Senators debate how to protect Jews and free speech

WASHINGTON—Senate committee business meetings tend toward dullness, attracting few visitors and even fewer members of the press. But a Health, Education, Labor, and Pensions (HELP) committee markup of the Antisemitism Awareness Act grew heated on Wednesday as senators debated how to balance First Amendment rights and campus safety for Jewish students. While most Republican members said the bill would add needed nondiscrimination protections, Democrats argued that it could stifle free speech.

“Anti-Semitism is wrong. Authoritarianism is not the answer!” Sen. Bernie Sanders, I-Vt., shouted at committee Chairman Bill Cassidy, R-La. The committee ran out of time for a final vote on the bill, leaving its future uncertain.

The Anti-Semitism Awareness Act would codify a definition of Anti-Semitism authored by the International Holocaust Remembrance Alliance (IHRA), of which the United States is a member. It defines anti-Semitism as “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.”

According to the IHRA, examples include targeting the state of Israel to discriminate against Jewish people, calling for the eradication of Jewish people, making dehumanizing stereotypes, or holding Jewish people at large responsible for the act of a single person. The alliance adopted the definition in 2016, but it is not legally binding on members. Harvard University also adopted the definition as part of a settlement with Jewish students who sued the school for ignoring anti-Semitism by allowing pro-Palestinian encampments.

Democrats have argued that making the definition part of federal law would criminalize criticism of the state and government of Israel. The Foundation for Individual Rights and Expression has also opposed the definition as overly broad. In an analysis, FIRE advocates wrote that Harvard’s acceptance of the IHRA definition would chill free speech on campus.

Sen. Rand Paul, R-Ky., was the sole Republican on the committee to oppose the bill. He also voted for four Democrat-sponsored amendments that now make the act bill palatable for most Republican senators. Although the IHRA clarifies that criticism of the government of Israel is not anti-Semitic, Paul argued that the bill could infringe on First Amendment rights to free speech.

“The problem is, if you look at the IHRA examples of speech they’re going to be limiting on college campuses, everything on that list is politically protected by the First Amendment,” Paul said during the meeting. “The First Amendment isn’t about protecting good speech—it’s about protecting the most despicable and vile speech.”

Sen. Tim Scott, R-S.C., argued that the bill protects speech but gives the Education and Justice departments guidelines for handling conduct that crosses the line. Carly Gammill, director of legal policy at the StandWithUs Center for Combating Antisemitism, agreed.

“There is every possibility that harassment, which is prohibited conduct, can involve speech that would, standing alone, be protected,” Gammill told me. “But when that speech is directed at an individual or a group in a harassing manner, and there’s a legal definition for that, right now we’re in the realm of conduct. Protecting Jewish students on campus in no way requires anyone's speech rights to be infringed [on].”

Paul argued that the bill does not clarify the separation between speech and action. In 11 cited examples of anti-Semitism, all are speech-related. He also pointed out that the Trump administration has detained and jailed some student activists for allegedly posing threats to U.S. foreign policy. One Tufts University student, Rumeysa Ozturk, did not participate in protest encampments but did write a pro-Palestinian op-ed in her campus newspaper.

Other free speech proponents argue against any government definition of anti-Semitism. Mark Oppenheimer is a professor at Washington University’s John C. Danforth Center on Religion and Politics. He said he does not ascribe to a particular definition of anti-Semitism because the context determines the scale of anti-Jewish hate.

“Clearly not anything that criticizes the actions of the government or war-making or policy is anti-Semitic,” Oppenheimer told me. “I do think that it is useful to look at context. If you have communities of people who are obsessed with the alleged war crimes of Israel but completely indifferent to the war crimes of Russia, China, or the human rights abuses of Iran or Saudi Arabia, then at a certain point you do wonder what makes them so interested in focusing exclusively on Israel rather than on human rights more broadly? The question of a double standard is an important one.”

Some Christians have also taken issue with the bill. Twenty-one Republican House members, all Christian, voted against it last year. Rep. Marjorie Taylor-Greene, R-Ga., raised concerns about an IHRA example that says accusing Jews of killing Jesus is an anti-Semitic falsehood. Paul cited the Gospel of John to ask the committee whether the act would label the Bible as hate speech.

“This bill would subject to punishment speech claiming that Jews killed Jesus, an absurd and insulting insinuation if the argument is that all Jews are responsible for killing Jesus,” Paul said. “And yet, the Gospel of John described the trial and crucifixion of Jesus. … Nobody thinks that is all Jews, but are we no longer allowed to read John 18 and 19?”

Paul also cited R. Albert Mohler, president of The Southern Baptist Theological Seminary and editor of WORLD Opinions, who opposed the bill in an op-ed written for WORLD last year. Mohler wrote that if the bill passed, Protestant preaching could run afoul of federal law.

“Orthodox, Biblical Christianity—even the simple preaching of the gospel—could be directly targeted by this kind of language,” Mohler wrote. “For that matter, by this loose logic, the entire New Testament can be targeted as hate speech.”

Cassidy introduced an amendment to clarify that the Antisemitism Awareness Act will not “be construed to diminish or infringe upon any right protected under the First Amendment … including the free exercise of religion.”

Sen. Josh Hawley, R-Mo., said the addition was good enough for him: “The bill’s provisions make very clear that the only thing that it prohibits are mass attacks, threats of violence on the people of Israel,” Hawley told me. “I would just say, nobody [is] greater friends to the people of Israel or Jewish people everywhere than Christians, particularly evangelical Christians. I think it’s a point of pride for our community.”

In the end, senators ran out of time to pass the bill out of committee.

“Democrats have limited debate as an obvious tactic to defeat the bill,” Cassidy told reporters after the meeting. Cassidy said his next step will be to canvas the Republican membership and to discuss the future of the bill with floor leaders. WORLD asked if he expected the pushback from Paul.

“Senator Paul is always a little idiosyncratic,” Cassidy replied.

Paul told me the bill’s supporters would have to make concessions to pass it in the Senate.

“One reasonable negotiation is getting rid of those expansive definitions of what anti-Semitism is,” he said. “If it was just a clean bill that says we’re going to police anti-Semitism, I think that will probably get by. But once we start adding all the other things in there, it loads up the definition and adds problems.”