Anti-Semitism is a real problem — but the Antisemitism Awareness Act is unconstitutional

There are many perfectly constitutional ways to address campus anti-Semitism

“You are not doing the Lord's work until you get hate mail.” That’s what a good law school friend of mine who used to work for the ACLU once told me — and it’s true! Almost every day of a First Amendment lawyer's life is punctuated with hate mail, and boy, have we gotten a lot of it this year.

The real test, however, is if you get it from “both sides” — or, really, all sides — because that means you’re not playing favorites. It means you’re not just defending speech you agree with, which is easy, and that you’re willing to stick your neck out even for speech that you personally find objectionable or even repulsive. 

So there was some amount of bemusement when I discovered that a user on X recently suggested (in a now deleted post) that I might be the victim of a (presumably Israeli?) “psyop” making me believe that anti-Semitism on campus is a problem.

No, actually, that ship sailed a long time ago. Around 2014, when I was attending a conference at Berkeley commemorating the 50th anniversary of the free speech movement, I started to notice that a lot of attendees were claiming merely to be critical of Israel while actually invoking hateful Jewish stereotypes about greed, power, and global conspiracies. They were calling it anti-Zionism, but it sure sounded like old-fashioned anti-Semitism to me.

And while I certainly know critics of Israel who are not at all motivated by anti-Semitism, I have run into a lot more outright anti-Semitism over the past 10 years — and particularly in the last six months — than I ever thought I'd see in my lifetime. Anti-Semitism is vile, and I believe it is absolutely a growing problem today.

Given my point of view on this, it might be surprising to people that FIRE and I oppose the Antisemitism Awareness Act. To those who understand how a viewpoint-neutral defense of the First Amendment works in practice, however, this should come as no surprise at all.

The Antisemitism Awareness Act requires the Department of Education to use the International Holocaust Remembrance Alliance’s definition of anti-Semitism when investigating potential anti-Semitic harassment on campus. That, however, was not the definition’s intended purpose. IHRA’s motivation was to provide a yardstick to measure anti-Semitic attitudes. As a result, the definition (“a certain perception of Jews, which may be expressed as hatred toward Jews”) has a broad scope, and examples of anti-Semitism according to IHRA encompass things such as: 

• Accusing the Jews as a people, or Israel as a state, of inventing or exaggerating the Holocaust.

• Accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations.

• 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.

Here’s the crux of the problem: the IHRA definition covers a broad range of speech — and speech, even when it’s anti-Semitic, is protected by the First Amendment.

This means the Antisemitism Awareness Act is, in effect, a congressional mandate for the Department of Education to violate the First Amendment.

Proponents might argue that there’s a clarification in the bill ensuring that this is not the case. The line notes that nothing in the bill “shall be construed to diminish or infringe upon any right protected under the First Amendment.” This is what we in the business call a “savings clause,” which Black’s Law Dictionary explains is “an exception of a special thing out of the general things mentioned in the statute.” In other words, it’s a bit of throat clearing to avoid objections that a proposed bill is unconstitutional.

The problem here is that if you remove anything from the Antisemitism Awareness Act that would “diminish or infringe upon any right protected under the First Amendment,” you will have little left. 

Nobody who wants to see anti-Semitism addressed should support this Act. It likely won’t survive first contact with a federal court, and is therefore no solution at all. As we have repeated many times, when you want to address a real problem, step number one is to pass a solution that won't be immediately thrown out by a court.

Another bill before Congress, the Countering Antisemitism Act, doesn’t go quite as far as the Antisemitism Awareness Act in mandating the IHRA definition. Instead, it demands that agencies take action against anti-Semitism — and it then holds up the IHRA definition as one Congress likes for government agencies to use. This, as FIRE legal director Will Creeley put it, serves as an “invitation for mischief” and is likely to produce unconstitutional results.

Our freedom of speech must include the freedom to express ideas that might be widely reviled because at times, some of the ideas that are widely reviled turn out to be our path forward: abolition, desegregation, and gay rights, for example. Of course, one might argue that it’s easy to know that anti-Semitism has no value the way those examples do; that there will come no point in the future where anti-Semitism turns out to be correct. But as I’ve articulated in my “pure informational theory of free speech,” hearing each other out always has value, and making it possible for people who hold these views to air them is what gives us space to confront them. And even when you don’t succeed in changing anyone’s mind, there is a vast and irreplaceable inherent worth to knowing what people really think. Without it, you have literally no hope of having an accurate picture of the world. And without an accurate picture of the world, very little you do to try to improve it will be successful.

What’s more, as we have learned from Europe and Canada, attempts to prohibit the expression of bias not only fails to eradicate that bias, it also creates a cudgel that can be used against the speech of marginalized groups themselves. These kinds of prohibitions also embolden the people who hold these views. It telegraphs to them that the government is suppressing their expression because it is afraid of “the truth.” And, as Rikki Schlott and I point out in our book, “The Canceling of the American Mind,” censorship doesn’t change anyone’s mind. It just encourages them to only talk to people they know they already agree with. This inevitably leads to group polarization and further radicalization. We present strong evidence of how this precise thing happened on social media, as people were kicked off of forums like Twitter  and then went to more extreme social media platforms and becoming more radicalized in the process.

