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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.

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  • american socialist||

    "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."

    Oh my. Do you think that saying the Homeland should be located in an eastern camp of Jew York City and a western camp of Jew Angeles get me into hot water?

  • Number 2||

    "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."

    This is a joke, right? Just like the University of California is concerned about definitions of bias that deter Republican, conservative or libertarian activism?

    OTOH, if the federal government is going to grant these sorts of overbroad "rights" to other self-described "oppressed" groups, why shouldn't Jewish students jump on the bandwagon? Think of it as "safe space equality."

    Hopefully this new law will trigger a re-think of the safe space movement. I am not holding my breath.

  • mtrueman||

    "libertarian activism?"

    What? You mean inactivism?

  • Jay Dubya||

    "self-described "oppressed" groups"

    Clearly, if any group of people has had it easy over the last few thousand years, itsbeen the jews.( /sarc, obv) just because youre responding to a dumb idea doesnt mean you have to up the dumbass ante.

  • Social Darwinist||

    Laws like this are terrible. No matter how well intentioned the lawmakers are they give power wielding administrators and prosecutors the ability to set zero tolerance standards. Laws concerning harassment need to be flexible because you need the context to determine harassment, slander, libel, or other forms of harmful activity. Keep free speech free!

  • DJF||

    Where is the Anti-DJF Awareness Act of 2016?

    Its hateful when people disagree with me!

    And on a broader topic, where is the Anti-USA Awareness Act of 2016. It is called the US Senate, shouldn't they being doing something about that?

  • Longtobefree||

    This is a logical extension to Title VI of the madness under Title IX; now both sex and religion/origin are protected by "reasonable regulation" of the constitution! Think of how much time and effort is saved when accusation implies guilt.

  • spqr2008||

    Clearly the intent is to disrupt and harm the left's BDS movements (which I have no problem with at any non-taxpayer funded university, but really don't like at any university that accepts federal funding of any sort). And the thing is, the left has clearly invited this sort of behavior by its censorious attitude towards Israel and conservatism. It is still a reprehensible law, but the fact it is being considered should maybe signal campus admins and boards to back the hell out of any BDS movements, and treat the kiddos pushing them as the little Hamas and Hezboallah enablers that they are.

  • Rational Exuberance||

    "The offender has been found guilty of aiding and abetting seditious acts against the state. The sentence is death. Let the trial begin."

  • spqr2008||

    Again, I'm not arguing that it is a good law, just pointing out what the point of it is. Personally, I think the sponsors should just put forward a bill that says any college that supports a BDS movement by divesting its endowments from Israeli companies or fossil fuel companies should not receive public funding or be eligible to take Federal Student loans, since obviously their endowment is so YUGE that they can afford not to take government funds.

  • Rational Exuberance||

    I was simply illustrating the point with a geeky quote. Demerits for not recognizing the reference!

  • loveconstitution1789||

    It's unconstitutional [period]

    Cut Congress' salaries and turn them into part-time politicians. Less time to make shit up to get money from special interest groups. If we need Congress to Declare War or something, then they can all come in on their days off, otherwise 1-2 months total working days in the year and they don't get paid a cent if they cannot pass a balanced budget in those 1-2 months.

  • Fist of Etiquette||

    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.

    I keep reading that as the Anti-Semitism Awards. "And now, your host for the 2016 Anti-Semitism Awards... Mel Gibson!"

  • Adans smith||

    It seems that the censers on campus are getting blow back form their own abuses. They never stop to think that,sooner or later,it'll be them against them wall.

  • Indeed||

    Just try this thought experiment of plugging in any other group and seeing if you then recognize as speech motivated solely by hate rather than by an attept to open up a real discussion. I'll just stick to the examples the article picked up on:

  • Indeed||

    Just try this thought experiment of plugging in any other group and seeing if you then recognize as speech motivated solely by hate rather than by an attept to open up a real discussion. I'll just stick to the examples the article picked up on:

    "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."

    Let's plug in another historical reality based on racist assumptions and see how that sits:

    It should be possible for a student to question if Africans were every brought into the US as slaves or claim that blacks only advance due to affirmative action.

    Or
    It should be possible for a student to question whether or not homosexuals are deviants who should be cured or killed.

    It should be possible for a student to question whether women should have the right to vote, drive, own property, sue for divorce, etc. because we all know that they are too emotional to really exercise clear judgement.

    It should be possible to discuss forced sterilization on all people with below average intelligence and health for the greater good of all. Isn't it clear that it would benefit society if it were controlled by superior people?

  • Rational Exuberance||

    I'm not sure what point you're trying to make (Poe's law and all that).

    All these are actually good questions to ask, and they have good answers. People only fear these questions because they are uncomfortable with some of the answers or because they don't know how to answer them.

  • DarrenM||

    Yes. It's probably good that questions like these are posed to keep the answers in the public eye (or ear).

  • Rational Exuberance||

    I'm not sure what point you're trying to make (Poe's law and all that).

    All these are actually good questions to ask, and they have good answers. People only fear these questions because they are uncomfortable with some of the answers or because they don't know how to answer them.

  • creech||

    Methinks Sen. Casey is trying to shore up his Jewish financial contributor base in advance of the 2018 election.

  • DarrenM||

    Politicians voted for this because of the optics of voting against it, even if there might have been good reasons to do so. The voting public in general does not analyze the contents of legislation. They make decisions based on a vague idea as to the intent.

  • wef||

    "The looser the definition of anti-Semitism, the greater the potential for censorship."

    Deep, deep, deep.

    Anyway, why doesn't Reason Foundation team up with Notre Dame or Salisbury State and take this to court? End the speculation.

  • Bob Armstrong||

    Our US will be lagging behind the EU until we have some old men and women in prison for questioning aspects of the 6 million or questioning the morality of the only country in the world which continues to maintain "occupied territories" for more than half a century .

    Firing and ostracizing the likes of Norm Finkelstein is not enough . He needs to be sent to a re-education and work camp like his parents .

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