Free speech advocates decry anti-Semitism bill

Amid more than 2,400 arrests during pro-Palestinian protests on 46 campuses in the last few weeks, the U.S. House of Representatives overwhelmingly passed the Antisemitism Awareness Act on Wednesday. But while some legal experts commend the new law, saying it guards against discriminatory actions, others worry it stifles constitutionally protected free speech.

The act directs the Department of Education to define anti-Semitism under the guidelines of the International Holocaust Remembrance Alliance. The IHRA lists anti-Semitism as “a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of anti-Semitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”

Tyler Coward, lead counsel for government affairs at the Foundation for Individual Rights and Expression, said that the definition is overbroad and vague. He also points out that the IHRA definition goes on to give several examples of anti-Semitism including one of someone criticizing Israel’s government—something that many students are doing in their protests. This equates criticism of the Israeli government with anti-Semitism, he said, adding that criticizing another country’s government is protected speech and prohibiting criticisms against just one country is viewpoint discrimination.

If the bill becomes law, the Department of Education would have significant authority to investigate allegations of discriminatory actions at universities, Coward said. It could cause institutions to be fearful of losing federal funding and encourage them to shut down protests, he said.

“The Antisemitism Awareness Act is a really troubling piece of legislation no matter the intent of the sponsors,” Coward said. “Its attempt to ensure Jewish students have access to education free of discriminatory harassment actually requires institutions … to crack down on constitutionally protected speech.”

Additionally, the bill is unnecessary as there are already laws in place to protect Jewish students, Coward said. Title VI of the Civil Rights Act of 1964 prohibits discrimination on the grounds of race, color, or national origin, and the 1999 Supreme Court case Davis v. Monroe County Board of Education prevents student-on-student harassment, he said.

A similar bill was introduced in 2016 and reintroduced in 2018 and 2019. FIRE opposed it each time due to concerns about its threat to free speech.

Other groups have also opposed the current legislation. In a letter to House representatives before the current bill’s passage, the American Civil Liberties Union wrote that, even if the bill doesn’t cause schools to suppress speech, students might feel more hesitant to speak out because of it.

“Activists would be understandably hesitant to engage in political expression criticizing Israel or advocating for Palestinian rights if they have reason to believe the federal government will actively investigate such expression in connection with harassment complaints and investigations,” the letter said.

The ACLU also noted that the author of the original IHRA definition, Kenneth Stern, has opposed the application of this definition to campus speech. In 2017, Stern said in an article for The Post and Courier that codifying this definition would lead campus administrators to “fear lawsuits when outside groups complain about anti-Israel expression, and the university doesn’t punish, stop, or denounce it.”

Additionally, editors of a Jewish magazine expressed concern that the bill could potentially censor the speech of Jewish and religious students. “The answer is certainly not to give bad-faith actors at universities or the federal government even more power to police speech, in the hope that they will use it to ‘protect the Jews,’” the editors wrote. “They will not.”

The latest introduction of the bill comes as clashes between pro-Israel and pro-Palestinian supporters continue to escalate. Last Wednesday, violence broke out on the University of California, Los Angeles, campus and demonstrators on both sides kicked, shoved, wrestled and beat each other. The night before, Columbia University’s President Minouche Shafik said the campus’s protesters broke doors, mistreated safety officers, and damaged property.

Supporters of the bill say that the act more firmly establishes protections for Jewish students.

The IHRA definition provides universities with a consistent, transparent understanding of anti-Semitism that can be applied alongside the First Amendment, according to Kenneth L. Marcus in a news release. Marcus is the founder of the Louis D. Brandeis Center for Human Rights Under Law.

“IHRA is the international gold standard for defining anti-Semitism. It has been embraced by more than 1,000 entities, dozens of countries, and more than half of U.S. states,” Marcus said. “From conversations with numerous administrators, I can say that many university leaders are unaware that the IHRA definition is already woven into the Department of Education’s current, active guidance, hampering how they address soaring anti-Semitism on their campuses.”

Marcus said the legislation can help tamp down “soaring” anti-Semitic incidents against students.

In 2023, the Anti-Defamation League estimates there were more than 8,800 anti-Semitic incidents across the United States, a 140 percent increase from 2022. A dramatic increase in incidents occurred following the Oct. 7 attack, according to the ADL. The group noted that protests on campus have further fanned anti-Semitic rhetoric toward Jewish students and resulted in protesters encouraging further violence against Israel.

For now, the bill still needs to pass the Senate and be signed by President Joe Biden before becoming law.

If that happens, Coward said that FIRE will be committed to fighting this “overbroad definition of anti-Semitism” in court.