First Amendment and UF

Really interesting First Amendment order out of the 11th Circuit involving a UF law student and some really horrible speech.  2-1 in favor of UF.  Branch write the opinion, Lagoa joins, and Newsom dissents.

From the introduction:

The University of Florida ("UF") expelled Preston Damsky,
a law student, for posts he made on X (formerly Twitter), including
one post that stated, "Jews must be abolished by any means necessary." Damsky then sued Chris Summerlin, UF's Dean of Students, arguing that UF violated his First Amendment rights. UF
now appeals the district court's order granting Damsky a
preliminary injunction and requiring UF to reinstate him as a
student. We find that UF is likely to succeed on the merits because
Damsky' s speech was likely not protected by the First Amendment.
UF was allowed to regulate Damsky's speech because, particularly
when read in context, his 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. Accordingly, we grant UF's motion for a stay
of the district court's injunction pending appeal.

From the dissent:

Based on a post that Preston Damsky published on his
personal "X'' account,* the University of Florida ("University" or
"UF") expelled him from its law school, just a semester shy of his
expected graduation. Damsky sued on the ground that his
expulsion violated the First Amendment, and he sought a
preliminary injunction requiring the University to reinstate him. In
a thorough opinion, Judge Allen Winsor granted Damsky
preliminary injunctive relief, prohibiting the University from
"continuing to take adverse actions against" him and ordering him
returned to "normal standing" at the law school. Dist. Ct. Order,
Nov. 24, 2025, at 28.
Today, this Court stays Judge Winsor's order. I respectfully
dissent. The University hasn't shown a reasonable likelihood that
it will succeed in its effort to vacate or modify the injunction,
which, to my mind, correctly concludes that Damsky's posthowever
disgusting- enjoys constitutional protection. 

 

*Both the majority and the dissent explain that Twitter is now X.  I think everyone knows that now, just like we all know that opinions from the old 5th Circuit control per Bonner!

Magistrate Judge News

 Congratulations are in order for two good people -- first to Detra Shaw-Wilder on her investiture. 

And second to Yeney Hernandez, who the judges voted on at their judges' meeting today to be our newest magistrate judge.  

Have a great weekend and GO CANES!

Andy Adler wins in SCOTUS -- again

Congrats to AFPD Andy Adler for this 5-4 habeas victory in the Supreme Court, which held: Title 28 U.S.C. § 2244(b)(1) does not bar this Court’s review of a federal prisoner’s request to file a second or successive Section 2255 motion for postconviction relief, and Subsection 2244(b)(1) does not apply to second or successive motions filed under Section 2255(h) by federal prisoners challenging their convictions or sentences.

Adler convinced Roberts and Kavanaugh to join the 3 moderate Justices for the majority, which starts this way (per Sotomayor):

Congress has created a comprehensive scheme to address when and how state and federal prisoners can seek postconviction relief in federal courts.  A state prisoner can file an application for a writ of habeas corpus under 28 U. S. C. §2254. A federal prisoner, by contrast, can file a motion to vacate, set aside, or correct a sentence under §2255.  Each provision contains its own procedural and substantive requirements that an individual must satisfy. This case concerns the more complicated situation when a prisoner returns to federal court after a prior attempt for relief has failed. In this situation, Congress has enlisted the courts of appeals to play a gatekeeping role in the consideration of second or successive filings brought by federal and state prisoners. Under this system, before a prisoner can bring such a filing in a district court, a court of appeals must certify that the filing meets certain threshold conditions. Section 2244 governs authorization requests made by state prisoners, and §2255(h), in turn, governs requests made by federal prisoners. The two have distinct requirements, but through a limited cross-reference in §2255(h) to §2244 for how a filing is “certified” by a “panel,” Congress has borrowed certain of the procedures that apply to state prisoners and applies them to federal prisoners too. This case presents two questions regarding which aspects of §2244 fall within the scope of §2255(h)’s cross-reference. The first is whether §2244(b)(3)(E), which prohibits the “denial of an authorization by a court of appeals to file a second or successive application” from being the “subject of a petition for . . . a writ of certiorari,” bars this Court’s review of authorization decisions concerning the motions of federal prisoners. If it does, this Court would lack jurisdiction to hear this case. The Court holds that it does not.  In the narrow cross-reference to the procedures in §2244, Congress has not clearly indicated that it intended to incorporate §2244(b)(3)(E)’s certiorari bar. The second question is whether §2244(b)(1), which directs courts to dismiss a claim “presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application,” applies to motions filed by federal prisoners. It does not: Section 2244(b)(1), by its express terms, applies only to state prisoners’ habeas applications under §2254, not to federal prisoners’ motions under §2255. 

Should 92 year old Judge Hellerstein preside over the Maduro case?

 Jeffrey Toobin says no here:

There is no simple procedural mechanism for lawyers, or the public, to challenge the fitness of judges. A culture of deference — and the fear, especially among active lawyers, of courting retribution — limits most inquiries into the abilities of aging judges. The parties can ask a judge to recuse himself for bias, but that is not the issue here. What tends to happen, rather, is that peers tend to step in informally and gently encourage a judicial colleague to step aside. The chief judge of the Southern District of New York, Laura Taylor Swain, should make such an overture to Judge Hellerstein if he does not himself recognize the need to face reality.

We've had the issue come up in our District three times that I can think of... I wonder how they will handle it in NY. 

"Justice For Venezuela at Last"

 That's the title of this WSJ op-ed by our very own Judge Roy Altman.  It starts this way:

My family in Caracas awoke to loud explosions on Saturday morning. They came to learn, at daybreak, that the country’s repressive dictator, Nicolas Maduro, had been seized in a daring raid by American commandos. “God willing,” my cousin whispered into a phone, still afraid of who might be listening, “this is the end of our decades-long nightmare.” 

