The Fake “Antisemitism” Bill Threatens Our Civil Liberties. The Senate Must Reject It.

5 statements it could ban and the people it could hurt—including Jews.͏ ­͏ ­͏ ­͏

Totalitarianism rarely shows its true face when it arises. Instead, it often pretends to stand for good and decent values. A new bill claims to fight antisemitism, something all decent people oppose. But antisemitism—that is, bias and discrimination against Jews because of their religion or ethnic identity—is already barred under civil rights law. The real goal of the so-called “Antisemitism Awareness Act” is to suppress free speech.

This dangerous bill was already passed by the House of Representatives and now awaits a Senate vote. It outsources some of our constitutional rights to an outside organization, the International Holocaust Remembrance Alliance, whose arbitrary definition of antisemitism poses a threat to civil liberties. It could be used to crush legitimate debate about Israel, its policies, and American policies toward it—policies that have given rise to one of the greatest acts of genocide since the Holocaust.

This bill could suppress historical research and ban the mention of facts that have been verified by international organizations. It could initiate lawsuits, funding cuts, and disciplinary action across all American “education programs or activities, and for other purposes.” (Those “other purposes” are not defined.) Student protesters, professors, writers, and even elected officials could face political repression and become legal targets.

The implications are enormous. The Federal government spends more than $100 billion per year on education, including $85.3 billion for kindergarten through high school, $24.6 billion in federal student aid assistance, and $1.3 billion in congressional earmarks for colleges (for projects that range from equipment purchases and airport runways to prison education programs). All these expenditures could be used as leverage to stifle legitimate debate.

Despite its “antisemitic” branding, the bill targets Jews as well as non-Jews. As literature professor Benjamin Balthasar writes, it would effectively ban the teaching of “much Jewish history and culture.” Balthasar observes that Hannah Arendt, Albert Einstein, Ed Asner, and “countless other Jews would now be considered ‘antisemitic’ under the new law.”

The bill defines criticism of Israel as a violation of Title VI of the Civil Rights Act of 1964. That legislation allows citizens to file “administrative complaints with the federal agency that provides funds,” or to sue in federal court. That means that non-Jews could take action against anti-apartheid Jews—including deeply religious Jews who object to Israel’s existence on theological grounds. And they could do it in the name of antisemitism.

As Balthasar writes, this bill “would in some ways be the most punitive law against Jews to be enacted in the U.S. since the Immigration Act of 1924.” Ultimately, it would infringe everyone’s civil liberties. Here are five examples of legitimate speech that could be banned under this legislation.

Five Forbidden Statements

1. “Gaza is a concentration camp.”

This sentence runs afoul of a provision that would outlaw “drawing comparisons of contemporary Israeli policy to that of the Nazis.” That undoubtedly protects the sensitivity of people who are offended by the comparison, but at what cost to the Constitution?  It isn’t hard to draw parallels between some Nazi actions and certain actions of many other countries, including both Israel and the United States.

Nor should that be a surprise. In “Hitler’s American Model: The United States and the Making of Nazi Race Law,” James Q. Whitman records that Hitler drew inspiration from American racism, especially laws “excluding certain races from naturalization.” Hitler also spoke admiringly of the way Americans had “gunned down the millions of (American Indians) to a few hundred thousand.”  

Since some Nazi policies were drawn from our own country’s, it raises the question: how can there be a blanket ban on comparing them to those of any other country?

This provision would presumably forbid people on campuses and schools from saying, for example, that “Gaza is an open-air concentration camp.” But the Cambridge Dictionary defines a “concentration camp” as “a place where large numbers of people are kept as prisoners in extremely bad conditions, especially for political reasons.” Can anybody argue that Gaza is not a concentration camp, or that mass extermination isn’t already underway there? 

The concentration camps weren’t invented by the Nazis. The Oxford Reference Dictionary’s overview begins, “Originally a place in which non-combatants were accommodated, as instituted by Lord Kitchener during the Second Boer War.” The United States also built concentration camps to intern Japanese American civilians during the Second World War.

If this bill passes, it would be permissible to compare any country’s policies to those of Nazi-era Germany. Every country, that is, except one.

2. “The creation of Israel involved considerations of race and ethnicity.”

The law outlaws “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.”

One commonly used definition of “racism” is “Prejudice, discrimination, or antagonism directed against a person or people on the basis of their membership of a particular racial or ethnic group, typically one that is a minority or marginalized.”

Israel has granted special rights to members of one ethnic group since its creation, wherever they may live in the world, while denying some of those same rights to people who were already in its territory when it was created.

Here’s a historical fact that would be suppressed by this law: Israel is the only nation in the world that an occupying nation (Great Britain) established by fiat based on worldwide ethno-religious affiliation rather than a contemporary, living society.

The “racist endeavor” clause could also ban the discussion of another historical fact: that the Balfour Declaration led to an influx of primarily white European Jews onto land then inhabited by indigenous people of color.

