This piece originally appeared in National Review on October 22, 2020.
Should the government be held to account when it violates a person’s First Amendment rights, or should it be allowed to manipulate the legal system to avoid judgment?
This term, the Supreme Court will hear Uzuegbunam v. Preczewski, a case on precisely that question. Its ruling may dramatically change the way First Amendment litigation proceeds in this country.
Right now, it comes about in one of two ways. One is a “pre-enforcement challenge” where a person or group identifies a law it believes is unconstitutional and meticulously plans its case before filing a complaint in federal court. The other involves a person coming to court the old-fashioned way: by having the long arm of law come down on her.
In many ways, not least for the peace of mind of the litigant herself, the first way is easier — when it is available. For starters, the plaintiff does not have to endure the enforcement process, which is a form of punishment even when you win. But a second key advantage is that by planning their case ahead of time, plaintiffs can ensure that they satisfy a legal requirement called “standing.”
To prove standing in First Amendment litigation, a plaintiff must show a desire to speak and an ongoing fear of punishment. This second element is important; the threat of harm cannot be a relic of the past. This allows the government to manipulate prosecutions to moot lawsuits at the moment they seem most poised to succeed.
Americans who find themselves in court fighting a charge instead of a test case are easy victims for this sort of manipulation. Chike Uzuegbunam was one. As a student at Georgia Gwinnett College in 2016, his efforts to preach the Gospel were functionally prohibited by school policy, a straightforward violation of the First Amendment if there ever was one. (The college is a public university). Faced with the ban, Mr. Uzuegbunam and a fellow student sued. After trying to defend its indefensible position in court — but before a judge could issue a final ruling — the college changed its rules and Mr. Uzuegbunam graduated.
Seemingly on the cusp of a binding federal court order prohibiting the college from violating students’ First Amendment right to speak about the Gospel, the case was instead dismissed as moot. Georgia Gwinnett’s actions are not an aberration. New York City did the same thing last year after the Supreme Court signaled that it would take up a challenge to a municipal gun-control measure. The city repealed the law, even though it had been upheld by the Second Circuit, out of fear that the Court would reverse the decision. In doing so, it eliminated the standing of the groups suing the city.
When defeat looks certain, government uses these tactics to turn away those meddling kids and their lawsuits — and preserve its ability to re-enact a contested law in the future. People whose rights have been violated, such as Chike Uzuegbunam, are sent home empty-handed with no guarantee that the government won’t resurrect its unconstitutional rules.
One exception to this rule, however, is if the suit requests money in the form of “nominal damages.” These damages are symbolic: Usually a court orders the transfer of $1 between the parties. But by putting this dollar in the dock, a case can stay alive and the government can be forced to concede wrongdoing. To do so, it must pay the dollar and enter a judicially-enforced agreement not to enforce its old code.
Unfortunately for Mr. Uzuegbunam, and in contradiction to most of the federal courts of appeal, the Eleventh Circuit held that nominal damages cannot preserve standing. If the Supreme Court affirms, it will incentivize governments to manipulate the judicial system just as Georgia Gwinnett College did, leaving the vindication of constitutional rights to those with the good fortune and time to carefully build a case in advance of a government’s decision to enforce its policies. Enforcement actions won’t go away, but lawsuits such as Mr. Uzuegbunam’s will. The government will take the opportunity to claw back laws just before it appears they will be ruled unconstitutional.
Other times, the government will achieve victory simply by running out the clock. That is because the threat of punishment disappears if the event the speaker wishes to talk about — such as an election or a vote on legislation — occurs before courts can rule. If the Eleventh Circuit’s decision is upheld, those Americans who only wish to involve themselves in a specific election or a specific issue will have little hope of vindicating their rights.
Students graduate from colleges with speech codes. Election days come and go. Governments, meanwhile, are eternal. A claim for nominal damages, then, is not really “nominal” at all. Sometimes it may be the only way to preserve incalculable freedoms in court.
The Supreme Court has suggested that even a nanosecond deprivation of a First Amendment right is “irreparable.” First Amendment rights are, literally, priceless.
The Court should recognize that nominal damages ensure justice for damages that are anything but nominal. The alternative is letting governments get away with infringing on our rights, so long as they take it back at the last second, without so much as a binding promise to respect the Constitution next time.