The Volokh Conspiracy
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Constitutional to Expel Law Student 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 Eleventh Circuit panel concludes (by a 2-1 vote) that this is likely the right result.
From yesterday's Eleventh Circuit order in Damsky v. Summerlin, written by Judge Elizabeth Branch, joined by Judge Barbara Lagoa; note that the logic could equally apply to other posts that could reasonably be seen as advocating violence, such as "Globalize the Intifada," calls for attacks on ICE agents, and the like:
The University of Florida ("UF") expelled Preston Damsky, a law student, for posts he made on X (formerly Twitter), including one post that stated, "Jews must be abolished by any means necessary." Damsky then sued Chris Summerlin, UF's Dean of Students, arguing that UF violated his First Amendment rights. UF now appeals the district court's order granting Damsky a preliminary injunction and requiring UF to reinstate him as a student. We find that UF is likely to succeed on the merits because Damsky's speech was likely not protected by the First Amendment.
UF was allowed to regulate Damsky's speech because, particularly when read in context, his statements were reasonably interpreted as a call for extralegal violence that caused a serious disruption to other students' educational experiences and the school's ability to provide its services. Accordingly, we grant UF's motion for a stay of the district court's injunction pending appeal….
In 2024, Damsky wrote two seminar papers as part of his coursework at UF's Levin College of Law ("UF Law") in which he argued that the United States was founded as a race-based nation state and that our Constitution will survive only if we share a commitment to racial nationalism. One of Damsky's papers warned that "White America" faced a "demographic assault" and stated that if the judiciary does not remedy that issue, then overthrowing the government may be necessary if "they are to survive as masters in the land of their ancestors." In another paper Damsky argued that "[t]he hour is late, but we are not yet so outnumbered and so neutered that we cannot seize back what is rightfully ours."
Because Damsky submitted a draft of his work as part of a peer review process, other students obtained copies of his wntmg. Some of Damsky's classmates began raising safety concerns to UF and began avoiding Damsky when possible. A classmate later testified at a disciplinary hearing that when he asked Damsky what he meant to argue in his papers, Damsky confirmed that his writing made "a call for extralegal violence" or "a call for contemporary racial violence." At the time, the interim dean of UF Law decided not to take any disciplinary action against Damsky and concluded that any statements he made in his academic work were protected by the First Amendment.
A few months later, Damsky made a public post on X that stated, "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."
A Jewish UF Law professor publicly responded to Damsky from her X account asking "Are you saying you would murder me and my family? Is that your position?" Damsky replied, again publicly, "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 exchange ended with the professor responding to Damsky "I notice you didn't say no, but instead resorted to a whataboutism … Yes, his words are despicable, but you implicitly admit yours are, too."
In response to Damsky's posts, the interim dean took various measures to ensure campus safety including "increas[ing] police patrols and cameras and instituting increased security measures prior to final exams." Faculty, students, and staff also reacted to Damsky's speech:
[S]ome students skipped class or were late to class and did not feel safe disclosing the reason for their lateness or missing. Some students skipped academic activities, some students left campus, one law school staff member, who had asked to have her photograph taken down from the law school's website because of her Jewish surname, resigned, community members feared going to events on campus, and some students were spooked by loud sounds in the classroom.
Following this exchange on X, UF placed Damsky on an interim suspension and denied him access to campus. While he was suspended, Damsky was enrolled in classes and permitted to attend school remotely. After a disciplinary hearing, UF expelled Damsky….
The District Court ruled the expulsion violated the First Amendment, and ordered UF to reinstate Damsky. But the Eleventh Circuit panel stayed the District Court decision, concluding that Damsky's speech was likely unprotected against disciplinary action:
The First Amendment does not protect student speech that "materially disrupts classwork or involves substantial disorder or invasion of the rights of others." Tinker v. Des Moines Indep. Cmty. Sch. Dist. (1969). Applying Tinker, we have held that there "is no First Amendment right allowing a student to knowingly make comments, whether oral or written, that reasonably could be perceived as a threat of school violence, whether general or specific, while on school property during the school day." {While Supreme Court precedent does not clearly indicate whether Tinker applies in the university setting, this Court, in a published decision, has applied Tinker in the higher education context. See Doe v. Valencia Coll. (11th Cir. 2018).} …
UF is likely to show that Damsky's posts "materially disrupt[ed] classwork" for two reasons. First, UF students, faculty, and staff could reasonably interpret Damsky's posts as threatening violence on UP's campus, which sparked community safety concerns. Second, the UF community could reasonably interpret Damsky's posts as promoting extralegal violence, and schools can regulate at least some speech that calls for illegal conduct.
