Under the First Amendment, should public university graduate students be disciplined for online, off-campus, violence-foreboding hate speech under the same rules that apply to high school kids? Or should their offensive, internet-broached messages be judged by a more speech-protective constitutional standard that typically applies to adults in non-educational settings? Put differently, should it be easier for state universities to punish graduate students for disquieting online expression than it is for the government to penalize workaday adults in non-academic contexts for the same statements?

Those questions are center stage in the US Court of Appeals for the Eleventh Circuit in Damsky v. Summerlin. In January, a divided three-judge panel stayed (suspended) a lower court preliminary injunction that had stopped the University of Florida’s Levin College of Law (UF) from punishing third-year student Preston Damsky for an anti-Semitic X post and follow-up ones with a Jewish UF law professor.

January’s decision illustrates that the rule or test a court chooses to apply to decide if speech is protected can dramatically influence the outcome. Opting for one rule over another can prove pivotal in determining if offensive messages are safeguarded.

The hot-button, public-facing post in Damsky v. Summerlin states:

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.

Damsky previously wrote class papers arguing “that the United States was founded as a race-based nation state and that our Constitution will survive only if we share a commitment to racial nationalism.” Drafts of the papers—one helped Damsky win an academic award—had circulated among his classmates for “peer review.”

UF, which is “home to the largest Jewish student population of any [US] public university,” expelled Damsky. He sued, claiming his speech was safeguarded by the First Amendment and thus his expulsion was unconstitutional.

In concluding that Damsky’s speech “was likely not protected by the First Amendment,” the two-judge Eleventh Circuit majority applied the “material and substantial interference” test created in 1969 by the US Supreme Court in Tinker v. Des Moines Independent Community School District. Tinker involved the right of public high school and junior high students to wear peace-sign emblazoned black armbands on campus to protest the war in Vietnam.

The Tinker test provides that school administrators cannot squelch or punish such expression unless they have facts “to forecast [that it might cause a] substantial disruption of or material interference with school activities.” Applying this test in Damsky, the Eleventh Circuit majority concluded that “Damsky’s X posts disrupted UF’s learning environment and thus were subject to school regulation.” It reasoned that “when read in context, [Damsky’s] statements were reasonably interpreted as a call for extralegal violence that caused a serious disruption to other students’ educational experiences and the school’s ability to provide its services.”

What’s critical is that the majority opted to apply the Tinker test, not the test for true threats of violence. The Supreme Court has jettisoned true threats from constitutional shelter. Unlawful true threats—in contrast to protected “political hyperbole”—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,” placing the targets reasonably “in fear of bodily harm or death.”

I recently explained that Chief US District Judge Allen Winsor in November ruled in Damsky’s favor, concluding his speech likely was protected by the First Amendment largely because his “X posts do not constitute ‘true threats.’” Winsor preliminarily blocked UF from punishing Damsky for his past speech. In dissenting from his Eleventh Circuit colleagues on appeal, Judge Kevin Newsom agreed with Winsor, concluding Damsky’s abolish-Jews post “isn’t a true threat.”

Why shouldn’t Tinker apply at public universities? Professor Vikram Amar recently explained that the Tinker test:

is controversial because what is likely to be disruptive often turns on the content or viewpoint of the speaker; expression that affirms the status quo, that is, reflects what listeners already believe, is much less likely to be disruptive of school operations than is speech that is edgy, contrarian or transgressive. And yet the First Amendment does not generally permit government to discriminate based on the viewpoint or edginess of someone’s speech.

Furthermore, as Newsom wrote in his Damsky dissent, “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.” Newsom added that “however grotesquely, Damsky was engaged in political speech” while off campus, and that he’s “a 29-year-old law student, and not a grade-school student.”

Damsky now proceeds on the merits of UF’s appeal. Which test the Eleventh Circuit selects next could be outcome determinative.