Fighting Antisemitism or Chilling Speech?
The Antisemitism Awareness Act—which the House passed last week—has provoked cross-ideological opposition.
AS PRO-PALESTINIAN, ANTI-ISRAEL PROTESTS escalated on college campuses across the United States last week and reports proliferated of hostility toward Jewish students, Congress responded with a new bill, the Antisemitism Awareness Act, which passed the House by an overwhelming margin of 320–91 last Wednesday. While the legislation is a Republican project—the lead sponsor is New York Republican Michael Lawler, and most of the cosponsors were Republicans—Democrats also rallied behind it; of 212 House Democrats, 133 voted for the bill. And yet critics across the political spectrum, from the American Civil Liberties Union to libertarian Reason magazine columnist Robby Soave to right-wing pundit Matt Walsh to anti-woke education crusader Christopher Rufo to left-wing populist (and strong Israel supporter) Batya Ungar-Sargon, have denounced the bill as not only a terrible idea, but an unconstitutional one.
This is, it’s safe to say, one of the very few instances in which the ACLU and far-right Georgia Republican Marjorie Taylor Greene have been on the same side of an issue.
Leaving aside Greene’s habitually spectacular self-beclowning (her objection amounted to “You mean we can’t say that the Jews killed Jesus anymore?”), the issue critics have raised is that the bill would officially equate criticism of Israel with antisemitism and make it illegal under certain circumstances. It’s much too simplistic a charge—but it does raise valid and serious concerns.
BEFORE GETTING TO the Antisemitism Awareness Act, some background: It’s hardly news that speech in educational settings, just like in work settings, can amount to harassment that violates federal protections from discrimination—whether on the basis of race, color, sex, national origin, or religion. Title VI of the 1964 Civil Rights Act obligates colleges to provide a discrimination-free environment; antisemitic speech severe and/or pervasive enough to create a hostile environment for Jewish students is actionable, and schools can face not only lawsuits but loss of federal funds if they fail to curb such speech.
The focus of the new bill is the definition of “antisemitism” for the purpose of such enforcement. The bill directs the Department of Education to use the “working definition of antisemitism” developed in 2016 by the International Holocaust Remembrance Alliance (IHRA). The “legally nonbinding” definition itself does not mention Israel; it states that “antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews” and which may be “directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.” But the IHRA text also states that “manifestations might include the targeting of the state of Israel, conceived as a Jewish collectivity” and offers several examples such as:
Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.
Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation.
Using the symbols and images associated with classic antisemitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis.
Drawing comparisons of contemporary Israeli policy to that of the Nazis.
Holding Jews collectively responsible for actions of the state of Israel.
Unfortunately, a lot of these items are far from clear-cut. “Double standards” are often in the eye of the beholder. So are classic antisemitic tropes. Is it an instance of the “blood libel” to talk about or portray Israel as having the blood of Palestinian children on its hands? (The question isn’t whether the accusation is fair, but whether it’s antisemitic.) The deaths of children pack a uniquely powerful emotional punch, and critics of various wars are likely to focus on them as especially damning, regardless of religion or ethnicity; one of the leading protest chants during the Vietnam War was, “Hey, hey, LBJ, how many kids did you kill today?”
Comparisons between Israeli policies and those of Nazi Germany are absurd and offensive, but it’s not hard to find similar comparisons targeting the United States. (That said, Nazi parallels directed at Israel often do appear to target Jews as Jews, with the implicit or explicit charge that the Nazis’ chief victims have now become Nazi-like victimizers.) Critics of the bill also point out that Kenneth Stern, the attorney and author who crafted the IHRA definition, has come out strongly against using it as an instrument to curb campus speech.
