free speech

Trump’s Executive Order to Stifle Israel Critics Probably Violates the Constitution

A protest outside the Trump hotel in Washington, D.C., last year. Photo: Gili Getz

For a long time, some pro-Israel activists and lawmakers have been pushing a deeply authoritarian idea: using the power of the American state to punish those who take part in the so-called Boycott, Divestment, and Sanctions movement. BDS, as it’s known, spans a variety of efforts to pressure Israel to end its occupation of Palestinian territory and to treat Palestinian residents of Israel and the territories better.

As a constitutional matter, the problems with this couldn’t be more obvious: Americans have an ironclad right to protest against any country they want, for any reason they want, however they want, without the government interfering. There are some very narrow, very specific exceptions — you obviously can’t burn down a synagogue because you’re so upset at Israel — but as a general rule, the government really can’t regulate this sort of speech. That hasn’t stopped lawmakers, apparently unconcerned about such matters, from trying to pass legislation effectively outlawing certain types of activism. In 2017, for example, almost 300 members of the House and Senate co-sponsored bills that would have made certain boycotts of Israel a federal felony.

Some states have gotten in on the act, too. Texas’ dabbling in this sort of legislation led to some genuinely ugly results: “A children’s speech pathologist who has worked for the last nine years with developmentally disabled, autistic, and speech-impaired elementary-school students in Austin, Texas, has been told that she can no longer work with the public school district,” wrote Glenn Greenwald in 2018, “after she refused to sign an oath vowing that she ‘does not’ and ‘will not’ engage in a boycott of Israel or ‘otherwise tak[e] any action that is intended to inflict economic harm’ on that foreign nation.” (For those keeping track at home, yes, a state tightly associated with hands-off-my-guns anti-government conservatism passed a law attempting to force its employees to sign a document restricting their ability to criticize another country.) She sued, and, unsurprisingly, the courts weren’t having the law.

A separate but related effort has involved a State Department definition of “anti-Semitism” that, as I wrote in 2016, is both vague and overly broad: 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.” For a long time, some lawmakers have attempted to pass legislation which would empower the Department of Education to crack down on campus activity that runs afoul of this standard. They’ve failed, in part because many believe such a law would be unconstitutional — an argument the nonpartisan, free-speech-focused Foundation for Individual Rights in Education has made.

Now, according to the New York Times, President Donald Trump has resurrected this idea in the form of an executive order he plans on signing later today: “In signing the order, Mr. Trump will use his executive power to take action where Congress has not, essentially replicating bipartisan legislation that has stalled on Capitol Hill for years.”

The details here are slightly convoluted, and as confirmed by Jewish Insider, which obtained a copy of the order, they involve attempts by the administration to apply an overly broad definition of anti-Semitism to the question of campus speech. The rule gives the federal government more power to regulate that speech. The fact that, per Jewish Insider, the order also contains language stating that “Agencies shall not diminish or infringe upon any right protected under Federal law or under the First Amendment” does not ameliorate the issue. This, too, is a simple recycling of the older attempts to get this idea through via legislation, and as I noted in 2016, Michael Macleod-Ball of the ACLU told the Washington Post that 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.” (It appears the Times’ initial reporting that the order also sought to redefine Jewish people from a religious group to an ethnic or national one was simply incorrect.)

Overall, this is clearly an attempt to make it easier for the federal government to poke its nose into campus discussion of the Israel-Palestine conflict. This isn’t an idle concern given the Trump Department of Education’s apparently enthusiastic appetite for such meddling: The Times article notes that “the president’s action comes soon after the Education Department ordered Duke University and the University of North Carolina at Chapel Hill to remake their joint Middle East studies program on the grounds that it featured a biased curriculum. The move was part of a broader campaign by Betsy DeVos, the education secretary, and her civil rights chief, Kenneth L. Marcus, to go after perceived anti-Israel bias in higher education.”

Anti-Semitism is certainly a problem on many college campuses, and it’s worth taking seriously. But the idea of the federal government getting involved in the business of determining which arguments in the complicated, heated domain of the Israeli-Palestinian conflict cross some highly subjective line into anti-Semitism is a classic example of what conservatives would normally view as government overreach. “We have consistently opposed the application of the State Department’s definition of anti-Semitism as the benchmark for determining whether or not speech should be regulated on college campus because it’s deemed anti-Semitic, since the definition is both vague and also specifically invites censorship of particular viewpoints related to the Israeli-Palestinian conflict,” said Joe Cohn, policy director at the Foundation for Individual Rights in Education.

It doesn’t require wild flights of fancy to imagine situations in which the Department of Education’s actions, in the wake of this executive order, could spark court challenges. Imagine that a pro-Palestinian student group arouses the ire of a local Hillel chapter, and the Hillel members deciding they are experiencing discrimination because the pro-Palestinian group is “holding Israel to a double standard.” The Department of Education agrees and threatens to yank the university in question’s funding, and the university, backed into a corner, bans the club. The pro-Palestinian group’s members could then claim that their free-speech rights are being violated by the university — and they would be right, of course, because even if some hypothetically neutral arbiter determined they were “holding Israel to a double standard,” that’s a constitutionally protected viewpoint and therefore not one a public university can censor in this manner. Except there’s also an executive order effectively telling the university to censor such speech.

None of this should come as a surprise to anyone who has watched these efforts to clamp down on criticism of Israel endlessly die and revive themselves in recent years — or anyone who has witnessed Donald Trump’s deeply cynical, opportunistic approach to everything related to Israel and to American Jewry. But it’s still disturbing that this is going to happen — it could cause a lot of problems and almost certainly will create a lot of lawsuits.

This story has been updated.

Trump Anti-Anti-Semitism Order Likely Violates Constitution