Last week, Senators Bob Casey and Tim Scott introduced, and the Senate passed, the Anti-Semitism Awareness Act (PDF), a bipartisan bill aimed at tackling what appears to be a real problem: an uptick in anti-Semitic incidents on campus (which significantly predates Trump’s election). The key provision of the bill, which the Senate swiftly passed, is to have the Department of Education adopt a set of State Department guidelines on what constitutes anti-Semitism. On Friday, the House version was introduced.
Unfortunately, as I noted last week, this is deeply problematic legislation. As many observers have noted, it defines, for the purpose of investigations into alleged civil-rights violations on campus, anti-Semitism in a way that plainly violates the First Amendment.
Here’s the relevant section of the bill:
For purposes of this Act, the term ‘‘definition of anti-Semitism’’’—
(1) includes the definition of anti-Semitism set forth by the Special Envoy to Monitor and Combat Anti-Semitism of the Department of State in the Fact Sheet issued on June 8, 2010, as adapted from the Working Definition of Anti-Semitism of the European Monitoring Center on Racism and Xenophobia (now known as the European Union Agency for Fundamental Rights); and
(2) includes the examples set forth under the headings ‘‘Contemporary Examples of Anti-Semitism’’ and ‘‘What is Anti-Semitism Relative to Israel?’’ of the Fact Sheet.
“In reviewing, investigating, or deciding whether there has been a violation of title VI of the Civil Rights Act of 1964,” the bill continues, the DoE “shall take into consideration” that definition. But the “What is Anti-Semitism” fact sheet, which you can read here, contains many of the examples that have free-speech advocates worried. It describes as “anti-Semitic” holding Israel to a double standard, demonizing it to an undue extent for the state of the world, and a wide variety of other sorts of speech that, yes, may be anti-Semitic in a given context, but which are undoubtedly protected by the First Amendment (which also protects the rights of Israel’s defenders to make heated claims, it should be pointed out).
Now, the House bill, like its Senate predecessor, does include language stating that “Nothing in this Act, or an amendment made by this Act, shall be construed to diminish or infringe upon any right protected under the First Amendment to the Constitution of the United States.” But as Michael Macleod-Ball, the ACLU’s legislative chief of staff and First Amendment counsel, told Tana Ganeva of the Washington Post, stapling a copy of the First Amendment to a piece of legislation doesn’t magically let it off the hook for potential First Amendment violations. “That’s just empty rhetoric,” he said. “All it is [doing] is restating the First Amendment.”
One important subplot here is that the bill has the support of the Anti-Defamation League, one of the more influential pro-Israel and anti-bigotry organizations, which issued a press release lauding its passage in the Senate. After my article last week went up, Michael Lieberman, the organization’s Washington Counsel for the ADL, sent me an email assuring me that the “ADL would not have supported the bill if we thought it would restrict First Amendment-protected speech.”
But then came his interview with Ganeva, which further muddled things:
The ADL is falling into an obvious trap: Calling Netanyahu a Nazi is, as Cohn points out in the tweet, without a shadow of a doubt constitutionally protected speech. In a follow-up email, Lieberman agreed, but said that he didn’t in fact argue otherwise to Ganeva. Rather, he wrote, it’s the ADL’s belief that “intentional selection of a Jewish student’s whiteboard for a targeted message of intimidation would come much closer than your abbreviated version.”
Well, okay. But the idea of a “targeted message of intimidation” is a red herring here, because according to the plain language of the bill itself, a “Netanyahu is a Nazi” scrawl, whether or not it was part of a broader harassment campaign,
would could qualify as anti-Semitism for the purposes of an investigation under DoE guidelines, since it plainly fits one of the definitions from the State fact sheet: “Drawing comparisons of contemporary Israeli policy to that of the Nazis.” (One of the House co-sponsors touts this definition right on his website.)
This whole thing is just an embarrassing, constitutionally fraught dead end, and it appears the ADL and Congress don’t realize they have wandered into it, or how much of a pain it could be to extricate themselves. If the Anti-Semitism Awareness Act bill becomes law, it is going to put universities in an impossible situation in which the federal government is telling them that they have a constitutional obligation to allow students to criticize Israel (or any other person or entity) in forceful, over-the-top ways, even as that same federal government is also telling them that they could be violating students’ civil rights by allowing other students to call Netanyahu Hitler, or to criticize Israel too much (whatever that means) relative to other countries.
This would not be a tenable situation. If passed, this bill will likely elicit litigation and widespread criticism from the constitutional-law community, will spark protests from campus critics of Israel who rightly feel as though their free-speech rights are under threat because the federal government is now monitoring which analogies they use, and won’t make Jewish students any safer on campus.