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Former ACLU leader explains opposition to federal antisemitism bill

Singing “Olam Chesed Yibaneh” or “The World is Built on Kindness” Yale students close out a Seder ceremony on campus April 22, 2024. More than 40 students were arrested earlier in the day as hundreds of Yale students have been protesting on campus, calling on the university to divest from companies that produce military weapons they say play a role in the Israel-Hamas war.
Mark Mirko
/
Connecticut Public
Singing “Olam Chesed Yibaneh” or “The World is Built on Kindness” Yale students close out a Seder ceremony on campus April 22, 2024. More than 40 students were arrested earlier in the day as hundreds of Yale students have been protesting on campus, calling on the university to divest from companies that produce military weapons they say play a role in the Israel-Hamas war.

A familiar criticism being voiced about the pro-Palestinian protests occurring on campuses across America is that the protests are antisemitic. In early May, the U.S. House passed an antisemitism awareness bill with broad bipartisan support by a vote of 320 to 91. The bill now awaits Senate approval.

The American Civil Liberties Union opposes the measure, which would broaden the definition for the federal Department of Education to enforce anti-discrimination laws.

“The problem with the Antisemitism Awareness Act is that it purports to outlaw not violent conduct, not harassing or threatening speech, but ideas that are disfavored,” said Nadine Strossen, the former president of the national ACLU.

Specifically, the Antisemitism Awareness Act would broaden the legal definition of antisemitism in a way the ACLU contends would penalize speech critical of Israel.

“It purports to define certain expressions regarding, for example, Israeli policy as being a conduct that should be equated with punishable antisemitism,” Strossen said. “The university should not be setting it up and Congress should not be pressuring the universities to set up certain ideas as a basis for imposing sanctions for discriminatory conduct.”

In Congress, opponents of the bill say it could have a chilling effect on free speech, including criticism of the government of Israel. But one lawmaker who supports the bill told NPR that is “complete nonsense,” saying that someone who criticizes the Israeli government without calling for the destruction of Israel couldn’t be accused of antisemitism.

The bill points to the International Holocaust Remembrance Alliance’s (IHRA) working definition of antisemitism, calling it a “vital tool” that helps to understand and identify manifestations of antisemitism. However, Strossen said the definition was created by Ken Stern to assess the extent of antisemitism, not for “punitive purposes.”

“Ken Stern has repeatedly said that the [IHRA] definition that he crafted should not be used to define what is antisemitic expression on campus,” Strossen said. “It should not be used to define what constitutes punishable, discriminatory harassment on campus. And that it would be a misuse and a dangerous misuse of that definition.”

The alliance defines antisemitism as “a certain perception of Jews, which may be expressed as hatred toward Jews” and that manifestations of antisemitism are “directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”

In its explanation of the definition, the alliance notes that manifestations might include the “targeting of the state of Israel, conceived as a Jewish collectivity.” “However, criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic," the alliance says online.

The U.S. state department’s current working definition of antisemitism is based on the alliance’s definition: “a certain perception of Jews, which may be expressed as hatred toward Jews.” Critics say there have been many antisemitic sentiments loudly expressed at many of the pro-Palestinian protests. Protests organizers say that isn’t true. Strossen said it doesn’t matter.

Even though the United Nations is among those who believe history has many examples of hateful speech leading to violence, Strossen said the ACLU’s position is that hateful speech must be protected until it crosses a specific line.

“Everybody has the right to spew expressly hateful speech, either hateful toward Israelis or hateful toward Palestinians,” Strossen said. “Universities do have to, on the one hand, not punish speech solely because of objection to its viewpoint, no matter how wrong-headed and even evil and even vaguely dangerous they might believe the viewpoint to be. But when it crosses over into punishable harassment and targeted true threats or an intentional incitement of violence, then it can and should be punished.”

Strossen said even if protesters and counter-protesters are spewing hateful speech, punishing that speech is not the way to keep everyone safe.

“History, including the history in Germany leading up to the ascension to power of the Nazis and the Holocaust, demonstrates that you are never going to suppress hatred,” Strossen said. “You are never going to prevent discrimination or discriminatory violence by targeting speech. If anything, that has a counterproductive effect because the ideas never go away.”

“Throughout history to the present day, those whose speech is chilled or threatened can hold themselves up as free speech martyrs, their ideas and their messages gain attention that they otherwise never would have,” Strossen said. “And sympathy that they otherwise never would have.”

Update: This story has been updated and includes additional details with reaction from Congress members regarding the bill, as well as details from the International Holocaust Remembrance Alliance.

John Henry Smith is Connecticut Public’s host of All Things Considered, its flagship afternoon news program. He's proud to be a part of the team that won a regional Emmy Award for The Vote: A Connecticut Conversation. In his 21st year as a professional broadcaster, he’s covered both news and sports.