Maybe it’s merely a manifestation of our uncivil, politically polarized times, but disputes involving whether hateful or otherwise offensive social media messages cross the line separating “uninhibited, robust, and wide-open” free expression from speech falling beyond First Amendment protection are prevalent. I’ve recently: examined a professor’s successful lawsuit against officials at his public university for punishing him over an online remark about Charlie Kirk; explored differences between hate speech, true threats, and incitement to violence following Attorney General Pam Bondi’s call for targeting hate speech; and addressed “the chilling effect younger people feel” about speaking out in controversial fashion due to potentially negative consequences. Here’s another hot-button, online-speech controversy.
Imagine you’re a dean at a public institution—the University of Florida (UF) Levin College of Law—and a second-year student posts this on X in March 2025:
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.
The student asserts he uploaded the post “while off-campus and on Spring Break.” About two months earlier, however, President Donald Trump issued an order observing that “Jewish students have faced an unrelenting barrage of discrimination” and deeming it US policy “to combat anti-Semitism vigorously, using all available and appropriate legal tools, to prosecute, remove, or otherwise hold to account the perpetrators of unlawful anti-Semitic harassment and violence.”
Complicating matters, the student had written two seminar papers the previous semester “that generally argue the United States was founded as a race-based nation and should be preserved as such.” He’d publicly received a “book award” for best grade in one seminar—an honor subsequently sparking a New York Times article.
Do you punish the student for his abolish-Jews post, or do you deem it safeguarded by the First Amendment and take no disciplinary action? UF chose the former, asserting that “students, faculty, and the Dean of UF Law viewed the post as threatening violence against Jews.” It argued “the phrase ‘by any means necessary’ was . . . threatening” because it “conveys a willingness to use violence to achieve one’s aims.” UF initially “placed [Preston Terry] Damsky on interim suspension [and] excluded him from campus” and later expelled him. Damsky sued in September, asserting “a claim of First Amendment retaliation.”
In late November, Chief US District Judge Allen Winsor ruled for Damsky, concluding UF had “not met its burden to show that it could punish Damsky for any of his speech consistent with the First Amendment.” Winsor issued a preliminary injunction ordering UF to “return Preston Damsky to normal standing” and not to take “adverse actions” against him based on his X post, a follow-up X exchange with a Jewish UF law professor regarding Damsky’s “position” on Jews, and his seminar papers.
It was only a preliminary injunction, however, not a final trial on the merits of Damsky’s case. Indeed, the US Court of Appeals for the Eleventh Circuit temporarily stayed Winsor’s injunction in early December while UF appeals. Nonetheless, Winsor’s decision makes important observations about why Damsky’s abolish-Jews post might not constitute an unprotected true threat.
True threats are a “historically unprotected category of communications.” The Supreme Court defines them to include “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” (emphasis added). The Court recently explained that:
The “true” in [true threats] . . . distinguishes what is at issue from jests, “hyperbole,” or other statements that when taken in context do not convey a real possibility that violence will follow (say, “I am going to kill you for showing up late”).
In concluding that UF had “not shown that any of Damsky’s speech constituted a ‘true threat,’” Winsor reasoned that:
even taking the statement as [UF] does—“My position on Jews is simple: . . . Jews must be abolished by any means necessary”—Damsky offers no indication that he will act on his “position” or do anything at all. He is stating a view—even if a hateful and offensive one.
Winsor added that the post lacked “characteristic features” of true threats such as “personal, targeted imminence” of violence. Furthermore, he noted that Damsky “expressly conditioned” abolishing Jews “on ‘whatever Harvard professor Noel Ignatiev meant.’” In sum, Winsor concluded Damsky’s post was not “a ‘serious expression’ that he meant ‘to commit an act of unlawful violence.’” (emphasis in original). Instead, it was merely “offensive expression,” something the Supreme Court has long safeguarded.
Whether Winsor’s preliminary parsing of the difference between protected offense and unlawful threats holds up will test critical constitutional boundaries in our contentious, quarrelsome times.
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