| As the Trump administration and American higher education try to cope with allegations of antisemitism on campuses in recent years, a ruling by a federal district court judge three days before Thanksgiving involving an avowedly antisemitic and white supremacist law student at the University of Florida (UF) illustrates the difficulties confronting public universities these days, as well as the complexities of free-speech doctrine in this realm. | | The law student, Preston Damsky, has been a nationally notorious figure for several months. The UF law school conferred on him an academic award for a seminar paper written in fall of 2024 that, according to Chief Judge Allen Winsor (U.S. District Court, Northern District of Florida), “generally argue[d] the United States was founded as a race-based nation and should be preserved as such.” The paper, written in a course on “Originalism” taught by an adjunct professor (another federal district court judge), was discussed prominently in an article in TheNew York Times earlier this year, among other national media outlets. The (interim) dean of the law school at the time defended the issuance of the award on the ground that professors should not engage in “viewpoint discrimination.” Of course that assertion is correct at one level; a student’s political orientations and affiliations should not be used against him or in his favor in the evaluation of his academic work. But of course the interim dean’s statement is misleading if not wrong-headed at another, important level: evaluation of all academic work (whether the work is by a student in a course or by a faculty member seeking tenure) necessarily requires assessment of the intellectual rigor, responsiveness and plausibility (both theoretical and empirical) of the author’s thesis—that is, his viewpoint. And in the legal field, some theses (viewpoints) are much less grounded in rigorous reasoning, historical integrity, governing legal authority, and plausible adoption by courts, legislatures, citizens, and other decisionmakers in society. So when a student argues that, for example, Plessy v. Ferguson was correctly decided and convincingly explained at the time it was issued, her grade should be marked down unless she presents some coherent arguments in favor of her position that have not already been thoroughly rebuffed by leading thinkers across the ideological spectrum. Having read Mr. Damsky’s award-winning essay, I must say I was not very impressed. In particular, the paper had no adequate explanation why the Reconstruction Amendments didn’t override whatever racist original sentiments influenced the founding; Damksy offered no significant new reason (that hasn’t already been considered and rebuffed by academics and government decisionmakers alike) for challenging the settled acceptance of the 13th, 14th and 15th Amendments, which have been considered pillars of our Constitution for well more than half the country’s history. Law schools are not merely fora for students to articulate what they would like the law to be; law schools are (or at least ought to be) places—like the courts themselves—where people are free and encouraged to make creative and ambitious arguments for what the law actually is and the plausible directions in which it should move, but where people are also bounded by notions of non-frivolousness and past, settled resolutions of some basic legal issues. When students ask me forms of the generic question “couldn’t someone argue X?,” my response is often “people can argue all kinds of things, but that doesn’t necessarily mean such arguments are credible or credit-worthy.” Mr. Damsky should not have been punished for the political views expressed in his essay, but neither should his paper have been deemed strong academic work simply because of its extremely bold political positions. (If that paper indeed was found to be the best academic work in the class—as conferral of the award suggested—then either the grading was flawed or the other papers were very academically weak indeed, or both.) | | But Mr. Damsky’s legal difficulties trace not so much to his academic work as to his social media postings. Early this year, after fellow students who had heard of Damsky’s seminar writings last year and expressed concern that he might act out violently on his apparent beliefs, the interim dean met in person with Damksy; the dean told Damsky he was not “in trouble” with the law school administration, but she wanted “to ensure Damsky understood how the law school community perceived him” in order to put him “'on notice’ that students feared him and that his actions were becoming disruptive.” | | There things stood until March 21, 2025, when Damsky posted the following on X: | My position on Jews is simple: whatever . . . Noel Ignatiev [a somewhat obscure historian] meant [in his writings] by his call to “abolish the White race by any means necessary” is what I think must be done with Jews. Jews must be abolished by any means necessary.
| | As this post became more widely known within the law school community, many people became concerned about what Damsky was capable of doing, which led one of the law school’s Jewish professors to reply on X to Damsky’s post, asking him: “Are you saying you would murder me and my family? Is that your position?” In turn, Damsky replied: | Did Ignatiev want Whites murdered? If so, were his words as objectionable as mine? If Ignatiev sought genocide, then surely a genocide of all Whites would be an even greater outrage than a genocide of all Jews, given the far greater number of Whites.
