Eugene Volokh's Blog, page 71

July 17, 2025

[Eugene Volokh] Court Considers Claim of Montgomery County (Md.) Teachers Transferred for Pro-Palestinian Speech Following Oct. 7, 2023

[The speech included in-class display of "Free Palestine," e-mail signature saying "From the River to the Sea, Palestine will be free," and pro-Palestinian social media posts.]

From Judge Lydia Kay Griggsby (D. Md.) yesterday in El-Haggan v. Bd. of Ed.:

Plaintiffs are public school teachers employed by the [Montgomery County (Md.) Public Schools]. Following the events of October 7, 2023, the Plaintiffs individually expressed their opposition to Israel's response to the terrorist attacks and to the subsequent war in Gaza.

This led to their being transferred to other schools (and, as to two of them, being placed on paid administrative leave). They sued, claiming that, among other things, this constituted unconstitutional retaliation for the exercise of their First Amendment rights. The Court has held that such retaliation violates the First Amendment if

the speech is on a matter of public concern, Connick v. Myers (1983), andthe speech is not said by the employee as part of the employee's job duties, Garcetti v. Ceballos (2006), andthe damage caused by the speech to the efficiency of the government agency's operation does not outweigh the value of the speech to the employee and the public, Pickering v. Bd. of Ed. (1968)—in practice, this means that employees can be punished for their speech if coworkers or members of the public express enough hostility to the speech, but are generally protected if there isn't much such hostility.

The court rejected Plaintiff El-Haggan's claim to the extent it was "based upon [her] wearing of pro-Palestinian pins, buttons and clothing in the classroom":

Plaintiff El-Haggan was not speaking as a private citizen when she wore pro-Palestinian pins, buttons and other clothing in her classroom. The amended complaint makes clear that Plaintiff El-Haggan engaged in this speech within her classroom, by wearing homemade pins, buttons and outfits containing the slogan, "Free Palestine." The amended complaint also shows that Plaintiff El-Haggan engaged in this speech by distributing "Free Palestine" buttons to other teachers at her school. Given these facts, the Court agrees with the Defendants that Plaintiff El-Haggan's speech was curricular in nature, because, her students and their parents were likely to regard such speech in the classroom as approved and supported by the school.

Notably, the amended complaint makes clear that Plaintiff El-Haggan's speech, while unrelated to mathematics, was, nonetheless, designed to impart knowledge to the students about the war in Gaza. Because the factual allegations in the amended complaint, taken as true, show that Plaintiff El-Haggan presented her views regarding the war in Gaza in a compulsory classroom setting, she was not speaking as a private citizen, but rather as an employee of the MCPS.

Given this, the Plaintiffs do not state a plausible First Amendment retaliation claim based upon this conduct.

But the court held otherwise as to "Plaintiff El-Haggan's email signature containing the slogan, 'From the River to the Sea, Palestine will be free'":

The amended complaint … plausibly alleges that Plaintiff El-Haggan engaged in this speech as a private citizen. In this regard, the Plaintiffs allege in the amended complaint that Plaintiff El-Haggan added this slogan to her work email signature shortly after the October 7, 2023, terrorist attacks. The Plaintiffs also allege that Plaintiff El-Haggan did not use this email to communicate with students or their parents. Given this, the amended complaint plausibly alleges that Plaintiff El-Haggan's students and their parents would not have regarded her email signature as being supported by the school. And so, the Plaintiffs plausibly allege facts to show that Plaintiff El-Haggan was speaking in this context as a private citizen, on a matter of public concern.

The factual record before the Court is not, however, sufficient for the Court to perform the required balancing test under the second prong of Pickering, to determine whether the Defendants' regulation of this speech violates the First Amendment. As the Defendants correctly observe, the amended complaint contains factual allegations to show that Plaintiff El-Haggan's use of the email signature was disruptive to the workplace. ECF No. 42 at ¶ 53 (alleging that a staff member became upset when she read Plaintiff El-Haggan's signature block); id. at ¶ 55 (alleging that a staff member sent a screenshot of Plaintiff El-Haggan's signature line to supervisor and screenshot was circulated to head of school health services), id. at 61 (alleging that Principal Allrich received an email from a parent complaining about Plaintiff El-Haggan's clothing). These facts weigh in favor of the Defendants' ability to regulate this speech. But there are no facts before the Court regarding the other factors that the Court considers when conducting the Pickering balance, such as whether Plaintiff El-Haggan's speech impaired the maintenance of discipline by supervisors; damaged close personal relationships; impeded the performance of her duties; interfered with the operation of the school; undermined the mission of the school; and/or abused the authority and public accountability that her role entailed.

