The Unconstitutional Attack on Free Speech by the Nassau County Supreme Court
“[T]he problem is not our speech, but their attempts to unjustly intimidate us out of speaking.” – Allie Goodman on the Working People podcast, ALAA UAW 2325 Member
In October and November 2023, legal aid unions in New York faced informal and formal challenges over resolutions aiming to show solidarity with Palestinian workers. The Association of Legal Aid Attorneys planned a unionwide vote on a solidarity resolution. However, the Legal Aid Society’s management opposed it, labeling the resolution antisemitic. In a lawsuit filed by the Legal Aid Society of Nassau County, the Nassau County Supreme Court issued a temporary restraining order, halting the union vote on the resolution just 15 minutes before its conclusion. In a hearing on November 21, Judge Felice J. Muraca extended the temporary restraining order. The Defendants removed the case to the United States District Court for the Eastern District of New York where the lower court’s unconstitutional decision was subsequently overruled.
I. The Case & Controversy
On October 7, 2023, Hamas – a U.S. recognized-terrorist organization – brutally murdered nearly 1,400 Israelis. Among the dead were 32 American civilians. Another 247 Israeli civilians and soldiers were taken captive. In the aftermath of this horror, Israel responded with controversial force.
Then, on October 16, nineteen trade union institutions and professional organizations from all sectors, including the Palestinian General Federation of Trade Unions (PGFTU), stated: “As Israel escalates its military campaign, Palestinian trade unions call on our counterparts internationally and all people of conscience to end all forms of complicity with Israel’s crimes – most urgently halting the arms trade with Israel, as well as all funding and military research.”
Following this international call, labor organizations representing public defender services in various sections of New York began working on statements of solidarity. Quickly, however, management at these defender groups began actively working to prevent such rank-and-file actions, mainly voicing concerns that acts of solidarity with Palestinian workers would jeopardize critical defender funding.
It wasn’t long before these bosses used various formal tactics to shut down union speech. One news report claimed that “[t]wo of the organizations sent cease-and-desist letters to union shops considering resolutions calling for a ceasefire. Another group called staffers into meetings with human resources for using work channels to share links about Palestine and proposing to do fundraising for the Palestine Children’s Relief Fund in lieu of an annual holiday party.”
The Association of Legal Aid Attorneys – UAW Local 2325 (ALAA) – has nearly 2,700 workers that cover more than 25 organizations (including the Bronx Defenders, Brooklyn Defender Services, Neighborhood Defender Service, and the Legal Aid Society of New York City) and is the nation’s oldest labor union for attorneys and legal service workers. They provide services to more than 360,000 people each year. In response to the ongoing conflict, ALAA drafted a “Resolution Calling for a Ceasefire in Gaza, an End to the Israeli Occupation of Palestine, and Support for Workers’ Political Speech.”
On November 14, 2023, the Resolution passed ALAA’s Joint Counsel – composed of delegates from local shops’ chapters – by a large vote margin of 108-13-8. This vote allowed the resolution to go to a union-wide membership vote.
The Legal Aid Society, in detesting the workers’ resolution, claimed that “[t]he resolution is laden with coded antisemitic language and thinly veiled calls for the destruction of the State of Israel. At a time when our attorneys and staff should be united in support of the people we serve, the resolution does not advance the legal interests of our clients, does not comport with our mission and values, and is divisive and hurtful.”
Also, in a Legal Aid Society staff meeting prior to the ALAA’s unionwide vote, the organization’s CEO, Twyla Carter, tried to discourage support for the worker’s resolution by referencing a company policy that states the staff should “not talk about sociopolitical views or anything outside of our mission and our clients.”
Hours after this meeting, four lawyers from the Legal Aid Society of Nassau County, all of whom are due paying members of ALAA, filed a lawsuit against ALAA in the Nassau Supreme Court (index number: 618764/2023). By suing, these attorneys sought to prevent the union vote by arguing that it created a conflict for public defenders and made it difficult for them to work effectively (referencing Gideon v. Wainright).
The Plaintiffs distinguished this matter from other labor unions which have voted upon similarly worded ceasefire resolutions by arguing that “unlike other unions, our members are attorneys…[who] have a professional and ethical duty to not only avoid representing clients when there exists an actual conflict of interest between the attorney and client, but also when the mere appearance of a conflict and/or the mere appearance of impropriety is present.”
Additionally, the Plaintiffs claimed that “there is no articulable “harm” that might be suffered by [the union members] by mere virtue of any such vote on the Resolution being temporarily delayed.”
The next day, on November 17, Judge Felice J. Muraca (elected as a Republican in the 2015 New York General Election) issued a temporary restraining order, stopping the union-wide vote just 15 minutes before it was scheduled to conclude, preventing the worker’s votes from being counted.
Days later, a news agency reported that “…Judge Felice J. Muraca, after a hearing [held on] Nov[ember] 21 where Local 2325 members and supporters packed the courtroom, extended the temporary order barring the vote. No concrete evidence of antisemitism in the union’s resolution was presented. In fact, a number of the attorneys involved in drafting and campaigning for the resolution [were] Jewish.”
On December 1, 2023, counsel for the Defendants removed the case to the United States District Court for the Eastern District of New York (case number: 2:23-cv-08869-NJC-ARL). Fortunately, on December 15, the Defendant’s Motion to Dissolve the Temporary Restraining Order was granted by Judge Nusrat J. Choudhury.
In granting the Motion to Dismiss, the District Court found that the plaintiffs failed to establish any of the three prongs necessary to maintain the temporary restraining order.
