Clarence Thomas Delivers Decisive Ruling in Religious-Free-Speech Case

W hat could be more American than a religious-free-speech lawsuit with the name Uzuegbunam v. Preczewski? At issue in the case is state-funded Georgia Gwinnett College’s “free speech zone” policy, which Stanley Kurtz has aptly summarized elsewhere on this site:

Georgia Gwinnett’s two tiny speech zones occupy less than 0.0015 percent of the campus, and are open only 18 hours a week. If you want to speak in public or leaflet about politics or religion anywhere on campus on a Friday, for example, it had better be in those tiny zones between 11 a.m. and 1 p.m. or you’re out of luck — and even then you’ll have to get authorization three business days in advance.

Student Chike Uzuegbunam, an Evangelical Christian, was told that if he wanted to evangelize his faith to his fellow students, he would have to apply three days in advance for a permit, and then confine his activities to one of the two free-speech zones. After receiving the permit, he was told by campus cops that he could not share his faith even in one of the speech zones, because doing so violated a campus ban on “disturb[ing] the peace and/or comfort of person(s).” (Of course, these days, almost any opinion, especially on matters of faith, will make someone on campus uncomfortable.) So he sued, represented by the Alliance Defending Freedom and supported by Jeff Sessions and the Trump Justice Department. In response, the college changed the policy and tried to get the lawsuit dismissed as moot. Eventually, the issue reached the Supreme Court. And today, Justice Clarence Thomas delivered a clear victory for the plaintiffs.

A bit of background: Courts of law do not exist to issue pronouncements in the abstract about constitutional rights and wrongs; federal courts are restricted to deciding “cases or controversies” in which some particular person, entity, or group has suffered a particular injury and that injury can be relieved by the judiciary. Standing to sue is commonly described as having three elements: (1) injury, (2) traceability, and (3) redressability. Injury means that the plaintiff has suffered a concrete, proven harm. Traceability means that the plaintiff’s injury can fairly be said to have been caused by the defendant’s acts. Redressability means that the kind of relief the plaintiff seeks — e.g. money, an injunction, a declaratory judgment — is within the court’s power to provide.

There was no question here that Uzuegbunam suffered an injury traceable to Georgia Gwinnett’s actions: He was prevented from speaking about his faith in violation of core First Amendment rights. But what relief was he entitled to? He lost no money, so damages as compensation were not available. The policy was repealed, so the court couldn’t issue an injunction or a declaration to adjudicate an ongoing dispute. No court order could safeguard Uzuegbunam’s rights in the future, because he was no longer a student at the college. So he sought “nominal damages” — a judgment of just enough money that he could show the world his rights had been violated, and set a precedent to deter Georgia Gwinnett and other colleges from violating other students’ rights in such a way going forward. The alternative — dismissing such a suit every time a college gets called out and changes its policy — does less to help protect the free speech of students who may not be determined enough to take their campus administrators to court.

Judicial conservatives have long taken a hard line on standing to sue where injury and traceability are not pleaded and proven, precisely to prevent activist judges from expanding their lawmaking writ beyond cases where somebody was actually harmed. And they have also joined the judicial voices that caution against novel extensions of redressability. In Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26 (1976), for example, the Court held that indigents who had been denied medical treatment by nonprofit hospitals had suffered an injury (because the hospitals were required to provide medical services to the poor), but that they did not have standing to sue to strip the hospitals of nonprofit status, because they had no personal stake in the hospitals’ tax benefits. In Sprint Communications Co. v. APCC Services (2008), Chief Justice John Roberts dissented, joined by Justice Thomas, Justice Antonin Scalia, and Justice Samuel Alito, against the majority’s finding that a plaintiff’s economic injury was redressable where the plaintiff had assigned all the benefits of the judgment to another party. Justice Thomas and Justice Neil Gorsuch have begun arguing as well that the question of how much of a federal statute to strike down should be a matter of what parts of a statute the court needs to invalidate in order to give relief to the plaintiff in the case, rather than a matter of “severability.” But a historically and analytically proper analysis of redress and mootness does not always mean turning away cases or limiting relief. Justice Thomas, in the recent Pennsylvania election case, criticized the Court for using the mootness doctrine to duck issues of ongoing importance in election law.

Today, in Uzuegbunam, Thomas wrote the majority opinion in an 8–1 decision finding that a suit for nominal damages for a violation of noneconomic constitutional rights can be maintained in federal court. Much of the decision, in originalist fashion, traced the common-law history of nominal damages, which were originally disfavored but gained acceptance in the English common law after a 1703 decision by the House of Lords (Britain’s highest judicial body) in a case involving the denial of the right to vote. As Justice Thomas wrote, the Court rejected “the flawed premise that nominal damages are purely symbolic, a mere judicial token that provides no actual benefit to the plaintiff.” Chief Justice Roberts dissented alone (a rare sight), arguing that the history was less clear and that the Court should not exceed its modest role:

Today’s decision risks a major expansion of the judicial role. Until now, we have said that federal courts can review the legality of policies and actions only as a necessary incident to resolving real disputes. Going forward, the Judiciary will be required to perform this function whenever a plaintiff asks for a dollar. For those who want to know if their rights have been violated, the least dangerous branch will become the least expensive source of legal advice.

This is not a small concern, but as Thomas’s opinion notes, Congress places no minimum-amount-in-controversy requirement on federal courts’ jurisdiction over violations of federal rights, and today’s decision will often be essential to the vindication of core constitutional rights such as free speech and the free exercise of religion when those rights have been violated. What’s more, there are limits to the majority’s decision. It still does not allow plaintiffs without redressable claims to evade that limitation just by asking for attorney’s fees. As Justice Brett Kavanaugh noted in a brief separate opinion, defendants may yet be able to avoid protracted litigation and judicial opinions simply by paying the nominal amount sought, under federal rules that require plaintiffs to settle a case when a defendant offers everything they asked for in relief (a procedural reason why courts are particular about making sure it is clear what redress is asked for). And Justice Thomas’s reference to the “noneconomic rights of individuals” hints at another limit: The decision does not undermine the Court’s recent restrictions (in cases such as Spokeo v. Robins) on class-action lawsuits where the class members suffered some procedural violation of a federal rule but no actual injury. A denial of the fundamental right to free speech is a far cry from a business’s breach of bureaucratic rules on credit reporting or printed disclaimers.

The bottom line: a bad day in court for universities and other serial violators of the First Amendment.