1 00:00:03,200 --> 00:00:07,960 Speaker 1: This is Bloomberg Law with June Brussel from Bloomberg Radio. 2 00:00:09,000 --> 00:00:12,880 Speaker 1: The Supreme Court revived a case over free speech on campus, 3 00:00:13,240 --> 00:00:16,520 Speaker 1: even though the Georgia College already gave into the student's 4 00:00:16,600 --> 00:00:19,840 Speaker 1: demands over the expression of their Christian views and the 5 00:00:19,880 --> 00:00:23,799 Speaker 1: students had already graduated. The Court said the students claim 6 00:00:23,880 --> 00:00:27,160 Speaker 1: for nominal money damages was enough to keep the suit alive, 7 00:00:27,640 --> 00:00:30,400 Speaker 1: a point brought out by Justice Stephen Bryant during the 8 00:00:30,520 --> 00:00:34,280 Speaker 1: oral arguments, and the same with speech. He wanted to 9 00:00:34,320 --> 00:00:41,480 Speaker 1: speak there he was from constitutional unconstitutionally forbidden to do it. Well, 10 00:00:42,560 --> 00:00:47,280 Speaker 1: he was about to give his speech. What's the damage? Now? 11 00:00:47,440 --> 00:00:51,160 Speaker 1: Don't nominal damages have a place right there where there 12 00:00:51,440 --> 00:00:56,160 Speaker 1: is damage? But it's just impossible to measure. It was 13 00:00:56,200 --> 00:00:58,920 Speaker 1: an eight to one opinion, the first time that the 14 00:00:59,000 --> 00:01:02,120 Speaker 1: Chief Justice has written a solo descent since joining the 15 00:01:02,160 --> 00:01:06,960 Speaker 1: court sixteen years ago. His descent followed his questioning, say 16 00:01:07,000 --> 00:01:09,800 Speaker 1: you go into court and say your rights have been violated. 17 00:01:09,959 --> 00:01:12,800 Speaker 1: The judge asks, how have you been damaged by that? 18 00:01:13,200 --> 00:01:16,679 Speaker 1: You have any compensable injury? You say no, uh, And 19 00:01:16,760 --> 00:01:19,000 Speaker 1: he asked, is there any Is that violation going to 20 00:01:19,080 --> 00:01:20,880 Speaker 1: have any effect on you in the future, and you 21 00:01:20,959 --> 00:01:25,000 Speaker 1: say no, it's not going to be repeated, and he says, well, 22 00:01:25,040 --> 00:01:27,440 Speaker 1: then you don't have standing. I've got to throw the 23 00:01:27,480 --> 00:01:30,399 Speaker 1: case out. You said, oh, well, throw me throwing a buck, 24 00:01:30,800 --> 00:01:32,240 Speaker 1: And then the judge is supposed to say, yeah, well 25 00:01:32,240 --> 00:01:35,399 Speaker 1: everything's fine now. Doesn't that doesn't that make a mockery 26 00:01:35,440 --> 00:01:39,880 Speaker 1: of our Article three requirements? Join me is Audrey Anderson, 27 00:01:39,920 --> 00:01:43,800 Speaker 1: who heads the higher education practice at Bassbarian SIMS. What 28 00:01:43,959 --> 00:01:47,440 Speaker 1: was the issue before the justices here? The indge before 29 00:01:47,520 --> 00:01:53,840 Speaker 1: the justices was whether a plaintiff who is claiming nominal 30 00:01:53,960 --> 00:01:59,840 Speaker 1: damages that is, almost symbolic damages, can still continue with 31 00:02:00,080 --> 00:02:03,440 Speaker 1: his case or whether the court has to dismiss that 32 00:02:03,640 --> 00:02:08,720 Speaker 1: claim as moot. Here, the student plaintiffs had already graduated 33 00:02:08,960 --> 00:02:13,520 Speaker 1: from the college whose policies he was challenging, and in fact, 34 00:02:13,520 --> 00:02:17,560 Speaker 1: the college had changed those policies. So the question was 35 00:02:17,840 --> 00:02:23,600 Speaker 1: whether his claim for nominal damages for the violation of 36 00:02:23,639 --> 00:02:28,080 Speaker 1: his First Amendment rights by the college was enough for 37 00:02:28,240 --> 00:02:31,919 Speaker 1: the court to decide his claim or whether the court 38 00:02:32,000 --> 00:02:35,320 Speaker 1: needed to dismiss it because the college could no longer 39 00:02:35,440 --> 00:02:39,280 Speaker 1: apply any of its policies to this student. Did it 40 00:02:39,320 --> 00:02:42,040 Speaker 1: surprise you that it was an eight to one decision, 41 00:02:42,760 --> 00:02:46,480 Speaker 1: not at all, because a number of the lower circuit 42 00:02:46,480 --> 00:02:50,960 Speaker 1: courts of appeals had already decided that a claim for 43 00:02:51,280 --> 00:02:55,639 Speaker 1: nominal damages was enough to save a lawsuit from the 44 00:02:55,720 --> 00:02:59,639 Speaker 1: finding of muteness. The circuit court whose decision they were 45 00:03:00,040 --> 00:03:02,560 Speaker 1: looking at here, the Eleventh Circuit was somewhat of an 46 00:03:02,560 --> 00:03:07,120 Speaker 1: outlier in its rule. So the holding here I don't 47 00:03:07,120 --> 00:03:10,720 Speaker 1: think was really a surprise at all. The eight to 48 00:03:10,840 --> 00:03:14,040 Speaker 1: one maybe a little bit of a surprise. Justice Thomas 49 00:03:14,080 --> 00:03:16,960 Speaker 1: wrote the majority opinion. Tell us what the court's reasoning 50 00:03:17,040 --> 00:03:20,960 Speaker 1: was based on. Well, Justice Thomas and Chief Justice robertson 51 00:03:21,040 --> 00:03:25,840 Speaker 1: his descent as well. They both looked to the law 52 00:03:26,360 --> 00:03:30,000 Speaker 1: of England and the United States at the time that 53 00:03:30,120 --> 00:03:33,959 Speaker 1: the Constitution was adopted to try to figure out whether 54 00:03:34,080 --> 00:03:41,160 Speaker 1: those early legal sources allowed claims of nominal damages and 55 00:03:41,200 --> 00:03:47,800 Speaker 1: whether those claims were really to remedy a past injury 56 00:03:47,960 --> 00:03:52,440 Speaker 1: or were they somehow to prevent parties from violating the 57 00:03:52,520 --> 00:03:56,520 Speaker 1: law in the future. And they reached different conclusions on that. 58 00:03:57,200 --> 00:04:02,119 Speaker 1: Justice Thomas found that in the common law of England 59 00:04:02,200 --> 00:04:06,760 Speaker 1: and the early United States that claims for nominal damages 60 00:04:06,920 --> 00:04:11,520 Speaker 1: really were to compensate for past wrongs that were really 61 00:04:11,640 --> 00:04:16,240 Speaker 1: hard to quantify, like a violation of voting rights or 62 00:04:16,240 --> 00:04:19,200 Speaker 1: a violation of your First Amendment rights. It's very hard 63 00:04:19,240 --> 00:04:23,240 Speaker 1: to put a dollar amount on that. Chief Justice Roberts 64 00:04:23,400 --> 00:04:28,640 Speaker 1: reached a different conclusion, especially based on the English law, 65 00:04:28,720 --> 00:04:33,279 Speaker 1: where he points out that in England the courts could 66 00:04:33,279 --> 00:04:37,440 Speaker 1: give what are called advisory opinions to the king, and 67 00:04:37,520 --> 00:04:40,680 Speaker 1: he sees a claim for nominal damages as being more 68 00:04:40,760 --> 00:04:45,080 Speaker 1: like an advisory opinion. And under our constitution, courts are 69 00:04:45,120 --> 00:04:50,279 Speaker 1: only supposed to decide actual cases or controversies. And that's 70 00:04:50,320 --> 00:04:53,360 Speaker 1: why we have this rule of there has to be 71 00:04:53,480 --> 00:04:57,719 Speaker 1: something actually still at stake between the parties for the 72 00:04:57,800 --> 00:05:00,719 Speaker 1: court to be able to have jurisdiction. And so the 73 00:05:00,800 --> 00:05:04,599 Speaker 1: average person looking at this might say, well, what's the 74 00:05:04,640 --> 00:05:08,320 Speaker 1: case or controversy here? The college gave in to the 75 00:05:08,400 --> 00:05:12,680 Speaker 1: students demands and the student has graduated, So what is 76 00:05:12,720 --> 00:05:16,200 Speaker 1: the case or controversy. I think that to the average person, 77 00:05:16,279 --> 00:05:19,800 Speaker 1: the case or controversy is to say, well, they did 78 00:05:19,839 --> 00:05:24,400 Speaker 1: apply this policy to him. This student, in fact, was 79 00:05:24,520 --> 00:05:28,599 Speaker 1: prevented from passing out literature and speaking to his fellow 80 00:05:28,640 --> 00:05:32,679 Speaker 1: students about his faith. And so it is to say 81 00:05:32,800 --> 00:05:35,600 Speaker 1: to the student if he ends up winning, which it 82 00:05:35,640 --> 00:05:39,599 Speaker 1: appears he will, yes, your rights were violated, and here 83 00:05:39,760 --> 00:05:44,080 Speaker 1: is something an award of nominal damages to show that 84 00:05:44,240 --> 00:05:48,040 Speaker 1: you were right. Now, in real effect, what this guess 85 00:05:48,320 --> 00:05:50,840 Speaker 1: is it will allow him to get an award of 86 00:05:50,880 --> 00:05:56,520 Speaker 1: attorneys fees, so his attorneys will get paid by the college. 87 00:05:56,800 --> 00:05:59,480 Speaker 1: That's the real world effect that I don't expect the 88 00:05:59,520 --> 00:06:02,360 Speaker 1: average person to know off the top of their heads. 89 00:06:02,360 --> 00:06:06,440 Speaker 1: But for the parties to the lawsuit, most civil rights lawsuits, 90 00:06:06,640 --> 00:06:10,160 Speaker 1: the plaintiff is entitled to get his legal fee from 91 00:06:10,160 --> 00:06:13,840 Speaker 1: the defendant if the pointiffs is victorious in the lawsuit. 92 00:06:14,400 --> 00:06:18,839 Speaker 1: This is the first solo discent that Chief Justice Roberts 93 00:06:18,880 --> 00:06:22,640 Speaker 1: has written in his nearly sixteen years on the bench, 94 00:06:23,200 --> 00:06:25,599 Speaker 1: and it was a bit biting. He said, the courts 95 00:06:25,600 --> 00:06:30,600 Speaker 1: sees no problem with turning judges into advice columnists. Yeah, 96 00:06:30,600 --> 00:06:33,360 Speaker 1: I thought that that was interesting. Of course, Always when 97 00:06:33,360 --> 00:06:35,560 Speaker 1: you write a descent, you have a lot more freedom 98 00:06:36,120 --> 00:06:39,920 Speaker 1: to be free in your writing and the words you use, 99 00:06:40,000 --> 00:06:42,240 Speaker 1: and when you're trying to get others to join on 100 00:06:42,360 --> 00:06:45,240 Speaker 1: with you. So you know, the worrying that he didn't 101 00:06:45,279 --> 00:06:47,839 Speaker 1: really surprise me that much. I think the bigger surprise 102 00:06:47,960 --> 00:06:50,479 Speaker 1: is that he chose this case as one that was 103 00:06:50,520 --> 00:06:55,880 Speaker 1: important enough to him to write the solo descent at all. That, 104 00:06:56,080 --> 00:06:59,279 Speaker 1: to me, I think was the bigger surprise. But you know, 105 00:06:59,320 --> 00:07:02,200 Speaker 1: on the other hand, and Chief Justice Robert tends not 106 00:07:02,279 --> 00:07:05,520 Speaker 1: to be horribly friendly to plaintiffs and civil rights suits, 107 00:07:06,360 --> 00:07:09,600 Speaker 1: and so from that perspective, it doesn't really surprise me 108 00:07:09,720 --> 00:07:12,920 Speaker 1: that much. Is it also