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."
