The University of Florida expelled a white nationalist from its law school over antisemitic posts and “disruptive” conduct. He sued, and First Amendment experts say this challenge to the state’s flagship university may demonstrate new legal territory for how far a public institution could go in disciplining a student for speech.
This comes at a time when the DeSantis administration has touted the university to be a pivotal model of free speech. UF expelled Preston Damsky, a then-law school student, in August over posts the university considered antisemitic and threatening.
But First Amendment experts say speech could only be punished if it crosses the line into a threat of violence. That’s currently in question in this federal lawsuit in the Northern District of Florida.
Damsky and the university’s attorneys argued for 90 minutes Oct. 29 before U.S. District Judge Allen Winsor. Damsky’s attorney, Anthony Sabatini, argued that the 29-year-old former law student’s First Amendment rights were being violated by the university.
But UF countered, saying his posts caused substantial disruption in the law school community and made several people fear for their safety.
Yet establishing whether Damsky was presenting a true threat is a high standard, said Gary Edinger, a Gainesville First Amendment attorney. The university considered his posts on X a true threat, where he referenced a controversial historian and said that “Jews must be abolished by any means necessary.”
Edinger said he didn’t believe the posts met the standard to be a true threat, and the university would be tasked with arguing to the judge that Damsky’s conduct was substantially disruptive over just simply disruptive under legal standards.
“Some individual students were concerned, but to me that kind of upset is what comes from controversial speech and generally speaking, government, including universities, aren’t supposed to be the arbiter of controversial speech,” Edinger said.
Damsky declined to comment at the court hearing, but his case has grown in relevance over recent months after being the center of controversy among the law school community. He promoted white supremacist values in his seminar class papers, including one where he argued that “We the People” in the Constitution only applied to white people. He obtained a book award for this classwork, a law school recognition to the student with the highest grade in the class.
First Amendment scholars also express concern with the arguments presented in this case, particularly referencing one Supreme Court ruling from the 1960s that set the standard for substantial disruption, for schools to regulate speech only if it interfered with the functioning or operations.
Kevin Goldberg, an attorney and First Amendment expert at the Freedom Forum, said he didn’t believe this case applied in this case because it was a standard set for K-12 public schools, not higher education. Goldberg also said other First Amendment cases may protect Damsky’s speech further, since he posted off campus.
But the case is primarily focused on whether Damsky’s conduct was substantially disruptive and a true threat to the campus, and Goldberg said although discomfort may arise from his comments, discomfort is not enough to combat free speech claims.
“True threats are a narrow category,” Goldberg said. “It’s not about the actions or feelings of the listener, it’s about the intent of the speaker.”