Let’s Talk (If We Can) About Antisemitism and Free Speech

I feel the need to lay out a certain amount of context before I say what I’m about to say, so I’ll share an excerpt from something I wrote shortly after the horror of October 7 unfolded. 

I can’t say for certain how old I was when I first became aware of the Jewish faith. While I am Christian and was raised such, Jews and Judaism have always been part of my life, both as friends and as family. 

I do know that I was utterly stunned when I first learned of the Holocaust (likely when the miniseries of the same name aired in the late 70s.) I recall being on the playground of my elementary school and hearing classmates reference some of the horrors portrayed and feeling at a loss — not only as to how anyone could treat other human beings in such a way but why anyone would be singled out for extermination based on their faith and/or ethnicity. (I was nine and legitimately unacquainted with the evils of the world and the hate that resides in some human hearts.) 

I recall reading “The Diary of Anne Frank” in junior high and feeling overwhelming sadness and confusion at what she and her family endured. Watching “Schindler’s List” in the 90s broke my heart, as it surely did millions. A decade or so ago, I toured the United States Holocaust Memorial Museum in Washington, D.C., and was profoundly moved by it — even knowing the horrors visited on the Jewish people during World War II, nothing brought it home more than seeing those exhibits and, in particular, the shoes. 

…

I’ve never understood antisemitism, even while I’ve long been aware of the pervasiveness of its evil tentacles. I’ve attended bar and bat mitzvahs, Jewish weddings and funerals, the Passover Seder, Hannukah celebrations. I don’t say this to congratulate myself but to illustrate that throughout my life, the concept of Jews and Judaism has been an ever-present and haunting mix of joy and beauty and family and tradition with heartache and history and sorrow and suffering. 

I am also a fierce advocate of free speech and the First Amendment. 

No. Free speech doesn’t threaten democracy – stifling it does.

What ever happened to “I disapprove of what you say, but I will defend to the death your right to say it”? Or “Democracy dies in darkness”? Or does that only hold true when certain folk are in charge of the light switch?

The key to healthy public discourse is discernment, not censorship. As Justice Brandeis wrote nearly a century ago: “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence.”

One of the slipperiest aspects of free speech is not only acknowledging but adhering to the principle that it must be upheld for even the ugliest of words and sentiments (provided they don’t cross over into the well-recognized exceptions of, e.g., actual threats, fighting words, fraud). Even the staunchest of free-speech champions will understand the allure of wanting an added exception to be carved out for those instances involving speech they personally find odious and offensive — even outright hurtful. But we must resist that impulse if we are to rest on principle rather than passion. 

This is the framework that informs my outlook on such matters, and it’s being tested mightily in the face of recent events. I’ll confess, as much as I’ve been dialed in on the situation in the Middle East following the October 7 attacks and the sickening rise in antisemitism we’ve seen — yes, before, but exponentially more so since — I was not paying particularly close attention to H.R. 6090, the “Antisemitism Awareness Act of 2023,” ahead of its passage in the U.S. House May 1. I’ll lay that off, in part, to the fact that the measure had broad bipartisan support (it passed 320-91) and, thus, wasn’t being treated like the proverbial political pigskin ahead of the vote. 

Of course, these days, one might do well to pay particularly close attention when a measure has “broad bipartisan support.” But that’s a discussion for another day. 

The truth of the matter is I don’t know much about the bill in terms of its specifics. What I do know, ahead of delving into those specifics, is that while I appreciate the sentiment expressed in its title, my instinctive reaction to it has been leeriness. Something about it struck me as blurring that sacrosanct boundary around free speech — it set off my intellectual spidey senses. But then I saw some of the knocks on it from certain quarters espousing their own suspect rationale, and that set off other alarms. 

RELATED: 

No, Antisemitism Isn’t Scriptural

‘We Must Act’: House Republicans Announce Plan to Crack Down on Antisemitism on University Campuses

I’ve likely written about the “America This Week” podcast here before — if not, I’ve been remiss. While there are several podcasts I try to make a point to listen to (in all my spare time), ATW parks at the front of the queue. Hosts Matt Taibbi and Walter Kirn don’t necessarily share my politics (Taibbi for certain doesn’t; Kirn perhaps shares the more libertarian and Midwestern sensibility aspects), but they do share a similar affection for the basic core tenets undergirding the nation’s founding and absolutely for those at the heart of the First Amendment. Thus, listening to them discuss some of the key issues of the day is, I believe, good exercise for my brain — as well as fairly entertaining. 

