When discussing civil liability under common law, we must challenge deeply held beliefs rooted in civil law. The German term “schadensersatzrecht” (law of compensation) makes this easier to understand. The civil liability we have inherited in Brazil applies only to harmful legal events that result in compensatory damages (Art. 944, Civil Code). In the “law of torts,” however, damages come in a wide variety of forms and are not always intended to compensate for harm. Civil liability, with its English origins, is flexible, encompassing a diverse range of monetary awards that serve other purposes, such as punitive damages, restitutionary damages, and—for the purposes of this text—the category of nominal damages.
A very recent decision by the U.S. Supreme Court in the case of Uzuegbunam v. Preczewski (19-968, Mar. 8, 2021) brought to light the contemporary role of nominal damages in common law jurisdictions.
The case is particularly interesting: Mr. Uzuegbunam (I can’t pronounce it either!) is an evangelical Christian who was studying at a public college in the state of Georgia—Georgia Gwinnett College—and wanted to discuss his faith with other students. However, every time he tried to speak publicly about religion, he was stopped by college staff. According to the institution’s “policy,” talking to others about the evangelical faith could incite “hate speech.” Thus, Mr. Uzuegbunam was only allowed to exercise his right to free speech in a “free speech zone,” made available for about 10% of weekly class time, in an area restricted to a courtyard and a sidewalk (0.0015% of the campus). Students interested in the debate were required to register for authorization at least 4 business days in advance, providing copies of all materials they intended to distribute. Campus officials had discretion to grant or deny the permit.
Mr. Uzuegbunam sued the college for nominal damages and sought an injunction against the enforcement of the rules that restricted his free speech. He did not allege any pecuniary or non-pecuniary damages. By the time the injunction reached the Supreme Court—seeking to overturn the restrictions as a violation of the First Amendment right to the free exercise of religion—the defendant had simply abandoned its policy, adopting far less restrictive rules. Thus, when Mr. Uzuegbunam graduated, Georgia College argued that there was no legal basis for compensatory relief, since the plaintiff was no longer subject to any restrictions. However, the then-former student insisted on a claim for nominal damages, based on the prior violation of his rights.
By a vote of 8 to 1, the Supreme Court ruled that even though the violation was no longer ongoing, there had been an infringement of the plaintiff’s fundamental rights, ordering the educational institution to pay $1.00 in nominal damages. The ruling draws on precedents from the common law (particularly Ashby v. White, 2 Raym. Ld. 938 K. B. 1703),1 demonstrating that this remedy aims to compensate for a constitutional violation and that the plaintiff may always seek compensation even if “he has not lost so much as a penny as a result of the violation.” In short, by setting its policy aside, the university sought to neutralize the litigation, only to reactivate it once the case was closed. With the injunctive relief rendered ineffective by the abandonment of the “policy” and the absence of damages, the plaintiff would be left without any remedy. Thus, for the plaintiff, the claim for nominal damages is a possible way to keep the case alive.2
Basically, what are nominal damages? It is a specific common law remedy that ensures the litigant a judicial resolution of a claim regarding the violation of a right, even in circumstances where the plaintiff did not even seek—or was unable to establish—any compensatory claim for damages. The judgment awarding nominal damages acknowledges the infringement of a right in circumstances where the plaintiff was unable to prove damages or simply chose to waive them. If the claim is upheld, the decision is binding (stare decisis) and has preclusive effect, and the defendant is also required to pay the costs of the litigation. Given its emphasis on ensuring the assertion of a right without immediate economic value, similarities can be found between nominal damages and a declaratory judgment action. However, a declaratory judgment (as well as an injunction) is a prospective remedy designed to certify and shape a future relationship between the parties, whereas nominal damages are retroactive, seeking redress for a past wrong.
There is no reason to question confidence in nominal damages as a vehicle for asserting constitutional rights. Their origin dates back to the 14th century, and the legacy of English common law quickly left its mark on legal practice in the early American republic. The antebellum Supreme Court (a term referring to the first 100 years of SCOTUS) upheld nominal damages, including claims to hold federal government officials liable. With the emergence of constitutional civil liability litigation in the 20th century, the Court upheld nominal damages in cases where the victim demonstrates a violation of their rights but is unable or unwilling to establish consequential damages.
In other words, nominal damages are an attractive option for plaintiffs who wish to have their claims tested in court. By expressly stating in the complaint that they do not seek compensatory or punitive damages—limiting themselves solely to nominal damages, which have no real commercial value—plaintiffs waive the economic aspect of civil liability and focus on the constitutional issue. Currently, the authority of U.S. federal courts to rule on the constitutional rights of the parties in a given dispute is no longer in question.
