Supreme Court ponders resurrecting First Amendment case
Free Speech | A Georgia college student presses a lawsuit against a defunct speech policy
by Steve West
Posted 1/15/21, 05:22 pm
Should someone be allowed to pursue a lawsuit and damages over a speech policy that doesn’t exist anymore? The Supreme Court justices seemed conflicted on Thursday.
Chike Uzuegbunam and another student, Joseph Bradford, sued Georgia Gwinnet College in 2016 after campus police twice stopped Uzuegbunam from distributing Christian literature to fellow students. The public college’s policy at the time confined such expression to two small speech zones that made up less than 1 percent of the campus and were only open 10 percent of the week. Then, in 2017, Gwinnett changed its policy to give students more expressive freedom. It argued that, since it was no longer harming students, courts should dismiss the lawsuit. A trial court and the 3rd U.S. Circuit Court of Appeals agreed.
But Uzuegbunam wants to keep pursuing the case. His lawyer, Alliance Defending Freedom counsel Kristen Waggoner, argued before the Supreme Court that there are “injuries that transcend price tags,” like lost opportunities for Uzuegbunam to speak to other students. He is asking only nominal damages: $1.
The justices seemed ambivalent about the argument on Thursday. “Throw in a buck … and everything’s fine now?” Chief Justice John Roberts said, and he seemed troubled by a lawsuit in which “the only redress you’re asking for is a declaration that you’re right.” Justice Stephen Breyer suggested they were being asked to render an inappropriate advisory opinion. Liberal Justice Elena Kagan asked if someone could really bring a lawsuit for “psychic satisfaction.” Justice Brett Kavanaugh wondered if the real issue was the availability of attorneys’ fees: no judgment, no compensation for lawyers.
But Georgia Solicitor General Andrew Pinson, who represented Gwinnett College, may face an uphill battle. Outside the 3rd Circuit, courts of appeal have generally favored challengers seeking damages for later-revoked government policies.
States have lined up behind Georgia, arguing that allowing the case to proceed would open the door to a flood of lawsuits. But organizations across the political spectrum—including the American Humanist Association, Council on American-Islamic Relations, and Christian Legal Society—have filed friend-of the court briefs siding with Uzuegbunam.
“All I wanted to do was share the good news of Jesus Christ and how he offers us eternal life freely,” Uzuegbunam said in a press call after the arguments. “A win for me is a win for all of us.”
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Steve is a legal correspondent for WORLD. He is a graduate of World Journalism Institute, Wake Forest University School of Law, and N.C. State University. He worked for 34 years as a federal prosecutor and is now an attorney in private practice. Steve resides with his wife in Raleigh, N.C. Follow him on Twitter @slntplanet.