So it was that I found myself listening to their most recent episode on “Gaza, Columbia, & More,” with a good deal of ambivalence. As with our political views in general, I’m not sure there’s a ton of overlap between Taibbi and me regarding our sentiments on Israel, and even with Kirn, I know there are differences. But I understood (and shared) their concerns regarding the implications of the recently passed bill. And I also realized that if I were going to form a reasonably intelligent opinion on it, I’d best make a point to actually read the language rather than relying on Congress critters — or social media sentiments — to determine it. 

Alright, so, here’s the actual language of the measure. Let’s look at it piece by piece. (It’s blessedly short as far as congressional legislation goes.) 

AN ACT

To provide for the consideration of a definition of antisemitism set forth by the International Holocaust Remembrance Alliance for the enforcement of Federal antidiscrimination laws concerning education programs or activities, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the “Antisemitism Awareness Act of 2023”.

Okay — I realize I could go full-on libertarian and wander off on a tangent regarding the propriety of anti-discrimination laws, but again, that’s a discussion for another day. If we’re going to accept the premise of anti-discrimination laws, in my view, it makes sense that such laws should, at least in theory, encompass discrimination based on ethnicity and, potentially, faith. So, no serious quibbles so far. 

SEC. 2. SENSE OF CONGRESS.

It is the sense of Congress that—

(1) title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.), prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving Federal financial assistance;

(2) while such title does not cover discrimination based solely on religion, individuals who face discrimination based on actual or perceived shared ancestry or ethnic characteristics do not lose protection under such title for also being members of a group that share a common religion;

(3) discrimination against Jews may give rise to a violation of such title when the discrimination is based on race, color, or national origin, which can include discrimination based on actual or perceived shared ancestry or ethnic characteristics;

(4) it is the policy of the United States to enforce such title against prohibited forms of discrimination rooted in antisemitism as vigorously as against all other forms of discrimination prohibited by such title; and

(5) as noted in the U.S. National Strategy to Counter Antisemitism issued by the White House on May 25, 2023, it is critical to—

(A) increase awareness and understanding of antisemitism, including its threat to America;

(B) improve safety and security for Jewish communities;

(C) reverse the normalization of antisemitism and counter antisemitic discrimination; and

(D) expand communication and collaboration between communities.

I could crack a joke about using “sense” and “Congress” in the same sentence, but I’ll refrain. Taking this section point by point: 

1. Yes, it does.
2. Not sure I fully understand the point of this. I think it’s aimed at asserting that discrimination based on religion — particularly when it’s inextricably intertwined with ethnicity — should also be prohibited. (But, given the next provision, this language seems extraneous and murky.)
3. Okay. Again, for purposes of the discussion, I largely agree. 
4. Okay, but (and we’ll get to this) my comfort level with this is largely contingent on how “antisemitism” is/will be defined. 
5. Sigh. This is pinging my BS meter. It’s lofty government overreach speak, even while I agree with most of the sentiment — antisemitism bad; Jewish persons/communities should be/feel secure/safe (as should we all); but this isn’t/shouldn’t be the role of government. 

SEC. 3. FINDINGS.

Congress finds the following:

(1) Antisemitism is on the rise in the United States and is impacting Jewish students in K–12 schools, colleges, and universities.

(2) The International Holocaust Remembrance Alliance (referred to in this Act as the “IHRA”) Working Definition of Antisemitism is a vital tool which helps individuals understand and identify the various manifestations of antisemitism.

(3) On December 11, 2019, Executive Order 13899 extended protections against discrimination under the Civil Rights Act of 1964 to individuals subjected to antisemitism on college and university campuses and tasked Federal agencies to consider the IHRA Working Definition of Antisemitism when enforcing title VI of such Act.

(4) Since 2018, the Department of Education has used the IHRA Working Definition of Antisemitism when investigating violations of that title VI.

(5) The use of alternative definitions of antisemitism impairs enforcement efforts by adding multiple standards and may fail to identify many of the modern manifestations of antisemitism.

(6) The White House released the first-ever United States National Strategy to Counter Antisemitism on May 25, 2023, making clear that the fight against this hate is a national, bipartisan priority that must be successfully conducted through a whole-of-government-and-society approach.

