Amicus Brief: One Violation of Free Speech Is Too Many

September 30, 2020   •  By IFS Staff   •  
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Washington, DC – The Institute for Free Speech urged the Supreme Court yesterday to reverse a lower court ruling that favors the government in First Amendment challenges in many parts of the country. The Court will hear arguments in the case, Uzuegbunam v. Preczewski, in its next term.

“The lower court’s ruling would let state actors off the hook for violating core First Amendment rights. When Americans are harmed, they shouldn’t have to prove they will be repeatedly victimized to get access to the courts,” said Institute for Free Speech Attorney Zac Morgan.

The case began when Georgia Gwinnett College (GCC) prevented a student, Chike Uzuegbunam, from distributing religious literature and speaking about his religious views on campus. Uzuegbunam and Joseph Bradford, a fellow GCC student who refrained from similar activities for fear of the same repercussions, sued the school for violating their First and Fourteenth Amendment rights.

In the middle of the lawsuit, the school abruptly changed its suppressive rules and motioned to have the case dismissed. The district court agreed, and the Eleventh Circuit Court of Appeals affirmed its dismissal. This ruling sets a dangerous precedent for free speech, the Institute’s brief explains.

“Should a challenge threaten a law or policy that a school district, public university, or state commission wants to preserve, it can solemnly put the tool away, but in an easy to reach place, until the courts are no longer looking. And if a plaintiff succeeds in obtaining an unfavorable decision, a state actor may simply change the rules after appealing and ask for the decision to be vacated,” the Institute’s amicus brief notes.

In most courts of appeal, a claim of “nominal damages” – a symbolic payment, typically $1, for violations of rights – is sufficient to preserve an otherwise moot First Amendment lawsuit. This allows courts to reach the merits of the case and prevents gamesmanship by the government. Uzuegbunam and Bradford claimed nominal damages, but the lower court dismissed the case anyway.

If this ruling is affirmed, First Amendment challenges will only survive when the plaintiffs show a reasonable expectation that they will repeatedly face punishment for their speech while the case is being litigated, which can take years.

“In practice, this means continuously pleading that the plaintiff will remain active in future election cycles in a substantially similar manner under the same underlying statute. But that makes it impossible for litigants with an interest in a particular election to obtain final relief; only long-term, repeat players need apply,” the Institute’s brief explains.

This is especially troublesome for political speech, which often concerns a specific election, candidate, piece of legislation, or current event. Under the lower court’s ruling, state actors can effectively dodge responsibility for violating First Amendment rights by running out the clock on these cases or temporarily amending the laws or regulations under review.

The Supreme Court can fix the problem by making a universal rule that once a First Amendment challenge gets past the courthouse doors, a claim for nominal damages is sufficient to see it through.

To read the Institute’s brief, click here.

About the Institute for Free Speech

The Institute for Free Speech is a nonpartisan, nonprofit 501(c)(3) organization that promotes and defends the First Amendment rights to freely speak, assemble, publish, and petition the government. Originally known as the Center for Competitive Politics, it was founded in 2005 by Bradley A. Smith, a former Chairman of the Federal Election Commission. The Institute is the nation’s largest organization dedicated solely to protecting First Amendment political rights.

 

IFS Staff

IFS Staff

https://www.ifs.org/author/ccp-staff/

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