According to ALAA, “[a]mong other things, the Court found plaintiffs did not show a likelihood of success on the merits of their claim that the Union breached its duty of fair representation or breached the ALAA’s By-Laws. Moreover, the Court found the [temporary restraining order] violated the Union’s free speech rights.”
Thereafter, ALAA voted to approve the Resolution by a margin of 1067-570.
A statement released by ALAA following the vote read in part:
Our union was founded on the principles of social activism and we have always engaged in advocacy beyond the narrow confines of collective bargaining. Our concern with the welfare, not just of our members, but of the clients and communities we serve, is a defining philosophy of our union that factors into every action and decision we take. ALAA stands apart because of our strong dedication to rank-and-file democracy, which has guided us for over fifty years. We opposed apartheid in South Africa, campaigned for Temporary Protected Status for Guatemalan unionists, marched against police violence in New York City and across the United States, and have demanded the end of US military aid to the Philippines. Just last year, our membership overwhelmingly voted in support of Palestinian liberation and called on the UAW International to divest itself from any and all Israel bonds. ALAA has not and will not shy away from taking a stance on issues of concern to our membership, and doing so in a manner which emphasizes maximum democratic participation. Democracy cannot exist when actions are restrained by court order.
II. Significance of the Ruling for Free Speech & Labor Rights
Michael Letwin, a former public defender at Legal Aid in Brooklyn (37 years) and past president of UAW 2325 (13 years), summarized the significance of the Nassau County Supreme Court’s unconstitutional ruling on the Working People podcast when he said:
[I]n modern times, to have a court…issue a prior restraint, prior censorship against political speech by a union…is just absolutely groundless in terms of the law. It’s a blatant violation of the First Amendment.
The only [recent] time I’m aware of when a court…issued an injunction against the union for making…speech was around 1999…during the transit workers’ negotiations in New York City. And I remember going to court with the Transit Workers Union…and opposing a temporary restraining order, which forbade the union…from taking a vote to authorize a strike at the New York Transit Authority. And the basis for that, although [still] blatantly unconstitutional, [was] at least…going on strike…[was] illegal under the Taylor Law in New York State[.]
[However], [h]ere, this is purely political speech…all that’s being voted on is something that doesn’t even have to do with collective bargaining directly. It’s not about an issue at work…[a]nd even if it was, we have the right to say so.
This case was novel on account of its direct implications on the rights of the working class to collectively speak on matters important to unions and their members outside of collective bargaining matters.
If other courts were to agree with Judge Muraca’s holding that delaying a union vote on account of political speech is somehow not an articulable harm to union members and their free speech rights, then the very nature of collective action would be undermined.
III. A Union Member’s Right to Dissent to Internal Union Affairs
A natural question that may arise from this case – although not addressed in the suit – is a union member’s right to vocalize their dissent in internal union affairs. Section 101(a)(2) of the Labor-Management Reporting and Disclosure Act (LMRDA, also known as the Landrum-Griffin Act) reads in part:
Every member of any labor organization shall have the right to meet and assemble freely with other members; and to express any views, arguments, or opinions; and to express at meetings of the labor organization his views, upon candidates in an election of the labor organization or upon any business properly before the meetings, subject to the organization’s established and reasonable rules pertaining to the conduct of meetings[.]
A frequently cited Guide on this Section noted that “courts faced with Section 101(a)(2) actions have naturally turned to…First Amendment cases for principles to be applied by analogy.”
However, this same Guide notes that “whether members’ speech in order to be protected by Section 101(a)(2) must relate to matters of union concern, and if so, how close that relationship must be, has been the subject of some confusion in the courts.”
For example, there is a long line of cases which “have applied [the Section’s] protections broadly, to speech arguably only tangentially related to union concerns.” (See Stachan v. Weber (“the court enjoined a union from barring from membership meetings members who refused to recite the Pledge of Allegiance.”); Turner v. Air Transport Lodge 1894 of Intern. Ass’n of Machinists and Aerospace Workers, AFL-CIO (“the court overturned the union’s expulsion of a member who had violated a union rule against ‘advocating Communist ideas.’”); Williams v. United Steel Workers of America, AFL-CIO/CLC (“the court held that a union officer’s opposition to displays of the Confederate flag was protected speech, although the court also held that the plaintiff’s removal from office was not in retaliation for that speech.”)).
Conversely, courts “dealing with alleged violations of union officers’ free speech rights, have applied a narrower test, suggesting that to be protected by Section 101(a)(2), speech must ‘be fairly characterized as a matter of union concern’—that is…the speech ‘relates to the general interests of the union membership at large.’”
Therefore, while dissenting speech in internal labor union disputes is protected, the line can often get fuzzy if the speech comes from union officers – rather than the rank-and-file membership.
IV. Concluding Thoughts
Clearly, this piece does not look towards the substance of the Israeli-Palestinian conflict. Hypothetically, if the proposed resolution had instead been in solidarity with the Israeli Government, the argument presented here would nonetheless be the same.
The beauty of Free Speech is that it has been crafted to protect all parties, perspectives, and groups – regardless the substance of the speech. Although the U.S. Supreme Court has given various limitations on this Right (visit this link for an overview on various Free Speech limitations), the Nassau Supreme Court’s injunction threatened the collective free speech and labor rights of America’s working class.
While it is fortunate that Judge Muraca’s unconstitutional holding was not allowed to stand, this case shows that the working class must be vigilant in countering any attack on its right to speak collectively. Certainly, the right of labor to speak unrestrained is critical to the health of our Nation’s sacred democracy and civil liberties.
Contact:
- Reach “UAW 2325 Labor for Palestine” at alaaforpalestine@gmail.com.
- ALAA’s Website can be found here.
Carson Robb is a 2L student at the George Washington University Law School.
