On December 2, the Senate passed the Anti-Semitism Awareness Act, a bill that targets campus activism rather than anti-Semitism, under special procedures that did not require a voice vote. An identical parallel bill awaits action in the House of Representatives. While being aware of anti-Semitism is a good thing, these bills seek to suppress speech about Palestinian human rights on college campuses by forcing the Department of Education to codify a definition of anti-Semitism that conflates criticism of Israel with anti-Semitism. As such, the bills target core protected free speech and is part of a wider backlash against Palestinian human rights advocacy and is not part of a good faith effort to raise awareness about anti-Semitism.

A Misnamed Bill

By its name alone, the Anti-Semitism Awareness Act would hardly seem odious. Anti-Semitism, like all forms of bigotry, is deplorable, and while the First Amendment protects racist and prejudiced speech, promoting awareness of continuing discrimination in our society is commendable. Given the increase in hate crimes, the mainstreaming of white supremacist groups who have rebranded themselves as the “alt right,” and the alarming rate at which Jewish individuals have been the target of hate crimes, now is a particularly good time to be aware of anti-Semitism.

However, the Anti-Semitism Awareness Act has little to do with actual anti-Semitism, and is instead part of a broader agenda to use the legislative process to punish supporters of Palestinian human rights for their advocacy. It seeks to do so by allowing the Department of Education to use the so-called “State Department” definition of anti-Semitism.

The State Department definition was adopted in 2010 and is based on a 2005 draft paper released by the European Union’s Monitoring Centre on Racism and Xenophobia that defines anti-Semitism to include demonizing Israel, holding Israel to a double standard, and delegitimizing Israel (sometimes referred to as the “Three Ds”).

Since it was first drafted by an EU agency, this definition has been widely criticized for conflating criticism of Israel with anti-Semitism. The EU agency that originally proffered the working definition has since abandoned it, going so far as to say it was never “valid.” Kenneth Stern, its lead author, has urged against adopting it on college campuses, saying it would “do more harm than good.” In the United States, civil liberties groups have long postulated that should it be adopted by campuses, it would run afoul of the First Amendment.

Update: Kenneth Stern, lead author of the definition of anti-Semitism in question, has publicly written to Congress asking them to vote against the Anti-Semitism Awareness Act calling “unconstitutional and unwise.”

While the bill has been touted as a response to the post-Trump wave of hate crimes, it’s ultimately motivated by growing support for the Boycott, Divestment, and Sanctions (BDS) movement on college campuses. Regardless of what one thinks of BDS, as domestic civil liberties organization BORDC/DDF take no positions on the Middle East conflict, it is form of political advocacy pertaining a topic of public concern and thus implicates core First Amendment values.

The Anti-Defamation League, which purports to have helped draft the bill, tweeted in support of the bill

Worried about anti-#Israel activity on campus? We drafted a law that will help show when it’s gone too far –> https://t.co/PCER36FFBh — ADL (@ADL_National) December 2, 2016

In the past, the ADL has, in its criticisms of BDS, stated that its goal is the demonization and delegitimization of Israel–two of the “three Ds” from the State Department list. In fact, those supporting anti-BDS bills at the state level frequently cite this definition of anti-Semitism in their testimony to justify taking coercive measures against protected political speech.

The “threes Ds” are vague and are clearly aimed at targeting speech critical of Israel. Those pushing for their adoption at this juncture in time are aiming for the BDS movement.

Background: Failed Attempts to Use the Department of Education to Police Political Speech

The Anti-Semitism Awareness Act is part of a wider effort to bring civil rights complaints against student activists. In the past, pro-Israel organizations have filed civil rights complaints with the Department of Education Office Of Civil Rights (OCR) arguing that a number of instances of political speech, such as a mock Israeli checkpoint or a teach-in on the Israeli bombing of Gaza, created a hostile environment for Jewish students. However, the OCR has continuously rejected these claims, finding that many of the incidents described “constituted expressions on matters of public concern directed at the University community.” Forcing the OCR to have to use the State Department anti-semitism definition is a response to this, as by adopting a formal definition of anti-Semitism that conflates criticism of Israeli policy with anti-Semitism the OCR would be tasked with investigating human rights advocacy as a potential civil rights violation.

BORDC/DDF recently received via the Freedom of Information Act hundreds of pages of documents pertaining to OCR complaints about pro-Palestinian advocacy on college campuses. In one letter dated July 9, 2012, the representatives of the plaintiffs in an ongoing complaint against UC Berkeley–whose names are redacted– cite the student group UC Berkeley [Israel] Apartheid as an example of anti-Semitism, calling it a “modern day Passion Play.” They write:

The Berkeley “Passion Play,” masquerading as a political protest, is nothing short of racist hate speech in clear violation of Title VI. It is at least equal in legal odiousness to use of the “N” word or similar racist and sexist expressions. However, unlike the Oberammergau Passion Play in Germany, which is performed on a traditional pay-to-view stage setting, the University has allowed–in fact, has been part of planning and execution of–the racist outbursts which have taken place at the center of an important public campus crossroad[…]

If the McCarthyite agenda was not already clear enough, the same letter also goes on to give lengthy descriptions of both Students for Justice in Palestine and the Muslim Student Association, accusing the MSA of having a “publicly documented history of affiliation with and support of organizations deemed ‘terror organizations’ by the United States Department of State.”

These claims were rejected by the OCR, but not until after a lengthy investigation.

Conclusion:

With a surge of hate crimes taking place, it makes sense that many are concerned with anti-Semitism. However, many in government have long sought to silence advocacy for Palestinian human rights by conflating it with anti-Semitism. The Anti-Semitism Awareness Act is an attempt to use real fears about a political climate in which white supremacy is increasingly becoming normalized and made mainstream to enact a longstanding political project aimed at censoring and restricting speech about Israeli policies. As such, the Anti-Semitism Awareness Act must be rejected.