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.