It is also worth noting, however, that in a sense, the Antisemitism Awareness Act is not doing anything new. In December 2019, Donald Trump signed an executive order which specified that Title VI, which prohibits discrimination on the basis of race, color, or national origin in programs or activities that receive federal funds, extends to discrimination against Jews—and which also directed the use of the State Department definition of antisemitism, based on the IHRA formula. The Biden administration has left this order intact. The bill passed by the House would make it a matter of law—so that the enforcement would not end even if a future president decided to rescind the executive order. Attorney and blogger Scott Greenfield, who initially assailed the legislation as “one of the dumbest and most unconstitutional bills ever introduced,” later came to a similar conclusion:
IN A SENSE, THE DEBATE OVER the Antisemitism Awareness Act, and other moves to combat campus antisemitism, goes to an issue at the center of campus culture wars: whether speech that makes students uncomfortable on the basis of identity should be treated as a form of discrimination and therefore subject to curbs, especially if deemed to rise to the level of a “hostile environment.” It’s not difficult to find cases in which universities have targeted constitutionally protected speech by faculty and students, ranging from genuinely odious views (as in the case of University of Pennsylvania law professor Amy Wax, who argues that non-European immigrants harm American culture) to provocative but clearly non-hateful words—such as quoting texts that contain racial epithets in the classroom.
The twist is that many conservatives who usually deplore attempts to police offensive speech now find themselves on the other side of this issue: thus, Texas Gov. Greg Abbott, who has trumpeted his support for free speech on campus, now says that “Antisemitism will not be tolerated in Texas. Period.”
Meanwhile, many of the progressives who defend vitriolic speech by anti-Israel protesters even if it offends Jewish students have supported curbs on speech deemed offensive to other groups, such as women, racial minorities, LGBT students. The liberal journalist Ben Cohen argues that current progressive discourse on race, oppression, and privilege minimizes or erases antisemitism and situates both American and Israeli Jews as oppressors integrated into white supremacist power structures. (Similar points have been previously made by other commentators, such as John Paul Pagano and James Kirchick.)
A lot of Jewish students do perceive a hostile environment on campus. In an Anti-Defamation League campus-climate survey in the fall of 2023, the percentage of students who felt “very” or “extremely” comfortable being openly Jewish on campus dropped from 66 percent to 38 percent after October 7, while the percentage saying they would be uncomfortable publicly expressing their views of Israel grew from about 30 percent to 38 percent. Jewish students’ perception of their physical safety at school declined, as well: the share of those saying they felt “very” or “extremely” physically safe dropped from 66 percent before October 7 to 45 percent after. It’s likely that those disturbing figures have moved even further in the direction of fear during the protests of the last month.
To penalize criticism of Israel or Zionism would be injurious to the free exchange of ideas and contrary to both the First Amendment and academic freedom. However, while anti-Zionist or anti-Israel speech per se should not be penalized or restricted, such speech is, in many cases, de facto antisemitic. At the University of California-Berkeley two years ago, a pro-Palestinian campus group not only chose to boycott all speakers identified as Zionists but pressured other groups to join in such a boycott—even though close to 90 percent of American Jews are Zionists in the sense that they support a Jewish homeland in Israel/Palestine. Pro-Palestinian activists at the University of California-Santa Cruz are currently demanding that the university cut all ties to major Jewish charities and institutions, including Hillel International.
And sometimes, anti-Zionist speech does rise to the level of antisemitic harassment. During the recent protests, we have seen not only numerous instances of verbal abuse hurled at “Zionists,” but attempts to block perceived Zionists from accessing certain areas on campus (and, in one instance, the chasing and mobbing a student who tried to run past the blockade). Imagine for a moment that anti-abortion activists set up encampments on college grounds and used such tactics toward women labeled as feminists. Few would have trouble recognizing that such behavior creates a hostile environment for female students.
IF THE ANTISEMITISM AWARENESS ACT were to become law—and it is not yet clear that it would pass in the Senate—what would be its practical effects? At best, it will encourage institutions to take action against actual harassment or discrimination motivated by anti-Israel animus. At worst, it may well be used to target legitimate—if often obnoxious—expression, be it activist calls to boycott mainstream Jewish institutions or the recent speech at the pro-Palestinian encampment at UC-Berkeley decrying the Zionist infiltration of post-1960s American feminism and blaming it on “Jewish women” who “sometimes imported Zionist political operations into feminist networks.” (Antisemitic? Yes. Deserving of sanctions by the university? No, the only appropriate response is vigorous criticism.)
Antisemitism should be treated like other forms of bigotry. But the remedy for double standards is to move away from policies that police and penalize controversial or even offensive but non-harassing campus speech, not to extend those policies to more varieties of speech and more identities. If the Senate takes up the Antisemitism Awareness Act, the bill should be amended to make it clear that Title VI should not censor controversial viewpoints. Then it would be a step forward in both combating antisemitism and protecting freedom of expression on campus.