that he has more of 109 00:07:12,960 --> 00:07:17,000 Speaker 1: a concern about the courts being flooded, perhaps with claims 110 00:07:17,080 --> 00:07:21,760 Speaker 1: than other justices may that could be, it could be, 111 00:07:21,920 --> 00:07:24,600 Speaker 1: I you know, I actually I think that that's a 112 00:07:24,640 --> 00:07:29,320 Speaker 1: little bit overwrought, because there are other elements to the 113 00:07:29,360 --> 00:07:32,040 Speaker 1: doctrine of standing. What you have to be able to 114 00:07:32,120 --> 00:07:36,080 Speaker 1: plead in order to get into court. And uh, as 115 00:07:36,120 --> 00:07:39,360 Speaker 1: I said, a number of the circuit courts of appealed 116 00:07:39,520 --> 00:07:43,200 Speaker 1: already we're operating under a rule that a claim for 117 00:07:43,520 --> 00:07:48,440 Speaker 1: nominal damages would save your case from muteness even if 118 00:07:48,480 --> 00:07:52,560 Speaker 1: your client, the plaintiffs, was no longer under the rules 119 00:07:52,800 --> 00:07:56,880 Speaker 1: of your institution. So I'm sure that that Chief Just 120 00:07:57,080 --> 00:07:59,760 Speaker 1: Roberts is concerned about that, and he may have more 121 00:08:00,000 --> 00:08:03,000 Speaker 1: reason and an institutionalist to be concerned about that and 122 00:08:03,160 --> 00:08:06,000 Speaker 1: some other justices. But I think he's a little overwrought 123 00:08:06,240 --> 00:08:10,480 Speaker 1: in his concern about that. Let me ask you about 124 00:08:10,560 --> 00:08:14,240 Speaker 1: what might be a loophole. He said, basically that the 125 00:08:14,320 --> 00:08:18,160 Speaker 1: defendant can decide to fork over a buck and get 126 00:08:18,240 --> 00:08:21,240 Speaker 1: rid of the case. I think that's really interesting. So 127 00:08:21,360 --> 00:08:24,440 Speaker 1: it very well could. So the defendant, though, would have 128 00:08:24,480 --> 00:08:27,360 Speaker 1: to be willing to take a judgment against it. So 129 00:08:27,480 --> 00:08:32,280 Speaker 1: you would have to, as a defendant, be willing to say, yes, judge, 130 00:08:32,720 --> 00:08:35,200 Speaker 1: you don't need to find whether what we did was 131 00:08:35,280 --> 00:08:39,439 Speaker 1: constitutional or not. But you can enter judgment against us 132 00:08:39,440 --> 00:08:42,720 Speaker 1: for one dollar, and that would cut off the issue 133 00:08:42,760 --> 00:08:45,600 Speaker 1: I was mentioning before our attorneys sees the point would 134 00:08:45,600 --> 00:08:47,800 Speaker 1: no longer be able to get attorney's fees from you 135 00:08:48,520 --> 00:08:51,080 Speaker 1: if all they want from you was one dollar. There's 136 00:08:51,080 --> 00:08:54,559 Speaker 1: a rule in the federal civil procedure that allows a 137 00:08:54,600 --> 00:08:57,400 Speaker 1: diffendant to offer a judgment to the plaintiffs, and if 138 00:08:57,400 --> 00:09:00,760 Speaker 1: the plaintiff after that point wins no more than that 139 00:09:00,880 --> 00:09:04,880 Speaker 1: from you, the point I cannot get attorney fees from 140 00:09:04,880 --> 00:09:09,000 Speaker 1: you any litigation past that point. So if when you 141 00:09:09,080 --> 00:09:11,640 Speaker 1: got the complaint, you said, you know what, You're right. 142 00:09:11,840 --> 00:09:15,840 Speaker 1: Our policy is unconstitutional. We're not going to use it anymore. 