No doubt some criticisms of Israel are rooted in hatred of Jews, as it’s probably also true that some criticism of China is rooted in sinophobia. But we would never seriously consider suppressing criticism of China, and for the same reasons we shouldn’t consider suppressing criticism of Israel. We must always be free to criticize governments, even unfairly, because what constitutes “unfair” criticism is ultimately subjective — and we don’t want the subjective whims of those in power to be the justification for silencing others. It won’t always be you or your side in power, after all.

Better responses to anti-Semitism on and off campus

In November, FIRE proposed three reforms to combat the rise in anti-Semitism: 

1. Confirming that Title VI prohibits discrimination based on ethnic stereotypes (or, as my old friend and NYT columnist David French has suggested, pass legislation to make this explicit).

2. Prohibiting harassment on the basis of “religion.”

3. Codifying the Supreme Court’s speech-protective definition of discriminatory harassment.

Despite what some might argue on X (before deleting the posts), anti-Semitism is, in fact, a real problem on campus. It has intensified in the last decade and dramatically increased in the last eight months since October 7. It must be addressed, and there’s no reason not to use the tools we have used against other types of bias to do it.

There’s one important caveat here, however: We should not enact FIRE’s second proposed reform without also enacting the third. That is, if religion is added as a protected class, it’s important we incorporate the Davis standard as the basis for the scope of that protection. Under that standard, conduct would be prohibited when it is “targeted at an individual,” “severe, pervasive, and objectively offensive, and also ‘effectively deny’ the victim's access to an educational opportunity or benefit.” That limitation is necessary to avoid constitutional problems and for protecting speech and counter-speech. (As the history of campus speech codes has amply demonstrated, giving broad powers to regulate speech in the name of less powerful groups tends not to accrue to their benefit, because the tools to do so always belong to the powerful.)

We should always make sure to align the tools we ask the government to deploy with the necessarily limited powers we want the government to have. As Dr. Martin Luther King, Jr. said, “A law may not make a man love me, but it can stop him from lynching me.” Laws can’t stop people from holding anti-Semitic beliefs, but they can work to prevent those views from denying anyone the right to an education or a public accommodation.

Anti-Semitism will not be fully solved by government action any more than any other bias has been. But limiting its effects with the tools we have (and which government can lawfully deploy) is the best opportunity we have to give society the space to grow. We have done it before, and we can do it again.

The call is coming from inside the house

Beyond just being clearly incorrect, the idea that crafting the right regulation will solve speech conflicts on campus neglects one important detail: The speech conflicts are being created on campus. People need to remember that all the problems we're seeing today have largely been caused by administrators who were on campus five, 10, and 20 years ago, when everything started to go really south for viewpoint diversity, freedom of speech, and academic freedom. The culprits are often the very same people who run the bias-related incident programs, draft the speech codes, and enforce the punishments of students, professors, and student journalists for their First Amendment-protected speech.

And believe me, they are not unbiased.

One of the reasons why we in the media and the public sphere have taken such notice of this particular fight over anti-Semitism is partially because it's a fight within the left, and the left dominates higher education. If this explosion of hatred had instead been directed at Trump supporters, we probably wouldn’t have noticed as much. Not only that, but administrators would have likely found no particular urgency in removing any tents and, in all probability, would have had no problem with releasing statements of solidarity with those doing the hating.

DEI bureaucracies have been built out in the vision of the social justice fundamentalist mindset, which believes in intersectionality — an ideological oversimplification of complex realities. There’s really no way that you can hope to repurpose or expand DEI bureaucracies to protect the rights of American Jews because anti-Semitism is common to so many different groups; applying intersectionality to anti-Semitism just results in a much more potent anti-Semitism. The idea that empowering these DEI bureaucracies to fight anti-Semitism could have any effect that isn’t anti-Semitic suggests a total absence of familiarity with their work. 

It isn’t a psyop: Anti-Semitism is is a problem on campus. But we won’t end it (or any other bigotry) by empowering the offices that exacerbated the problem, or by a government fiat to punish its expression. 

Our best path out of this bad situation is to work to limit how much these attitudes can be used to bias institutions, and to engage rather than silence the people who hold those attitudes.

SHOT FOR THE ROAD

FIRE Senior Fellow Nadine Strossen joined GB News back in November, in the aftermath of Hamas’s October 7 attack on Israel, to explain how the bedrock principle of First Amendment law (and my pure informational theory of free speech) applies. “As somebody who is the daughter of a Holocaust survivor,” she said, “I could not be more critical of anti-Semitic speech. And yet if people have those hateful anti-Semitic ideas, it really is important for us to know that.”