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Court Rejects Harassment Lawsuit Over Anti-Israel Speech at CUNY, Largely on First Amendment Grounds

Eugene Volokh | 8.27.2026 3:03 PM

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........

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