It is generally regarded as a sign of ethics, courage and character to take action “on principle.” In theory, this means that non-ethical considerations (like enrichment, power and popularity) are not the actor’s goals; making a statement for the enlightenment of society is. However, actions on principle can often be quixotic and even silly, causing greater damage, as well as wasting time and money, “on principle” than the message is worth. The folly was nicely illustrated in the ancient burlesque skit above known as “Pay the Two Dollars.”
The issue of how far it was reasonable to go “on principle” was recently explored, of all places, in the U.S. Supreme Court in the oral argument of the case Uzuegbunam v. Preczewski.
Chike Uzuegbunam, a student at Georgia’s Gwinnett College in Lawrenceville, was threatened with discipline under the school’s speech code that violated his and other student’s First Amendment rights. He sued the college but it quickly backed down, eliminating its speech restrictions and replacing them with one that allows students to “speak anywhere on campus and at any time without having to first obtain a permit.” State officials said the change made the case moot. A trial judge agreed, and the United States Court of Appeals for the 11th Circuit, in Atlanta, affirmed her ruling.
Uzuegbunam and his student supporters, however, felt strongly that an official declaration that their rights had been violated was important, and they appealed on the grounds that they should be able to pursue their case for nominal damages. This was the issue that got the case before SCOTUS.
Before the discussion reached pop star Taylor Swift, Chief Justice John Roberts expressed doubts about the case. “The only redress you’re asking for is a declaration that you’re right,” he told Kristen K. Waggoner of Alliance Defending Freedom, representing the students. Justice Kavanaugh added cynicism, saying that he had “the strong suspicion that attorneys’ fees is what’s driving all this on both sides.”
But Justice Samuel Alito, perhaps the most conservative member of the Court, asserted that seeking nominal damages on principle can be justified when there is “a real concrete violation that can’t be easily monetized.”
While I wonder how many of the conservative justices even know who Taylor Swift is, the liberal wing of the Court dragged her into the debate. Swift, the pop megastar, sued a Denver radio host whom she said had groped her. She sought $1 in nominal damages. (keep in mind that a hundred thousand dollars to Swift is like $1 to you or me). Justice Elena Kagan raised Swift’s lawsuit, calling it “the most famous nominal damages case I know of in recent times.” (I wrote about other aspects of this case here. Thanks to commenter JP for reminding me.) “It was unquestionable physical harm, but she just asked for this one dollar to say that she had been harmed,” Justice Kagan told Andrew A. Pinson, Georgia’s solicitor general, adding that that dollar would represent something both to her and to the world of women who have experienced what she experienced.” The jury sided with Swift and awarded her the dollar she had asked for.
That evil Justice Amy Coney Barrett seemed to agree with Kagan’s point. “What Taylor Swift wanted was, you know, vindication of the moral right, the legal right, that sexual assault is reprehensible and wrong,” Justice Barrett said. Justice Gorsuch also suggested said that his colleagues should be wary of penalizing plaintiffs who act on principle, especially “those like Ms. Swift who have some scruple or reason not to seek more, who could.”
The problem is where to draw the line, and one hopes the Court’s decision in Uzuegbunam v. Preczewski will attempt to address it. Federal courts are over-booked already; a wave of cases seeking affirmations of principle when there is no actual harm to remedy or it has been remedied already would delay justice in other, more tangible matters. Judges are on solid ground when they examine what the law requires. When they start to define ethical principles, they are getting into my territory.
Ethics Alarms 
“Justice Elena Kagan raised Swift’s lawsuit, calling it “the most famous nominal damages case I know of in recent times.” (Personally, I had never heard of it.)”
You did write about it though:
https://ethicsalarms.com/2017/08/13/morning-ethics-warm-up-8132017/
I did! Well, I didn’t concentrate on the nominal damages part, which is why “the most famous nominal damages case” went right by me. Thanks. I also fixed some typos and formatting issues.
Haha, its no problem. I imagine putting out 10,000+ words a day pretty consistently makes it hard to keep track of everything you write about. Just two weeks I quoted a paper I wrote in grad school to find out, while I wrote about the subject, I never said anything close to the quote I gave.
To be fair, it’s more like 2500 to 3000 a day (not counting work), but thank-you.
Not knowing much about the law, I would imagine having a ruling on something like this is necessary? Sexual assault is already legally wrong. While the 1A applies normally, these cases are becoming more and more common. Perhaps having an official ruling on from the supreme court would prevent future endeavors of colleges enacting similar rules.
By dismissing the case, the court is saying that Universities can infringe on 1st amendment rights and if sued, just change the policy. Once the heat dies down, they can institute another policy that does the same thing until they get caught again. Rinse and repeat. That is what continually happens at universities. The University of Michigan has been doing this for 30+ years. There are already court rulings on this matter, but schools continue to willfully violate them? Why? They have lawyers that know this isn’t allowed, but they do it because no court will hold them accountable. There is no cost for violating people’s rights. I think the suit is wrong because the school should be held FINANCIALLY accountable for their actions. They knew it was illegal. They knew it was wrong. They did it anyway. Just because they changed the policy once caught doesn’t mean they didn’t do it. If I rob people, but I promise to stop robbing people once I get caught, does that mean charges won’t be pressed (I know it is criminal v. civil law but the concept is the same)?
This is largely the same principle as the Catholic and Jewish authorities in New York seeking an injunction against the state from implementing draconian measures on attendance at services. The state wanted the case dismissed without prejudice, because the measures were administratively withdrawn. The Supreme Court granted the injunction anyways, because the state could just as easily reinstate them, potentially leading to another injunction sought on the same matter.
The college case is tricky, because the particular policies were withdrawn, but any number of future policies might be implemented. The university might even wait until the plaintiffs graduate, thus losing their standing, leaving new students to start a challenge from scratch.
The seeking of justice for the sake of principle must ultimately be decided on a case-by-case basis. Since the Supreme Court has already looked at this case, I think its best use of resources would be to make a binding decision on the original policies, thus putting this university and others on notice with respect to student rights. However, the court must be careful to not excessively invite such cases in the future.
I think citing Taylor Swift as an example of a suit based on principle is rather slim. She was already a defendant when she brought her counter suit. She likely also could have sought significant monetary compensation, as opposed to nominal. She simply chose not to make herself slightly richer while making her point. It is different than a plaintiff seeking the ruling a withdraw policy was wrong.
And, I believe there is case law on that. You can’t moot your own dispute by ceasing to do something that you can simply choose to do again. Been a long time since I addressed that, but I think it is there.
If nothing else, there is a doctrine of “repetitious yet evading review,” that could be applied here. That was most famously applied in Roe v. Wade. The argument was that Roe’s case was moot because her pregnancy terminated before the case got to the Supreme Court. The Court reasoned that no such case would ever reach them if the termination of pregnancy mooted the issue.
That idea could apply here as well.
-Jut
There are plenty of cases that have been decided in the federal courts and the Supreme Courts telling schools they can’t do this. They routinely do it anyway because if they get caught, they can just change the policy. For example, ‘Free Speech Zones’ have been ruled unconstitutional by the federal courts on many occasions, but 1 in 6 of the top 400 colleges have them anyway. The only way to stop this is to start actually holding the schools accountable. If they faced major fines for this type of behavior, administrators would think twice (at least) before illegally restricting speech.
https://www.thefire.org/infographic-free-speech-zones-on-americas-campuses-2/
You can say those were district court decisions, but there are other schools in those districts that still have such free speech zones.
I agree with JP and Michael R here. The principle here is re-buttressing the 1st Amendment, under assault from all angles and especially from an increasingly coordinated cabal of institutions under control of the Left Wing.