We begin with UF's argument that Damsky's posts threatened violence that caused safety concerns at UF. Damsky posted on X that his "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." A reasonable reader could understand Damsky's post and its use of the word "abolish" to mean that Jews must be murdered. See Abolish, Oxford English Dictionary (defining abolish as "[t]o put an end to, do away with (an institution, custom, or practice); to eradicate, destroy (something prevalent); to annul or make void"). {The dissent notes that Damsky's posts have other plausible interpretations. We do not claim that the only reasonable interpretation of Damsky's speech is that it threatened violence, nor is that what our caselaw requires for UF to regulate Damsky's speech.} That understanding is bolstered by Damsky's statement that 'Jews must be abolished by any means necessary." "[A]ny means necessary" can reasonably be interpreted to include violent measures. {The dissent argues that Damsky's posts were political speech, which is at the "core" of First Amendment protection. But Damsky's posts, which are reasonably interpreted as advocating for extralegal violence against a minority group, are readily distinguishable from what courts have considered political speech. Thus, we do not afford Damsky's speech, which was reasonably interpreted as advocating violence, any additional protections on the basis that it also touches on matters of political concern.}
While Damsky created some ambiguity by conditioning the meaning of his "position on Jews" on the intentions of a Harvard professor, a reasonable reader, particularly members of the UF community who were aware of Damsky's prior statements and actions, could still understand his post as a call for violence. {[T]hose past statements are relevant because they inform how UF and its community would reasonably interpret his current X posts.} For example, before the X posts that led to his expulsion, Damsky disseminated an essay to his classmates that he later confirmed was "a call for extralegal violence" and "a call for contemporary racial violence."
Additionally, when a Jewish UF Law professor replied to Damsky's post and asked if he meant that he "would murder [her] and [her] family," Damsky did not say no, which left open the reasonable interpretation that he did want to kill her and her family. Instead, he conditioned his position that Jews must be murdered on whether a Harvard professor wanted white people to be murdered. The UF professor "knew [Damsky] had already lost a job as a prosecutor based on his extreme views, which would make a reasonable person reluctant to double down in this way." Damsky's response to the professor reasonably indicated to her that "he cared more about furthering white supremacy than he cared about his future career and he also seemed to want to create ambiguity about whether he would actually carry out violence towards [the Jewish professor] and [her] family."
Further, in his X reply to the UF professor, Damsky affirmatively brought up genocide and stated that "[i]f [the previously mentioned Harvard professor] 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." Explicitly invoking genocide in connection with his statement that "Jews must be abolished" confirms the reasonableness of an interpretation that Damsky was advocating for violence.
Several other contextual facts support a reading of Damsky's post as a call for violence against Jews that could materialize on UF's campus. First, UF Law staff members reported Damsky's aggressive behavior. When he was inadvertently locked out of a UF building, Damsky began "banging, kicking, yanking the glass door and yelling, 'Let me in the F-ing door,'" to the point that multiple UF Law employees were "uncomfortable and afraid" and "concerned about [their] safety because [Damsky] seemed enraged."
Second, a news outlet quoted an interview with Damsky where he said that it would not be wrong to refer to him as a Nazi. Third, another student reported that Damsky tweeted that his "support for Palestine was simply a means to an end." {The people residing in territories operated by the Palestine Liberation Organization in Gaza and the West Bank have been in a longstanding violent conflict with Israel, a Jewish state.} So Damsky's X posts, particularly when read within the context of his other writings, statements, and actions, are reasonably understood as a credible call for violence.
