The Volokh Conspiracy

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Free Speech

"Not In Our Name": Tablet on the Antisemitism Awareness Act

A Jewish journal argues the problem is not the Act's definition of antisemitism, but the larger anti-speech bureaucratic edifice.


Last week, the House of Representatives passed the Anti-Semitism Awareness Act of 2023 by an overwhelming margin. Some critics of the law are concerned about its definition of what constitutes antisemitism. My co-blogger David Bernstein thinks such criticisms are overblown, while Eugene Volokh fears the definition could chill legitimate (and non-antisemitic) criticism of Israel.

The editors of Tablet have a slightly different take. They are not concerned about the act's definition of antisemitism, but are concerned about how this definition could be utilized within larger bureaucratic structures to suppress speech, both within universities and elsewhere. A taste:

Our objection, however—and it is an important one—is to the broader edifice of speech-policing of which this bill is a part. . . .

In a world in which people with minority opinions are increasingly subject to the full force of "the whole of government" or "the whole of society" being brought against them by a narrow group of powerful people, we have an existential interest as a people in supporting free speech and constitutional rights for others—on the historically sound principle that they will soon be coming for us.

There are those who argue that the old speech regime isn't coming back, and like any other group we have to optimize around the one that actually exists. It makes no sense for Jews, they say, to unilaterally disarm in a war that isn't ending anytime soon or probably ever, so we might as well ask for our own protections, demand our own diversity officers, start our own affinity clubs, and so on.

In addition to killing our souls, this direction also has the disadvantage of not actually working. The government can—and usually does—twist any new office or power it receives such that it permanently serves the opposite of its original purpose, and that these offices never, ever go away, turning your brilliant temporary solution into a source of permanent hostility. . . .

This means that we must reject all proposals, even from well-meaning sources, that seek to empower government to address the issue of speech on our behalf—like when New York Congressman Ritchie Torres introduced a bill that would allow the Department of Education to subject universities that receive federal funding to "third-party antisemitism monitors." Torres is a courageous and smart lawmaker, and no one here doubts that his heart is in the right place. But this is lunacy. No one should support it.

The essay also directs particularly pointed criticism at universities for "abandoning the principles of free inquiry" and "turn[ing] themselves into factories for conformity and increasingly bizarre, divisive, and hateful doctrines held by the loudest (and often smallest) factions of their faculty." This is particularly problematic because many universities themselves have abandoned any principled defense of free speech. As the authors note, this could be a reason to abandon universities. It is no reason to abandon free speech.

The essay ends:

The freedom and successes that Jews have enjoyed in America have been due to the protections afforded by our Constitution, and the respect for individual rights that became part of our culture. The most legitimate tax we owe—to each other, to our fellow citizens, and to those who fought for our right as Americans to say whatever the fuck we want—is the work we are asked to put in, day in and day out, to protect that freedom.

That's where our strength lies. Don't lose sight of it.