The Volokh Conspiracy
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N.Y. Legal Aid Attorneys Union's Anti-Israel Resolution Didn't Violate Antidiscrimination Law
"Reading antidiscrimination laws to prohibit the voicing of views critical of a foreign state, or support thereof, would raise serious doubts about their constitutionality, which the Court must avoid."
From Kopmar v. Ass'n of Legal Aid Attorneys, decided Tuesday by Judge Paul Oetken (S.D.N.Y.) (though see also another post this morning allowing a different part of the claim to go forward):
Plaintiffs, who are public interest lawyers in the greater New York City area, … Plaintiffs allege that their local chapter of the Association of Legal Aid Attorneys ("ALAA"), unlawfully retaliated against Plaintiffs for suing in New York state court to prevent the ALAA from promulgating a resolution that Plaintiffs viewed as antisemitic {and that] Plaintiffs characterize as "an 1,147-word diatribe against Israel"}…. Plaintiffs have not stated retaliation claims under Title VII, the NYSHRL, or the NYCHRL, because their state-court lawsuit did not oppose any discrimination made unlawful by those statutes….
At no point did Plaintiffs argue that the Resolution had only been adopted because the ALAA discounted or repressed the views of its Jewish members, in fact almost exclusively using the word Jewish when referring to Plaintiffs' clients who might be offended by the Resolution, and to Jewish colleagues with whom Plaintiffs' professional reputations might suffer. Reviewing these allegations, the Court sees nothing alleging differential treatment of Plaintiffs because they are Jewish, or based on any other protected status….
Moreover, because the ALAA's Resolution was political speech on a matter of public concern, this case is "rife with First Amendment overtones." Cf. Gartenberg v. Cooper Union (S.D.N.Y. 2025) (cleaned up). While it is true that "invidious private discrimination … has never been accorded affirmative constitutional protections," Title VII, like the NYSHRL and NYCHRL, nonetheless must respect "the fundamental principle that governments have 'no power to restrict expression because of its message, its ideas, its subject matter, or its content.'" When speech involves matters of "public concern"—as the current debates about Israel and Palestine surely do—it is "entitled to 'special protection' under the First Amendment" and generally "cannot be restricted simply because it is upsetting or arouses contempt." …
Here, the Resolution constitutes pure political speech. It advocates inter alia for "governments to stop all military funding for Israel," "public support for Palestinian freedom," "human rights," criticism of "the Israeli Defense Minister calling all Gazans 'human animals'," an end to "widespread bombing" in Gaza, criticism of "US military aid," "humanitarian relief … including relief to address Palestinian homelessness, refugee displacement, prisoners rights, criminal defense, rights of parents and children, and access to food, clean water, medical services, schools and essential utilities," and similar political demands.
At times, the Resolution uses intense and provocative rhetoric, including referring to Israel's policies in Gaza as "a state of siege," "a colonial apartheid occupation," "ethnic cleansing," and "genocide." The Resolution then lists a series of demands, including an "immediate ceasefire" and return of basic services to Gaza, "an end to Israeli apartheid and the occupation and blockade of [Palestine]," opposition to all "military aid," endorsement of the "Boycott, Divestment, and Sanctions movement," a prohibition of non-profit contributions to "illegal Israeli settlements," and "the right of all Palestinian refugees to return to their homeland." The Resolution also "denounce[s] … Islamophobic attacks and antisemitic threats." The Resolution does not use the words "Zionism" or "Zionist."
Such a document falls squarely within the realm of protected political speech. It criticizes a series of policies with which its drafters disagree. While it grapples with an admittedly charged political issue, it neither identifies nor targets any individual or group on the basis of race, ethnicity, religion, or nationality. And it includes an express denunciation of antisemitic violence.
Reading antidiscrimination laws to prohibit the voicing of views critical of a foreign state, or support thereof, would raise serious doubts about their constitutionality, which the Court must avoid. While the Court does not doubt that Plaintiffs were sincerely upset upon reading the Resolution, the fact that speech may arouse intense negative reactions does not allow the government to restrict it. Because Plaintiffs' state-court lawsuit challenged speech that the antidiscrimination laws may not constitutionally prohibit, their lawsuit cannot constitute protected activity under those laws….