My response:

1. Yes, it is.
2. Eh. No beef with the IHRA, but “a vital tool which helps individuals understand and identify” has the gross “Government knows best” vibe to it. 
3. Ahh…our first true twist: It appears the genesis of this is, in large part, an executive order issued by former President Donald Trump. A brief perusal of the order informs me that it is quite similar in tone and terms to this provision. Setting aside, for purposes of this discussion, the propriety of executive orders versus congressional legislation, espousing a policy of opposing discrimination based on ethno-religious characteristics seems, at minimum, well-intended. But…I’m always leery of those unintended consequences.
4. Learn something new every day. Okay — good to know. Although…I find this revelation interesting in light of the significant rise in antisemitism we’ve seen of late, particularly on college campuses. I’m curious now as to how many such investigations have been conducted since the Department of Education began employing the IHRA definition. Paging Betsy DeVos and Miguel Cardona… 
5. Well, sure, I imagine it does. Consistency — in most arenas, and particularly when we’re talking about enforcement of governmental rules or policies — is key. 
6. Oh, no, no, no, no, no…”whole-of-government-and-society approach” shrieks of nanny-state BS. 

SEC. 4. DEFINITIONS.

For purposes of this Act, the term “definition of antisemitism”—

(1) means the definition of antisemitism adopted on May 26, 2016, by the IHRA, of which the United States is a member, which definition has been adopted by the Department of State; and

(2) includes the “[c]ontemporary examples of antisemitism” identified in the IHRA definition.

Now, we get to the heart of things: 

1. What, exactly, is the IHRA’s definition of antisemitism?                                    
   

   “Antisemitism is 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.”

   Look, as noted at the outset of this article, I find the notion of antisemitism both baffling and odious. I think the first sentence of the above definition is, while perhaps over-simplified, pretty straightforward. The second sentence seems rather broad/vague. I guess I don’t disagree that antisemitism can be manifested both rhetorically and physically or that it might be directed toward people, property, or institutions. I’ll confess, though, I’m a bit perplexed at the use of “Jewish or non-Jewish” here. So…in other words, any and all individuals? Then why make the distinction to begin with? Why not just say “individuals?” And with this definition, does this mean that non-Jews can assert claims for discrimination on the basis of antisemitism? I find this definition confusing — and troubling as the basis for governmental policy. 

2. Hoo boy — the list of examples is rather extensive, but I’m going to include it here to be thorough.
   

   • Calling for, aiding, or justifying the killing or harming of Jews in the name of a radical ideology or an extremist view of religion.
   • Making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such or the power of Jews as collective — such as, especially but not exclusively, the myth about a world Jewish conspiracy or of Jews controlling the media, economy, government or other societal institutions.
   • Accusing Jews as a people of being responsible for real or imagined wrongdoing committed by a single Jewish person or group, or even for acts committed by non-Jews.
   • Denying the fact, scope, mechanisms (e.g. gas chambers) or intentionality of the genocide of the Jewish people at the hands of National Socialist Germany and its supporters and accomplices during World War II (the Holocaust).
   • Accusing the Jews as a people, or Israel as a state, of inventing or exaggerating the Holocaust.
   • Accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations.
   • 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 antisemitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis.
   • Drawing comparisons of contemporary Israeli policy to that of the Nazis.
   • Holding Jews collectively responsible for actions of the state of Israel.

   Well. I don’t think I’d quibble that most of those examples qualify, but a couple of them are troubling in their vagueness/susceptibility to being construed in an overly broad fashion, like, for instance, accusations regarding loyalty and application of double standards. And while some examples don’t readily lend themselves to the tried and true “flip test,” simply because of historical realities, I’m forced to wonder whether and to what extent I’m comfortable with those examples forming the basis of government policy if the word “Muslims” were substituted for “Jews”? Some of them? Absolutely. All of them? Eh. 

   And what if we were to back it up a step and substitute a racial category rather than a religious one? Again…eh.  

SEC. 5. RULE OF CONSTRUCTION FOR TITLE VI OF THE CIVIL RIGHTS ACT OF 1964.

In reviewing, investigating, or deciding whether there has been a violation of title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) on the basis of race, color, or national origin, based on an individual’s actual or perceived shared Jewish ancestry or Jewish ethnic characteristics, the Department of Education shall take into consideration the definition of antisemitism as part of the Department’s assessment of whether the practice was motivated by antisemitic intent.

