Ohio State Student’s Posts Urging “Resistance and Escalation” in Response to Israel’s Actions in Gaza Protected by First Amendment

From Christensen v. Carter, decided today by Judge Edmund Sargus (S.D. Ohio):

Mr. Christensen enrolled at OSU as an undergraduate student in the fall of 2024. At that time, he had established an online presence as a political activist and social media influencer. Mr. Christensen has more than three million followers on the social media platform known as TikTok. Mr. Christensen identifies himself as a strong supporter of the movement for Palestinian liberation and routinely posts videos of himself commenting on Palestinian rights and the Israel-Palestine conflict across a range of social media platforms, including TikTok, X (formerly Twitter), Instagram, and Substack. At the close of the spring semester of his freshman year (around the end of April 2025), Mr. Christensen left OSU’s campus and the state of Ohio, and did not plan to return until the fall 2025 semester.

This lawsuit centers around two videos that Mr. Christensen posted on TikTok on May 22, 2025, after leaving OSU’s campus for the summer….

The first video relates to the deaths of two employees of the Israeli embassy in Washington, D.C. The employees were shot and killed by Elias Rodriguez on May 21, 2025, as they exited an event hosted by the American Jewish Committee at the Capital Jewish Museum in Washington, D.C.

Initially, Mr. Christensen condemned the shooting in a video that he posted on TikTok on May 22, 2025. Later that day, Mr. Christensen posted another video to TikTok withdrawing his condemnation (the “Rodriguez Video”), which is one of the two videos at issue in this case. In the Rodriguez Video, Mr. Christensen begins by stating: “I take it back. I do not condemn the elimination of those two Zionist officials, who worked at the Israeli embassy last night.” Relevant to this lawsuit, Mr. Christensen used the terms “resistance” and “escalation” in the Rodriguez Video, which come from the following statements:

And I want to remind you that, while this attack took the lives of two human beings, Israel has murdered thousands of Palestinian civilians in cold blood without any shame, with pride, rejoicing in the streets of Israel over this, and they get no attention in this country, while this attack is being used to weaponize violence against the movement. But we will meet it with our own greater resistance and escalation….

You might have seen my update early this morning where I condemned this attack and I reaffirm that I had a change of perspective after hearing critiques from people in the movement. It is like as they said, I am condemning Luke Skywalker for attacking the Death Star because the Empire might crack down on the resistance. And while my point was that this attack will be used for a crackdown on the movement in the coming days, they’re right. We must meet with escalation and stronger resistance.

Mr. Christensen also read Elias Rodriguez’s manifesto, which had been posted on social media, aloud….

The second video relates to Mr. Christensen’s criticism of Congressman Ritchie Torres, who serves as a member of the United States House of Representatives on behalf of New York. Also on May 22, 2025, Mr. Christensen posted a video on TikTok denouncing Congressman Torres’s position that the conflict in Gaza did not constitute genocide and Congressman Torres’s affiliations with the American Israel Public Affairs Committee (AIPAC), Israeli public figures, and the Zionist movement (the “Torres Video”). In part, Mr. Christensen stated:

Today an AIPAC millionaire and elected official, Ritchie Torres, announced: “There’s no genocide in South Africa. There is no genocide in Gaza. Stop debasing the term ‘genocide’ by using it as ideological warfare.” Now Ritchie, screenshots are forever and what you’ve said and done will haunt your family for eternity as you will eventually, if you’re still alive, end up in a Nuremburg trials for all the elected officials in America who facilitated and protected this genocide. How many children have to die before the AIPAC money is outweighed by the crimes? …

So shame on Ritchie. He is a Zionist scumbag. And I hope that the money he sleeps on at night stains his pajamas blood red. Thank you and free Palestine….

The day after posting the Rodriguez and Torres Videos, Mr. Christensen released a video responding to criticism he had received. He emphasized that he “would never make a threat that would jeopardize [his] position to influence and educate people about the atrocity and evils that Zionism is currently bringing down upon the Palestinian people, especially in Gaza.”

On May 27, 2025, Mr. Christensen posted another video responding to backlash, in which he denied that he is antisemitic and stated that he does not incite violence. Specifically, he said:

Anybody in their right mind knows when they see my content that I’m not in an antisemite. I hate Nazis just as equally as I do Zionists. Anyone who sees my content knows that I do not incite violence. I do not tell anyone to make threats. I do not want anyone to make threats. Why would I call for people to make threats? All that would do is jeopardize my platform. I’m non-violent.

Christensen was “disenrolled,” but the Court concluded that this action likely violated the First Amendment, and issued a preliminary injunction ordering the removal of the disenrollment from his record. (Christensen apparently doesn’t seek to return to OSU, so reinstatement wouldn’t be the remedy: He “currently attends another university,” and “plans to apply to a different university abroad by February 2026 and will need to provide his OSU transcript as part of that application process.”)

