In Goldstein v. CUNY, a Jewish Israeli professor at the Borough of Manhattan Community College—part of the City University of New York system—sued for discrimination and harassment over various actions (which started in Mach 2023) at BMCC that stemmed from the Israeli-Palestinian conflict. Today, Judge Jeannette Vargas (S.D.N.Y.) rejected Goldstein's claim; the opinion is long, and to keep the excerpt manageable I will exclude the long statement of facts, and rely on the judge's account of the facts within the analysis:
Plaintiff's claims under Title VII, the NYSHRL, the NYCHRL, and Section 1983 are largely premised upon expressions of political speech regarding Israel, Zionism, and the Palestinian conflict that the [Complaint] characterizes as antisemitic. This raises a preliminary question as to what extent such expressive conduct, no matter how personally offensive or hateful to individuals based upon a protected characteristic, can be actionable as workplace discrimination or harassment under federal or state antidiscrimination laws.
Title VII prohibits "harassment so severe or pervasive as 'to alter the conditions of the victim's employment and create an abusive working environment.'" Abusive and offensive speech, no less than abusive conduct, can undoubtedly cause a multitude of psychic harms that would render a workplace hostile.
Antidiscrimination laws do not create a categorical "'harassment exception' to the First Amendment's free speech clause," however. "[T]he Supreme Court has consistently held that expression motivated by bias, hatred, or bigotry falls within the First Amendment's protection." "[I]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."
Accordingly, while there is "no question that non-expressive, physically harassing conduct is entirely outside the ambit of the free speech clause," it is equally clear that "[w]here pure expression is involved, anti-discrimination law steers into the territory of the First Amendment."
The potential conflict between the First Amendment and federal and state antidiscrimination laws is heightened when the offensive speech concerns matters of public concern…. [R]estriction of political speech based upon the viewpoint expressed will almost never pass constitutional muster. The First Amendment abhors political orthodoxy….
"In light of the competing interests … , courts have emphasized the need to exercise special caution when applying anti-discrimination law to matters involving traditionally protected areas of speech." "A statute that burdens protected speech must comport with the First Amendment regardless of whether it does so directly, such as by prohibiting certain speech outright, or indirectly, such as by requiring a court adjudicating a civil lawsuit between private parties to apply a rule of law that has the effect of imposing invalid restrictions on the defendant's constitutional freedom of speech."
In determining where the line between protected speech under the First Amendment and actionable harassment falls, the reasoning behind the prohibition on harassment in the workplace is instructive. "[G]overnment may constitutionally prohibit speech whose non-expressive qualities promote discrimination. For example, a supervisor's statement 'sleep with me or you're fired' may be proscribed not on the ground of any expressive idea that the statement communicates, but rather because it facilitates the threat of discriminatory conduct." … "[R]acial insults or sexual advances directed at particular individuals in the workplace may be prohibited on the basis of their non-expressive qualities, as they do not 'seek to disseminate a message to the general public, but to intrude upon the targeted [listener], and to do so in an especially offensive way.'" Thus, "[h]arassment law generally targets conduct, and it sweeps in speech as harassment only when consistent with the First Amendment."
When reconciling discrimination claims with the First Amendment, courts have explained that "the objective measure of what conduct is severe or pervasive … will distinguish between speech on matters of public concern directed to the community at large through generally accepted methods of communication, and speech that constitutes targeted, personal harassment aimed at a particular individual or individuals." …
Accordingly, before the Court considers whether Plaintiff has stated a claim under federal or state antidiscrimination laws, the Court must first filter out all "allegations deemed to be non-actionable political speech" from its analysis.
Applying this test, the Court holds that Plaintiff's discrimination claims based upon CUNY's sponsorship of the Palestinian Solidarity Series are not actionable under either federal or state antidiscrimination laws. A poster exhibit, the screening of a film, and a political discussion are all instances of speech that are "reasonably designed or intended to contribute to an ongoing debate regarding the Israeli-Palestinian conflict." There is no allegation that any of this speech was directed specifically at Plaintiff, or any other Jewish student or CUNY employee. Nor is there any allegation that Plaintiff or any other individual was physically threatened or intimidated during these events. This speech on matters of public and academic concern occurring in a university setting is protected under the First Amendment.
The SJEC Multi-Cultural Center's circulation of a petition … in response to the media coverage criticizing the Palestinian Solidarity Series is likewise political speech. According to the [Complaint], the petition stated that the BMCC SJEC display was intended to educate the community regarding the "theft" of Palestinian land. It described the March 2023 poster exhibit as the "history" of "Zionist settler colonial rule." "[A] college professor's expression on a matter of public concern, directed to the college community, [does not] constitute unlawful harassment …."
Although the [Complaint] alleges that the petition mentions Plaintiff, this too is protected free speech. "[T]he First Amendment provides speakers with latitude to criticize others, particularly authority figures, in the context of a genuine public debate." The [Complaint] alleges that the petition described "Plaintiff's request for anti-discrimination education on Jewish indigeneity in Israel" as part of an "intimidation tactic." The petition also described Plaintiff's opposition to the poster display as a "Zionist tactic." Even if the petition explicitly referred to Plaintiff by name, it did so in the context of commenting on statements made by Plaintiff on a topic of urgent national debate, directed to the college community at large. Robust exchanges on matters of widespread public concern fall within the heartland of the First Amendment….
