Thanks Matt, that’s really helpful. In my post I identified the right at issue as “free exercise” under the religion clause of the First Amendment, but I am sure you are right to say that the case is more clearly an example of the right to free speech under that Amendment (though in theory both rights are engaged, the free speech right is protected more clearly and strongly.)

Regards

Neil

 

 

 

 

If I can weigh in on the American situation a bit:

 

1. The cause of action here is brought pursuant to a federal statute originally knows as the “Klu Klux Klan Act (1871)” --- now commonly referred to as a “Section 1983 Action”.  It was enacted by Congress to provide a remedy against STATE officials who violate the civil rights of citizens.  (Federal officials might be sued under what is called a “Bivens Action” after Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).)  Section 1983 provides:

 

Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an Action at law, Suit in equity, or other proper proceeding for redress ….

 

2. The statute makes state government officials --- rather than the State itself --- liable for violating a constitutional right.  Making the State liable might violate the Eleventh Amendment.  As a result, the defendants in this case are officers of the college, not the State of Georgia itself.  In effect, the statute might be considered an American codification of Entick v Carrington, insofar as it holds the officers of the State, rather than the State itself, liable for damages, thus avoiding sovereign immunity problems.

 

3. By the terms of Section 1983, remedies might include injunction, compensatory damages, and/or declaratory judgement.  Obviously injunction was moot here since the policy was changed after the suit was commenced.  Compensatory damages might have been possible but the plaintiff could show no pecuniary injury.  So, nominal damages had to be the route.

 

4. As for the violation, the restriction was bizarre.  To restrict speech, the government has a very heavy burden. It has the onus of showing that its restrictions are designed to advance a “compelling government interest” and that the means adopted are “narrowly tailored” to achieve that interest.  Unlike other common law countries, restricting speech in the US is a very difficult thing to do .  Preventing someone from “causing offence” or preventing “hate speech” (whatever that means) are simply not sufficient reasons for government to limit First Amendment rights.  In this case, the college actually took the position (later abandoned) that talking to others about one’s Evangelical faith might actually raise “hate speech” concerns.  As a result, its policy allowed students to exercise their speech rights in a “free speech zone” that was “open about 10% of the week, and comprised one patio and one sidewalk or 0.0015% of the campus.”  Students also had to apply for a permit to speak in the zone at least 4 business days in advance and provide copies of any materials they intended to distribute. Campus officials had unfettered discretion to grant or deny a permit.

 

5. The nature of the violation and the fact that the college almost immediately abandoned the rules after litigation began is why the compensatory damage claim became important. In arguing mootness, the college was essentially trying to cut off the litigation, which would have left it with the ability to re-institute the very same policy the moment the case was dismissed.  Because an injunction could not be issued against a non-existent policy and compensatory damages could not be calculated, the current and future plaintiffs would be left without any remedy at all.  Nominal damages thus took the place of a declaratory judgement.

 

Long-winded but my two cents, anyway.

 

Regards

Matt Harrington

 

 

 

 

Dear Fred;

I am not an expert in US law either but here is my take. The right to free exercise of religion under the US First Amendment is no less a right than the common law right not to be touched without good reason (actionably in battery) or the right to be free from unjustified detention (actionable in false imprisonment). Like those common law rights which are actionable per se, the right to free exercise is constrained in some circumstances by the rights of others. Clearly there is no right to behead someone else on the basis that this would be a free exercise of your religion. Different tests have been adopted at different times in US jurisprudence as to the limits on free exercise. But it seems that in this case the extremely restrictive rules about when your religion could be spoken of to others, were accepted to go way beyond acceptable limits on that right. Hence there was a breach of a constitutional right enjoyed by Mr U. In that sense (just as if he had been unlawfully struck by police or locked up) he was actually wronged. He was denied the right he had to engage in polite speech with others about his religion. As a result, the SC rules that in recognition of this wrong having been committed (to vindicate his right, if you like), where there was no scope left for an injunction to be given, an order of nominal damages was appropriate.

Our common law systems do not usually allow free-standing civil actions for breach of constitutional principles, but this is allowed in the US. At least that is how I see it. Happy to be corrected by any colleagues here who know more about US law.

