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."} …