Posted by Ryan J. Suto on May 23, 2018 in Blog

The Anti-Semitism Awareness Act of 2018 has been introduced today in Congress. The bill includes an overly-broad, political definition of anti-Semitism, which includes criticism of the state of Israel. The bill should be opposed because it misappropriates a non-legally binding definition for the basis of legal prohibitions, does not combat anti-Semitism, constitutes viewpoint discrimination, and is unconstitutional as being overly broad.

First, the bill misappropriates a State Department guidance for use in domestic civil rights law. The working definition cited in the bill, from the “Special Envoy to Monitor and Combat Anti-Semitism of the Department of State in the Fact Sheet issued on June 8, 2010," was authored by a State Department official for non-legally binding foreign applications. It was intended as a loose guide for the purpose of data collection in Europe. Applying this working definition domestically as law was not the intention of the original author, Ken Stern. In testimony for a Congressional hearing, Stern stated that his working definition was “being abused in Title VI cases, because it was being employed in an attempt to restrict academic freedom and punish political speech.” Ken Marcus, who has been nominated by President Trump to lead the Department of Education's Office for Civil Rights, brought frivolous discrimination lawsuits using this State Department working definition during his time at the Brandeis Center. If confirmed, he will surely attempt to use the Department of Education to censor speech critical of Israel. The Anti-Semitism Awareness Act of 2018 specifically empowers the Assistant Secretary for Civil Rights, the post for which Marcus has been nominated, with enforcing this law. The passage of this bill, along with the confirmation of Ken Marcus, would misappropriate Ken Stern’s diplomatic guidance in an effort to use the force and authority of the federal government to limit and proscribe disfavored views regarding foreign governments and U.S. foreign policy.

Second, efforts to proscribe criticism of Israel do nothing to combat anti-Semitism. Not only does this bill limit political discourse on important topics such as foreign policy and U.S. attitudes toward human rights abroad, it also threatens the Department of Education’s ability to address the real concern of anti-Semitic hate. By including criticism of Israel under the umbrella of anti-Semitism, this bill will only draw focus and resources away from legitimate hate crimes against the American Jewish community. Unfortunately, those hate crimes are on the rise: the latest FBI hate crimes report shows that anti-Semitic hate crimes increased by three percent in 2016 over the previous year. For similar reasons, the Department of Education has rightly interpreted Title VI to extend to protections against anti-Semitism. A real focus on religious-based hate is needed, with policies aimed at reducing those injured by hate, instead of a subterfuge to protect Israel from critical treatment on American campuses.

Next, the bill constitutes thinly-veiled viewpoint discrimination. While many of the bill’s supporters claim the motivation of the bill is to allow the Department of Education to combat the rise of anti-Semitism on U.S. campuses, which it fails to do, the bill also does not address the similar rise of anti-Arab, anti-Muslim, or anti-Sikh discrimination that the bill itself notes in the Findings sections. The bill provides no specific, particularized definitions of anti-Arab, anti-Muslim, or anti-Sikh views as it does for anti-Semitic views. Nor does the bill mention criticism of Arab countries or Muslim-majority countries as examples of hate toward those groups, which would be just as problematic as noting criticism of Israel in guidance with respect to anti-Semitism. Indeed, what is missing from the bill shows its true intention as much as what is included: to inhibit those who are critical of Israel and Israeli government policy. Notably, the text of the bill mentions Israel three times, and the referred working definition in the bill mentions Israel 15 times. Indeed, one advocacy organization promoted a previous, nearly identical version of this bill by tweeting, “Worried about anti-Israel activity on campus? We drafted a law that will help show when it’s gone too far.” The unnecessary protection of Israel in the text of the bill and the clear intention of the bill’s drafters to counter “anti-Israel activity on campus” expose a discriminatory motivation: to target students and speakers who discuss Israel in critical terms.

Fourth, the bill is unconstitutional, as it is overly broad. The bill’s referred working definition is “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” and includes sections entitled “Contemporary Examples of Anti-Semitism” and “What is Anti-Semitism Relative to Israel?” These sections state that “Blaming Israel for all inter-religious or political tensions” and “applying double standards” to Israel are examples of Anti-Semitism. No other political entity is afforded such unequivocal protection from criticism under U.S. law, and categorizing blame on Israel for political tensions has no relation to a vile hatred of Jews or the Jewish people. Americans, and those attending U.S. colleges and universities, must be able to express criticism of foreign governments and U.S. foreign policy. In this vein, the Supreme Court held in New York Times v. Sullivan that “debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” As Justice Thomas argued in McCutcheon v. FEC: “Political speech is the primary object of First Amendment protection and the lifeblood of a self-governing people [citations omitted].”

Last, the existence of a savings clause in the bill does not cure this central constitutional concern. The bill includes “savings clause” in Section 6 which states that the bill shall not be construed to violate the U.S. Constitution. But this clause addresses no actual concerns, it merely allows the passage of a law with language that will chill conduct, cause individuals to self-censor, and remain enforced by the government for years until legitimate speech is targeted, a suit is brought, and the slow machinery of the judiciary strikes down the legislation. By including Israel, and criticisms thereof, in the Anti-Semitism Awareness Act, this legislation criminalizes legitimate political expression, and therefore violates the First Amendment's guarantee of free political expression regardless of the existence of a savings clause.

The Anti-Semitism Awareness Act masquerades as addressing anti-Semitism while shielding Israel from criticism. If passed, the bill would unconstitutionally proscribe legitimate political expression with respect to criticism of foreign governments and does nothing to combat hate in our classrooms. For these reasons, the legislation should be opposed.