Regards

Neil

 

 

 

 

Thanks for this, Neil. I’m confused, though it’s probably a function of my ignorance of US constitutional law.

 

Sometimes a plaintiff in has suffered, or stands to suffer, a wrong if the constitutionally prohibited act goes ahead. If Nebraska electrocutes me, and electrocution is cruel and unusual punishment, I can see that I have been wronged. Nominal damages (at least!) flow from that wrong. (Likewise false imprisonment, as in the HCA, or any manner of SCOTUS cases on seizure, search, etc.) But Mr U’s ‘right’ was that the College was not allowed to proscribe U from ‘preaching’ in public spaces; this is, I take it, a restriction on the College’s powers to control activities by licence or contract. Isn’t U’s ‘right’ just a power to ask the Court to make a declaration that some putative act is void? What is the breach by the College which grounds his claim to damages?

 

I also don’t understand how this decision squares with last the New York Rifle case, but I may be misremembering the facts of that case or what claim was ultimately sought …

 

Fred

 

Dear Colleagues;

We don’t often consider decisions of the US Supreme Court, but I thought this one was worth noting: Uzuegbunam v. Preczewski (19-968, Mar 8, 2021) https://www.supremecourt.gov/opinions/20pdf/19-968_8nj9.pdf . An 8-1 decision (Roberts CJ for the first time in his career as Chief in a solo dissent) holds that where there has been a breach of a person’s constitutional rights, they can maintain an action for nominal damages even where the breach is not ongoing.

The case is particularly interesting to me as it intersects with my interests in law and religion. The facts: Mr Uzuegbunam (no, I can’t pronounce it either) is an evangelical Christian and while a student at Georgia Gwinnett College , (a public college in the State of Georgia) wanted to talk about his faith with others. The College imposed incredibly strict restrictions on his ability to do which were accepted, by the time the matter reached the SC, to be a violation of his First Amendment right to “free exercise”. But when faced with the prospect of litigation the college just dumped its policy, and when Mr U graduated, they said he had no legal basis for a remedy as he was no longer affected by the policy in any case. He accepted that his action for an injunction to enjoin their restrictions had to fail, but he persisted with a claim for nominal damages based on the previous infringement of his rights.

The court’s judgment was written by Thomas J. A lot of it explores the older common law cases. There is an Article III “standing” issue under US law requiring a showing that there is a remedy which will "redress the constitutional violation". Thomas J says that in deciding that issue the court “look[s] to the forms of relief awarded at common law.” He explores a number of older cases, in particular Ashby v. White, 2 Raym. Ld. 938 (K. B. 1703). He adopts the words of Holt CJ which on appeal were upheld by the House of Lords: “every injury imports a damage” and that a plaintiff could always obtain damages even if he “does not lose a penny by reason of the [violation].” (Slip Op p 6).

So here an award of nominal damages may be given for violation of an accepted right, despite no other harm being shown. The matter is referred back to the trial court for determination of quantum.

List members will no doubt see that this sort of reasoning seems to connect well with the view at common law that an award of damages may function in part as vindication of a private right which has been breached. These issues were discussed in the High Court of Australia last year in Lewis v Australian Capital Territory [2020] HCA 26 (5 August 2020) http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/HCA/2020/26.html where at least a majority of the court recognised that infringement of rights can be vindicated by a nominal damages award, even if there is no separate head of “vindicatory damages”. Gordon J, for example, after citing Ashby v White in para [43], goes on to say:

 

[45] This appeal is concerned with the tort of false imprisonment, a form of

trespass to the person. It is actionable per se, regardless of whether the victim

suffers any harm. It does not require proof of special damage. That is

unsurprising. The tort protects and, where necessary, vindicates a person's right to

freedom from interference with personal liberty as a fundamental legal right….

[47]A right to nominal damages, as one remedy, follows from that finding of

liability. That award of nominal damages marks the fact that "there [was] an

infraction of a legal right". There is then a question as to whether any other relief

should be awarded to a particular plaintiff, in their own unique situation. (footnotes omitted)

 

This is very similar to Thomas J’s decision.

Regards

Neil