As I noted earlier this morning, Friday's Report and Recommendation in Garrett v. City Univ. of N.Y. (S.D.N.Y.) (written by Magistrate Judge Robert Lehrburger) discusses the limits the First Amendment imposes on "hostile work environment harassment" law (as well as the similar rules as to education, public accommodation, and housing). The report concludes that the First Amendment generally protects material on matters of public concern that isn't directly targeted to particular offended people based on their religion, race, sex, etc., but that other speech and conduct that is severe or pervasive enough to create a hostile work environment based on those attributes may be actionable.
The opinion is long, so I've divided it into parts. Another post discusses the items that the court concluded weren't protected by the First Amendment, at least assuming plaintiff's allegations were correct; the court allowed the case to go forward based on them. This post discusses the items that the court concluded were protected by the First Amendment and couldn't themselves form part of the harassment case (though they might bear indirectly as evidence of other factors, such as CUNY's motive); I've marked some especially noteworthy passages in bold:
A good deal of what Garrett complains about is speech that involves matters of public concern and falls outside the scope of Title VII. In making this determination, the Court need not circumscribe the heavily contested boundary between sincere political debate on the Israel-Palestine conflict and expressions of religious or ethnic hatred. That question is better left for others. The First Amendment's sweep is broad, and the application of Title VII can be resolved without opining on these issues.
{The Court's analysis should not be understood as discrediting any emotional distress that Garrett has experienced as a Jewish person at CUNY. Political speech can be ugly and painful but remain protected under the First Amendment and outside the scope of Title VII. See Snyder v. Phelps (the First Amendment sometimes immunizes "hurtful speech on public issues [from liability] to … [avoid stifling] public debate").} …
[1.] Campus Protests
The Complaint alleges "constant harassing [and antisemitic] protests" on Hunter's campus following October 7, 2023. In general, "exposure to" peaceful protests on matters of public concern—regardless of their offensive content, disruptive nature, or technical "violat[ion of] … campus rules"—"without more, does not amount to harassment." Landau (observing "one goal of public protests is to stir strong feelings on the part of passersby"); Gartenberg I (finding not actionable a "walkout" and protest where demonstrators, many with their faces covered, chanted controversial anti-Israel slogans). This includes the "anti-Israel protest[s]" in the Faculty Senate and unspecified protests in other unauthorized campus locales. The Faculty Senate protests, for example, were reasonably directed toward public debate, especially considering the Faculty Senate is CUNY's principal governance body and, thus, an "obvious center for protest."