Okay. So, basically, we’re codifying what the Department of Education was already ostensibly doing since 2018 (though the executive order regarding this policy wasn’t issued until 2019, so…I’m not sure on what basis/under what authority the department was acting prior to that or why, if that was already the case, an executive order or law was necessary). In a nutshell, Congress is officially placing its stamp of approval on the Department of Education including antisemitism as a basis on which to review, investigate, and determine whether there has been a Title VI Civil Rights Act violation. 

SEC. 6. OTHER RULES OF CONSTRUCTION.

(a) General Rule Of Construction.—Nothing in this Act shall be construed—

(1) to expand the authority of the Secretary of Education;

(2) to alter the standards pursuant to which the Department of Education makes a determination that harassing conduct amounts to actionable discrimination; or

(3) to diminish or infringe upon the rights protected under any other provision of law that is in effect as of the date of enactment of this Act.

(b) Constitutional Protections.—Nothing in this Act shall be construed to diminish or infringe upon any right protected under the First Amendment to the Constitution of the United States.

A. Now comes the clean-up language:

1. Well, good. But interesting. As noted above, it appears the Secretary of Education (or her/his department) was already using this newly-embraced-by-Congress definition of antisemitism in investigating potential Title VI violations. So…why was this bill necessary? (Unless the secretary/department was/were acting beyond their authority until now?)
2. Again, what, then, is the point of this measure? 
3. Lawyer/legislator CYA speak. 

B. Oh? “You have a First Amendment right to speak freely, except that if you do so in a way that’s construed as discriminatory, we’ll yank your federal funding.” 

There’s a lot to unpack there, not least of which is the whole sick, co-dependent relationship between the federal government (in particular, federal funding) and our education system. I see the practicality and justification of attaching strings to dollars: “If you want our money, you must play by our rules.” I also see the embrace of policies opposing discrimination as generally well-intended, setting aside the question of whether this is/should be the proper role of government. I see the justification of including discrimination based on actual or perceived ancestry and ethnicity under the umbrella of such policies. 

I share the concerns of many regarding the ugly rise in antisemitism. I agree that colleges (and K-12 institutions) have a basic obligation to provide a safe and secure learning environment for students, and if they are going to employ codes of conduct that include prohibitions on discrimination, those should include ancestry/ethnicity and be enforced consistently. 

I think the displays we’ve seen recently, particularly on college campuses, of ignorance and hatred are both vile and disheartening. But I think the framework we have under the Constitution is already adequate to address that (from a governmental standpoint): You have the right to express your sentiments (repugnant and ill-informed though they may be); schools have a right to impose reasonable time, place, and manner parameters on that. You do not have the right to trespass, vandalize, restrict the free passage of others, interfere with their ability to continue/complete the education they’re paying for, threaten them with bodily harm, or physically accost them. 

I think in this instance, Congress took a layup to “do something” that capitalizes on a popular sentiment but is largely meaningless. I have concerns that this measure will be misconstrued and misapplied. And while it doesn’t, in and of itself, have enforcement implications for individual speakers (rather, for institutions who wish to continue receiving government funding), I fear it will be used by schools and universities to justify punishing speech rather than encouraging free expression. (Note: I believe this dynamic is already in play with the advent of speech codes, etc., which predate this legislation. This will simply further bolster that mentality and further turn learning institutions into illiberal, linguistic landmine factories.) 

In sum, as much as antisemitism turns my stomach, and as much as these campus protests are beyond ridiculous, and as much as I believe the faculty and administrations of these schools rightly deserve criticism (and, in some instances, condemnation) for their abject failure in leadership, I do not agree with the passage of this bill. 

We’ve written extensively here at RedState on the issue of free speech, and the writers here have a variety of opinions on the matter. It’s certainly a topic near and dear to my heart, and it lies at the core of what we do. Because of the way things work in 2024, particularly with the cozying up of Big Tech to government and the inclination of both to frown upon anything other than left-leaning thought and publication, we’ve had to move beyond traditional methods of generating revenue (we’d love to be able to do this “for free” but we also need to eat and pay rent and such) and get creative. So, we set up our VIP program, which provides added content, including deeper dives, such as the one above. If you like what you’ve read and/or just want to do what you can to help support independent journalism, I invite you to consider upgrading to a VIP account. VIP status will open a wide array of stories and podcasts here at RedState. And a Gold-level account gets you access to all of our sister sites in Townhall Media: PJ Media, Twitchy, Hot Air, Bearing Arms, and Townhall.com. Use promo code SAVEAMERICA for a 50% discount.

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