The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Court Orders Reinstatement of Law Student Expelled for Writing "[W]hatever Harvard Professor Noel Ignatiev Meant by … '[A]bolish the White Race by Any Means Necessary' … Must Be Done with Jews"
An excerpt from today's long opinion by Chief Judge Allen Winsor (N.D. Fla.) in Damsky v. Summerlin, which I think is likely correct:
Damsky has been a controversial figure at the law school since he enrolled. He seems to enjoy pushing boundaries and provoking others. He achieved that and more with two seminar papers and one social media exchange that ultimately became the basis for his expulsion.
In the fall semester of his second year, Damsky wrote two seminar papers that generally argue the United States was founded as a race-based nation and should be preserved as such. He concluded each paper with what some perceived as extralegal calls to violence. In American Restoration, Damsky offered this view:
[W]e should feel no shame about feeling attached to those with whom we share a common racial origin. The founding generations of Americans were also no strangers to fighting, killing, and dying on behalf of their rights and sovereignty. The hour is late, but we are not yet so outnumbered and so neutered that we cannot seize back what is rightfully ours. This land, America, our due inheritance, is worth the struggle.
In National Constitutionalism, Damsky went perhaps further:
The Supreme Court and inferior federal courts have the power to arrest the dispossession of White America…. If the People are not granted relief from the government—which includes the judiciary—then, if they are to survive as masters in the land of their ancestors, they must exercise "their revolutionary right to dismember or overthrow" the government. And that will be a process which no deskbound jurist can gleefully look forward to; for it will be a controversy decided not by the careful balance of Justitia's scales, but by the gruesome slashing of her sword.
Neither of Damsky's seminar professors found his language particularly alarming, and both gave him high marks. Still, the papers garnered attention. Many students found them upsetting, and some insisted the law school take action. The law school refused any discipline, though, concluding the writings did not constitute true threats, were not significantly disruptive, and enjoyed First Amendment protections….
[T]he semester continued without incident—at least until Damsky's March 21 X post:
My position on Jews is simple: whatever Harvard professor Noel Ignatiev meant 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.
This post was immediately available to Damsky's few X followers (Damsky said he has "almost no following"), as well as anyone else who happened across his public account. Law student S.J. saw the post and found it upsetting but not, by itself, alarming. A week later, S.J. reported the post to the Interim Dean. A few days after that, on April 1, one of the University's Jewish law professors engaged with Damsky on X. Replying to his post, she asked, "Are you saying you would murder me and my family? Is that your position?" Damsky offered this in reply:
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.
The next day, the professor continued to engage:
I notice you didn't say no, but instead resorted to whataboutism. Yes, his words are despicable, but you implicitly admit yours are, too.
(The professor's post included a link to a Brittanica Encyclopedia article about "whataboutism.")
At the time, the professor considered the exchange provocative but not alarming or threatening. Other professors and many students, however, found Damsky's posts quite alarming and threatening. Some students were visibly upset, and many came to the Assistant Dean's office crying and describing their fears. Students feared physical harm, and expressed concern that Damsky might come to school armed. {The record suggests students' concerns of physical harm flowed from Damsky's rhetoric alone and not from any separate indication that he might be armed or violent.}
The professor who had engaged with Damsky on X, and who initially did not feel threatened, later grew afraid of what Damsky might do after she heard from students more familiar with him. She and her husband slept with a baseball bat by the bed. Springing into action, the law school increased campus security, began locking doors previously kept unlocked, and provided a police presence at a Jewish Law Students Association event. Then, on April 2—twelve days after Damsky's first post and one day after his follow-up exchange with the professor—the University suspended Damsky.
Damsky was eventually expelled:
In his letter, [University of Florida Dean of Students] Summerlin described Damsky's X posts as threatening and disruptive. And Summerlin described the seminar papers—the ones the Interim Dean earlier concluded were protected speech—as containing "violent rhetoric" that injected fear into the law school community. Summerlin also admonished Damsky for declining to "walk back" what he wrote….
But the court concluded that the expulsion likely violated the First Amendment. First, it concluded that Damsky's posts weren't "true threats" of violence (a category of speech that the Supreme Court has held is excluded from First Amendment protection):
Read in context, Damsky's statements "do not convey a real possibility that violence will follow." Even if ostensibly referring to violence, a hyperbolic and coarse expression of political opinion does not necessarily constitute a true threat. Thus, a draft opponent's public announcement that "[i]f they ever make me carry a rifle the first man I want to get in my sights is L.B.J.," was protected speech. Watts v. United States (1969). His statement did not, in context, constitute a true threat. See also id. (noting that "[t]he language of the political arena … is often vituperative, abusive, and inexact").
Here, even taking the statement as the University does—"My position on Jews is simple: … Jews must be abolished by any means necessary"—Damsky offers no indication that he will act on his "position" or do anything at all. {The ellipses are the University's. As Damsky notes, and as discussed more fully below, what the ellipses skip over is important context.} He is stating a view—even if a hateful and offensive one. His statement is thus quite unlike those in the true-threat cases the University cites.