The “judicial test” aspect is decisive in balancing interests in the specific case and in constitutional refinement. In terms of restrictions on free speech, the government bears a very heavy burden in the U.S. There is a burden to prove that the restrictions are designed to promote a “compelling government interest” and that the means adopted are “narrowly tailored” to achieve that interest. Unlike in other common-law countries, restricting speech in the United States comes at a very high cost. Preventing someone from “causing offense” or curbing “hate speech” (whatever that may mean) simply are not sufficient reasons for the government to limit First Amendment rights. Of course, to the extent that the exercise of our rights is restricted by the rights of others, there is no right to behead another person on the grounds that doing so would constitute a free exercise of one’s religion. However, at various times, U.S. case law has shaped the limits on the free exercise of legal positions. Particularly in Uzuegbunam, the educational institution’s extremely restrictive rules regarding when a religion could be discussed with others exceeded tolerable limits. The plaintiff was denied the right to speak politely with others about his religion, a violation of a constitutional right he enjoyed. Thus, since there was no longer room for a preliminary injunction, an order for nominal damages was appropriate for a past deprivation of a right, notwithstanding the absence of other forms of relief.
In suggesting that a constitutional civil liability action may proceed only as a claim for symbolic damages, we take into account the plaintiff’s initial decision to waive other forms of monetary relief or any personal financial liability on the part of the defendant. As a result, the judge may treat the case in the same manner as an emergency injunction against an ongoing constitutional violation. The crux of the dispute will be to clarify the constitutional norm in a state of uncertainty. Therefore, when individuals opt for nominal damages, they are simply seeking judicial recognition that their rights have been violated. The amount awarded is not the point. The plaintiffs simply wish for the mistreatment they have suffered to be made public, or they seek to establish grounds for other claims, such as a future claim for punitive damages in a series of cases whose recurrence indicates reprehensible conduct on the part of the defendant due to a disregard for the plight of a group of victims.
The 2021 ruling in question follows a leading case from the last quarter of the 20th century, Carey v. Piphus (435 U.S. 247, 1978), in which the Supreme Court explicitly relied on common law remedies for civil liability to determine the appropriate measure of damages for a violation of the plaintiffs’ constitutional rights. Although the plaintiffs demonstrated that they had been suspended from high school without a hearing—in flagrant violation of due process of law—the Supreme Court refused to establish a presumption of compensatory damages. Nevertheless, it expressly stated that nominal damages were available to enforce the constitutional right in question.
By making the deprivation of rights actionable for nominal damages in an amount not exceeding $1—even without proof of actual harm—the legal system recognizes the importance to society of ensuring that these rights are scrupulously observed. In terms of enforcement, this is not merely a matter of access to the courts, but of expanding the plaintiff’s sphere of autonomy, allowing them to direct the proceedings as they deem appropriate for their purposes. A judgment awarding nominal damages alters the legal relationship between the parties in three ways: first, the judgment grants the plaintiff substantive rights by virtue of being the prevailing party; second, the defendant will pay the plaintiff—an action the defendant would not take voluntarily, regardless of the amount; third, the defendant incurs legal liabilities through a judgment that induces a change in behavior.
On the other hand, the civil liability system remains faithful to the principle that substantial damages should be awarded exclusively to compensate for actual harm or, in the case of punitive damages, to punish egregious violations of rights. Since the Carey case, federal courts have extended the availability of nominal damages to a wide range of constitutional civil liability claims. Among other things, the courts have approved such damages for violations of 1. Amendment regarding religious freedom and freedom of speech, as well as a series of other violations of fundamental rights. In other words, this line of reasoning aligns with the common law view that damages may, in certain cases, serve to assert a right that has been violated.
