Congress can help colleges counter antisemitism through free speech

Congress is right to be morally outraged by the recent campus anti-Israel protests that have descended into antisemitism, chaos and violence. The House has responded by passing the Antisemitism Awareness Act (H.R. 6090) and the Senate may soon consider this or a related measure. The measure requires the Department of Education to use an international definition of antisemitism when enforcing federal law to protect Jewish students against discrimination.

Though well-intentioned, the bill misses the mark. Codifying a definition of antisemitism that covers contemptible — but constitutionally protected — speech could exacerbate the problem behind animosity towards Israel and Jewish people: the lack of viewpoint diversity in academia. To protect the safety of Jewish students, lawmakers should strengthen free speech on campus so that more diverse voices are heard.

For decades, elite colleges have indoctrinated students to view groups through a lens of oppressors-versus-oppressed. Israel and the Jewish people are often cast as oppressors. Even when Jewish people are victimized, empathy is often overridden by politics. If any facts are to be heard, both sides must be allowed to express their views.

Indeed, speech protection for all people must become more robust, not less.

Title VI of the 1964 Civil Rights Act requires universities to prevent harassment and discrimination based on race, color or national origin — including Jewish ethnicity.

The bill codifies the International Holocaust Remembrance Alliance’s (IHRA) definition of antisemitism. Under this definition, certain statements regarding the Jewish people — including constitutionally protected expression — are by law antisemitic. The Department of Education is directed to consider those statements when deciding whether Title VI was violated.

The bill puts a thumb on the scale against certain statements by incorporating a definition of antisemitism that expressly includes the content and viewpoint of speech. This opens the door to government censorship and punishment of speech. It’s easy to envision how the government could wield this power against other viewpoints, including pro-Israel and philosemitic views.

IHRA’s definition of antisemitism targets speech that “stereotypes” and “dehumanizes” a group of people. Hate speech laws that use similarly subjective terms have been based on the presumed motives or beliefs of the speaker. But censorship can go both ways.

In Canada, for example, a “hate speech” complaint was filed against a report on antisemitism and Islamic extremism, alleging that it stereotyped all Muslims. But allowing university officials to punish speech that promotes stereotypes could lead to censorship of speech on important matters of public concern.

So, while stereotyping is odious, the right response to these concerns is not censorship, but better speech.

As mentioned, campus administrators could use the IHRA definition to censor political viewpoints. IHRA’s definition of antisemitism, for instance, includes requiring behavior from Israel that is “not expected or demanded of any other democratic nation.”

Though detestable, this unfair treatment of Israel still offers opportunities to set the record straight. As at the United Nations, where, when Israel is targeted, its diplomats are able to articulate reasoned defenses of its policies to the world.

Similarly, Americans are responding to the rise in antisemitism with counter-speech. Jews and Christians, conservatives and liberals, are penning open letters, holding marches, giving speeches and participating in debates. That would not be possible without robust free speech protections.

In Germany, for instance, the criminal code censors “insults” with imprisonment and fines. Authorities there punished an Israeli woman for holding up an Israeli flag at an anti-Israel protest after a demonstrator filed a criminal complaint against her.

In America, school administrators should apply codes of conduct and civil rights law more evenhandedly. But at some schools, administrators have applied codes of conduct differently, depending on the identities of the speakers and the targets.

Codifying IHRA could backfire, then, by allowing both students and administrators to weaponize Title VI against free speech. IHRA’s drafter, Kenneth S. Stern, has described “enshrining a particular definition. . .  inherently involving political speech into law” as a “total travesty.” The IHRA definition may be the right tool for collecting data on antisemitism, but it is the wrong tool for government enforcement of anti-discrimination law. Instead, Stern advises university presidents to focus on strengthening academic freedom.

The recent shocking torrent of antisemitism has awakened Americans. More and more are speaking up. The First Amendment provides them — as well as faculty and students — with opportunities to educate the public about Israel, Jewish history and antisemitism. Now is the time for Congress to work with higher education to protect free speech and ensure viewpoint diversity.

As history shows us, countries that limit speech find it much harder to dispel ignorance and prejudice with the truth. America has the right approach: persuasion, not censorship.

Emilie Kao is senior counsel and vice president of Advocacy Strategy with Alliance Defending Freedom.