Given this, the Court cannot conclude at this early stage in this litigation that Plaintiff El-Haggan's email signature had an adverse effect that was "reasonably to be apprehended." And so, the Court declines to dismiss this claim.

And the court likewise denied the motion to dismiss as to "Plaintiffs Robinson and Wolf," who "commented and posted about the war in Gaza on their personal social media accounts":

[T]he amended complaint makes clear that these Plaintiffs did not engage in this speech pursuant to their duties as MCPS teachers. But, as is the case with Plaintiff El-Haggan, the factual record before the Court is not sufficient for the Court to determine whether the Pickering balancing factors support the Defendants' decision to regulate this speech. Again, there are some factual allegations in the amended complaint to show that the social media posts at issue were disruptive to the school. ECF No. 42 at ¶¶ 111-112 (acknowledging that parents contacted the school to complaint about Plaintiff Robinson's social media posts); id. at ¶ 173 (acknowledging that a parent contacted the school to complaint about Plaintiff Wolf's social media posts). But other important facts are simply not currently before the Court, such as whether this speech impaired the maintenance of discipline by supervisors; impeded the performance of these Plaintiffs' duties; interfered with the operation of the school; undermined the mission of the school and/or abused the authority and/or the public accountability that these Plaintiffs' roles entailed.

[Eugene Volokh] Principal's Race Discrimination Lawsuit Over "We Can Malcolm X Her" Allegations Can Go Forward

A bit of backstory, from a 2019 N.Y. Daily News story (by Michael Elsen-Rooney & Stephen Rex Brown):

A white principal and four black teachers at a Bronx middle school have filed dueling lawsuits accusing the other of racism as fallout continues over allegations that the embattled administrator barred Black History Month lessons.

Former Bronx Intermediate School 224 Principal Patricia Catania, who is white, grabbed headlines in 2018 when the Daily News reported on accusations she prohibited English teacher Mercedes Liriano from teaching lessons on the Harlem Renaissance and confiscated a student's poster on African-American musical genius Lena Horne.

Amid the furor, Catania sued Liriano, two other black teachers at the school and two teachers union employees, alleging they'd waged a "maligning, malevolent, and racist campaign" to oust Catania as principal because she was successfully cracking down on under-performing educators….

"We can Malcolm X her, by any means necessary we will get her out. Change through violence," UFT rep William Woodruff allegedly said in January 2017.

In Catania v. United Fed'n of Teachers, decided Monday by Judge Gregory Woods (S.D.N.Y.), the judge rejected much of plaintiff's claims, but allowed some to go forward; recall that all the factual allegations described below are just allegations at this point—the court simply held that plaintiff had plausibly alleged enough to allow the case to proceed:

Plaintiff Patricia Catania was the principal of Middle School 224, a public school in New York City. Ms. Catania is white. She alleges that the defendants—a labor union and a number of its officers—conspired with a group of the school's teachers to get Ms. Catania fired and replaced with a Black principal.

To implement this conspiracy, the defendants created what Ms. Catania claims to be the false narrative that Ms. Catania wanted to prevent teachers at the school from teaching Black history. The conspirators publicized that narrative, led protests against Ms. Catania, and lodged false complaints against her with the Department of Education. This conduct provoked a wave of negative publicity and harassment. Ms. Catania ultimately believed she faced a choice between resigning or facing disciplinary action for allegedly pretextual violations, so she resigned from her position.

Ms. Catania commenced this action against the labor union and its representatives … for conspiring with public school teachers to constructively discharge her in violation of her rights under the First and Fourteenth Amendments. The Court already dismissed Plaintiff's Free Speech and her Due Process claims with prejudice. After the Court granted Plaintiff leave to replead her Equal Protection claim, Plaintiff filed a Third Amended Complaint. Because Plaintiff alleges facts sufficient to raise a minimal inference that Woodruff [a UFT representative] and the UFT … had discriminatory intent, Defendants' motion to dismiss Plaintiff's only remaining claim, her Equal Protection claim, is GRANTED IN PART and DENIED IN PART….

Plaintiff plausibly alleges that Woodruff and the UFT discriminated against her on the basis of her race…. The Third Amended Complaint alleges facts sufficient to plausibly plead a minimal inference of Woodruff's discriminatory motivation: that he targeted Plaintiff and attempted to remove her from her position because she is white. The Court refers to the Prior MTD Opinion at 26–28 for analysis of why Plaintiff's previous allegations relating to discriminatory intent either are conclusory or cannot be imputed to Defendants and the alleged conspiracy…. [But] Plaintiff's new allegations regarding Woodruff's conduct during the protest rallies and regarding his Malcolm X comment plausibly support a minimal inference of his discriminatory intent….

