SOMETIMES FREE SPEECH

Because youth pastors and leaders frequently are asked by young energetic believers what rules apply to the expression of religious belief in various settings, today we will step slightly outside the lane in which these reports generally stay.  Young believers are required to attend school, and school order and discipline must be maintained, but even there the First Amendment reaches within reasonable time and place restrictions.  On college campuses, one might expect fewer time and place restrictions outside of classrooms because many students reside on campus.  However, suppression of First Amendment rights are sometimes more prevalent on college campuses.  Discouragement of speech that is contrary to certain sensibilities gets the worst treatment.

In Uzuegbunam v Preczewski, Slip Op. (US 2021), the United States Supreme Court reversed the 11th Circuit and the trial court.  The issue the opinion primarily dealt with was whether a claim for nominal dollar damages, rather than compensatory damages, could alone preserve standing to pursue a First Amendment rights claim.  The Court held that standing to sue was preserved by a claim for nominal damages.  The Plaintiff was a student at Georgia Gwinnett College, a “public college,” and decided to “witness” or share his faith on campus.  The Plaintiff did so and had tracts to hand out, too.  But, campus law enforcement made him stop.  The college policy permitted free speech activities on .0015 percent of the campus by allowing it only two designated free speech zones, and then only after securing the necessary permit from the administration.  The Plaintiff applied for the permit and received it.  The Plaintiff went to the free speech zone and began speaking and tracting during the time allowed by his permit.  Campus law enforcement told him to stop.  The policy also prohibited speech that “disturbs the peace and / or comfort of person(s).”  Plaintiff was informed that there had been complaints about his speech which triggered the policy.  Initially, the college defended the claim alleging the Plaintiff’s speech constituted “fighting words” but “quickly abandoned that strategy.”  The college abolished the policy.  The trial court and 11th Circuit held the case was thereafter moot and dismissed it.  However, as noted above, because the Plaintiff sought “nominal damages” in addition to injunctive relief, the lawsuit could not be dismissed.  The lone dissent suggested that if the college allowed a stipulated judgment for nominal damages in the case, the case would end without further proceedings.

Reasonable time and place restrictions on speech may be enforceable but draconian restrictions intended to suppress free speech are not enforceable.  The youth pastor or leader needs to ask the student to obtain a copy of their student handbook which usually contains the rules.  The opinion was silent on the issue of attorney fee awards to the Plaintiff.  That is the real financial risk in a civil rights case because the damages sought are almost always going to be nominal, impossible to quantify, or in the proof only modest amounts.  Dismissal ended that risk in the reported case.  On remand to the trial court, especially after a successful appeal to the United States Supreme Court, an expensive type of appeal, that risk might be resurrected.

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