Preston Damsky–the University of Florida law student who booked a seminar with a paper adopting white supremacy as a guiding constitutional principle and then was suspend for pro-Nazi social-media speech–will remain suspended. A divided motions panel stayed a preliminary injunction ordering his reinstatement to the school.
This is horrendous application of First Amendment doctrine that gives insufficient protection to college-student speech. For the majority, it was enough that his statements were somewhat ambiguous in their threatening nature (thus the school could reasonably find them to be threats), that he spoke in an online exchange with a Jewish professor, and that students and faculty were generally afraid of him because of his aggressive behavior on campus.
Kevin Newsom dissented and captures everything legally and factually wrong with the majority approach, including: 1) This is not close to a true threat; 2) There is a good argument that Tinker should not apply to colleges; 3) If it does, it should apply differently in college (and especially grad school) than in high school or elementary school, with more of a thumb in favor of the speaker and greater tolerance for controversy in an expressive institution; 4) the speech was off campus and did not mention UF; 5) this was core (if “grotesque”) political speech.
The specifics about whether Damsky continues his legal education for the moment aside, this case worries me for how the court will handle the coming lawsuits over restrictions on faculty and student speech. The court (or at least judges on it) appear less speech-protective and more deferential to educational institutions than I hoped or expected. In current times, that does not bode well.
The case now goes to a merits panel. Stay tuned.