What is curious—and, in a way, contradictory—is that alongside the functional evolution of nominal damages in the U.S., geared toward the protection of “constitutional torts,” the English tradition limits their application to cases in which the court orders one party to pay a minimal sum to another party whom they have harmed, but not in a manner the court deems serious; or where a tort has occurred but there is no evidence of damage; and, finally, in cases where the damage cannot be calculated but the tort nonetheless warrants judicial disapproval. Consider, for example, an injured plaintiff who proves that the defendant’s actions caused physical injury but fails to provide medical records to demonstrate its extent. The amount awarded is a symbolic sum, although in some jurisdictions it may equal the costs of the lawsuit.3
Undeniably, the most famous case of nominal damages—in which the claim was not deemed “serious enough” to warrant compensatory damages—occurred when the press reported that then-Prime Minister Winston Churchill was allegedly drunk during a dinner at the White House in 1942. He filed a defamation suit against journalist Louis Adamic over the publication of the false story. The jury ruled that there was no basis for compensatory damages, as Churchill’s high reputation had not been harmed. However, the journalist was ordered to pay the sum of one shilling (about 25 cents) as a sufficient means of upholding the plaintiff’s right to protect his reputation.4
And in civil law jurisdictions, is there a functional equivalent to the concept of nominal damages? In our compensatory culture, people typically do not sue in cases of minimal damages. The cost and upheaval of litigation exceed the expected compensation. Nevertheless, some people will sue regardless of the magnitude of the harm, making it clear that they seek to assert their rights rather than pursue financial compensation. In cases of violations of personality rights, a victim may be satisfied with compensation similar to “nominal damages,” usually accompanied by a public retraction or apology.
In the Brazilian Civil Code, as in the French Civil Code, there is no “de minimis rule.” In both countries, the rule of full compensation governs non-contractual civil liability, applying extensively to small awards, which may even result in a purely nominal judgment when a fundamental right is infringed, such as the “franc symbolique”—now replaced by the symbolic euro —a form of compensation in which the monetary value is not taken into account, but rather the symbolic significance of the judicial decision, prioritizing the qualitative aspect of the compensation over the quantitative, in recognition of a violation of a right.
Perhaps we can draw on the principle of proportionality and the multifunctionality of civil liability to understand that the function of asserting rights can be an alternative to the traditional compensatory function, not only in cases of public retraction. It is worth recognizing the symbolic validation that nominal damages offer to many litigants. The benefit of seeking redress for torts does not stem from the final amount awarded, but from the fact that there is a state-sanctioned avenue to ensure that not even the slightest violation of our rights goes unchallenged, thereby transforming torts into judgments; after all, “rights without a remedy really do not exist.”
1 A foundational precedent in English constitutional law. It concerns the right to vote and disobedience toward a public official. Lord Holt established the important principle that harm can exist in the absence of economic loss (iniuria sine damno), since the law presumes harm; it is sufficient to demonstrate that a right has been infringed.
2 A similar issue was debated in 2020 by the High Court of Australia in Lewis v Australian Capital Territory [2020] HCA 26 (August 5, 2020), in which the court recognized that a violation of rights may be claimed by way of nominal damages. Citing the precedent Ashby v. White, Gordon J. stated that “This appeal is concerned with the tort of false imprisonment, a form of trespass to the person. It is actionable per se, regardless of whether the victim suffers any harm. It does not require proof of special damage. That is unsurprising. The tort protects and, where necessary, vindicates a person's right to freedom from interference with personal liberty as a fundamental legal right.. A right to nominal damages, as one remedy, follows from that finding of liability. That award of nominal damages marks the fact that "there [was] an infraction of a legal right". There is then a question as to whether any other relief should be awarded to a particular plaintiff, in their own unique situation”
3 On the same grounds, nominal damages also apply in contractual matters. Such cases are rare, as most claims for “breach of contract” involve some form of economic loss to the plaintiff. By way of illustration, as an example of nominal damages in the context of breach of contract, we can cite Company A, which enters into a contract with Company B to manufacture 10,000 dolls, given its well-known expertise. However, at that time, Company A lacks the capacity to manufacture the dolls and does not disclose this fact to Company B. Instead, it contracts Company C to manufacture the dolls at one-third of the normal cost, thereby making a substantial profit. However, Company B discovers that it already had 10,000 dolls in stock. Upon informing Company A of this fact, it learns that Company A did not even manufacture the dolls. Although Company B did not suffer a financial loss, Company A clearly deceived it. Company B may intend to terminate the contract, but this does not change the fact that Company A entered into the contract based on fraud. In this case, even on the basis of a contractual relationship, Company B could receive nominal damages for the breach of its trust.
4 Churchill visited Roosevelt in December 1941 and remained in Washington until January 1942. On the last day of Churchill’s historic visit, January 13, Roosevelt prepared a surprise for Churchill: he invited Louis Adamic and his wife Stella to dinner, before giving Churchill a copy of Adamic’s book Two-Way Passage with the recommendation that he read at least the last part. In the final part of Two-Way Passage, Adamic skeptically discusses the differences between the British and the potential American vision of the postwar order in Europe. Adamic calls on the U.S. to enter the world war—not to help Great Britain, but rather the other way around: for the United States to save Europe from British domination.
Article originally published on April 5, 2021.