When Does Student Speech Become a True Threat: The University of Florida Law-Student Expulsion Case

Introduction

The boundary between protected offensive speech and punishable threats is one of the most contested areas of First Amendment law. The Supreme Court has held that true threats, statements through which a speaker communicates a serious intent to commit an act of unlawful violence against a particular individual or group, fall outside First Amendment protection. In Virginia v. Black (2003), the Court clarified that even deeply offensive symbolic expression like cross burning cannot be categorically banned merely because it is upsetting. The case of Preston Damsky at the University of Florida Levin College of Law brings this doctrine into sharp focus in the university setting, where institutions must balance their obligations to protect student safety against the robust free speech protections that apply at public universities.

Facts of the Case

Preston Damsky was a 29-year-old law student at UF's Levin College of Law. In the fall of 2024, Damsky submitted a seminar paper titled "National Constitutionalism" in a course on originalism co-taught by U.S. District Judge John L. Badalamenti. The paper argued that "We the People" in the U.S. Constitution referred exclusively to white Americans and proposed disenfranchising non-white citizens. The paper received the "book award" for earning the highest grade in the class. The university later clarified that the award was automatically given based on grades and did not reflect endorsement of the views expressed. Interim Dean Merritt McAlister initially defended the grading, citing academic freedom and institutional neutrality.

In early 2025, Damsky posted statements on X promoting white supremacist and antisemitic views. He described Jewish people as parasitizing the West and called Jews the common enemy of humanity. On March 21, 2025, Damsky posted that "Jews must be abolished by any means necessary," referencing Harvard professor Noel Ignatiev's controversial academic argument about abolishing whiteness as the conceptual basis for his statement.

A Jewish law professor responded publicly, asking whether Damsky was saying he would murder her and her family. Damsky replied with further commentary about the academic debate he believed he was referencing. While the professor initially said she was not personally alarmed, many students and several faculty members expressed significant fear. Some students reported feeling unsafe attending class with Damsky and worried he might bring a weapon to campus, though the record contained no evidence he had made direct threats, suggested violent intent, or possessed weapons. One professor began keeping a baseball bat at her desk. Another professor resigned.

On April 2, 2025, the university suspended Damsky, barred him from campus with a three-year trespass warning, and increased police presence at certain events. UF charged Damsky with disruptive conduct and harassment under the Student Conduct Code, using his seminar papers and X posts as primary evidence. After an administrative proceeding at which Damsky presented evidence and cross-examined witnesses, a board recommended expulsion. Dean of Students Chris Summerlin adopted the recommendation and expelled Damsky in August 2025.

The District Court Ruling

Damsky filed a federal lawsuit on September 14, 2025, alleging his expulsion violated his First Amendment rights. He sought a preliminary injunction requiring reinstatement. On November 24, 2025, Chief Judge Allen Winsor of the Northern District of Florida granted the injunction and ordered UF to return Damsky to normal standing by December 1.

Judge Winsor found that Damsky had shown a substantial likelihood of success on the merits because UF had not demonstrated that any of his speech fell into an unprotected category such as true threats or incitement. Citing Virginia v. Black, Winsor emphasized that even hateful or deeply offensive expression cannot be categorically banned simply because it is upsetting. The court noted that Damsky's X posts reached only about 25 followers. The judge acknowledged Damsky had been a controversial figure who seems to enjoy pushing boundaries and provoking others but concluded his comments constituted protected political speech.

The court found irreparable harm because being excluded from campus and classes because of protected speech is itself a continuing constitutional injury. The court further concluded that the balance of harms and the public interest weighed in favor of the injunction, noting that UF has no legitimate interest in violating the First Amendment to achieve the goal of maintaining order.

The Eleventh Circuit Stay

UF appealed and sought an emergency stay. On January 23, 2026, a three-judge panel of the Eleventh Circuit stayed the preliminary injunction, ruling that UF could not be forced to readmit Damsky while the lawsuit proceeded. Two of the three judges found his statements were likely not protected by the First Amendment and cited a strong public interest in mitigating campus violence. A third judge dissented, concluding the speech was protected.

On February 3, 2026, UF asked the full Eleventh Circuit to overturn the preliminary injunction entirely, arguing that Damsky's statements, including the post about abolishing Jews by any means necessary, constituted true threats that substantially disrupted university operations. The Louis D. Brandeis Center for Human Rights Under Law filed an amicus brief on behalf of more than 130 Jewish students and professors at UF, arguing the district court's ruling was inconsistent with settled legal principles and ignored the documented effect on the Jewish community at UF Law. A trial was set for May 2026.

Legal Analysis

The case presents several intertwined doctrinal questions. First, did Damsky's speech constitute true threats? Under Virginia v. Black and Counterman v. Colorado (2023), the speaker must have some subjective understanding that his statements could be perceived as threatening. Damsky framed his posts as academic engagement with an existing scholarly argument about abolishing whiteness. The district court found the university had not met its burden of showing the statements crossed the line from advocacy to threat.

Second, did the speech cause a substantial disruption under the framework applicable to student speech? While the Tinker substantial disruption standard was developed for K-12 settings, the Eleventh Circuit has noted in prior cases like Speech First v. Cartwright (2022) that applying Tinker in higher education is a poor fit and that university students generally enjoy broader speech protections. The ACLU filed an amicus brief arguing that Tinker should serve as a floor, not a ceiling, for university speech protections.

Third, there is the question of whether off-campus social media posts should be treated differently from on-campus speech. The Supreme Court's decision in Mahanoy Area School District v. B.L. (2021) held that schools have diminished authority to regulate off-campus student speech, though that case involved a K-12 student. Damsky's posts were made on X from off campus, raising questions about the extent of a university's authority to punish off-campus expression.

Conclusion

The Damsky case sits at the intersection of true-threat doctrine, campus safety obligations, and the robust free speech protections that attach at public universities. The Eleventh Circuit's ultimate ruling will shape the balance between institutional authority to maintain a safe learning environment and the constitutional rights of students to express offensive, even abhorrent, political views. The case will likely be cited for years as courts across the country grapple with how to handle deeply provocative student speech in an era of heightened campus tensions.