The court first concluded that the videos don’t fit within the narrow “incitement” exception, because it wasn’t intended to and likely to incite imminent illegal conduct:

Even if Mr. Christensen’s use of the terms “resistance” and “escalation” referred to the use of illegal violence, “the First Amendment protects endorsements of lawlessness that do not contain a specific call to action.” For example, in Hess v. Indiana (1973), a protester in an angry mob yelled “[w]e’ll take the f[——] street later” or “[w]e’ll take the f[——] street again.” [Expurgation in the District Court decision. -EV] The Supreme Court found that, “at worst,” this statement “amounted to nothing more than advocacy of illegal action at some indefinite future time,” which lacked the particularity necessary to [qualify as incitement]….

Like the statements at issue in Hess …, the Rodriguez Video did not call for imminent unlawful action. Mr. Christensen did not identify a time, place, or manner for the “resistance” or “escalation” to occur…. The record [also] supports Mr. Christensen’s position on this point—he did not possess the requisite intent [to promote violence]. [And t]he statements at issue in this case were shared through a TikTok video to a general audience with no specific call to action—no time, place, or planned follow-up—and, as such, were unlikely to result in the imminent use of violence or lawless action….

The Court also rejected the university’s argument that Christensen’s speech was unprotected under Tinker v. Des Moines Independent Community School District (1969):

In Tinker, the Supreme Court held that public high and middle schools may prohibit student speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” To do so, the school “must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” More recently, in Mahanoy Area School District v. B.L. (2021), the Supreme Court clarified that a public school’s interest in regulating student speech is “diminished” when that speech occurs off campus. “[C]ourts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all.”

The law is not entirely clear as to what extent Tinker applies to cases involving universities, as opposed to cases involving public high or middle schools, but the Court need not define the contours of such application here. Even assuming Tinker applies to the instant case, the Court concludes that Mr. Christensen has demonstrated a strong likelihood of succeeding on his position that his statements do not meet the “demanding [disruption] standard” set forth in Tinker and remain protected under the First Amendment.

Defendants argue that OSU “had multiple grounds to support its belief that Plaintiff would cause substantial disruption on campus.” Those “grounds” are: (1) OSU received communications from members of the university community expressing fear of violence based on Plaintiff’s posts, (2) law enforcement was engaged to respond to Plaintiff’s actions, (3) administrators believed that Plaintiff intended to incite violence based on the Rodriguez Video, (4) Congressman Torres interpreted the Torres Video as a threat of violence against him, (5) Plaintiff did not respond to law enforcement’s attempts to contact him, and (6) administrators believed there was a strong likelihood Plaintiff’s speech would substantially disrupt campus due to Plaintiff’s extensive online presence.

There is no evidence to suggest that Mr. Christensen’s conduct disrupted any class or classwork at OSU. Importantly, when Mr. Christensen recorded and published the Rodriguez and Torres Videos, the spring semester had ended, he was not on campus or in the state of Ohio, and he did not plan to return to campus until the fall semester. Mr. Christensen did not identify himself as an OSU student, mention OSU or anyone in its community, or otherwise target or direct his speech towards OSU in the Rodriguez and Torres Videos.

No student reported to OSU concerns about Mr. Christensen’s statements before OSU disenrolled Mr. Christensen. Activist organizations, the general public, and some parents expressed objections to Mr. Christensen’s opinions, but “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”

Similarly, Defendants argue that the engagement of law enforcement demonstrates that believing Plaintiff would cause a substantial disruption on campus was reasonable. Nothing in the record, however, suggests that any law enforcement agency opened an actual investigation into Mr. Christensen beyond a single interview in November 2024, which resulted in a determination that there were no credible threats at that time.

While the record contains evidence that Mr. Christensen’s social media posts were offensive to many people, the record contains no evidence that his speech caused, or would cause, a disruption so significant as to meet Tinker‘s high standard. Thus, the facts of this case do not support the conclusion that Defendants’ forecast of substantial disruption was reasonable….

I agree with the bottom line, but I think Tinker does not apply to content-based restrictions on speech by public universities (as opposed to K-12 schools), whether the speech is off-campus or on-campus. Though the Supreme Court has cited this Tinker language in the college context, in Healy v. James (1972), the court in Healy made clear that

[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large.

And since then, the precedents have become even clearer. In Papish v. Board of Curators (1973), the court noted that Healy endorsed a university’s “authority to enforce reasonable regulations as to the time, place, and manner of speech and its dissemination” (“time, place, and manner” restrictions is a label for content-neutral restrictions on speech) and not restrictions on speech of a “disapproved content” (emphasis in original). Likewise, the court in Papish concluded that “the First Amendment leaves no room for the operation of a dual standard in the academic community”—i.e., one that is more restrictive than outside colleges—”with respect to the content of speech.”

So even speech praising violence is constitutionally protected against public university disciplinary action, unless it fits within one of the narrow First Amendment exceptions, such as for true threats, incitement, or solicitation of a specific illegal act. (To be sure, speech in classrooms and class assignments is subject to different rules, but not because of Tinker.)

Amy Rose Gilbert, Carlen Zhang-D’Souza, David J. Carey, and Freda J. Levenson (ACLU Ohio) represent plaintiff.