OPINION: Antisemitism Awareness Act presents free speech concerns

Last month, House Bill 6090, known as the “Antisemitism Awareness Act,” was passed by the House of Representatives with broad bipartisan support. The bill follows several state-led efforts to enshrine a definition of antisemitism into legal code, which picked up steam after a wave of protests began on college campuses connected to renewed conflict in Israel in Gaza. Even if it is eventually passed into law, it is unlikely to survive a legal challenge (Photo Credit: The Hill).

According to its preamble, the purpose of the Act is “[t]o provide for the consideration of a definition of antisemitism set forth by the International Holocaust Remembrance Alliance for the enforcement of Federal antidiscrimination laws concerning education programs or activities, and for other purposes.” The federal antidiscrimination law in question is Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving federal financial assistance. While discrimination based solely on religion does not violate Title VI, the Department of Education has interpreted the law as encompassing discrimination based on “shared ancestry or ethnic characteristics,” or “citizenship or residency in a country with a dominant religion or distinct religious identity.”

The Act is unique in that it adopts a definition of “antisemitism” crafted not by the American people’s elected representatives, but by the International Holocaust Remembrance Alliance (IHRA), a 34-member intergovernmental organization dedicated to promoting Holocaust awareness and education globally. The IHRA’s “working definition” adopted by the Act defines “antisemitism” as follows:  

Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.

Notably, the Act not only adopts this definition, but also “‘[c]ontemporary examples of antisemitism’ identified in the IHRA definition.” These examples include the following:

  • Calling for, aiding, or justifying the killing or harming of Jews in the name of a radical ideology or an extremist view of religion.
  • Making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such or the power of Jews as collective — such as, especially but not exclusively, the myth about a world Jewish conspiracy or of Jews controlling the media, economy, government or other societal institutions.
  • Accusing Jews as a people of being responsible for real or imagined wrongdoing committed by a single Jewish person or group, or even for acts committed by non-Jews.
  • Denying the fact, scope, mechanisms (e.g. gas chambers) or intentionality of the genocide of the Jewish people at the hands of National Socialist Germany and its supporters and accomplices during World War II (the Holocaust).
  • 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.
  • Using the symbols and images associated with classic antisemitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis.
  • Drawing comparisons of contemporary Israeli policy to that of the Nazis.
  • Holding Jews collectively responsible for actions of the state of Israel.

While many of the above examples identify truly reprehensible conduct, they are susceptible to interpretations that raise serious First Amendment concerns. 

It must be remembered that the First Amendment does not exclusively target laws which facially restrict speech or expression, i.e., laws that that say “you cannot say ‘X’” or “you cannot wear ‘Y.’” The U.S. Supreme Court has also interpreted the First Amendment as targeting laws with a “chilling effect” on speech. This chilling effect arises where a law restricting speech is overly vague or broad such that it discourages people from engaging in protected speech for fear of legal repercussions. As Justice Brennan wrote in the landmark 1965 case of Dombrowski v. Pfister—which challenged Louisiana’s Cold War-era “Communist Propaganda Control Law” —“[e]ven the prospect of ultimate failure of such prosecutions by no means dispels their chilling effect on protected expression.” 

[RELATED: “Butler College Republicans deserve free speech”]

Now, many commentators have exaggerated the scope of the Act, which does not impose criminal—or even civil—penalties for violations, much less make the Bible “illegal.” To reiterate, the Act exclusively relates to the enforcement of Title VI, which prohibits the federal government from funding programs that discriminate based on race, color, or national origin. That being said, the Act is still quite problematic from a First Amendment perspective—particularly with respect to its incorporated “examples” relating to the State of Israel. In particular, the examples of “claiming that the existence of a State of Israel is a racist endeavor” and “drawing comparisons of contemporary Israeli policy to that of the Nazis” may discourage institutions—particularly educational institutions—from providing a forum for legitimate criticisms of the State of Israel, which is by no means above reproach. 

It is undeniable that thousands of innocent civilians have been killed as a result of Israel’s military activities in Gaza in the last eight months. Many people across the world are outraged at what they view as a genocide, naturally drawing parallels to past genocides. Whether this characterization is accurate is up for debate; there are plenty of people of good will who reject this characterization. The problem with the Antisemitism Awareness Act is that it effectively places the thumb of the federal government on one side of the scale of this ongoing debate, setting a dangerous precedent with potentially far-reaching consequences for speech and expression. In our pluralistic society, the federal government should be facilitating—not stifling—healthy debate over the issues du jour. 

Unfortunately, the Antisemitism Awareness Act received overwhelming support in the House of Representatives, and there is little reason to believe it will receive different treatment by the Senate and President Biden. However, since the middle of the twentieth century, the Supreme Court has taken a hard tack against laws restricting speech and expression. So, while there is a very good chance the Act will become law at some point, it is doubtful that it will pass the Supreme Court’s “strict scrutiny” test applicable to laws targeting fundamental rights. 

Born in Louisiana and raised in South Florida, Nick McNamara earned his Bachelor of Arts degree in Economics and History from the University of Florida before obtaining his Juris Doctorate, Cum Laude, from Florida State University in May, 2020.  While at Florida State University, Nick served as Staff Editor for the Florida State University Law Review and volunteered with the FSU Law Veterans’ Legal Clinic. This post was initially published in The American Commons.

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