Fighting Anti-Semitism With Intolerance

A bill aimed at protecting Jewish students from discrimination would have a chilling effect on constitutionally protected speech.

A couple of weeks ago, the Anti-Semitism Awareness Act of 2016, a.k.a. S. 10, was introduced in the Senate, read three times, and approved by unanimous consent without debate or amendment—all on the same day. That sort of bipartisan consensus, which suggests a bill is so obviously unobjectionable that no discussion of its merits is necessary, usually means trouble, and this case is no exception. In the name of protecting Jewish students from discrimination, S. 10, if approved by the House, will encourage universities to suppress dissenting political opinions and have a chilling effect on constitutionally protected speech.

S. 10, which was introduced by Sens. Tim Scott (R-S.C.) and Robert P. Casey Jr. (D-Pa.), codifies a controversial State Department definition of anti-Semitism that includes one-sided criticism of Israel and opposition to Zionism. Last year the University of California declined to adopt that definition based on concerns that it would violate the First Amendment by deterring pro-Palestinian activism. S. 10 would have the same effect on a national scale, notwithstanding its assurance that "nothing in this Act…shall be construed to diminish or infringe upon any right protected under the First Amendment."

The Anti-Semitism Awareness Act is supposed to help the Education Department enforce Title VI of the Civil Rights Act of 1964, which bans discrimination on the basis of race, color, or national origin by educational institutions that receive federal money. Although Judaism is not a race, color, or national origin, the Justice Department says "discrimination against Jews, Muslims, Sikhs, and members of other groups violates Title VI when that discrimination is based on the group's actual or perceived shared ancestry or ethnic characteristics." Furthermore, discrimination can include a "hostile environment" that interferes with a student's education, and a hostile environment can be created by things other people say.

Given this legal context, the official definition of anti-Semitism has clear First Amendment ramifications. If on-campus speech is viewed as anti-Semitic, it may prompt an investigation by the Education Department, which could conclude that a university has violated Title VI by tolerating anti-Jewish harassment. Awareness of that possibility encourages administrators to regulate and punish speech, which makes students reluctant to express opinions that could be deemed anti-Semitic. The looser the definition of anti-Semitism, the greater the potential for censorship.

Even the clearest expression of anti-Semitism is protected by the First Amendment, provided it does not rise to the level of harassment or assault. It should be possible for a student to question the Holocaust or claim that Jews control the media—two examples mentioned in the State Department's definition—without triggering a federal investigation. The right response to bigoted misconceptions is refutation, not censorship, especially at an educational institution that values free inquiry and open debate.

S. 10 increases the tension between freedom of speech and antidiscrimination law by stretching the definition of anti-Semitism to cover opinions about Israel and its conflict with Palestinians. The examples cited by the State Department include "drawing comparisons of contemporary Israeli policy to that of the Nazis," "blaming Israel for all inter-religious or political tensions," "applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation," "focusing on Israel only for peace or human rights investigations," and "denying the Jewish people their right to self-determination" or "denying Israel the right to exist."

These positions strike many Jews (including me) as grossly unfair, but they are not necessarily motivated by anti-Semitism, let alone synonymous with it. They raise important questions about the justice of Israeli policies, the sources of the Israeli-Palestinian conflict, collective vs. individual rights, and the legitimacy of nation-states. A college campus is precisely the sort of place where issues like these should be hashed out. The Anti-Semitism Awareness Act would create a new obstacle to that debate by lending credibility to claims that pro-Palestinian activism creates a hostile environment for Jews.

The Anti-Defamation League (ADL), which worked with Sens. Scott and Casey on the bill, claims it "addresses a core concern of Jewish and pro-Israel students and parents: When does the expression of anti-Semitism, anti-Israel sentiment and anti-Zionist beliefs cross the line from First Amendment protected free expression to unlawful discriminatory conduct?" But the truth is that S. 10 provides no guidance whatsoever on where that line is, meaning it is bound to chill speech that even the ADL thinks should be tolerated.

This article originally appeared in the New York Post.