Preston Damsky is a 2L at University of Florida who gained national attention last spring when he won the Book Award for an originalism seminar with a paper arguing that “we the people” includes only white people. As that controversy blew up, the universityexpelled Damsky over some social-media posts (discussing . At the time (I cannot find my posts on the new site), I argued that the suspension violated the First Amendment, as nothing described in the news stories (such as “Jews must be abolished by any means necessary”) fell outside the First Amendment.
The Northern District of Florida agreed yesterday. Damsky’s speech does not constitute a true threat. And, even if Tinker applies to universities, UF failed to show Damsky made school-directed statements that could cause school disruption (along with a footnote suggesting that disruption must come from the speaker, not from public reaction to the speech).
So Damsky gets back into school and presumably graduates. Then what? Can the Bar conclude that someone fails character-and-fitness based on protected-but-obnoxious speech? Could a government office (e.g., the States’ Attorney’s Office) refuse to hire him because of his speech?
This then becomes an example of a moot court problem I mentioned: Does Pickering apply to pre-employment speech and allow a public office to not hire someone soley because of that pre-employment speech (if it would interfere with the office), just as the office could fire him because of the same speech if made during-employment speech if it interferes with the office? On one hand, the concerns underlying Pickering–efficient and effective government operations–apply regardless of when the speech occurred; Damsky’s antisemitic speech harms the workplace and his ability to do his job had it been made the day after he was hired than the day before. On the other hand, this could chill protected speech by those who someday might seek public employment–public discourse is limited to what public employees can say.
We can see Pickering as a sort-of waiver: A person exchanges limits on his speech rights for the job. But Damsky and other non-employees did not make that exchange at the time he engaged in this speech. I think there is something to this question.