Congress Hauled in College Presidents Over Anti-Israel Speech. That’s Not the Worst of It.
On Tuesday, the House convened a hearing titled “Holding Campus Leaders Accountable and Confronting Antisemitism,” during which House members portrayed college campuses as hotbeds of antisemitism, called for the resignation of Harvard’s president, and then passed a bipartisan resolution declaring that “anti-Zionism is antisemitism.”
If the House members think that criticisms of Israel on college campuses are antisemitic, though, they should see what’s printed in Haaretz. Israel’s third-largest (and oldest) newspaper is full of columns penned by Jewish Israelis bemoaning that Israel has become an “apartheid” state, has embraced “Jewish supremacy,” and is ethnically cleansing Palestinians from the West Bank. Its columnists declare their support for a one-state solution and even defend those who draw comparisons between Israel and the Nazis.
Within Israel, these views are part of a vigorous political debate. But thanks to an increasingly popular legal definition of antisemitism, the potential price tag for espousing or merely tolerating these views on college campuses is not just being hauled before Congress: It’s a civil rights probe by federal authorities and a financially devastating anti-discrimination lawsuit.
Federal authorities are now investigating the University of Pennsylvania in response to a complaint alleging that the university failed to protect Jewish students from discrimination. The university’s main offense: permitting a “Palestine Writers Festival,” during which participants called for a one-state solution, discussed the Palestinian right of return, made “false equivalencies between Israel and Nazi Germany,” and used the phrase “Jewish supremacy.” Shortly thereafter, NYU students filed an anti-discrimination complaint against the university for failing to punish, expel, or disinvite people who called Israel “racist” and an “apartheid” state, declared their support for the Boycott, Divestments, Sanctions campaign, or opined that “resistance is justified when a people are occupied.” The plaintiffs are demanding that university staff who “permitted” these criticisms be fired, and the students who uttered them be suspended or expelled. And these examples are but a few snowflakes plucked from a blizzard of similar complaints that are being filed.
To establish that these viewpoints are punishable as antisemitic speech, each of these complaints relies on the “working definition” of antisemitism adopted by the International Holocaust Remembrance Association, which declares that it is antisemitic to hold Israel to a “double standard,” “deny the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor,” or compare its policies to those of the Nazis. Though it was originally written as a guide for academics, pro-Israel groups have been staggeringly successful in persuading governments to codify this definition into law: It has been formally adopted by 32 states, some of which have copy-pasted the definition directly into their anti-discrimination laws. A 2019 Executive Order directed federal investigators to use the IHRA definition in determining whether a university should lose federal funding for failing to protect students against antisemitic discrimination. And to settle an investigation or lawsuit, universities are often forced to adopt the IHRA definition into their code of conduct.
Reasonable minds can debate the definition’s utility as a guide for academics. As a legal standard, however, the IHRA definition is flagrantly unconstitutional.
With few exceptions, the First Amendment bars the government from engaging in viewpoint discrimination, either by directly punishing those who express unpopular views or by passing laws that outsource the suppression to private litigants. Anti-discrimination laws—which censure people for expressing prejudicial viewpoints—are the most notable exception. But even anti-discrimination laws don’t get a hall pass from First Amendment scrutiny. To survive a First Amendment challenge, such ordinances must still be “narrowly tailored to further a compelling interest.”
That’s an exacting test, and the laws incorporating the IHRA definition fail it.
To see why, we first have to identify a compelling interest that the IHRA definition furthers. The candidates are more limited than you might think. Yes, much criticism of Israel is vile, coarse, even traumatizing to many Jewish listeners. But that is not grounds for suppression. In 2010, the Supreme Court held that the First Amendment foreclosed an emotional distress claim against protesters who picketed a gay soldier’s funeral with placards featuring grotesque anti-gay slurs and stating “Thank God for Dead Soldiers.” The First Amendment, the court reiterated, protects all speech on “matters of public concern,” no matter how “misguided” or likely to cause its listeners “anguish.”
In fact, in university settings, courts have only recognized one compelling interest for viewpoint-based regulations: shielding students from an environment so tainted with hostility that they can no longer fully avail themselves of an education. But there’s a crucial caveat—the expression that creates the hostile environment must target individuals based on their membership in a protected class (e.g., race, ethnicity), not based on their political beliefs.