Now we turn to the second reason that Damsky's posts are likely not protected speech-they promoted extralegal violence. Applying Tinker, the Supreme Court has held that under the First Amendment a school may "restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use." Morse v. Frederick. The Court emphasized that "[t]he special characteristics of the school environment, and the governmental interest in stopping student drug abuse … allow schools to restrict student expression that they reasonably regard as promoting illegal drug use." Like the school in Morse, UF is permitted to punish Damsky because, as discussed above, he made statements that were reasonably viewed as promoting illegal activity (murdering Jews). Morse and this case involve speech reasonably interpreted as promoting different illegal actions but the special characteristics of the school environment and the strong governmental interest in stopping violence on campuses likely warrant the same outcome we reached in Morse.…
It is true that the Supreme Court in Mahanoy Area School Dist. v. B.L. (2021) held that a school violated a student's First Amendment rights by punishing her for off-campus online speech. While Damsky also engaged in off-campus online speech, Mahanoy is nonetheless distinguishable. The Mahanoy Court considered the fact that the student's speech "did not identify the school in her posts or target any member of the school community with vulgar or abusive language." By contrast, Damsky's posts were sufficiently connected to UF. Damsky knew "at the time of making the statements on X that some members of [the UF] community perceived him as a threat," and that community members viewed his tweets. In addition, Damsky's speech involved a direct conversation with a UF law professor. Finally, his speech could be reasonably perceived as targeting members of the school community. There is a "large and engaged Jewish community" at UF and the professor Damsky exchanged posts with was Jewish. So, his statement that "Jews must be abolished by any means necessary" necessarily encompassed members of the UF community.
Yet another distinction is that the Court in Mahanoy considered the student's First Amendment interests and the school's interest in avoiding the potential disruption that speech would cause and found that there was "no evidence" of a substantial disruption. Here, however, there is strong evidence that Damsky' s speech created a substantial disruption of the school's activities. And the disruption in this case-a credible fear of targeted violence-is one of the most severe disruptions imaginable….
Judge Kevin Newsom dissented:
As an initial matter, the University hasn't made the requisite showing, and the Court today doesn't conclude, that Damsky's X post was a "true threat." That is so for the reasons well explained in Judge Winsor's order. "True threats" are limited to "'serious expression[s] conveying that a speaker means to 'commit an act of unlawful violence.'" Under the Supreme Court's true-threat doctrine, even advocacy of the use of force is protected unless it "is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio (1969).
However shocking, Damsky's post isn't a true threat. While it could reasonably be interpreted to advocate force, that's not the only—or even necessarily the most logical—interpretation. As the Court itself notes, Damsky's post "created some ambiguity by conditioning the meaning of his 'position on Jews' on the intentions of a Harvard professor." In any event, the post simply isn't sufficiently specific or targeted to suggest an intention to incite or produce "imminent lawless action," nor was it likely to do so….
The real question—which the Court makes the centerpiece of its analysis—is whether Tinker and its progeny justify Damsky's expulsion. I don't think they do.
I should acknowledge at the outset that I've previously expressed skepticism that Tinker's deferential (which is to say less speech-protective) framework should even apply in the university setting. So far as I can tell, the existing caselaw sends "mixed signals"—on the one hand affirming the "undoubted prerogative" of state universities "to enforce reasonable rules governing student conduct," Papish v. Bd. of Curators of Univ. of Mo. (1973), while on the other hand emphatically rejecting "the view that, because of the acknowledged need for order [in state educational institutions,] First Amendment protections should apply with less force on college campuses," Healy v. James (1972).
But alas, it seems that both the Supreme Court and this Court have (however unreflectively) invoked Tinker in the university setting. So I'm willing to stipulate that, at least as a conceptual matter, Tinker and its progeny apply here. For reasons I'll explain, though, I don't think that means they apply jot-for-jot….
Why is Damsky's odious and ignorant X post likely protected by the First Amendment? In short, because he's a 29-year-old graduate student engaged in off-campus speech of a political nature that wasn't directed at or connected to the school in any meaningful way.
Damsky engaged in off-campus speech. Like the schoolgirl in Mahanoy, Damsky engaged in off-campus, rather than on-campus, speech. Accordingly, for the same three reasons the Court specified there, whatever interest the University might otherwise have in restricting Damsky's expression is "diminished." First, the University doesn't stand in loco parentis with respect to Damsky's off-campus speech—in fact, the University doesn't stand in loco parentis to an adult like Damsky at all. Second, if, in addition to whatever restrictions it might impose on students' on-campus expression, the University can punish Damsky for content that he posts to his own social media account on his own time, then it risks (over)broadly curtailing his speech rights. And third, if secondary schools are "nurseries of democracy" and "marketplace[s] of ideas," then a fortiori a university—and perhaps even more so a law school—must likewise have a keen interest in protecting Damsky's unpopular expression, even if it "disapprove[s] of what [he] say[s]." So, for exactly the same reasons that the off-campus-ness of the young cheerleader's Snapchat rant "diminished" the strength of whatever "special characteristics" might otherwise have justified her suspension from the squad, the off-campus-ness of Damsky's X post "diminishes" the strength of the University's interest in expelling him. None of this, of course, is to say that a school—or even a university—can never regulate a student's off-campus speech, just that it bears a heavy burden if it wants to do so.