Plaintiff's allegation that Woodruff encouraged protestors to shout "white racist b**ch" and "white devil," among other things, supports an inference of Woodruff's discriminatory intent….

A minimal inference of discriminatory intent can be drawn from Woodruff's statement during the January 17, 2017 meeting that he wanted to "Malcolm X" Plaintiff shortly after she started working at MS 224. Given Malcolm X's complex legacy, the Court cannot say as a matter of law that no reasonable inference could be drawn that Woodruff was referencing what Plaintiff calls "notions of Black Supremacy and Black separatism." And if Woodruff was indeed "indicating that people of color at [MS 224] needed to be separated from Catania because of her White/Caucasian race," then this is sufficient to raise a minimal inference that Woodruff's actions were taken on the basis of Plaintiff's race….

The Third Amended Complaint [also] plausibly alleges that Woodruff acted jointly with the MS 224 Teachers, who themselves were acting under color of state law, and therefore that Woodruff's conduct was state action.

First, Plaintiff plausibly alleges that Woodruff conspired with the MS 224 Teachers to defame Plaintiff and get her removed from her position on account of her race. Plaintiff alleges that Woodruff held meetings with the MS 224 Teachers, during which they agreed to take steps to get plaintiff removed, such as filing grievances. Defendants then took steps jointly with the MS 224 Teachers toward achieving their goal. The MS 224 Teachers filed numerous false and unsubstantiated complaints against Plaintiff with the DOE and with the UFT as directed by Woodruff. Woodruff and the UFT organized press conferences and rallies at which various MS 224 Teachers made false and derogatory statements about Plaintiff, again at Woodruff's direction.

Crucially, the MS 224 Teachers heard Woodruff's comments about wanting to "Malcolm X" Plaintiff, from which a reasonable inference may be drawn that they were "knowingly furthering the discriminatory intent" in carrying out Woodruff's plans. At the very least, a plausible inference can be drawn that Liriano [one of the MS 224 Teachers], who explicitly stated that she wanted to replace Plaintiff with a black principal, was intentionally engaged in discriminating against Plaintiff on the basis of her race. Woodruff and the MS 224 Teachers are therefore alleged to have conspired and acted in concert to violate Plaintiff's constitutional rights.

Second, Plaintiff plausibly alleges that the MS 224 Teachers were acting under color of state law in engaging in the conspiracy…. Educators who are public employees act under color of state law when they "misuse [their] authority" over their students…. The MS 224 Teachers were not merely protesting in the ambit of their personal pursuits as private citizens; they were using their authority as teachers to harass and defame Plaintiff. They lodged formal workplace complaints through the DOE, through the UFT, and directly to Superintendent Alvarez, even though the complaints were "false and unsubstantiated."

Multiple MS 224 Teachers made derogatory comments about Plaintiff directly to students, over whom they had authority, in classroom settings. Ms. Liriano even "caused forty students … to opt out of a certain exam" in order to "reflect badly" on Plaintiff. These formal DOE complaint processes and the influence over students were only available to the MS 224 Teachers by virtue of "the position[s] given to [them] by the State." In stoking resentment toward Plaintiff, see, e.g., TAC ¶ 291 ("[D]uring an official observation from a DOE deputy superintendent, inside a classroom in the school, a student called Catania a 'racist, white b**ch' in front of said deputy superintendent."), and in discouraging students from taking exams for reasons unrelated to their educational development, the MS 224 Teachers misused that influence over their students. Therefore, the MS 224 Teachers' conduct constituted state action for purposes of Plaintiff's § 1983 claim….

The post Principal's Race Discrimination Lawsuit Over "We Can Malcolm X Her" Allegations Can Go Forward appeared first on Reason.com.

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Published on July 17, 2025 07:18

[Eugene Volokh] Hamtramck (Michigan) May Stop Flying Pride Flag and Other Flags on City Flagpoles

From Monday's decision by Judge David Lawson (E.D. Mich.) in Gordon v. City of Hamtramck:

This case concerns a dispute over the display of flags on a series of 18 flagpoles located on city sidewalks lining Joseph Campau Avenue in the City of Hamtramck's downtown historic district. It is undisputed that the flagpoles are on public property and owned by the City. At the center of the dispute is the display of a Gay Pride flag, once sanctioned by [the city Human Relations Commission] and then banned by city government after a change in administrations and a corresponding policy reversal. The plaintiffs, Russ Gordon and Cathy Stackpoole, were members of that commission before they were dismissed for pressing the issue….