This is where the IHRA definition does its heavy lifting: It commands investigators and courts to assume that a wide array of political views about Israel are inherently discriminatory against Jews. This is also where the definition runs headlong into the First Amendment. It defines antisemitism so loosely that it ensnares virtually any criticism of Israel, numerous legitimate pro-Palestinian positions, and—incredibly—even some pronouncements by right-wing Israeli figures.
For example, under the IHRA definition, it’s antisemitic to argue that Palestinian refugees should enjoy the same immigration rights as Jews whose ancestors left Israel two millennia ago. How can an argument premised in equality be recast as an antisemitic utterance? Because the definition says that it’s antisemitic to “deny … the Jewish people their right to self-determination,” and, according to the Israeli government, granting the Palestinians equal immigration rights would “obliterate the Jewish people’s right to self-determination” by flooding Israel with non-Jews. This is the reasoning the NYU plaintiffs employ to allege that the university created a hostile, antisemitic environment by simply allowing the law school to host a panel on the right of return.
Armed with the IHRA’s statement that it’s antisemitic to call Israel a “racist endeavor,” pro-Israel groups have also brought federal complaints against universities for allowing student groups to call Israel an “apartheid” state—even though that view is shared by Israeli civil rights groups, some Israel Defense Forces generals, and the former head of Israel’s intelligence service. The IHRA definition is so haphazardly drafted that even faithful descriptions of statements by right-wing Israelis can create legal liability. For example, Israeli Prime Minister Benjamin Netanyahu has declared that Israel is a “state, not of all its citizens, but only of the Jewish people.” But call that “racist,” and you might get sued. The prominent Israel historian and right-wing darling Benny Morris has argued that it was necessary to “cleanse the hinterland and cleanse the border areas and cleanse the main roads” of 700,000 Palestinians for “the Jewish state … to come into being.” When asked whether he had any moral qualms with the ethnic cleansing, he replied: “Even the great American democracy could not have been created without the annihilation of the Indians.” Under the IHRA definition, even reproducing those words could be considered antisemitic.
The list goes on. The definition says its antisemitic to “draw … comparisons of contemporary Israeli policy to that of the Nazis,” even though those guilty of drawing such comparisons include: an Israeli human rights leader and death-camp survivor who argued that occupation had led to the “Nazification of Jewish society,” an Israeli professor of Holocaust studies who decried the presence of “neo-Nazi ministers in the [Israeli] government,” and several IDF generals, one of whom recently said: “Walk around Hebron, look at the streets; streets where Arabs are no longer allowed to go on, only Jews … That’s exactly what happened [in Germany].”
It’s a good tell that your definition of antisemitism has an overbreadth problem when it captures not just criticisms leveled by Jewish death-camp survivors, Israeli NGOs, and IDF top brass, but also manifestos of the Israeli right.
The IHRA definition does contain an escape hatch: It says that criticism of Israel cannot be deemed antisemitic if its “similar to that leveled against any other country.” But this isn’t a legally enforceable standard—it’s a verbal fog bank. Does it mean a critique is OK as long as someone, somewhere, is leveling it against another country? If so, the definition is meaningless. Every critique of Israel is lobbed at other countries: boycott campaigns against human rights offenders are commonplace, it is de rigueur on the left to call America a racist colonial state, and everyone’s calling everyone a Nazi. Or does it mean that, to insulate against charges of antisemitism, a critic of Israel must personally call out other human rights abusers? But that raises a host of constitutional problems. The First Amendment jealously guards the right of people to select their causes without government interference, and categorically prohibits rules that compel people to express political messages to avoid liability. Not to mention that requiring advocates to speak out about every injustice in the world would reduce their efforts to a bland casserole of jumbled position statements.
But perhaps the best evidence of the escape hatch’s meaninglessness is the fact that pro-Israel litigants keep fleshing out their anti-discrimination complaints with viewpoints that are commonplace within the Israeli left.
In 2019, the Jewish academic who drafted the IHRA’s definition warned that it was being “weaponized” by “rightwing Jews” to silence legitimate criticisms of Israel. Today, that warning rings out with added urgency. There are a multitude of alternative definitions of antisemitism that governments can choose from. Combating the scourge of antisemitism doesn’t require embracing one that stifles free speech.