Damsky's speech wasn't directed at the University. Again, like the cheerleader's speech in Mahanoy, Damsky's post wasn't directed at the school or any of its constituents. Indeed—and yet again—this case would seem to follow a fortiori from Mahanoy. Recall the girl's post: "Fuck school fuck softball fuck cheer fuck everything." If that didn't "target any member of the school community"—despite its express reference to "school" and school-sanctioned extracurriculars—then it's hard to imagine how Damsky's—which didn't so much as mention UF or any of its students or faculty members—could.
To be sure, lesser protection would attend, for instance, "serious or severe bullying or harassment targeting particular individuals" and "threats aimed at teachers or other students," with respect to which schools may continue to have "significant" regulatory interests. But, again, Damsky's X post wasn't directed at the University. In suggesting otherwise, the Court, it seems to me, is stretching. It appears to say, for instance, that because Damsky might have known that some UF students "perceived him as a threat," and because UF has a large Jewish community, his post was directed at the school and targeted its constituents.
With respect, I don't think that follows. Surely, the sort of directedness and targeting that matters for First Amendment purposes must be of the speaker's own making. For similar reasons, the fact that a UF professor chose to engage with and comment on Damsky's X post does not indicate that Damsky "target[ed]" her. That professor directed her speech at Damsky, not vice versa….
To be sure, Damsky replied to a UF professor's response to his initial post. Seemingly to underscore what it sees as the violent nature of Damsky's speech, the Court emphasizes that when the professor "asked if [Damsky] meant he 'would murder [her] and [her] family," Damsky "did not say no"—and thereby "left open the reasonable interpretation that he wanted to kill [the professor] and her family." Surely, though, Damsky's non-response—his silence—also left open the equally plausible interpretation that he had no such desire or intention. He simply didn't (in the Court's estimation, adequately) clarify the meaning of his original post; he "answered the question with a question." … He posed "two rhetorical questions" {"Did Ignatiev want Whites murdered? If so, were his words as objectionable as mine?"} and "a conditional statement" {"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."} about the meaning of a Harvard professor's words. That "is far from the kind of detailed, specific" language that constitutes a "school-directed threat." …
Damsky is a graduate student. Even on the assumption that Tinker isn't categorically inapplicable in the university setting, the fact that Damsky is a 29-year-old law student, and not a grade-school student, must surely count for something in the free-speech calculus. In fact, I think it counts double. First, for their part, universities simply don't have the same interest in maintaining "order and decorum," or even in "protect[ing], guid[ing], and disciplin[ing]" students, that primary and secondary schools do. College is where people go to learn how to do the hard work of adulting. Universities can't—and shouldn't—exercise the same degree of control over their students' thoughts, statements, and actions that elementary, middle, and even high schools do.
Second, for their part, university students surely have greater speech interests than do their grade-school counterparts…. [T]he Supreme Court (even in the course of applying Tinker in a university setting) has expressly rejected "the view that … First Amendment protections should apply with less force on college campuses than in the community at large," and it has repeatedly emphasized the First Amendment's centrality to the university experience.
Damsky engaged in political speech. However grotesquely, Damsky was engaged in political speech, which the Supreme Court has repeatedly held occupies the very "core" of the First Amendment's guarantee. {And to be clear, even if Damsky's X post could be understood to sanction political violence—as I think it arguably could be—that fact alone wouldn't strip it of constitutional protection. For good or ill, the "mere advocacy of illegal acts," without more, is "a kind of speech falling within the First Amendment's core."} …
H. Christopher Bartolomucci and Justin Miller, who are my colleagues at Schaerr Jaffe LLP (where I'm a part-part-part-time academic affiliate), and Brande Smith (University of Florida) represent Summerlin. I have not been involved with Schaerr's work on this case, and I put this post solely because of my interest in the subject matter.