In 2021, the Hamtramck City Council authorized the display of a Pride flag at a city-owned flagpole, but then in 2023 it reversed course, implementing this resolution:

WHEREAS, the City of Hamtramck is one of the most diverse cities in the United States, in which we should proudly promote and embrace its diversity; and

WHEREAS, the City must and will serve and treat its residents equally, with no discrimination, or special treatment to any group of people; and

WHEREAS, the City has authorized in the past, the Human Relations Commission to install nations['] flags on the City flagpoles to represent the international character of the City, Resolution 2013-102: and

WHEREAS, each religious, ethnic, racial, political, or sexually oriented group is already represented by the country it belongs to; and

WHEREAS, the City does not want to open the door for radical or racist groups to ask for their flags to be flown; and

WHEREAS, this resolution does not in any way, shape or form infringe upon the fundamental right of an individual or business in the City of Hamtramck to engage free speech. Nor does this resolution limit speech by public employees provided that such employees engage in such speech in a protected time, manner and place.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Hamtramck, Wayne County, Michigan, that the government of the City of Hamtramck does not allow any religious, ethnic, racial, political, or sexual orientation group flags to be flown on the City's public properties, and that only, the American flag, the flag of the State of Michigan, the Hamtramck Flag, the Prisoner of War flag and the nations' flags that represent the international character of our City shall be flown.

Gordon and Stackpoole then "took the personal view that the resolution was an unconstitutional restriction on speech contrary to the First Amendment, and, on July 9, 2023, acting on their own initiative, Gordon and Stackpoole raised the Pride flag on one of the Joseph Campau Avenue flagpoles." "Hamtramck police were summoned by the Mayor and soon removed the flag." After that, the City Council removed plaintiffs Stackpoole and Gordon from their positions on the HRC, and "stripped the HRC of authority over the flagpole displays."

Gordon and Stackpoole sued and moved for partial summary judgment, but the court disagreed:

This case begins and ends with Shurtleff v. City of Boston, which is both squarely on point and constitutes the leading and most recent controlling authority regarding First Amendment treatment by the Supreme Court of flagpole displays…. Resolution 2023-82 substantially altered the nature of the forum presented by Hamtramck's public flagpoles, and that alteration in turn is dispositive of [plaintiffs'] First Amendment claims. [T]he closure of a limited public forum by municipal authorities was expressly recognized as constitutionally permissible in Shurtleff….

As the [Shurtleff] Court observed: "All told, while the historical practice of flag flying at government buildings favors Boston, the city's lack of meaningful involvement in the selection of flags or the crafting of their messages leads us to classify the flag raisings as private, not government, speech—though nothing prevents Boston from changing its policies going forward." The Court also endorsed the type of regulations enacted in other cities that expressly limit and specify which flags can be displayed, indicating that such an enactment would tip the balance of the forum- classification analysis: "Boston could easily have done more to make clear it wished to speak for itself by raising flags. Other cities' flag-flying policies support our conclusion. The City of San Jose, California, for example, provides in writing that its 'flagpoles are not intended to serve as a forum for free expression by the public,' and lists approved flags that may be flown 'as an expression of the City's official sentiments.'" The regulation here fits precisely into that niche….

The court likewise rejected plaintiffs' Establishment Clause claim:

The plaintiffs … posit[] that the enactment of Resolution 2023-82 that effectively banned display of the Pride flag violated the Establishment Clause because it was promulgated "to accommodate a segment of the Hamtramck community which was hostile to the rights of the gay community based on their personal religious views." The plaintiffs cite several statements in this record by city councilpersons condemning homosexuality and expressing hostility to the sentiments that the Gay Pride flag may symbolize.

However, the plaintiffs' "evidence" of subjective motivation to advance a religious viewpoint is irrelevant to the analysis of alleged Establishment Clause violations. "The eyes that look to purpose belong to an objective observer, one who takes account of the traditional external signs that show up in the text, legislative history, and implementation of the statute, or comparable official act."

