OPINION:
The U.S. Supreme Court has agreed to decide an enormously important question: How much do we value constitutional rights? The case, Uzuegbunam v. Preczewski, will decide whether constitutional violations that do not cause actual damages — like many government infringements of free speech or religious liberty — are worthless or priceless.
Value is often in the eyes of the beholder. A family heirloom may have zero monetary worth but still be “valuable” to the family. Irreplaceable. In fact, many things are considered valuable apart from their monetary value, and that includes constitutionally protected freedoms. They are extraordinarily valuable, even if you cannot put a price them.
But for now, the value of such rights depends entirely on where the government violates them. If you live in Alabama, Florida or Georgia, the U.S. Court of Appeals for the 11th Circuit has determined that a constitutional right has value only if you suffer some monetary damage. In other words, a constitutional right is only valuable if it can be measured in money.
Eight other federal courts of appeal disagree. Each allows a person to bring a suit for a constitutional violation even if the person has suffered no monetary harm at all. To them, constitutional rights are invaluable, like a family heirloom. And a constitutional right is always worthy of protection because once such a right has been taken away, even for a moment, it can never be replaced.
The Uzuegbunam case will resolve this conflict. I and my colleagues at Alliance Defending Freedom represent Chike Uzuegbunam and Joseph Bradford, two now-former students at Georgia Gwinnett College. In 2016, while Chike was standing outside on campus, handing out literature and sharing his Christian beliefs, a college administrator stopped him. The administrator ordered him to stop speaking because he was not standing in one of the two microscopic “speech zones” where the college allowed student expression.
Open only about 10% of the week, the zones comprised one patio and one sidewalk — a miniscule 0.0015% of campus. If the entire campus were the size of a football field, those zones — the only places students could exercise their First Amendment rights — would be the size of a piece of paper. If students wanted to speak at any other time or place, they needed a permit. Even to use the zones, students had to obtain a reservation by submitting a form and any leaflets in advance, and four officials would then decide, with no criteria to guide them, whether to allow it.
Undeterred, Chike went through this approval process and began speaking in one of the speech zones with a reservation, sharing the plan of salvation that Christians have taught openly for 2,000 years. Within minutes, campus security stopped him yet again because someone had “complained.” College officials said this converted Chike’s speech into “disorderly conduct,” which they defined as any expression that “disturbs the peace and/or comfort of person(s).”
As a result, Chike was unable to speak about his faith anywhere on campus. Without a permit, he was banned from speaking in the over 99.99% of campus outside the speech zones. Even with a reservation in the zones, he could only say things that didn’t make anyone uncomfortable — an impossible task that is incompatible with the First Amendment. After seeing how officials mistreated Chike, Joseph Bradford censored his speech to avoid punishment.
After we filed suit on behalf of Chike and Joseph, the college changed its unconstitutional policies. But it refused to do anything to address the way it repeatedly violated its students’ constitutional rights. More troubling, the 11th Circuit let these officials off with no punishment, saying that, since the college changed its policies and Chike graduated, the officials did not have to accept responsibility.
This is wrong. Our constitutional rights are valuable and courts must protect them, even when their deprivation does not cause monetary harm. You can’t put a price tag on our most fundamental freedoms. We celebrate Independence Day because previous generations have sacrificed so greatly to enshrine and pass on these freedoms. They are our country’s heirlooms. Invaluable. Priceless.
A society must always protect what it values. We trust that when it comes to constitutional rights, the Supreme Court will agree.
• John Bursch is vice president of appellate advocacy and senior counsel for Alliance Defending Freedom (@AllianceDefends), which represents Chike Uzuegbunam and Joseph Bradford. John Bursch served as Michigan’s solicitor general (2011-13).
