September 30, 2020 1:27PM

Colleges Shouldn’t Be Able to Get Away with Violating Student Speech Rights

College is a time to think, to learn, to challenge others’ ideas, and to have your ideas challenged in turn. So thought Chike Uzuegbunam when he attempted to share his religious ideas with fellow students and ran into Georgia Gwinnett College’s “speech zone” policy.

Chike decided to share his beliefs, through one‐​on‐​one conversations and handouts, in a large plaza outside the library. Campus police ordered him to stop. They informed him that he could only speak in designated “speech zones.” Chike applied for permission to use a zone, but could only speak briefly before campus police again accosted him. This time he was told that his speech was “disorderly conduct,” which is any speech that causes discomfort, as judged subjectively by whoever might be listening. The police threatened Chike with prosecution and he was frightened into silence.

As a public college, Georgia Gwinnett is bound by the First Amendment not to abridge speech. But the school cordoned off the “free and open expression of divergent points of view” into two miniscule areas of campus, which were only available a few hours a day on weekdays and required a three‐​day advanced reservation. The college had unfettered discretion in approving who may speak and when and how.

Not stymied, Chike and Joseph Bradford—another student discouraged from speaking by the speech code—traded their soapboxes for jury boxes and took the school to court. When challenging unconstitutional speech policies, students may ask for two things: an injunction preventing the school from enforcing the policy against them going forward and money damages for the harm the policy has already done to them.

To get an injunction, the students must themselves be at risk of having their rights violated. This risk ceases to exist if they graduate before the case is over or if the college modifies the policy, but these future considerations do not ordinarily prevent students from seeking damages for past constitutional wrongs. These are a dollar amount expressing how much harm the constitutional violation caused. Violations of the First Amendment often do not cause substantial injuries, however, so victims of these policies often sue for nominal damages—small amounts covering the intangible harm of having a right violated. In a recent ruling, the U.S. Court of Appeals for the Eleventh Circuit decided not to consider nominal damages requests if parties cannot also seek a future injunction or greater damages.

Following that ruling, the district court dismissed Chike and Joseph’s suit, which dismissal the Eleventh Circuit affirmed. Instead of deciding whether the speech code was constitutional, the courts’ new rule forbids students from even challenging a past violation of their First Amendment rights if the school changes its policy, unless they have an injury expressible in a dollar amount.

Chike and Joseph have now taken their case to the Supreme Court. The Cato Institute has joined the Foundation for Individual Rights in Education to file an amicus brief supporting their argument. We argue that nominal damages are an important mechanism for vindicating constitutional rights, particularly in campus speech cases where other forms of relief are often unavailable.