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Professor Roy Gutterman L'00: The Challenges in Putting a Price Tag On Free Speech

Posted on Friday 1/22/2021
Roy Gutterman

(Law 360 | Jan. 19, 2021) Nominal damages might not be something many lawyers really think about. They are just that, nominal—a small, inconsequential, symbolic amount awarded to a plaintiff acknowledging that they suffered a harm, but no significant monetary loss.

It might be even more surprising that this question of something as basic as nominal damages reached the US Supreme Court in a case testing free speech rights. 

Yet, this was the issue argued last week at the court in Uzuegbunam v. Preczewski.

Maybe there is even something ironic that nominal damages were the centerpiece of Supreme Court arguments over something as grand as First Amendment rights and speech about something as vast as religion.

Many First Amendment free speech cases are often proxies for an underlying issue—civil rights, war protests, campaign finance and other hot-button issues. 

Here, the nominal damages argument finds itself wrapped up in the case of two college students—Chike Uzuegbunam and Joseph Bradford—who wanted to let the world, or at least a small sliver of the world at Georgia Gwinnett College, know about their evangelical Christian beliefs.

The school had a policy in place that required speakers to secure permission to speak or distribute materials on campus in a designated free speech zone. 

Uzuegbunam had his permit and his religious material ready for the sharing when campus police shut him down, claiming someone complained about his presence, threatening him with a disorderly conduct charge and potential punishment. Because of the threat of punishment, which the officer implied could result in discipline or even expulsion, Uzuegbunam packed up and left.

Then, he engaged the Alliance Defending Freedom and went to court ...

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