the plaintiff’s interpretation of the law. It is no remedy. He says the majority’s opinion turns federal courts into “advice columnists”.
If the affirmation of the plaintiff’s interpretation of the law is, like, different than how the law is currently applied, that’s pretty important!
I mean, we’ve already established that there is a non-zero number cases of people who engaged in prior restraint due to the misapplication of the law, right?Report
OK, so you disagree with 200-plus years of Supreme Court practice. Maybe you can persuade someone who matters that this is wrong, but it might take an actual argument.Report
I thought I was agreeing with the 8 justices who decided the case.Report
Maybe that’s what you thought. That’s not what you said. And the 8 justices who decided the case wouldn’t agree with what you said.Report
It sounds to me like the guy succeeded on the merits of his claim.Report
Wrong again.Report
He successfully argued that his nominal damages are in fact damages and the case is not moot. He did not successfully argue that the court can now issue advisory opinions.Report
That’s a very different thing. It has all been procedural maneuvering so far. No court has addressed the merits of his claim. And if the college takes the advice to make a $1 Rule 68 offer, no court ever will.Report
It sounds like the student is asking for an attorney fee award, so I would think that the Rule 68 offer should have been made a long time ago. I don’t know how an attorney fee award works under these circumstances, but the who case smells of a dispute no longer about the merits but about litigation costs.Report
L1: People who got what they asked for can sue for not getting it immediately, however people in prison because of fraudulent convictions cannot sue.Report
You have accurately described the state of affairs.
If there is a moral issue, it falls outside of the scope of this comments section.Report
L2 raises a deeply interesting issue. One that I think Ms. Hill is ultimately going to lose, because she was a public official at the time the pictures were taken and released.
Change the hypo a bit, though, and we get into what to me is tougher territory. Let’s say the pictures were of then-Congresswoman Hill having a consensual sexual encounter with her then-husband, who was not a member of her staff.
Or, what if they were taken before Hill began her Congressional campaign, but then the relationship ended amicably, and she subsequently hired the woman with whom she had been in an intimate relationship to be on campaign staff. (Note that we would probably have some difficulty accepting at face value, a claim that they later resumed the relationship, but only after Hill resigned.)
It raises tough issues about when and how far we in the general public have an interest in the conduct and character of public officials, and therefore the extent of the First Amendment right of publishers to disseminate otherwise-unprotected images and information. People give up some measure of privacy when they voluntarily enter the public sphere, but not all of it.
I don’t think there’s an easy or clean answer here.Report
[L6] Cracks me up. Of course he does.Report
L8: The Circuit Court of Appeals got it right. A waiver is a knowing, free relinquishment of a right. THEY WERE IN PRISON and they were told that if they didn’t sign that piece of paper, that’s where they would stay. The ENTIRE DAMN POINT OF PRISON is that you aren’t at your liberty to act as you please. Prison would be AWFUL. Damn near anyone would do damn near anything to get out of prison, which is kind of the very definition of “not acting freely.”Report
“… speech which “disturbs the peace and/or comfort of persons” was prohibited in the free speech zones.”
You keep using that word…Report