The threat in United States v. Ramos (M.D. Ga. 2024) was an individual message sent "to the home address of a Rabbi who had been speaking publicly against antisemitism following a neo-Nazi demonstration at her synagogue." The private letter—a "typical means for delivery of threats"—said, among other things, "Use code 'GASTHEJEWS' for 10% off!." The threat in United States v. Baker was unequivocal in target, location, and time: "[A]rmed racists mobs" at the state capitol on Inauguration Day would be met with "every caliber available," and those who were "afraid to die fighting the enemy" were advised to "stay in bed and live." Damsky's posts lacked those characteristic features of personal, targeted imminence.
Moreover, Damsky's post was not simply that "Jews must be abolished by any means necessary." His full statement was this:
My position on Jews is simple: whatever Harvard professor Noel Ignatiev meant 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.
Read in context, the post was equating Damsky's view that "Jews must be abolished" to the view of a Harvard professor. This context further undermines any suggestion that the post was a "serious expression" that Damsky would harm others.
The University says the reference to Ignatiev means little because most people are unfamiliar with Ignatiev and because Damsky did not explain that "Ignatiev was not calling for violence." Regardless, Damsky's post expressly conditioned "abolish" and "any means necessary" on "whatever Harvard professor Noel Ignatiev meant." That makes the University's reference to Black's Law Dictionary (quoting definition of "Abolish") inapposite. {Tellingly, the witnesses who considered Damsky's reference to Ignatiev (whether or not they agreed with Damsky's interpretation of the author) did not find the March 21 post clearly threatening. Cf. Watts (considering the audience's reaction as relevant context).}
Similarly, Damsky's other post—his April 1 response to the professor—was no serious expression of a real intent to harm. The post referenced Noel Ignatiev again and asked rhetorically what he wanted when he wrote about abolishing the white race. Notably, the professor to whom he directed his post did not interpret it as a threat to harm her or her family. In fact, she responded with a witty reference to "whataboutism" and a link to an encyclopedia article.
The University makes much of the fact that when asked if he was saying he would murder the professor and her family, Damsky did not say no. True, but neither did he say yes. He answered the question with a question. The overall context of Damsky's exchange with the professor reveals a perhaps course and crude debate on tolerable academic thought, but it does not express a serious intent to commit violence.
That his posts "came on the heels of his two seminar papers" does not undermine that conclusion either. Even if the papers provide pertinent context to the X posts, further context is the law school's recognition months earlier that those papers were protected under the First Amendment. And those papers—pure speech—are different than the kind of violent context that sometimes renders an expression a true threat. See, e.g., Planned Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life Activists (9th Cir. 2002) (wanted-style posters "acquired currency as a death threat" after three murders); United States v. Hart (8th Cir. 2000) (use of Ryder truck to protest abortion clinic could be viewed as "true threat" because it was the same style truck used in the then-recent and widely reported Oklahoma City bombing).
To be sure, those reading Damsky's words may be justifiably fearful. Some may assume that anyone uttering such commentary is more likely to act violently than someone who does not. 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." Many would not love the idea of attending school with someone who burns crosses, cf. Virginia v. Black (2003), marches in Nazi parades, cf. Nat'l Socialist Party of Am. v. Vill. of Skokie (1977), or engages in countless other forms of offensive expression. But "the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Snyder v. Phelps (2010) (quoting Texas v. Johnson (1989)).
The court also rejected the argument that Dansky could be disciplined on the grounds that his speech was "materially disruptive." It noted that it was unclear whether the "more deferential First Amendment standard" from Tinker v. Des Moines Indep. School Dist. (1969) that allows restricting student speech to prevent disruption was applicable to university student speech (as opposed to the K-12 speech in Tinker). But, even if that standard was applicable, the court concluded that Dansky's speech wasn't reasonably perceived as threatening, and thus wasn't sufficiently "disruptive" on that score. It then reasoned:
Without a showing that Damsky's speech constituted a school-directed threat, the University is left without much of a Tinker argument. In fact, it has not articulated any other basis under Tinker to discipline Damsky for his speech. The entirety of its disruption argument is tied to the purported threat.
The University does not argue, for example, that the offensive nature of Damsky's speech or students' strong disagreement with it—even when manifested as an outpouring of students' concern, including crying or anxiety—constitutes the type of "disruption" that would justify restricting the speech. {The Second Circuit's reasoning in Leroy v. Livingston Manor Central School District (4th Cir. 2025) is persuasive here. There, a high school student's social media post generated community outcry and demonstrations. The court noted, however, Tinker's relevant question is "disorder or disturbance on the part of the" speaker. And tying a speaker's free speech rights "to the reaction that speech garners from upset or angry listeners" cannot be squared with Tinker or First Amendment principles. I agree. See also, e.g., Mahanoy Area Sch. Dist. (Alito, J., concurring) (noting speech on sensitive subjects like politics and social relations may "disrupt instruction and good order on school premises," but "it is a 'bedrock principle' that speech may not be suppressed simply because it expresses ideas that are 'offensive or disagreeable'").}
Nor does [the University] argue any interest in restricting Damsky's speech to "inculcate the habits and manners of civility." Cf. Scott v. Sch. Bd. of Alachua County (11th Cir. 2003) (quoting district court and upholding high school principal's policy prohibiting display of Confederate flag on school property). Instead, its Tinker argument turns exclusively on its insistence that Damsky's X posts were school-directed threats.
At bottom, schools "have a heavy burden to justify intervention" as "to political … speech that occurs outside school or a school program or activity." The University has not met that heavy burden here.