"[I]t is virtually impossible to determine the singular 'motive' of a collective legislative body, and [the Supreme] Court has a long tradition of refraining from such inquiries…. The First Amendment does not refer to the purposes for which legislators enact laws, but to the effects of the laws enacted[.] This does not put [the Court] in the business of invalidating laws by reason of the evil motives of their authors." Accordingly, "[i]t is a familiar principle of constitutional law that [courts] will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive. As the [Supreme] Court long ago stated: 'The decisions of this court from the beginning lend no support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption that a wrongful purpose or motive has caused the power to be exerted.'"

On its face, Regulation 2023-82 is devoid of any reference or endorsement of any religion or viewpoint. In fact, it evidences an intent by the City to avoid endorsing any private credo at all. Whether or not any subjective animus toward a particular viewpoint motivated the adoption of the regulation is entirely irrelevant, since "[t]he Supreme Court [has] repeatedly explained that legislators' personal motivations for enacting a regulation are irrelevant to First Amendment challenges to government regulations; [and] only the government's asserted justifications are pertinent." The justifications advanced here—foreclosing public controversy and avoiding contentious litigation over displays of competing viewpoints—have been found to be constitutionally valid by courts that upheld regulations with indistinguishable limitations on flagpole displays….

The court also concluded that plaintiffs' Equal Protection Clause argument was insufficiently developed to be considered.

The post Hamtramck (Michigan) May Stop Flying Pride Flag and Other Flags on City Flagpoles appeared first on Reason.com.

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Published on July 17, 2025 06:31

[Eugene Volokh] N.Y. Legal Aid Attorneys' Claim Can Proceed Against Union, Alleging Retaliation Over Lawsuit Against Anti-Israel Union Resolution

From Kopmar v. Ass'n of Legal Aid Attorneys, decided yesterday by Judge Paul Oetken (S.D.N.Y.) (though see also another post this morning rejecting a different part of the claim):

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 stated claims under the LMRDA, at least as to the ALAA and members of its Amalgamated Council. The LMRDA protects Plaintiffs' right to freedom of expression, as well as their right to sue, largely irrespective of the content being expressed. Thus, … the ALAA and its officers were barred from disciplining Plaintiffs in retaliation for that lawsuit….

Section 101 of the LMRDA enumerates certain rights that all union members shall have, including the right to sue, and the right to freedom of expression. Section 609 makes it unlawful for a union to "fine, suspend, expel, or otherwise discipline" any member for exercising such rights ….

Here, whether viewed as "infringement" of Plaintiffs' Section 101 rights, or as "discipline" prohibited by Section 609, the ALAA may be liable if the charges against Plaintiffs were based on Plaintiffs' protected conduct. Members of the ALAA "filed charges and initiated expulsion proceedings against plaintiffs," and the ALAA defended the propriety of those charges against Plaintiffs' appeals until Plaintiffs finally prevailed before the PRB. That is sufficient to state at least an infringement claim, and likely a discipline claim as well, as to the union….

The only remaining question, then, is whether the ALAA's charges were filed in connection with Plaintiffs' exercise of Section 101 protected rights…. Section 101(a)(4) protects union members' "right to sue," and is "designed to give union members the tools to insure the fairness of their union as a representative institution. As relevant here, the statute bars unions from "limit[ing] the right of any member thereof to institute an action in any court." The protection "is not limited to suits by a union member against the union or its officers," and "appl[ies] to the broad range of disputes and grievances … which arise in the context of labor union affairs." … "[T]here is nothing in the Act which distinguishes between suits involving members as opposed to employee rights, between suits involving internal as opposed to external union problems, or between suits brought in good faith as opposed to those brought in bad faith."

Defendants object that the disciplinary charges were filed against Plaintiffs in part because they "gratuitously and recklessly dox[ed]" other union members, and that the doxing aspect of their lawsuit is not protected by the LMRDA. Even accepting Defendants' dubious premise that publicly naming parties in a lawsuit constitutes improper "doxing," it would be irrelevant. The union members who filed the charges against Plaintiffs were abundantly clear, both in emails to the union membership and in the text of the charges themselves, that the charges were at least in part based on the lawsuit itself. Thus, whether the Charging Defendants could have filed charges based solely on the alleged doxing, the charges here may be plausibly construed as based at least in part on Plaintiffs' overall lawsuit….