The right of self-determination is not automatically granted to any religious or ethnic group. Israel is the only instance where that right was extended to a people who largely did not live on the site of their supposed homeland, and where it was done by denying the civil and property rights of people who had lived there for generations.

3. “The right of self-determination doesn’t (or shouldn’t) permit the displacement of local populations in favor of people who currently live elsewhere.”

Less than 10 percent of Palestine’s population was Jewish in 1890.^[1] (By comparison, approximately 40 percent of Baghdad’s population was Jewish in the early 20^th century.^[2]) The majority who had lived there for generations were denied self-determination, losing both rights and property, despite their innocence regarding Europe’s long-time persecution of the Jews.

How can such a right be granted to one group at the expense of another, already-existing population? At the very least, that’s a debatable proposition. But this kind of debate could very possibly be forbidden under the same “racism” provision of this law.

4. “Israel is the only democracy in the Middle East.”

You could also get in trouble by challenging a related claim about Israel: that it is “the only democracy in the Middle East.” A democracy? Three-quarters of all Palestinians—some 750,000-1,000,000 people—were deliberately displaced at Israel’s founding. A 2018 law explicitly states that “the right of national self-determination in the State of Israel is unique to the Jewish people.”

That’s hard to reconcile with principles of democracy or self-determination. At the very least, they are reasonable subjects for debate—debate that this law would ban.

5. “Israel is conducting a genocidal campaign in Gaza.”

Israel’s actions in Gaza—systematic bombing, destruction of homes and infrastructure, killings of journalists and medical personnel—meet many legal definitions of genocide and other crimes. That is a matter of law. But this statement could also run afoul of the law’s overly broad ban on Nazi-era comparisons.

In fact, many countries and leaders have been accused of acting in a Nazi-like fashion since World War II. That shouldn’t surprise us, nor is it necessarily wrong to make the comparison. Yes, such comparisons can be odious and extreme. But, as Alex Ross writes in the New Yorker,

“The kind of genocidal hatred that erupted in Germany had been seen before and has been seen since. Only by stripping away its national regalia and comprehending its essential human form do we have any hope of vanquishing it.”

We can’t vanquish something we’re not allowed to name.

International Law and Collective Guilt

What Israel is reportedly doing in Gaza was defined as criminal many years ago under international law. But any mention of that—or even of international case law regarding Israel—could be banned under this bill.

The proposed law also forbids “holding Jews collectively responsible for actions of the state of Israel.” That’s fair enough, especially considering the many Jews worldwide who are protesting Israel’s actions today.  But there’s a bitter irony. Many of the bill’s backers blame all Gazans for the events of October 7, an accusation Israel’s leaders have openly used to justify their genocide.

Also banned under this law is, “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.”

Again, fair enough. And yet, again, this is precisely what Israel’s supporters and media allies are doing to Palestinians. They’re doing it to student protesters, too. They search far and wide for someone—anyone—who has said anything antisemitic and can be linked, however loosely, with these peaceful and high-minded demonstrators. Then they broadcast these aberrant individuals’ words all over the news, using them to smear an entire movement.

Can Jews be “antisemitic” toward non-Jews?

Under this bill, they can. The document it relies on says:

“Antisemitism is a certain perception of Jews, which may be expressed in hatred of Jews. Rhetorical and physical manifestations of anti-Semitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.” (Emphases mine.)

This definition of antisemitism is so broad, in fact, that it doesn’t have to involve Jews at all. One non-Jew might express “hatred” (a term that isn’t defined) against another non-Jew and still run afoul of this law. Or they might be guilty of a certain forbidden “perception” of their fellow non-Jew.

It gets even weirder. As it’s written, this law could forbid a Jew who opposes the occupation from arguing with a non-Jew who supports it, on the grounds that the Jew’s speech is “antisemitic.”

Conclusion

Every year at Passover, Jews repeat the prayer: “Next year in Jerusalem.”

When we studied this in Hebrew school, it seemed clear to some of us that the return to Jerusalem was meant to come with the appearance of the Messiah, not through a political declaration. But those of us who raised this question were waved off. Today, many of the world’s most traditional Jews hold the belief that the state of Israel violates scripture and Halakhic law. They, too, could be considered “antisemitic” under this law. These absurdities highlight the bill’s real purpose, which is the state suppression of certain speech.

Despite its name, the “Antisemitism Awareness Act” doesn’t do much to address real antisemitism. And it’s designed to stifle, not promote, “awareness.” It turns the USA’s much-celebrated sense of liberty into a funhouse mirror, a grotesque and distorted reflection of everything this country claims to see in itself. Its passage would make a travesty of everything America's leaders claim to believe in.

The Senate must reject this bill.

Let your senators know you oppose this bill. The US Capitol Switchboard operator can connect you directly with their offices: (202) 224-3121.

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^[1] Sergio DellaPergola, “Demography in Israel/Palestine: Trends, Prospects, Policy Implications,” The Hebrew University of Jerusalem.

^[2] Ido Levy, “Reclaiming Iraq’s Jewish Heritage,” The Washington Institute for Near East Policy.