| | Shortly thereafter, the law school suspended Damsky and subsequently charged him with violations of the student code sections prohibiting “Disruptive Conduct” and “Harassment: Threats, intimidation, Coercion.” After an administrative proceeding at which a board recommended expulsion, Dean of Students Chris Summerlin adopted the recommendation and expelled Damsky. Damsky then filed a lawsuit in federal court alleging that his First Amendment rights had been violated. He sought, among other things, a preliminary injunction ordering that he be reinstated forthwith as a student at the law school. Last Monday, Chief Judge Winsor granted the preliminary injunction, finding, among other things, that Damksy was likely to prevail on the merits of his First Amendment claim, and ordering that Damksy be reinstated by early December. | | What can we learn from this (still unfolding) episode? For starters, we can and should appreciate the difficult rock-and-hard-place position that public universities (and private universities that have legally promised to protect expression the same way public institutions must) are in these days. As the Trump administration and wide segments of the public demand (under threats of reduced funding and patronage, among other things) that these universities protect students and faculty from the damages inflicted by antisemitism, these universities are also limited by the First Amendment in how far they can go to dissuade and punish antisemitic rhetoric. To be sure, universities can enact and enforce reasonable and content-neutral time, place, and manner restrictions on expression. And physical actions that are premised on antisemitism—for example, physically impeding mobility or committing actual battery—can be proscribed and punished. But when the antisemitic behavior takes the form of expression itself, that expression, undeniably odious and harmful, in many instances might nevertheless be protected by the Constitution from regulation that seeks to curb the speech’s harmful messages. | | Not all expression, of course, is protected by the First Amendment. Fraudulent promises, defamation and persistent harassment are all examples of unprotected speech. The two categories of unprotected speech at issue in Damksy’s case are so-called “true threats” and speech that is “disruptive” of educational operations. The district court found that neither of these exceptions to free-speech protections applies to permit the expulsion of Mr. Damsky. The case is surely a close one whose result might divide reasonable minds, and illustrates the tough judgment calls, often on a preliminary record, the First Amendment requires judges to make. Nonetheless, Chief Judge Winsor’s reasoning was flawed or inconsistent in several respects, such that his ruling stands a reasonable chance of getting reversed should the university appeal, as I would expect the university would. | | On the threat issue, Chief Judge Winsor is clearly correct in concluding that neither Damsky’s seminar writings nor his inflammatory March 21 social media post to the effect that “Jews must be abolished by any means necessary” could, either separately or together, constitute a constitutionally unprotected threat. As unnerving as Damsky’s utterances might be, they are abstract statements of belief, and are not targeted against any particular individuals the way true threats must be in order to fall outside the First Amendment. | | None of this is to say, however, that these statements of strong belief by Damsky are irrelevant to construing other, more targeted, communications he had with particular individuals about his intentions concerning potential violence. More specifically, his seemingly evasive response to the Jewish professor who asked if Damsky “would murder [her] and [her] family” takes on a more menacing meaning in light of Damsky’s earlier writings that make clear his antisemitism is neither comedic nor facetious. As Chief Judge Winsor himself seemed to acknowledge, it is not senseless to “assume that anyone uttering such commentary is more likely to act violently than someone who does not.” But then, in a passage of his opinion that seems to betray one of Chief Judge Winsor’s analytic mistakes, he quickly added: | Even if [Damsky’s academic] papers provide pertinent context to the X posts [including his exchange with the professor], further context is the law school’s recognition months earlier that those papers were [themselves] protected under the First Amendment.
