A ubiquitous rationale for most of the truly dumb things that university administrators and faculty do is that they are providing a “safe and inclusive environment.” It was always obvious nonsense, as doing cartwheels for one identity group meant making changes that would leave out or harm another. But what happens when a professor, maybe even a student’s faculty advisor, publicly calls for death?

Now I’m no expert in emojis, but that knife, hatchet and three drops of blood seem pretty bad. The problem is that as disgusting as her twit may be, it’s not a “true threat” under the law, lacking any call for imminent action, but rather a general threat. But then, this is a professor at UC Davis and surely doesn’t contribute to a safe and nurturing environment for a student who happened to be Jewish. What to do?

UC-Davis history professor Jemma DeCristo faces some internal and external troubles over a tweet reading “[One] group of ppl we have easy access to in the US is all these zionist journalists who spread propaganda & misinformation,” she wrote. “They have houses w addresses, kids in school. They can fear their bosses, but they should fear us more,” followed by emjois of a knife, an ax, and blood droplets. DeCristo has been disappeared from Twitter and from Davis’ web site. Many people, including free speech maximalists, believe this crosses the First Amendment line, uniquely among the various rallies, tweets, and statements (including from DeCristo) celebrating the October 7 massacre, the fire at the Israeli embassy in Jordan, the firebombing of the Berlin synagogue, etc.

I do not see why this tweet–as despicable as it is–crosses a First Amendment line that similarly reprehensible speech has not. It does not reach incitement–it does not urge specific action at any time and place, certainly not imminently, and thus is unlikely to lead to such imminent lawless action. It does not reach true threat–it does not mention or address any particular person or group in any time or place, making it, at best, against all Jews (or at least all Jewish journalists). The emojis do not make the threat more specific in time or place. And the norms (such as they) surrounding emojis on social media arguably push this away from a threat and into rhetorical hyperbole.

If it’s not a true threat, then it’s protected First Amendment speech and a state university cannot punish a speaker for expressing protected speech. As Howard Wasserman adds at the end, there is a federal case out of Florida that rejected the “true threat” analysis, but it’s neither precedent nor principled. Sometimes, a judge just doesn’t care. But does the fact that it’s protected speech mean DeCristo gets a stern look and then continues to get her paycheck?

I agree that the hateful outburst of Jemma Decristo, who is a professor at UC-Davis, would not qualify as a true threat and therefore would be protected expression. (Not wholly incidentally, she is not a history professor, as Howard writes, but an American Studies professor.) Of course it should be treated as such, and one should resist the urge to move from a reasonable position–condemning it, pointing out that she is yet another person who proves that being a professor or having a doctorate may lead to a rebuttable presumption that one is educated but tells us nothing about whether one is or is not an idiot, and so on–to demanding her firing or even, in my view, her removal from the classroom.

A Ph.D. can also be an idiot? Who knew? (Orin Kerr did, of course.) Yet, Paul Horwitz argues that being an idiot isn’t a good enough reason to ignore First Amendment law and levy punishment.

I would worry about a dynamic in which Prof. Decristo was removed from her apparent position as an undergraduate advisor mostly to avoid bad press to the university or as a result of public pressure. I would worry a lot less about a dynamic in which her actions lead her department, or the dean of the UC Davis faculty of arts and sciences, to realize that they accidentally allowed an idiot to become an undergraduate advisor, and that they ought to rectify that error. After all, “free-speech maximalists,” like “free-speech minimalists” or “cancel-culture minimizers,” agree that speech has consequences–even, sometimes, state-enforced consequences.

This is true, but not particularly helpful. UC Davis hired an idiot as a prof? That seems to happen to a lot of schools with a lot of profs these days, who express some pretty hateful and violent ideas that make clear certain students on campus have damn good reason not to feel safe as long as that prof is around. And they certainly have no good reason to trust that they will be treated fairly in class by a prof who has expressed support for their murder. Is there any response other than tough nuggies?

I gave no thought to what department sanctions would be fair game. If the speech is constitutionally protected (as I think it is) and the school wants to adhere to academic freedom norms for extra-mural speech, I presume that to be the end of the inquiry. She could be fired or at least removed as an adviser under a Pickering analysis. But schools according that extra academic-freedom protection for extra-mural speech usually do not reach that step. Or if they do (e.g., Amy Wax) they change working conditions in response to speech (e.g., no more required course or no more work as an adviser) on the view that the speech means her engagement with some students unavoidably changes (and renders hostile or discriminatory) the educational conditions for those students. Perhaps DeCristo meets that–showing herself to be an idiot who cannot be trusted to perform a task such as undergrad adviser, certainly for Jewish students.

But material changes to an academic’s working conditions is punishment, even if the sanction falls short of termination. To argue that the solution is to not hire idiots in the first place is a bit facile, since rarely do idiot profs inform the hiring committee of their desire to kill. But DeCristo (and she’s merely the latest example of many) has made her position clear. What’s a college to do?