In the good old days, the purpose of a union was to represent a collective bargaining unit with regard to compensation and the terms and conditions of employment. This was the rationale for compelling employers to bargain in good faith with unions, and compelling employees to pay dues or agency fees. After all, why should employees enjoy the benefits provided by the union without paying the cost? This was true if the union was the United Auto Workers or its local public defender affiliate, the Association of Legal Aid Attorneys in New York City.

Then the union forgot why it existed and decided instead to turn hard left with a resolution condemning Israel, having nothing to do with its reason for existence. Four LAS lawyers sued, alleging discrimination and retaliation for their challenge to the ALAA resolution. Southern District of New York Judge J. Paul Oetken held that while the retaliation prong of the suit could proceed, the discrimination cause could not as the union’s anti-Israel resolution was protected speech.

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.”

At the time the resolution was proffered, argued and ultimately adopted over the objection of almost half the union members, it’s harsh rhetoric had become de rigueur among the hard left. Rhetoric like “colonialism,” “apartheid” and “genocide” were the common buzzwords of the anti-Zionists, which distinguished itself as not being anti-Semitic, but merely supporting and justifying the destruction of Israel and the eradication of Jews. Judge Oetken found nothing discriminatory about this, whether to the Jewish Legal Aid lawyers who objected and sued or their Jewish clients who relied on LAS for their zealous defense.

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.”

While there is no doubt that this is political speech, and as such is protected under the First Amendment, Judge Oetken’s decision completely misses the point of the suit. The argument isn’t that such speech can’t be uttered, or that such speech isn’t, per se, protected. Indeed, such an argument would be frivolous. Rather, the argument is that this otherwise protected speech was formalized in a resolution by a labor union, not a progressive political organization whose purpose is to take positions on issues of general public concern.

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.

It’s no different than if the ALAA had passed a resolution proclaiming that Black Lives Didn’t Matter. It’s clearly protected political speech, no matter how offensive it may be, but it’s speech beyond the union’s limited scope of existence. Just as not-for-profits were, until recently, prohibited from endorsing political candidates, also entirely protected free speech, because the conditions giving rise to their existence as a non-profit came with certain limits on the scope of their activities, the scope of a union’s activities begins and ends with the employment interests of the collective bargaining unit.

Because Plaintiffs’ state-court lawsuit challenged speech that the antidiscrimination laws may not constitutionally prohibit, their lawsuit cannot constitute protected activity under those laws.

Moreover, if the reach of discrimination law was limited by the First Amendment, hostile environment claims for calling employees of various ethnicities and genders by offensive slurs would be unsustainable. It might not be socially acceptable to call a Jewish person a “kike,” but it’s still protected speech. Take that argument further and the point is overwhelming: it’s not that protected speech can be uttered by anyone or any entity under any circumstance, but that the law has long upheld that otherwise protected speech can be proscribed based upon the situation and circumstances. Say it elsewhere, but not here.

Neither Israel nor Gaza has anything to do with the terms and conditions of employment with the Legal Aid Society, and the ALAA had neither cause nor business to stick its nose into matters far beyond the scope of its purpose.