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Supreme Court Backs Georgia Gwinnett College Student’s Free Speech Lawsuit

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WASHINGTON — The Supreme Court ruled on Monday that a student in Georgia could pursue a lawsuit challenging speech restrictions at his college even though he sought only nominal damages.

Justice Clarence Thomas, writing for the majority in the 8-to-1 decision, said a request for even a token sum, typically a dollar, satisfied the Constitution’s requirement that federal courts decide only actual cases or controversies in cases. The fact that the college had withdrawn the speech code challenged in the suit, he wrote, did not make the case moot.

“Despite being small,” Justice Thomas wrote, “nominal damages are certainly concrete.”

In a spirited dissent, Chief Justice John G. Roberts Jr. said the majority’s approach will have the effect of “turning judges into advice columnists.”

“If nominal damages can preserve a live controversy,” he wrote, “then federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar.”

The case concerned Chike Uzuegbunam, who in 2016 ran afoul of the authorities at Georgia Gwinnett College, a public institution in Lawrenceville, Ga., that sprawls over 260 acres. The college had designated two small patches of concrete as “free speech expression areas.”

By the calculations of Mr. Uzuegbunam’s lawyers, the areas in which free speech was permitted — a patio and a sidewalk — amounted to .0015 percent of the campus.

The free speech zones were available, moreover, only on weekdays and only for four hours on most days and two on Fridays. Students could reserve them once every 30 days.

Mr. Uzuegbunam, an evangelical Christian, tried to comply with the rules, reserving a spot in one of the zones to talk about his faith. But after other students complained, a campus police officer told him that he could only distribute literature and have one-on-one conversations. Public speaking in a free speech zone, the officer said, amounted to disorderly conduct.

Mr. Uzuegbunam sued, saying the college’s policies violated his First Amendment rights. The college briefly defended its policy, arguing that his discussion of his faith amounted to “fighting words” that are not protected by the Constitution.

“Plaintiff used contentious religious language that, when directed to a crowd, has a tendency to incite hostility,” the college’s lawyers wrote.

But the college soon abandoned its defense of its speech code. Its revised policy, which allowed students to speak anywhere on campus, made the case moot, its lawyers argued in court.

A trial judge agreed, and the United States Court of Appeals for the 11th Circuit, in Atlanta, affirmed her ruling.

The question for the justices was whether there is anything left to decide when the government changes a policy after being sued and the plaintiff asks for only nominal damages to acknowledge the constitutional violation.

When the case was argued in January, several members of the court referred to what Justice Elena Kagan called “the most famous nominal damages case I know of in recent times, which is the Taylor Swift sexual assault case.”

Ms. Swift, the pop superstar, sued a Denver radio host she said had groped her. She sought $1 in nominal damages.

“I’m not really interested in your money,” Justice Kagan said, describing Ms. Swift’s thinking. “I just want a dollar, and that dollar is going to represent something both to me and to the world of women who have experienced what I’ve experienced.”

Justice Thomas on Monday instead relied on English common law to explain the role nominal damages play in the judicial system.

“By permitting plaintiffs to pursue nominal damages whenever they suffered a personal legal injury,” he wrote, “the common law avoided the oddity of privileging small-dollar economic rights over important, but not easily quantifiable, nonpecuniary rights.”

It would be odd, he wrote, if the student could sue for “a wasted bus fare to travel to the free speech zone” but not for nominal damages.

In dissent, Chief Justice Roberts wrote that the majority’s approach represented “a radical expansion of the judicial power.”

“Until now,” he wrote, “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.”

Chief Justice Roberts proposed a partial solution to the problem he had identified.

“The best that can be said for the court’s sweeping exception to the case-or-controversy requirement,” he wrote, “is that it may itself admit of a sweeping exception: Where a plaintiff asks only for a dollar, the defendant should be able to end the case by giving him a dollar, without the court needing to pass on the merits of the plaintiff’s claims.”

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