| | The last part of this sentence is a non-sequitur; the fact that the papers were themselves constitutionally protected speech in no way undermines the relevance they might have to interpreting whether Damsky’s later, less abstract and more targeted, speech could reasonably be construed to contain a threat of actual violence and thus fall outside of First Amendment expression; to use Damsky’s earlier, fully protected statements to bolster a conclusion his later, particularized statements are unprotected in no way retreats from the full First Amendment protection afforded to those earlier, generic expressions. | | Whether, in context, Damsky’s response to the professor could be considered a “true threat” is a difficult question, and one on which reasonable minds might differ. On the one hand, Damsky did not answer “yes” to the professor’s question about whether he intended violence against her and her family. But an unequivocal affirmation would not be required to create a true threat. Damsky could have declined to respond at all, in which case an inference of threat would be much weaker. But he did choose to engage. When he did so, Damsky could have, but did not, answer with a “no.” And if his invocation of historian Noel Ignatiev was meant to indicate the lack of a threat, he could have easily said something to the effect of “Just as Ignatiev didn’t want Whites literally murdered, I am similarly not calling for the literal murder of Jewish people.” It seems Damksy didn’t want to walk away from the implication of a threat, and instead enjoyed creating some uncertainty about whether he did have harmful deeds in mind. If that is so, perhaps he bears the costs of reasonable fear that his game-playing creates. | | The overarching point is that context is everything, If Damsky had answered by saying “What do YOU think?” followed by a smiling-face emoji, in context that clearly could have been reasonably construed as a threat, notwithstanding that he, in Chief Judge Winsor’s words, merely “answered the question with a question.” Had the professor asked: “It sounds like you are threatening me, no?” and Damsky answered, cryptically, “Does it??????” the fact that he didn’t forthrightly answer the query, but instead answered a question with a question, does not undermine the reasonable inference of threat. | | In the end, there is room for debate over how a person in the professor’s position would reasonably perceive Damsky’s intentions. But one thing Chief Judge Winsor seemed to place weight on—the professor’s immediate reaction of not feeling threatened—is unconvincing. It’s not clear to me why the subjective reaction of the person being threatened is crucial to determining whether there is, in fact, a true, objective threat. But even if such reaction is relevant or important, surely someone could reasonably come to construe something as a threat even though her first reaction, perhaps reflecting bravado, was to suppress any feelings of fear. | | Ultimately, Chief Judge Winsor concluded that he “cannot agree that an observer would reasonably interpret [any of] Damsky’s [X] posts as threats of violence—much less school-directed threats. (emphasis in Chief Judge Winsor’s original). That, as I have suggested, is a conclusion a fair-minded jurist could reach. But I quickly add that Chief Judge Winsor’s thought process seemed marred by analytic and doctrinal flaws that undermine the credibility of his bottom-line conclusion on this point. Analytically, Chief Judge Winsor found no reasonable basis to construe any of Damsky’s communications as a threat, but then he also said that “those [individuals] reading Damsky’s words may be justifiably fearful” (emphasis added.) Chief Judge Winsor here did not merely say he understood the sincerity or genuineness of people’s fears—he said such fears were “justifiable.” Perhaps there is some space between feelings of fear that are “justifiable” and those that are “reasonable,” but there is more than a bit of logical tension present that suggests confusion in Chief Judge Winsor’s thinking. | | Such a perception of confusion is reinforced by a doctrinal mistake Chief Judge Winsor appears to have made. Right after crediting the fears people feel as justifiable, Chief Judge Winsor wrote: “But that is not the test. The test is whether Damsky’s posts constituted a 'serious expression’ that he meant 'to commit an act of unlawful violence’” (emphasis in Chief Judge Winsor’s original). In this passage, Chief Judge Winsor is quoting from the U.S. Supreme Court’s 2023 case seeking to clarify the constitutional law surrounding true threats, Counterman v. Colorado. Yet Counterman explicitly rejected the approach that Chief Judge Winsor seemingly embraced when he suggested the university must prove what Damsky meant. In Counterman, Justice Kagan’s opinion for the Court made clear that, unlike the doctrinal category of incitement (where intent of the inciter is key), “[t]he existence of a threat [for constitutional purposes] depends not on 'the mental state of the author,’ but on 'what the statement conveys’” to those in the audience, because “[w]hen the statement is [reasonably] understood as a true threat, all the harms that have long made threats unprotected naturally follow.” So even if a speaker does not “mean” to commit an act of violence, his statements creating an objectively reasonable fear that he will do so suffice to make a sanctionable threat. The Counterman Court did go on to say that, in order to avoid chilling protected speech, the government must, in order to impose liability for the utterance of a threat, show that the person uttering the threat was guilty of at least recklessness—that is, that the person uttering the threat “consciously disregard[ed] a