More broadly, Defendants argue that Plaintiffs' state-court lawsuit was "self-serving" and anti-democratic in nature, and therefore is unprotected by the LMRDA's right-to-sue provision. But the LMRDA is not limited to particular types of lawsuits, nor even to meritorious ones. Indeed, as the Ninth Circuit has explained, the right to sue would be meaningfully degraded "if a member of a union is required to make a pre-suit determination that the union may not discipline him for bringing it because upon a post-suit examination of the matter it will appear to some union official or judge that the member's action was brought in good faith …." …

Plaintiffs also allege that the charges interfered with their protected freedom of expression under Section 101(a)(2)….. [Whether or not] the act of filing a lawsuit itself is … protected by Section 101(a)(2), the disciplinary charges here also targeted the speech contained in Plaintiffs' lawsuit and the ideas that Plaintiffs sought to communicate. The charges faulted Plaintiffs for "baselessly and publicly smearing their fellow union siblings as antisemitic." Plaintiffs' alleged misconduct, then, was their public advocacy for ideas with which Defendants disagreed, not simply Plaintiffs' recourse to the judicial process. It is therefore at least plausible to read quotes like this as indicating that Defendants filed and advanced the charges in retaliation for Plaintiffs' protected expression….

The post N.Y. Legal Aid Attorneys' Claim Can Proceed Against Union, Alleging Retaliation Over Lawsuit Against Anti-Israel Union Resolution appeared first on Reason.com.

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Published on July 17, 2025 05:45

[Eugene Volokh] 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….

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Published on July 17, 2025 05:23

[Natalie Alkiviadou] Hate Speech and the European Court of Human Rights: Article 17, Memory Politics, and the ECtHR's Selective Silencing

In this fourth guest entry on The Volokh Conspiracy, I examine a domain where the European Court of Human Rights (ECtHR) and the now defunct European Commission on Human Rights (EComHR) has shown a bold willingness to restrict speech, namely speech related to totalitarianism and genocide. But the ECtHR's boldness in some cases is matched by inconsistency in others, raising a fundamental concern, when the memory of atrocity becomes a matter of legal privilege, which histories are protected, and which are negotiable? Through a close reading of key decisions, this post highlights what I call the Court's "hierarchy of historical suffering."

Article 17 and the totalitarian legacy

Article 17 of the European Convention on Human Rights (ECHR) prohibits the use of Convention rights for the destruction of such rights. The Court has interpreted this provision, especially in cases involving Nazi ideology and Holocaust denial, as a near-automatic bar to Article 10 protection. In Kühnen v Germany (1988), the EComHR declared inadmissible the complaint of a neo-Nazi convicted for distributing propaganda. The Commission reasoned that by invoking Article 10 to spread ideas that were fundamentally incompatible with the values enshrined in the Convention, the applicant sought to undermine the very rights the Convention was designed to protect.

A similar logic was followed in B.H, M.W, H.P. and G.K. v Austria (1989). The applicants were convicted of engaging in activities motivated by National Socialist ideology, including the production and dissemination of pamphlets denying the Nazi genocide of six million Jews. As members and leaders of the Aktion Neue Rechte party, they advocated for the reintroduction of traditional Nazi songs and titles within the organisation. They were sentenced to conditional terms of imprisonment under the National Socialism Prohibition Act, receiving sentences of nine, three, eighteen and twelve months respectively. The EComHR found that, considering Austria's historical context and the underlying purpose of the Convention, the corresponding penalties imposed on the applicants were justified. It determined that Austria's measures were consistent with the limitations outlined in Article 10(2), interpreting all relevant provisions through the lens of Article 17. It noted that 'in view of the historical past forming the immediate background of the Convention itself' the restrictions to the applicants' activities were justified in the interest of national security, territorial integrity and for the prevention of crime.

This pattern shows a consistent application of Article 17 to anything related to National Socialism. While one might understand the historical sensitivity of Europe towards the genocidal atrocities of the Nazi regime, the result has been a categorical exclusion of speech directly or indirectly related to this regime that bypasses any balancing test under Article 10(2) of the ECHR on the right to freedom of expression. But this consistency breaks down quickly when it comes to other ideologies.

Vajnai and Fáber: A glimmer of contextual reasoning

In Vajnai v Hungary (2008), the applicant was convicted for wearing a red star, a symbol of Communism, during a peaceful demonstration. The ECtHR found a violation of Article 10, holding that the red star had multiple meanings and that Hungary had failed to demonstrate any "real and present danger" of re-establishing a Communist dictatorship. Notably, the Court emphasized that "it accepts that the display of a symbol which was ubiquitous during the reign of those regimes may create uneasiness among past victims and their relatives, who may rightly find such displays disrespectful. It nevertheless considers that such sentiments, however understandable, cannot alone set the limits of freedom of expression."