143 00:09:16,360 --> 00:09:19,600 Speaker 1: So we'll change our policy, will give you a dollar 144 00:09:20,200 --> 00:09:23,559 Speaker 1: and enter judgment against us that might moot the case. 145 00:09:24,600 --> 00:09:30,440 Speaker 1: So did any did Justice Thomas address that in his opinion? No, 146 00:09:30,760 --> 00:09:33,840 Speaker 1: Justice Thomas did not address that in his opinion, and 147 00:09:33,880 --> 00:09:36,440 Speaker 1: I think he did not for a good reason. It's 148 00:09:36,440 --> 00:09:39,480 Speaker 1: not a question that is raised by this case. And 149 00:09:39,600 --> 00:09:43,920 Speaker 1: I'm sure you noticed June that Justice Kavanaugh wrote a separate, 150 00:09:43,920 --> 00:09:48,160 Speaker 1: concurring opinion to address just that point, to say that 151 00:09:48,240 --> 00:09:54,040 Speaker 1: he though he joined Justice Thomas's opinion, he also agreed 152 00:09:54,360 --> 00:09:58,320 Speaker 1: with the part of Chief Chief Justice Robert the sent 153 00:09:59,320 --> 00:10:02,960 Speaker 1: that a defense then could move out a case by 154 00:10:03,240 --> 00:10:08,640 Speaker 1: um offering judgment of nominal damages to a plaintiff without 155 00:10:08,720 --> 00:10:12,680 Speaker 1: the court um ruling on the legality of the practice 156 00:10:12,720 --> 00:10:15,520 Speaker 1: being challenged. So I think that will be the next 157 00:10:15,640 --> 00:10:20,840 Speaker 1: point of um litigation, perhaps though from a practical matter, 158 00:10:21,559 --> 00:10:25,040 Speaker 1: For a practical perspective, for most descendants, I don't know 159 00:10:25,080 --> 00:10:28,240 Speaker 1: that it horribly matters. It only matters in terms of 160 00:10:28,240 --> 00:10:30,480 Speaker 1: whether you need to pay. It's a good way to 161 00:10:30,480 --> 00:10:34,280 Speaker 1: be able to avoid paying legal fees to the plaintiffs, 162 00:10:34,320 --> 00:10:37,240 Speaker 1: and it prevents them from saying we won and we 163 00:10:37,360 --> 00:10:41,920 Speaker 1: found this policy unconstitutional. Could that work in this case? Still? 164 00:10:42,440 --> 00:10:45,360 Speaker 1: Could the college come back and say, when they renew 165 00:10:45,400 --> 00:10:50,360 Speaker 1: the case, Okay, we're paying the dollar or whatever it was? Well, yes, 166 00:10:50,400 --> 00:10:54,600 Speaker 1: but at this point, um Mr lu Bunum's lawyers have 167 00:10:54,760 --> 00:10:57,840 Speaker 1: already chalked up fees um at the district court, at 168 00:10:57,840 --> 00:10:59,800 Speaker 1: the Court of Appeals, and now with the Supreme Court, 169 00:11:00,240 --> 00:11:03,840 Speaker 1: so they already would get all those fees. Justice Thomas 170 00:11:03,880 --> 00:11:07,600 Speaker 1: said that it's a flawed premise that nominal damages are 171 00:11:07,640 --> 00:11:12,319 Speaker 1: purely symbolic. But aren't they symbolic? Yeah? I call them 172 00:11:12,320 --> 00:11:14,720 Speaker 1: symbolic too, And as soon as I did, I thought, 173 00:11:14,840 --> 00:11:18,319 Speaker 1: oh yeah, Justice Thomas wouldn't like that, you know, I 174 00:11:18,360 --> 00:11:20,960 Speaker 1: think that. And this was interesting because there was a 175 00:11:21,000 --> 00:11:26,760 Speaker 1: lot of um conversation during the oral argument about what 176 00:11:27,040 --> 00:11:32,000 Speaker 1: is the nature of nominal damages? Are they symbolic or 177 00:11:32,200 --> 00:11:36,920 Speaker 1: are they really trying to redress an injury that you 178 00:11:37,120 --> 00:11:40,840 Speaker 1: just can't put a dollar amount on? And then I 179 00:11:40,840 --> 00:11:44,160 Speaker 1: think we're getting into semantics, aren't we. So is it 180 00:11:44,320 --> 00:11:49,000 Speaker 1: symbolic when you're getting a remedy for something that you 181 