If there is one issue on which there ought to be a political consensus even in an era of almost unprecedented partisan division, it should be opposition to anti-Semitism. Yet a dispute over whether the federal government has any business defining Jew-hatred threatens to undermine what should be a bipartisan coalition opposing its spread.
That’s the dilemma facing the Republican and Democratic sponsors of the Anti-Semitism Awareness Act of 2018. The legislation, which is being championed by Rep. Ted Deutch (D-Fla.) and Rep. Pete Roskam (R-Ill.), has hit a roadblock in the form of opposition from the American Civil Liberties Union and Arab-American groups who are angry about the fact that the bill includes a definition of anti-Semitism. They worry that any law that does that will chill free speech about Israel.
The reason for the dustup stems from a problem with enforcement of Title VI of the 1964 Civil Rights Act that banned race and national-origin discrimination, but not religious bias. That was corrected by a 2010 ruling from the Department of Justice that specifically sought to include discrimination against minority faith communities, such as Jews, Muslims and Sikhs. The current bill would codify that ruling in law.
The letter, which was written by Assistant Attorney General (and current Democratic National Committee Chair) Tom Perez, stated that a definition of anti-Semitism used by the U.S. State Department should be used when the Department of Education is asked to deal with acts of anti-Semitism on federally funded college campuses. The definition states that anti-Semitism involves, among other things:
“Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor; Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation; Using the symbols and images associated with classic anti-Semitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis.”
But that’s a bridge too far from some civil libertarians and anti-Israel activists. They don’t merely want to exercise their right of free speech that allows them to spew hate at Jews; they want the government to turn a blind eye when their hate spills over to acts of illegal discrimination.
The necessity of the Anti-Semitism Awareness Act stems from a long legal battle over a spate of incidents at the University of California at Irvine in 2003. As Kenneth Marcus, a former head of the U.S. Department of Education’s Office for Civil Rights (his nomination by President Trump to be Assistant Secretary for Human Rights at the Department of Education is still pending) wrote in 2010 in Commentary, the school was racked by anti-Semitic demonstrations resulting in acts of violence and intimidation directed at Jewish students. The context was the Second Intifada, during which Palestinian terrorists killed more than 1,000 Jewish Israelis.
When Jewish leaders called for action from the Department of Education to combat this wave of anti-Semitism, the government failed to act because this form of hate was not considered actionable under the Civil Rights Act. But now that the department has closed this loophole for hate and Congress is prepared to confirm that action, critics are claiming that the new law will chill the free speech of those who want to criticize Israel, even though the bill specifically states that it doesn’t infringe upon anyone’s First Amendment rights.
There is good reason to be wary of any measure that expands the power of the federal government. But the notion that the open acts of discrimination against Jews that generated the controversy should somehow be protected speech is not one that stands up to scrutiny.
At the heart of the dispute is the desire on the part of those who harbor hatred for Israel to pretend that anti-Zionism isn’t anti-Semitic. They say one can oppose Israel without discriminating against Jews. But since they are demanding that the Jewish people should be denied rights that are not denied to others, that is a distinction without a difference. If you think that only the Jews have no right to a homeland or to self-defense, then you are practicing discrimination against them and, as the lawyers say, the term of art for such unique discrimination is called anti-Semitism.
It is not and should not be illegal to voice calls for Israel’s destruction or to engage in the sort of double standards and libels against Jews that the State Department definition entails. But when advocacy for such hateful opinions crosses over into discriminatory actions, that is illegal. This is why the bill proposed by Deutsch and Roskam clarifying the authority of the government to act in such cases ought to be passed—and quickly.
Contrary to its critics, the law does not forbid criticism of the Israeli government and its policies. That’s a point that Israel-haters, specifically pro-BDS groups like Students for Justice in Palestine and Jewish Voice for Peace, seek to obscure. Their stands are not rooted in a desire to alter Israel’s policies or to change its borders so as to accommodate a Palestinian state. They want Israel—the one Jewish state on the planet—to be eliminated. Every time they raise the banner of BDS, acts of anti-Semitism up to and including violence and intimidation of Jewish students inevitably follow. And they don’t want the relevant federal authorities to be able to enforce the law against such discrimination.
That’s why the Anti-Semitism Awareness Act has the support of a broad coalition of groups, including the more liberal Anti-Defamation League and American Jewish Committee, as well as centrists like AIPAC and the Jewish Federations of North America. Defining anti-Semitism won’t impinge on advocacy of diverse opinions about faith or the Middle East. But the idea that anti-Semitic intimidation ought to be given a pass requires a discriminatory mindset towards Jews that has no place at federally funded institutions or the public square in a democratic republic where the rule of law prevails.
Jonathan S. Tobin is editor in chief of JNS.