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Scales of Justice

Americans for Prosperity Foundation joins the ACLU and others in urging U.S. Supreme Court to protect constitutional rights

Oct 6, 2020 by AFP

Americans for Prosperity’s sister organization, Americans for Prosperity Foundation, has joined the American Civil Liberties Union, Institute for Justice, and Americans United for Separation of Church and State (together, amici) in filing an amicus brief in the U.S. Supreme Court supporting petitioner Chike Uzuegbunam.

The brief urges the Court to affirm that harm to constitutional rights — even where there are no financial damages — is substantial enough to allow plaintiffs to have their day in court. In Uzuegbunum v. Preczewski, a public college violated a student’s First Amendment rights in multiple ways — ordering him to use a small speech zone for his religious speech, requiring him to get a permit, and then ultimately stopping him from using his speech permit in the small speech zone out of fear someone may be offended.

But the case took the turn similar First Amendment cases take. After years of defending the violations of Chike’s rights, and after Chike had graduated, the college changed its policy and sought to end the case without permitting Chike his day in court, arguing that the violation of his rights alone — without some financial harm — was insufficient.

This is an all too common practice of governments, including some colleges and universities, to avoid judicial review of oppressive speech policies by mooting claims through strategic modification of policies while a case is pending. The government runs out the clock, rights are never vindicated, and the law remains unsettled for the rest of us.

Amici filed together to show that nominal damages, a small figure intended to represent harm to constitutional rights, are critical to vindicating a wide range of those rights, from due process and equal protection to the full array of First Amendment protections of assembly, religion, and expression.

In many of these cases, the plaintiff’s injuries cannot be reduced to a dollar value. In some cases, such as prisoners’ rights, compensatory damages may not be available at all for the type of injury suffered. Nominal damages, in such cases, take the place of compensatory damages in acknowledging a plaintiff’s injury.

Without nominal damages as a means of maintaining standing, a simple change in policy may be enough to moot a plaintiff’s claim for injunctive relief, leaving the plaintiff with no recourse — even if the violation could be easily repeated. That is why nominal damages are important to vindicate constitutional violations.

In cases like this one, where the injury to First Amendment freedoms has already happened, policy changes in the future do not erase past harms. It’s good that Georgia Gwinnett College says it will not violate other students’ rights in the future, but that doesn’t change the fact that Chike’s rights were violated.

In his case, he sought to share his Christian beliefs with his fellow students by distributing literature on a college campus in an outdoor plaza where students frequently converse and congregate. When the college stopped him, citing its speech zone policy, he reserved space in a speech zone. But when he stood in the designated area, at the reserved time, and spoke publicly about his beliefs, using his natural voice, without shouting, blocking traffic, or employing inflammatory rhetoric, a college police officer stopped him and told him that his speech constituted “disorderly conduct” in violation of the speech code.

After multiple attempts to comply with the speech code, in December 2016, Chike filed suit. In March 2017, Defendants claimed that the college had adopted new policies that eliminated its speech code and modified its speech zone policy, so the case was moot.

The district court ruled Chike’s graduation mooted his prospective relief claims; that the revised policies mooted a second plaintiff’s claims; and that nominal damages claims were “insufficient to save this otherwise moot case,” allowing the college to avoid a ruling on its policies and preventing the court from affirming to Georgia Gwinnett and other colleges that policies like these violate the First Amendment.

This case is important in protecting not only First Amendment rights, but a whole range of constitutional freedoms. Amici, while sometimes representing divergent viewpoints, filed together to support their shared belief that nominal damages play a critical role in preserving plaintiffs’ ability to defend constitutional rights and to challenge unconstitutional government policies

Read the full brief here