What Alleged Behavior Was Constitutionally Protected Against Harassment Liability in CUNY Hunter College Case

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."

As the court in Gartenberg observed, however, even once-peaceful protests may deteriorate into actionable harassment when, for example, protestors begin targeting individuals with "threatening or humiliating conduct." The Court will now consider [which] of the CUNY protests did so….

Garrett's effort to liken CUNY's "Day of Rage" protest to the Gartenberg library incident … is unavailing. Though the protest's title and CUNY's response (suspending campus activity) demonstrate the protest's "inflammatory and potentially dangerous nature," the Complaint is devoid of allegations regarding what, if any, actionable discriminatory conduct ensued at the protest. Contrary to Garrett's suggestion, Title VII cannot be interpreted as requiring CUNY to preemptively "shut[] down" a lawful protest based on its professed viewpoint. See R.A.V. v. City of St. Paul (1992) ("The First Amendment generally prevents government from proscribing speech or even expressive conduct because of disapproval of the ideas expressed"); Street v. New York (1969) ("It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers"); University of Maryland Students for Justice in Palestine v. Board of Regents of the University System of Maryland (D. Md. 2024) (public university's viewpoint-based decision to revoke pro-Palestinian group's permission to hold a peaceful demonstration on October 7, 2024, was likely unconstitutional "even if [the university] … did anticipate on-campus turbulence")….

[T]he Complaint [also] describes protestors wielding signs with threatening and violent imagery, including "blood dripping from the Star of David and other Jewish symbols." The signs—like almost any message distilled to the size of a protest placard—may have several meanings, intended or not. The Star of David with blood dripping, for example, may express the notion that Israel, whose flag includes the symbol, has proverbial "blood on its hands." Alternatively, blood dripping from a Star of David could be "construed as a genuine threat targeting" Jews, including Garrett, who identify with the symbol.

At the same time, the mere display of signs at a public protest is a "generally accepted method of communication," suggesting it cannot constitute harassment. Gartenberg I; see also R.A.V. (distinguishing between "cross burning … directed … to a single African-American family trapped in their home …, a crude form of physical intimidation" and "[b]urning a cross at a political rally [which] would almost certainly be protected expression") (Stevens, J., concurring). In her opposition, Garrett notes that Gartenberg found actionable certain "[s]igns denigrating Jews in Israel." The actionable signs in Gartenberg, however, "defac[ed] the windows of a main [Cooper Union] building" and were thus an example of the "extremely serious" graffiti and vandalism which covered the school's campus. When demonstrators "displayed some of the same signs" at a peaceful protest "on the sidewalk outside the [same Cooper Union building]," the Gartenberg court held that the protest was not actionable harassment. Gartenberg II. The same principle applies here.

{At oral argument, counsel for Garrett suggested the signs may amount to incitement and thus "fall outside the First Amendment rubric altogether." Not only is this argument—being "raised for the first time at oral argument"—waived, but it also has no merit. The First Amendment incitement doctrine is narrow, encompassing only speech which "is directed to inciting or producing imminent lawless action and is likely to" do so. Brandenburg v. Ohio (1969) (distinguishing incitement from "mere advocacy" of illegal conduct, including violence against racial minorities); see Million Youth March, Inc. v. Safir (S.D.N.Y. 1999) ("messages of hate and [calls for violence] conveyed by several of the speakers at last year's rally" unlikely to amount to incitement, regardless if the rally did, hours later, descend into disorder). The Complaint, which fails to elaborate on the context in which the signs were displayed, includes no suggestion that the signs meet the Brandenburg standard. See Hess v. Indiana (1973) ("since there was no evidence or rational inference from the import of the [challenged] language, that his words were intended to produce, and likely to produce, imminent disorder, those words could not be punished" as incitement).}

Both CUNY, and the Government in its Statement of Interest, observe that CUNY could, consistent with the First Amendment, prohibit substantially disruptive speech on campus, possibly by enforcing CUNY's public order policies [citing Tinker v. Des Moines Independent Community School District (1969)]. That observation, even if correct {See Radwan v. Manuel (2d Cir. 2022) (noting Tinker may have limited application in higher education); Students for Justice in Palestine v. Abbott (W.D. Tex. 2024) (recognizing Tinker may permit universities to curtail speech which would create a "substantial disruption in a university environment," but noting the speech restrictions cannot be unnecessarily viewpoint-based)}, is beside the point; there is a distinction "between what … [an] employer can do to [to suppress certain speech] and what the government can force the employer to do." Volokh at 1817 (emphasis added); see also Gartenberg II ("the fact that schools have ways of addressing harassment … does not mean that such expression is unlawful harassment in the first place").

