The Antisemitism Awareness Act is a Bad Idea

On May 1, 2024, the House of Representatives voted in favor of H.R. 6090, known as the “Antisemitism Awareness Act.” You can’t judge a law by its name, and, despite its appealing title, this bill is a bad idea that should not become law.

The House vote of 320 in favor and 91 against can fairly be called a “bipartisan” division. One hundred eighty-seven Republicans and 133 Democrats (including New Hampshire Reps. Kuster and Pappas) voted in favor, while 21 Republicans and 70 Democrats voted against. The bill is now in the Senate (S. 4147), where it is somewhere in committee and unlikely to see daylight this term.

The Act is based on a study conducted by the International Holocaust Remembrance Alliance, an organization of 35 countries. The Alliance developed a working definition of antisemitism and provided numerous examples of antisemitic conduct. The purpose was not to serve as a model for legislation but rather to create standards and develop methods of understanding the past and preventing genocide in the future.

H.R. 6090 takes the Alliance’s definition and examples and imports them, lock, stock, and barrel, into a new version of Title VI of the Civil Rights Act of 1964. That law prohibits discrimination based on race, color, or national origin in programs that receive federal financial assistance. The bill would codify President Trump’s Executive Order, signed at a 2019 White House Hanukkah party, declaring that antisemitism is punishable under Title VI.

The bill begins with the following dubious premise: “Discrimination against Jews may give rise to a violation of [Title VI] 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.” The bill goes on to say that the policy of the United States is to enforce title VI against prohibited forms of discrimination rooted in antisemitism as vigorously as against all other forms of discrimination prohibited by such title. The bill adopts the Alliance’s working definition of antisemitism as “a certain perception of Jews, which may be expressed as hatred toward Jews.”

The bill then adopts the Alliance’s examples of antisemitism. One such example is “making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such or the power of Jews.” Another is “accusing Jewish citizens of being more loyal to Israel … than to the interests of their own nations.” A third is “applying double standards by requiring of it [Israel] a behavior not expected or demanded of any other democratic nation.”

It is one thing to criticize such types of speech, but it is quite another to make them subject to civil penalty or reduction of federal support. Once you prohibit distasteful, even bigoted, speech, you open a door that becomes difficult to close. As Justice Holmes wrote in one of his notable dissents, free thought is not just “for those who agree with us but freedom for the thought that we hate.” In his book “Freedom for the Thought that We Hate,” Anthony Lewis warned against letting government take advantage of periods of fear and upheaval in our society to suppress speech.

The rise of antisemitism in this country, and on college campuses, is such a period. If I were persuaded that enacting this bill into law would somehow quell, or at least reduce, antisemitism, I might swallow hard and favor this law. Congressman Jamie Raskin settled for less. He voted yes based on the belief that, in his words, “it seems unlikely that this meaningless ‘gotcha’ legislation can help much — but neither can it hurt much, and it may now bring some people … a sense of consolation.” I greatly admire Congressman Raskin, but I cannot accept the idea that a fig leaf law is any kind of remedy.

Many members of Congress explained why they voted as they did. Here is how two New York Republican members explained their vote.

“I’m proud to support this important legislation that will protect our brave Jewish students who are watching their campuses be taken over by unsanctioned mobs of antisemites,” saud Elise Stefanik (R. N.Y.). “The erection of encampments on college campuses isn’t an expression of speech; it is a direct threat to Jewish students,” said Marc Molinaro (R. N.Y).

A Georgia congresswoman, Marjorie Taylor Greene (R. GA), voted “No” because it “could convict Christians of antisemitism for believing the Gospel that says Jesus was handed over to Herod to be crucified by the Jews.” The bill says nothing of the sort.

A New York congressman voted “No” on grounds that reflect my own thinking. “This bill does nothing to fight antisemitism in any meaningful way. Instead, it merely tinkers with definitions. Categorically banning this kind of speech … is antithetical to our values as Americans. I want my Jewish community to feel safe on campus, but I do not need it shielded from controversial views simply because those views are unpopular,” said Jerry Nadler (D. N.Y.)

Retired Supreme Court Justice Anthony Kennedy observed that the First Amendment “is often inconvenient.” But, he went on, that inconvenience “does not absolve the government of its obligation to tolerate speech.” Louis Brandeis, the first Jew on the Supreme Court, famously said that sunlight is the “best disinfectant” for distasteful, even hateful, speech.

We don’t need elected officials, even those motivated by the laudable purpose of antisemitism “awareness,” telling colleges and universities what speech is or is not allowed. My opposition to this proposed “Awareness” law is not based just on my devotion to freedom of speech, without which a democracy cannot exist. If Congress can subject federal support of higher education to laws regulating campus speech deemed to be antisemitic, what comes next? Perhaps a “Christian Awareness Law” based on the premise that America is a “Christian” nation?

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