When Fighting Hate Speech Becomes a Legal Minefield

College administrators face an impossible choice: Punish hateful speech and risk losing in court, or protect free speech and face political backlash. The case of Preston Damsky v. Chris Summerlin at the University of Florida reveals just how untenable this position has become.

Preston Damsky, a law student who openly advocated for white supremacy, posted on X that "Jews must be abolished by any means necessary" – referencing Harvard professor Noel Ignatiev's call to "abolish the White race." Chris Summerlin, the dean of students, expelled Damsky. Now Summerlin faces a lawsuit he might well lose, caught between federal judges who've issued conflicting rulings on whether the expulsion violated the First Amendment.

The legal battle centers on a fundamental question: When does offensive speech cross the line into unprotected "true threats" or campus disruption? So far, the answer depends on which judge you ask.

The Political Pressure Cooker

The backdrop matters enormously. In 2023, congressional hearings grilled university presidents from Harvard, MIT, and Penn about campus antisemitism. When asked if calling for Jewish genocide violated their codes of conduct, the presidents gave legally sound but politically disastrous nuanced answers. Liz Magill lost her job as Penn's president. Governor Ron DeSantis demanded resignations. The Trump administration launched federal probes threatening billions in funding.

For administrators watching this unfold, the message was clear: Technical First Amendment compliance wouldn't save them from career-ending backlash or funding cuts if they failed to punish antisemitic speech.

Jackie Gharapour Wernz, an attorney who advises educational institutions, explains the brutal calculus: "If they act, they may get sued for violating free-speech rights. If they don't act, they may face complaints claiming they're ignoring a hostile environment. The institution is choosing which lawsuit it wants."

Some institutions might even prefer to lose in court, she notes, "because that gives them cover later to say, We actually can't punish this speech."

The Legal Maze

Federal judges can't agree on Damsky's case. District Judge Allen Winsor ruled that the university likely violated Damsky's rights, noting that while many "would not love the idea of attending school with someone who burns crosses" or "marches in Nazi parades," the government still "may not prohibit the expression of an idea simply because society finds the idea itself offensive."

But the Eleventh Circuit Court of Appeals disagreed, finding that students "could reasonably interpret Damsky's posts as threatening violence" and that schools can regulate speech calling for illegal conduct.

The precedent this sets troubles civil libertarians. If upheld, it could mean students face expulsion for common political slogans like "abolish whiteness," "globalize the intifada," or "no justice, no peace."

Beyond Punishment: A Different Approach

Kenneth L. Marcus of the Louis D. Brandeis Center argues that anti-discrimination law remains vital for protecting Jewish students: "Administrators simply cannot wait for apparently violent threats to turn lethal before they take action."

But others question whether expulsion effectively fights antisemitism. Philosopher Dan Williams argues that establishment institutions have developed "an aversion to engaging with illiberal ideas" that's counterproductive in the internet age. When gatekeepers can't control public conversation, he suggests, they should participate in it instead.

The piece points to examples like Daryl Davis, the Black musician who convinced multiple KKK members to abandon their robes through dialogue, or New College of Florida students who converted a white nationalist classmate into an anti-racist activist.

The Broader Stakes

This case reflects a deeper institutional crisis. Universities face pressure from federal regulators, state politicians, donors, students, and faculty – all with conflicting demands about how to handle controversial speech. The result is a system where administrators make decisions based as much on political survival as legal principle.

Meanwhile, platforms like X allow figures like Nick Fuentes to reach over 1 million followers with antisemitic content, while Tucker Carlson and Candace Owens expose massive audiences to conspiracy theories. In this environment, the idea that universities can insulate students from hateful ideas seems increasingly naive.