That’s a hope my family shares with the millions of Venezuelans who have been exiled over the past two decades.

I’m only the second Venezuelan-born federal judge in U.S. history. A few years ago, at the end of an emotional and lengthy federal-murder trial, I went to thank the jurors for their weekslong service to our country. When I entered the jury room, I found the foreman, a man in his mid-40s, fighting back tears. He explained that he had read about my own family’s journey from Caracas to South Florida, that he too had fled Venezuela with his family and that he only wished his grandfather—a lawyer who had been forced to escape the Maduro regime—could have lived long enough to witness what our jurors had seen: an important federal trial in America, presided over by a free Venezuelan-American judge and a free Venezuelan-American foreman.

“One day,” I promised as I embraced him, “you’ll live to see a free Venezuelan justice system too.”

Judge Eaton

 By John R. Byrne

First portrait post of 2026 is Judge Joseph Oscar Eaton. He was a state senator before his time as a judge. FBA write up below.

Judge Joseph Oscar Eaton was nominated by President Lyndon B. Johnson and served on the district court from 1967-2008. Prior to his judicial service, Judge Eaton served in the U.S. Air Force, reaching the rank of major. In Diaz v. Weinberger, 361 F. Supp. 1 (S.D. Fla. 1973), a three-judge panel including Judge Eaton struck down the five-year continuous residency requirement for non-citizens seeking Medicare supplemental insurance, holding that it violated the Fifth Amendment due process clause by discriminatorily excluding lawful immigrant seniors—such as Cuban refugees—from essential medical benefits without a rational basis.

Year end reviews are in

We have one from the Chief Justice.

One from the U.S. Attorney.

And even one from Markus/Moss!

Blog contributor John Byrne has one as well from his firm here.

The Chief Justice's ends this way:

As we approach the semiquincentennial of

our Nation’s birth, it is worth recalling the

words of President Calvin Coolidge spoken a

century ago on the occasion of America’s ses-

quicentennial: “Amid all the clash of conflict-

ing interests, amid all the welter of partisan

politics, every American can turn for solace and

consolation to the Declaration of Independence

and the Constitution of the United States with

the assurance and confidence that those two

great charters of freedom and justice remain

firm and unshaken.” True then; true now.

As always, I am privileged and honored to

thank all the judges, court staff, and other ju-

dicial branch personnel throughout the Nation

for their commitment to public service and

their dedication to upholding the rule of law.

HNY

I try not to post personal stuff on the blog, but I'm so proud of my daughter so today's post is a shameless plug for her 501(c)(3) nonprofit organization called Paper Wings Project.

The organization has sent personalized letters to 1,500+ individuals who are incarcerated in all 50 states and more than 87 countries/territories. The response has been extraordinary - countless heartwarming and heartbreaking responses that remind us about the situations some of our clients find themselves in after we have moved on from their cases. (see below for excerpts from some of the letter responses received). 

She's also putting together a literary magazine, Chrysalis, featuring writing and art submitted by the recipients of Paper Wings letters, and the first issue will be published in the beginning of 2026. 

The organization is seeking to build a worldwide network of letter writers to make a difference (however small) in these peoples' lives, and to reach as many inmates as possible. If you have a minute, please go on the web site at https://paperwingsproject.org/write-letter and write a few paragraphs to an inmate. It is an easy online form.  Paper Wings will convert it to a letter sent from Paper Wings that doesn't identify you by name, and will forward you any response received. 

In the alternative (or also) please consider donating (https://www.paperwingsproject.org/donate).  The charitable deduction rules are changing in a few days to make it much more difficult to deduct contributions, so now is a good time to support a meaningful criminal justice organization that is making a real difference in the lives of the people with whom we work.  And if anyone knows of (or is!) a potential corporate/law firm/nonprofit partner, please reach out.

Here are just a few of the quotes from the countless heartwarming and heartbreaking letters she has received: 

“This was the first . . . personal letter I have received in the last 27 years.” C. M., FCI Butner

“I am in receipt of your letter and it did shed some light on my day.  For that, you are a wonderful person and I am truly grateful.  It is hard in a dark place like this and it does make you feel forgotten.  I haven’t gotten letters in almost three years.” R.G., USP Beaumont 

“Your letter is like a small root in this dark hole.”  William Hernandez, USP Big Sandy

“It’s crazy how something as simple as a letter from the outside world can uplift one’s spirit.  You and I don’t even know each other yet my day was made by what I read!  It happens to be one of those days for me.  Then out of nowhere I get mail from you and it’s just what I need to turn my day around.” F. G. USP Fairton 

“First and foremost I just want to let you know that your letter made my day.  It brought a smile to my face and made me feel loved as a human being.”  Jose M. Perez, MDC Los Angeles

“I’m glad you wrote me because you don’t even know the big smile you put on my face and how happy my heart got . . .” Luis Lopez, FCI Loretto 

“Believe me there are very few things that surpass the emotion and the feeling of receiving a letter from someone.  With your letter, you have provided reprieve in the most significant way, and that is by challenging me to think outside the box.  I am alive and the energy you send my way is welcome with open arms.”  D.M., FCI Allenwood Low

“Quiero darle las gracias por haber sacado un momento de su valioso tiempo y dedicarme esas hermosas palabras para mi, usted no se imagina lo reconfortable que me senti al leer su carta; fue como un valsamo de alivio hacia todo lo que estoy pasando en estos momentos alejado de mi familia y mis hijos.”  [I want to thank you for taking a moment of your valuable time to write such kind words to me.  You can’t imagine how comforting your letter was to me; it was like a balm of relief from everything I’m going through right now, being away from my family and my children.]”  J. D., Brooklyn MDC