Likewise, in Fáber v Hungary (2012), the ECtHR protected a far-right demonstrator who displayed the Árpád-striped flag, historically associated with Hungary's fascist Arrow Cross Party. Although the flag was displayed near an anti-racism event and provoked outrage, the Court ruled that there was no evidence of intimidation or public disorder, reaffirming the need to protect offensive but non-violent expression. These two cases stood out because the Court applied a risk-based analysis, assessed the context, and recognized the dual meaning of political symbols, an approach far more nuanced than its blanket treatment of Nazi-associated speech.

But not for Nazi symbols: The case of Nix v Germany

In Nix v Germany (2018), the applicant posted an image of Heinrich Himmler in SS uniform on his blog, in a post criticizing perceived discrimination by a public employment office. The post included no incitement, and the applicant argued it was intended as satire or political critique. Yet the ECtHR upheld the domestic conviction, invoking Germany's "special moral responsibility" to distance itself from its Nazi past. The Court declared that the symbol in question, a photograph of Heinrich Himmler in SS uniform prominently displaying a swastika armband, cannot be considered to have any other meaning than that of Nazi ideology and found no need to engage with the blog's broader context.

The contrast with Vajnai is stark. There, the red star, representative of decades of terror, was seen as contextually ambiguous and therefore permissible. In Nix, the swastika was deemed beyond ambiguity and categorically banned. This asymmetry signals a deeper problem, namely the temporal distance from Communism matters, but Nazism is treated as a perpetually imminent threat.

Genocide denial: the Holocaust exception

The ECtHR has firmly held that denial or trivialization of the Holocaust falls outside the protection of Article 10. In Garaudy v France (2003), the Court rejected the application of a Holocaust-denying writer, holding that "denying crimes against humanity is one of the most serious forms of racial defamation of Jews." In Williamson v Germany (2019) and Pastörs v Germany (2020), both applicants were convicted for Holocaust denial, one in a televised interview, the other in a parliamentary speech. The Court found both applications inadmissible, upholding the state's strong interest in maintaining historical truth and preventing anti-Semitism. But the reasoning in these cases rarely involves a direct analysis of actual harm or public disorder. Instead, it relies on the assumed necessity to ban all speech that denies the Holocaust.

A different standard for the Armenian genocide

The above-described presumption of incompatibility with the ECHR collapses when the genocide in question is not the Holocaust. In Perinçek v Switzerland (2015), the applicant, a Turkish politician, called the Armenian genocide an "international lie" during speeches in Switzerland. Convicted under a Swiss law prohibiting genocide denial, he appealed to Strasbourg. The Grand Chamber found a violation of Article 10, holding that the statements were of public interest, did not amount to incitement and were not sufficiently harmful to justify criminal sanction. To distinguish this case from Holocaust denial, the Court noted a lack of European consensus on the legal classification of the Armenian genocide and the absence of a Nuremberg-style tribunal. It also emphasized that Perinçek had not expressed "contempt or hatred" for Armenians. But this logic is deeply troubling. As Judges Pinto de Albuquerque and Vučinić rightly warned in dissent that:

the sufferings of an Armenian because of the genocidal policy of the Ottoman Empire are not worth less than those of a Jew under the Nazi genocidal policy. And the denial of Hayots Tseghaspanutyun … or Meds Yeghern … is not less dangerous than Holocaust denial.

The Court's refusal to apply Article 17 in Perinçek, while routinely applying it in Holocaust cases, creates a de facto hierarchy of genocides. Genocidal denial is punishable in one case, but a protected opinion in another. The moral and legal consequences of such asymmetry are profound. One if, of course, reminded of Volokh's censorship envy here.

When historical memory becomes a speech tax

Across the ECtHR's hate speech jurisprudence, we observe a troubling pattern. Expressions deemed offensive to victims of the Holocaust are criminalized swiftly and without a proportionality review under the limitation grounds set out by Article 10(2) of the ECHR. But equally offensive expressions targeting victims of other totalitarian regimes or atrocities, whether under Communism or during the Armenian genocide, are often met with greater tolerance, or even protection. In this landscape, speech protections appear to depend not only on the content of the expression, but on which atrocity is being remembered.

Conclusion: Toward a consistent and principled standard

The ECtHR's jurisprudence on totalitarianism and genocide denial reflects an uncomfortable tension between honoring memory and protecting speech. While the Court is right to be vigilant against anti-Semitism, its blanket use of Article 17 in Holocaust-related cases, coupled with its contextual flexibility elsewhere, raises serious concerns about fairness, consistency and the politicization of legal doctrine. Free speech should not be conditioned on which historical pain is being invoked. If context, proportionality, and public interest matter in Vajnai and Perinçek, they should also matter in Nix and Pastörs. Otherwise, the ECtHR risks turning Article 10 into a selective guarantee, tied not to principle but to political memory hierarchies.

