Taylor Swift Invoked in Supreme Court Free Speech Argument (1)

Jan. 12, 2021, 4:57 PMUpdated: Jan. 12, 2021, 7:30 PM

Pop star Taylor Swift featured prominently during Supreme Court arguments in a case about when government officials can shake off past constitutional violations.

The justices weighed whether plaintiffs can continue to press claims that their constitutional rights were violated even after the government has changed the challenged policy.

It wasn’t clear following arguments Tuesday whether the justices would allow such cases to go forward, as many of the justices were skeptical of both sides’ arguments.

Former college students Chike Uzuegbunam and Joseph Bradford say a claim for nominal damages—something like $1—is enough to keep their suit alive. They want the courts to rule that officials at Georgia Gwinnett College, a public school in Lawrenceville, Georgia, violated their First Amendment rights when they stopped them from proselytizing on campus.

Justice Elena Kagan invoked Swift’s 2017 sexual harassment victory in support of the students’ arguments.

The pop star successfully sued a Colorado radio DJ for sexual harassment but only sought $1 in damages.

It was a symbolic victory, Kagan said.

But school officials say once the policy is changed, there’s nothing left for courts to do.

“The proving the point, however, is not something that federal courts exist to do,” said Georgia Solicitor General Andrew Pinson.

Throw In A Buck

The issue of what happens when changing policies post litigation isn’t new. Just last term the justices heard a Second Amendment case out of New York, where the city and state changed the challenged law once the justices agreed to take a look at the case.

Even though the policy here was eventually changed, the students still suffered and injury, said their attorney Kristen K. Waggoner, of the conservative group Alliance Defending Freedom.

“Chike and Joseph lost forever the chance to get those days back and speak their message to their peers,” Waggoner said. “No policy change can ever restore that lost opportunity.”

Several justices wondered whether that would flood courts with claims of hypothetical constitutional violations.

Here, while Uzuegbunam actually attempted to speak before being stopped by school officials, Bradford said he never even attempted to speak given how Uzuegbunam was treated.

If Bradford’s claims can go forward, it’s “hard to conceive of any suit that sought prospective relief like a declaratory judgment or injunctive relief that had a tag-along claim for nominal damages that” wouldn’t be moot, Justice Amy Coney Barrett said.

It would “make a mockery” of the court’s mootness jurisprudence to allow a claim to go forward simply because the plaintiffs asked the court to “throw in a buck,” Chief Justice John Roberts added.

Three are “400 million laws, actions, policies,” and “if you bring the courts into every single case, they would spend an awful lot of time adjudicating those cases, though nobody is really hurt, when there are lots of people who are really hurt who need their time and effort,” Justice Stephen Breyer said.

“So we have to draw a line.”

Proving The Point

But Kagan argued that there’s value in a symbolic victory.

A few years ago Taylor Swift brought a suit against a radio host for sexually assaulting her,” Kagan explained. “And she said I’m not really interested in your money. I just want a dollar. And that dollar is going to represent something both to me and to the world of women who have experienced what I’ve experienced.”

“She wanted to prove a point,” Kagan said. Why isn’t that enough to continue in federal court? she asked.

Plaintiffs may rightfully want vindication, Pinson said. But that’s just not what courts do, he said.

The change in policy here “led to an enduring state-wide policy change for every public college in Georgia,” Pinson said. “That kind of early out-of-court resolution should be encouraged.”

Justice Brett Kavanaugh, however, suggested that attorneys’ fees—not ensuring robust constitutional rights or proving a point—was the real motivating factor in the case.

He said he had a “strong suspicion that attorney’s fees is what’s driving all this on both sides,” Kavanaugh said. “This is not about the one dollar, I wouldn’t think.”

The reason the “plaintiffs generally want nominal damages to be available is attorney’s fees, and the reason defendants do not want them to be available is they don’t want to pay attorney’s fees,” Kavanaugh said.

The case is Uzuegbunam v. Preczewski, U.S., No. 19-968, argued 1/12/21.

(Updates with quotes from the argument.)

To contact the reporter on this story: Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; John Crawley at jcrawley@bloomberglaw.com

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