Many critics are displaying a combination of ignorance and mendacity, often with a significant dollop of anti-Jewish conspiracy theory.
Many critics are displaying a combination of ignorance and mendacity, often with a significant dollop of anti-Jewish conspiracy theory.
S ome on both left and right have been up in arms about the Antisemitism Awareness Act (AAA) passed by the House of Representatives, which may get taken up by the Senate. Those on the left (and some on the right) argue that it will make criticizing Israel illegal. Others on the right claim it will outlaw Christianity. Tucker Carlson, for example, tweeted that it will make the New Testament illegal. More reasonable critics worry about a possible chilling effect. All are mistaken about the bill.
In fact, the bill, if it becomes law, will not change the status quo. Leftists who are currently accusing Israel of genocide or comparing Israelis to Nazis will be able to continue to do so. Christians will continue to have access to the New Testament and preach Christianity, even the versions that hold Jews collectively responsible for Jesus’s crucifixion.
So what does the bill actually do? First, it ensures that Jewish students have statutory protection from discrimination based on ethnicity. Title VI of the Civil Rights Act prohibits discrimination of many kinds by federally funded institutions, but not discrimination on the basis of religion. Religion was excluded to protect religious colleges from complaints.
For the first 39 years of the Civil Rights Act, the Department of Education’s position was that Jews, being a religious group, were not protected by Title VI. In 2003, the Bush administration issued guidance stipulating that, while Jews are not protected from discrimination if the discrimination is based on hostility to Jews as a religious group, they are protected from discrimination based on their Jewish ethnicity and origins. That guidance has been reaffirmed by the Obama, Trump, and Biden administrations. The AAA codifies the guidance.
That part of the bill has not been controversial, though it’s the more important part. The part that has animated critics, and attracted a huge amount of rhetorical excess, is the bill’s codification of the International Holocaust Remembrance Alliance’s (IHRA) working definition of antisemitism in the context of Title VI enforcement. That definition gives examples of statements that, depending on the context, could be antisemitic.
Left-wing ire is raised by examples of criticism of Israel that could, in context, be antisemitic. Perhaps the most controversial are “applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation” and “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.” Lara Friedman of the Foundation for Middle East Peace interprets these examples as “the conflation of criticism/protest of Israel/Zionism with antisemitism,” so as to censor speech “that doesn’t align with unconditional support for Israel.”
Right-wing ire is raised by the example of “using the symbols and images associated with classic antisemitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis.” This is what led Carlson to claim that the bill would ban the New Testament.
Meanwhile, some civil libertarians who should know better, such as Reason’s Robby Soave, express the more general concern that the law would criminalize “offensive speech.”
Let’s start with the easiest and most obvious corrective. This bill has nothing to do with criminal law, does not “ban” anything, and thus does not criminalize speech.
As for the argument that the bill is somehow making preaching Christian doctrine illegal, the only relevance the IHRA definition has to Christianity is the example, noted above, that using classic antisemitic tropes derived from Christian polemic to criticize Israeli actions can, in context, be antisemitic. It’s hard to imagine anyone sensible arguing that, for example, the statement, “Of course Israel is massacring Palestinians, that’s exactly what Christ-Killers would do” can’t be antisemitic.
Regardless, and here we get into more technical legal analysis, the bill does not make antisemitic speech of any sort “illegal,” as so many are claiming. Not under criminal law, and not under civil law.
Rather, as the bill states, “in reviewing, investigating, or deciding whether there has been a violation of title VI of the Civil Rights Act of 1964 on the basis of race, color, or national origin, based on an individual’s actual or perceived shared Jewish ancestry or Jewish ethnic characteristics, the Department of Education shall take into consideration the [IHRA] definition of antisemitism as part of the Department’s assessment of whether the practice was motivated by antisemitic intent” (emphasis added).
Imagine, for example, that Assistant Dean Smith of the Office of Student Life is in charge of room assignments for school events. The campus Hillel tries to schedule six different events. Each time, Dean Smith tells the group that no room is available. Hillel files a Title VI complaint. The university responds that Dean Smith says that it was just a run of bad luck on Hillel’s part, and there was not intent to discriminate against the campus Jewish group. Imagine, however, that each time Smith sent an email to Hillel denying a room assignment, he added to his normal email signature the line “Zionism is racism.” Would any sensible person deny that this is evidence (subject to counter-evidence, of course) that denial of room assignments was not just bad luck?
Some of the more sober critics of the IHRA definition of antisemitism, including the ACLU (when it’s being sober), acknowledge these points, but point to the chilling effect adoption of the IHRA definition might have on campus speech. They especially point to the possibility that speech hostile to Israel of the sort mentioned in the IHRA definition, speech that would otherwise be protected by the First Amendment, could be used as evidence in a hostile-environment claim. University officials would therefore be inclined to proactively clamp down on such speech.
That is indeed a real concern. But that’s a problem with hostile-environment law more generally. With or without official adoption of the IHRA definition, university officials already have an incentive to clamp down on all sorts of speech that could be deemed hostile to various groups. In practice, though, they mostly use Title VI as an excuse to try to censor speech that offends woke sensibilities.
That, in fact, is the broader reason wokesters are hostile to AAA. Currently, there is a double standard, with antisemitic speech that might contribute to a hostile environment treated with much more equanimity than speech hostile to other groups. This is illegal discrimination against Jewish students, and is essential to the entire DEI edifice. If the AAA and other new laws incentivize universities to treat members of all protected classes (including white students discriminated against based on race) equally, then the whole ideological structure of DEI as we know it, which depends on preferences for favored groups, collapses.
A final note. As the AAA notes in its text, the Department of Education has been using the IHRA definition of antisemitism for Title VI enforcement since 2018. As president, Donald Trump also issued an executive order making the IHRA definition applicable government-wide. Over 30 states and dozens of localities have adopted the IHRA definition. Criticism of Israel is still legal, as is, of course, reading and preaching the New Testament. Those who claim that the limited adoption of this definition for evidentiary purposes in Title VI proceedings is a big step on the road to authoritarian dystopia are displaying a combination of ignorance and mendacity, often with a significant dollop of anti-Jewish conspiracy theory.