The post Hate Speech and the European Court of Human Rights: Article 17, Memory Politics, and the ECtHR's Selective Silencing appeared first on Reason.com.

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Published on July 17, 2025 05:01

[Josh Blackman] Today in Supreme Court History: July 17, 1862

7/17/1862: Congress enacts the Confiscation Act, which empowers the government to seize the property of the rebels. The Supreme Court considered the constitutionality of that law in The Confiscation Cases (1873).

The Chase Court (1873)

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Published on July 17, 2025 04:00

July 16, 2025

[Josh Blackman] President Trump To Nominate Jennifer Mascott To Third Circuit

I am very pleased that President Trump has announced that he will nominate Professor Jennifer Mascott to the Third Circuit.

I am pleased to nominate Jennifer Mascott to serve as a Judge on the United States Court of Appeals for the Third Circuit. Jennifer clerked for Justice Clarence Thomas and Justice Brett Kavanaugh, where she learned much about upholding the Constitution, and safeguarding our…

— Trump Truth Social Posts On X (@TrumpTruthOnX) July 16, 2025

I have known Jenn for more than a decade, and have always found her to be a thoughtful scholar, a sharp lawyer, and a kind person. Perhaps most importantly, Jenn has proven herself to be the rare academic with strong scholarly bona fides and practical experience in public affairs. Jenn served in the Office of Legal Counsel during Trump's first term, and now serves in the White House Counsel's Office. That background will serve her well on the federal bench.

Congratulations to Jenn!

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Published on July 16, 2025 21:10

[Ilya Somin] A Compelling Defense of Immigration Parole Programs

[My Cato Institute colleague David Bier presented it in testimony before a congressional committee.]

Venezuelans fleeing the socialist regime of Nicolas Maduro. (NA)

In recent testimony before the House Subcommittees on Oversight, Investigations, and Accountability and Border Security and Enforcement, of the Committee on Homeland Security, my Cato Institute colleague David Bier presented a strong defense of the legality, justice, and effectiveness of immigration "parole programs," which allow broad categories of migrants fleeing war and oppression to enter the US legally. As he describes, there is a long history of such programs, most recently those created by President Biden for migrants from Ukraine fleeing Russian invasion (the Uniting for Ukraine program), and four Latin American nations beset by violence and socialist tyranny (the CHNV program).

David is one of the nation's leading immigration policy experts, and his testimony is must-reading for anyone interested in this issue. Here is a summary:

One legal way for immigrants to enter and participate in US society is parole, an immigration category first created by Congress in the Immigration and Nationality Act of 1952. Over the decades since then, millions of individuals have entered this country as parolees. Although parole is a temporary status, it allows immigrants to adjust to lawful permanent residence if they are eligible through another pathway, which many thousands of parolees have done. Many former parolees are now Americans and continue to contribute to their new home. It is an essential and important feature of America's legal immigration system.

Congress should:
protect current parolees from the president's mass deportation efforts; reinstitute the parole processes suspended by the president; and expand those processes to give more people a viable legal option to immigrate legally to the United States.

David explains the advantages of these programs, and ably addresses a variety of legal and policy objections.

I have defended the legality of CHNV in a Supreme Court amicus brief, and in an earlier amicus brief in Texas v. Department of Homeland Security, a lawsuit filed by twenty GOP-controlled states (that case was eventually dismissed by a conservative Trump-appointed federal judge for lack of standing). I also defended it in a 2023 article in The Hill, and criticized Trump's attempts to revoke it in a March 2025 post.

See also my various writings on the success of Uniting for Ukraine and what we can learn from it.

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Published on July 16, 2025 17:15

[Eugene Volokh] Dungeons & Defamation

A new libel complaint in Clark v. Gygax (that would be Gary Gygax's son Luke Gygax), over a failed Kickstarter related to a planned new installment in a "tabletop game," "Castle Wolfmoon":

In the published post, Defendant made numerous knowingly false statements, including claims that Plaintiff was misappropriating Gary Gygax's name, that Plaintiff was lying to the public about the Castle Wolfmoon project's authorship, and that Defendant was not associated with the project.

This is of course just at the Complaint stage, so we know only the allegations. But it naturally piqued my interest (as a D&D player from back in the 1970s), and I thought it might likewise interest some readers.

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Published on July 16, 2025 15:57