substantial [and unjustifiable] risk that [his] conduct will cause harm to another.” But, as applied to the present case, that directs focus not on what Damsky meant to do, but on whether he knew, or was made aware, of the fear his response to the professor would engender. And on that question, the interim dean had met with Damsky before his allegedly threatening April response to the Jewish professor, explicitly to put Damsky “on notice” that members of the community were fearful of Damsky’s conduct. So if in fact Damsky’s response to the professor could, when viewed in objective context, constitute a true threat, Damsky’s lack of intent to actually commit violence is beside the doctrinal point. What matters is that he consciously disregarded a risk of harm (the harm caused by the threat itself) he was directly warned about. | | When we move from true threats to educational “disruption,” the other potentially applicable category of unprotected expression, we see that Chief Judge Winsor seemingly also fails to appreciate the nuanced nature of First Amendment doctrine. The disruption standard comes from the famous 1969 Supreme Court Tinker v. Des Moines Independent Community School District case involving middle and high school students wearing armbands to protest the Vietnam War. The Court upheld the students’ rights to express themselves in significant part because, the Court concluded, their expression (merely wearing the armbands) was not reasonably likely to be disruptive of, or interfere with, school operations. | | The Tinker standard, at least in cases like the present one, gives school administrators more leeway over their students’ speech than government regulators generally have over adult citizen speech at, say, parks and street corners, for the simple yet compelling reason that the likelihood-of-disruption standard does not require school administrators to establish that the distracting reactions that people may have to the speaker are reasonable—only that they are likely to exist. In the threat context, by contrast, government must show not only the reactions people may have, but that those reactions are themselves reasonable rather than a result of paranoia or undue insensitivity. | | The Tinker test is somewhat controversial and not always easy to apply. It is controversial because what is likely to be disruptive often turns on the content or viewpoint of the speaker; expression that affirms the status quo, that is, reflects what listeners already believe, is much less likely to be disruptive of school operations than is speech that is edgy, contrarian or transgressive. And yet the First Amendment does not generally permit government to discriminate based on the viewpoint or edginess of someone’s speech. (That is why, for example, the Court two years after Tinker struck down, in Coates v. Cincinnati, a law that proscribed “annoying” conduct in public places; such a prohibition, said the Court, impermissibly invites punishment of “those whose association together is 'annoying’ because their ideas, their lifestyle, or their physical appearance is resented by the majority of their fellow citizens.”) | | In addition to being controversial, the Tinker standard is also hard to apply, because predicting and measuring the extent of likely disruption to school operations, especially when civic education and learning how to be a citizen are themselves (according to Tinker ) part of what school operations are supposed to include, can look awfully subjective and result-oriented. | | For these reasons, whether Tinker does or should apply outside of K-12 to public university settings is far from clear. But Chief Judge Winsor, for purposes of his analysis, assumed that Tinker does apply. Yet if the Tinker framework does govern, it is hard to justify Judge Winsor’s ultimate decision that Damsky is likely to prevail on his claim. That is because, as noted above, Tinker does not by its terms require that the fear (and resulting distraction) experienced by UF law community members on account of Damsky’s expressions be deemed fully reasonable. So if it is a close question whether, under general regulatory principles, Damsky’s speech could be punished as a true threat, then the university most likely would and should win under the less rigorous “disruption” standard. Indeed, lower court cases applying Tinker are particularly deferential to school authorities when students are criticizing or attacking school teachers and administrators; speech attacking those who run K-12 schools is thought to be particularly disruptive. And recall that Damksy’s most problematic statements came in an exchange with a professor. Can anyone honestly conclude that a professor who sleeps with a baseball bat by her bed because of Damsky (as Chief Judge Winsor observed the Jewish professor who sought to engage Damsky does) is not going to be “disrupted” in her professorial duties by the knowledge that Damsky could be in the classroom or just outside in the hallway? | | Chief Judge Winsor essentially avoided this seemingly natural conclusion only by asking the same questions in both the true-threat and disruption parts of his analysis: did Damsky actually intend physical harm? But, as explained above, that is not the right question with regard to true threats, and it is certainly not the right question with regard to disruption. | | Again, perhaps Tinker ought not apply in university settings. But if the Eleventh Circuit believes that it does, or the Eleventh Circuit has a slightly different take on how reasonable the Jewish professor’s fears are based on her exchange with Damksy, we may not have seen the last twist or turn in this vexing case. |
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