00:11:49,160 --> 00:11:52,120 Speaker 1: can't put a dollar amount on Some might say that 182 00:11:52,120 --> 00:11:56,000 Speaker 1: that's the whole definition of symbolic, So you know, I 183 00:11:56,040 --> 00:11:58,200 Speaker 1: think at some level it gets to be a matter 184 00:11:58,240 --> 00:12:02,080 Speaker 1: of semantics, the fact that it's eight to one. Does 185 00:12:02,160 --> 00:12:05,280 Speaker 1: any of that have to do with the underlying case 186 00:12:06,000 --> 00:12:09,440 Speaker 1: trying to broaden the path to sue the government for 187 00:12:09,559 --> 00:12:14,640 Speaker 1: violations of speech related to religion. Some may call me 188 00:12:14,679 --> 00:12:18,440 Speaker 1: a cynic, but I have very much wondered, not even 189 00:12:18,480 --> 00:12:22,360 Speaker 1: just religion, but that um Mr use Bunham was trying 190 00:12:22,440 --> 00:12:25,840 Speaker 1: to spread the Christian faith. I have wondered a lot 191 00:12:25,880 --> 00:12:28,679 Speaker 1: whether he would have gotten that eight to one decision 192 00:12:29,240 --> 00:12:33,560 Speaker 1: if he's been trying to share Islam with his fellow students. 193 00:12:34,120 --> 00:12:36,320 Speaker 1: I don't know. I like to think he would have, 194 00:12:36,559 --> 00:12:39,400 Speaker 1: but I frankly don't know. But for a lot of 195 00:12:39,440 --> 00:12:42,240 Speaker 1: attention to the case in the media was that Taylor 196 00:12:42,320 --> 00:12:47,640 Speaker 1: Swift was mentioned during the oral arguments about birth case. 197 00:12:48,120 --> 00:12:51,160 Speaker 1: Did any of the justices mentioned Taylor Swift in their 198 00:12:51,200 --> 00:12:54,720 Speaker 1: opinions though I did not notice them mentioning that, And 199 00:12:54,800 --> 00:12:57,120 Speaker 1: I actually thought that that was a bit of a 200 00:12:57,160 --> 00:12:59,800 Speaker 1: red herring that um I think it was Justice Kagan 201 00:13:00,120 --> 00:13:04,280 Speaker 1: mentioned Taylor Swift because you know, Taylor Swift may have 202 00:13:04,600 --> 00:13:08,520 Speaker 1: called the amount of damages she was looking for in 203 00:13:08,600 --> 00:13:12,360 Speaker 1: her sexual harassment case nominal, but I think that it 204 00:13:12,480 --> 00:13:15,360 Speaker 1: is really well established in the law that it is 205 00:13:16,000 --> 00:13:21,520 Speaker 1: it is real injury that a plaintiff suffers in terms 206 00:13:21,760 --> 00:13:26,679 Speaker 1: of pain and suffering and sometimes economic damages from sexual harassment. 207 00:13:26,720 --> 00:13:29,120 Speaker 1: And it worried me a little bit actually that those 208 00:13:29,200 --> 00:13:32,360 Speaker 1: damages were referred to. And I don't doubt that Taylor 209 00:13:32,360 --> 00:13:35,240 Speaker 1: Swift called the nominal, but it worried me a little bit. 210 00:13:35,280 --> 00:13:37,920 Speaker 1: But just that she chose to only ask for a 211 00:13:38,000 --> 00:13:40,520 Speaker 1: dollar because she didn't need any more money and she 212 00:13:40,559 --> 00:13:43,160 Speaker 1: didn't want anybody to think that she was in the 213 00:13:43,240 --> 00:13:45,600 Speaker 1: case for money. Wasn't, like I said, for this case, 214 00:13:45,600 --> 00:13:48,520 Speaker 1: a little bit of a red herring, very different. That's 215 00:13:48,520 --> 00:13:52,040 Speaker 1: Audrey Anderson of Bass Baryan Sims. And that's it for 216 00:13:52,040 --> 00:13:54,800 Speaker 1: the edition of the Bloomberg Law Show. I'm June Blosso, 217 00:13:54,960 --> 00:13:56,400 Speaker 1: and you're listening to Bloomberg