Let's hear it for nominal damages!

A common misconception about constitutional law is that a constitutional violation automatically entitles you to money damages. Such a violation may get you money, but only if you can prove damages. Some constitutional violations do not produce damages. What happens then? If you can prove, for example, that the government censored your speech but you did not suffer any emotional or economic harm, you will get nominal damages. At least that's been the law in the Second Circuit. The question before the Supreme Court in this case is whether nominal damages are actually available under the Constitution. The answer is Yes.

The case is Uzuegbunam v. Preczewski, issued in March 8. I have brought free speech cases over the years where the plaintiffs did not suffer emotional or economic damages. But these cases were still worth filing because there was a principle at stake. One way around the lack of damages is always a claim for injunctive relief, or a court order for the government defendant to stop the policy or practice that caused the speech violation in the first place. If the government tries to moot the claim by revising its policy before the lawsuit is resolved, then your only option is punitive damages (if the speech violation is outrageous enough) or nominal damages. In the Second Circuit, the nominal damages claim keeps the lawsuit alive and repels any mootness argument.

I did not realize that the availability of nominal damages was an open issue in the Supreme Court. But the Court thinks this is an easy call, ruling 8-1 that nominal damages are in fact available. Justice Thomas writes the majority opinion and Chief Justice Roberts is the sole dissenter. 

This case arose because religious students at a public university were ordered to stop their religious proselytizing. Then they graduated college, so they were no longer subject to this speech restriction. They sued anyway. The majority says nominal damages have always been available under the British legal system, from which the U.S. draws many legal principles. In 1838, the Supreme Court noted that a prevailing plaintiff "is entitled to a verdict of nominal damage" when ever "no other kind of damages be proved." So I guess the Court has recognized this principle for quite some time, though its viability may have been in doubt by 2021, which is why the Court took up that issue in this case. The Court notes that while nominal damages may only be a dollar, that is not a consolation prize or symbolic. Rather, they still constitute "relief on the merits of his claim" and can "affect the behavior of the defendant towards the plaintiff and thus independently provide redress."

In dissent, Roberts says the majority trivializes Article III of the Constitution, which gives courts authority to resolve "cases or controversies," and that an award of nominal damages is nothing more than court finding "that the plaintiff's interpretation of the law is correct." That turns the court into a moot court, or an academic exercise. Since judge are not "advice columnists," Roberts says,"I part ways with the Court regarding both the framework it applies and the result it reaches."

Nominal damages also provide a moral victory for the prevailing plaintiff. Courts sometimes forget that it means for a plaintiff to win her case even there are no damages. They beat the system. For the lawyer, nominal damages may not be a total victory, since the attorney will not recover any contingency share, and the Supreme Court has said that nominal damages in your typical case will not entitle you to attorneys' fees under the civil rights fee-shifting laws.