Certainly, there are instances where a university—acting as an employer under Title VII—may have a responsibility to enforce its policies and act on disruptive speech because of its hostile or abusive nature; that does not mean, however, that the speech is harassing or shorn of First Amendment protection merely because it is disruptive or violates a university policy. {University policies—such as time, place, or manner restrictions on protest—may be probative of whether a means of communication is "generally accepted," and thus what a reasonable person would understand as harassment. An employer's policy alone, however, does not define the boundaries of Title VII. Here, with the exception of the demonstrations addressed above (see, e.g., Compl. ¶¶ 64 (alleging protestors violated Faculty Senate rules), 88 (alleging Hillel protest at campus entrance violated school's Public Order Policy), Garrett's description of protests at Hunter that violated campus policy regarding demonstrations are conclusory and undifferentiated. (See e.g., Compl. ¶ 8 ("Regularly, Plaintiff faced an onslaught of antisemitic protests conducted in blatant defiance of CUNY Hunter's policies governing demonstrations").) The Court cannot extrapolate or reasonably infer from these generalized allegations that every, or any specific, demonstration among the "constant harassing protests" was conducted in a non-generally accepted manner and constituted harassment. See Gartenberg I (declining to find actionable harassment where general allegations included "no factual support for its assertion that any of [the protest] messages were intended to target particular Jewish students, as opposed to efforts to communicate a political message to the Cooper Union community at large").}

[2.] Israelism And The History Club

The screening of a film and a student group's decision to read "works of known antisemitic writers" are not actionable. These episodes involve the expression of viewpoints through conventional forms of academic and political discourse. See Gartenberg I (requiring students to attend a speech criticizing Israel's "weaponization of language" is "unquestionably a protected exercise of [the university's] academic freedom")….

[A] rabbi was invited to campus as a "pro-Israel speaker … [to] participate in [the film's] post-screening discussion." In other words, the rabbi was invited to participate in a debate on a matter of public concern. A professor's demand that the rabbi answer a question that he professed he could not answer, and the crowd's disagreement, even if rudely expressed, are reasonably understood as contributing to that debate. See Rodriguez v. Maricopa County Community College District (9th Cir. 2010) ("doubt[ing] … college professor's expression on a matter of public concern, directed to the college community, could ever constitute unlawful harassment and justify the judicial intervention"). Disagreement on an issue of public concern in an academic setting—even if emphatically expressed—is not actionable harassment. See id.; Landau ("Even if offensive and received by some as antisemitic, the lecture was community at large").

[3.] Flyers, Open Letters, Mass Emails, And Social Media Posts

The dissemination of flyers, open letters, mass emails, and social media posts on matters of public concern that were not targeted at any particular individual qualify as core political speech outside the scope of Title VII. Rodriguez (finding "racially-charged emails" sent to college distribution list were non-actionable speech and "the effective equivalent of standing on a soap box in a campus quadrangle and speaking to all within earshot; not conduct targeted by harassment laws"); Landau ("Peaceful distribution of political materials [on a college campus] is a standard method of political expression directed at the public"); see also Kopmar ("Resolution [criticizing Israel with intense and provocative rhetoric] constitutes pure political speech" outside the scope of Title VII).

The following thus do not constitute actionable harassment even though the content may be antisemitic and hateful: social media posts by student organizations which, inter alia, purported to "debunk[] mass rape by Hamas on October 7th" and called on followers to "escalate by any means necessary"; an open letter "praising the … Hamas terror attack"; unspecified "antisemitic stickers" found on campus; and, flyers which supported the Boycott, Divestment and Sanctions movement and claimed "Israel is a state built to put Jews over all others." See Gartenberg (allegations about protest slogans, flyers, and other expressions related to the ongoing Israeli-Palestinian conflict were not actionable because the complaint "offers no factual support for its assertion that any of these messages were intended to target particular Jewish students, as opposed to efforts to communicate a political message to the [university] community at large"); Landau (finding not actionable communications calling for the "dismantling of the apartheid settler colonial state of Israel, by all means necessary")….

[T]he photographs of Garrett published by the student group on social media [also cannot form part of the basis for liability.] The Complaint fails to describe the nature of or context surrounding the photographs. (See Compl. ¶ 98 (alleging only that "[t]he group also published photographs of Plaintiff on social media").) Were the photographs posted in connection with commentary? If so, what was the content of that commentary? How was Garrett depicted in the photographs? Were the photographs altered in any way? Without that context, the Court lacks a basis to reasonably infer the social media post or posts were targeted harassment, an expression on matter of public concern, or something else altogether. Such vague pleading does not suffice….

{Although the Court finds some of the incidents and conduct, as alleged by Garrett, do not qualify as actionable harassment or, as discussed below, imputable to CUNY, that does not mean they disappear from the case. First, those events, particularly depending on CUNY's response or lack of response to them, may still be probative of discriminatory intent. See Gartenberg I; see generally Wisconsin v. Mitchell (1993) ("The First Amendment … does not prohibit the evidentiary use of speech … to prove motive or intent"). Second, discovery or amended pleading may provide information that would transform a non-actionable or non-imputable event into one that is actionable and imputable.} …