Dueling Definitions of Antisemitism: IHRA’s Critics and Rebuttable Presumptions

IHRA? The Jerusalem Declaration on Antisemitism (JDA), published March 25, 2021? The Nexus Document, also published in March 2021? Which, if any, is best used to define antisemitism. Are criticisms of the first and most widely used definition – the IHRA “working definition” – justified? Are the subsequent alternative definitions really improvements?

Critics of the IHRA definition complain that it is too vague, that it chills free speech, and is being used for purposes for which it was not intended. Close analysis, however, confirms that the IHRA definition, and its proposed use by those who support it, are entirely within the mainstream of law. Many areas of law include a non-exclusive list of factors and examples to determine a fact. Many areas of law utilize rebuttable presumptions to establish a prima facie case. Using the IHRA definition for this purpose is equally appropriate. The critics are wrong on each issue.

In 2016, IHRA’s working definition of antisemitism (https://www.holocaustremembrance.com/resources/working-definitions-charters/working-definition-antisemitism) was adopted by a plenary meeting of the IHRA. While not widely mentioned, the IHRA antisemitism definition is only one of four IHRA working definitions – the others relate to Holocaust-related Materials, Holocaust Denial and Distortion, and antigypsyism/anti-Roma discrimination. While the IHRA’s antisemitism definition established the first wide-spread publication and use of the definition, the definition has a longer history dating to 2003 (see here for a description of its history and a summary of its use and criticism: https://en.wikipedia.org/wiki/Working_Definition_of_Antisemitism).

The IHRA definition consists of a statement followed by 11 examples of antisemitism. The JDA (https://jerusalemdeclaration.org/) similarly consists of preamble, a definition, and 15 guidelines. The Nexus Document (https://israelandantisemitism.com/the-nexus-document/) consists of a definition followed by 13 numbered examples of things that its authors claim are or are not antisemitic. Thus, all three of the alternate definitions use the same basic structure – a definition and examples.

This type of structure in commonplace and appropriate. Many areas of law use this structure. Indeed, the American Law Institute’s many Restatements of the Law use this very same structure – a general statement of a legal principle followed by examples that fall within or without the general statement. This does not render these statements of the law “unclear” or “vague.” Indeed, most areas of the law equally require a multi-factor or after-the-fact analysis.

If one is driving in snowy or rainy conditions in a 35 mph zone, how fast is too fast for conditions? 30 mph? 20 mph? In product liability law, where the standard for liability is whether a product is “unreasonably dangerous,” how dangerous is “unreasonably” dangerous? In negligence law, exactly what would a “reasonable person” do (or not do) in a given circumstance? In copyright law, where the standard is “substantial similarity,” how similar is “substantial”? The answer, as I tell clients regularly, is that one never knows until the judge or jury decides. The best one can do in advance is to take the best precautions one can, and create a set of facts that put one in the best position to prevail if and when a claim arises. These kinds of questions permeate the law – it is utterly false to assert, as many of IHRA’s critics do, that the IHRA definition is too vague to be applied in the real world rather than academia, because similar methods are applied in the real world every day in resolving real world issues.

Similarly, many areas of law use a set of factors to determine a given issue, with the judge or jury being required to weigh those factors on a case-by-case basis. Section 107 of the Copyright Act, for example, sets out a set of non-exclusive factors that courts may consider in determining whether a particular use of a copyrighted work is a “fair use.” In trademark law, each U.S. federal circuit has a slightly different formulation of 6 to 10 “factors” to determine whether there is “likelihood of confusion” giving rise to trademark infringement (http://trademarkwell.com/likelihood-of-confusion-tests-by-circuit/). While these examples are from the area of law that I know best, intellectual property law, practitioners of virtually any area of law will confirm that this approach – weighing various elements and factors as applied to a particular set of facts – is the very nature of both civil and criminal law, and does not render it so vague or unclear so that it cannot be applied.

Critics of the IHRA definition contend that it purports to chill criticism of Israel’s policies and that use in cases such as Title VI discrimination matters somehow “weaponizes” the definition. But they always ignore the preamble to the IHRA definition’s examples (boldface emphasis added below):

Contemporary examples of antisemitism in public life, the media, schools, the workplace, and in the religious sphere could, taking into account the overall context, include, but are not limited to:

Thus, the IHRA definition, by its own express terms, mandates that the overall context be considered in evaluating whether a statement that falls within any of the examples is or is not antisemitic; it contains nothing that deems any of its examples, including those pertaining to Israel, per se antisemitic – and claims to the contrary are deliberate obfuscations. Not one word of the IHRA definition chills free speech or criticism of Israel in the slightest.

The JDA calls for nothing more than that – and uses the exact same type of supposedly vague qualifications. Its guidelines repeatedly use the formulation that certain statements are not antisemitic “in and of themselves” or “on the face of it.” See Guidelines 13, 14, and 15 and FAQ answers regarding them. How is that an improvement on the IHRA definition? If applying a double standard, or denying Israel’s right to exist, is not antisemitic “on the face of it,” when does it cross the line to become antisemitic? The JDA gives no guidance whatever on how one makes what it calls the “judgment call” on when a statement is or is not antisemitic. And it is flatly incorrect in claiming that it is “clearer, more coherent and more nuanced” than the IHRA definition – because its authors completely ignore the preamble in the IHRA definition.

The Nexus Document has the same flaws. It’s statement #2 under “What Is Not Antisemitic” says that certain comments are “not per se illegitimate or antisemitic,” while statement #3 says that “opposition to Zionism and/or Israel does not necessarily reflect a specific anti-Jewish animus . . .” (emphasis added), and statement #4 in that subheading says that treating Israel differently than other countries “is not prima facie proof of antisemitism,” providing examples (ala the IHRA definition) of reasons why such conduct might not be antisemitic. So, if a comment or action is “not per se,” “not necessarily,” or “not prima facie” antisemitic, when is it? When does it cross the line? Nothing in the Nexus Document provides any guidance for how one makes that judgment, just like the JDA. All three – IHRA, JDA, and Nexus – in the end require a judgment call using a factorial analysis of the context.

But where they differ is that JDA and Nexus seek to allow Israel’s critics to defame Israel and Zionists with impunity– not Israel’s policies or actions, but Israel’s existence and the rights of the Jewish people to self-determination, the very foundations of Zionism. And this is where they go astray.

Another well-recognized legal doctrine is the rebuttable presumption. In tort law, for example, the doctrine of res ipsa loquitur holds that in certain circumstances, negligence of the defendant will be presumed and the defendant has the burden of proving that it was not negligent. In bailment law, where one gives property to another for safe-keeping, the law presumes that the bailor was negligent if it does not return the property in good condition – and the defendant has the burden of proving it was not negligent. Under the Fair Labor Standards Act, a plaintiff makes out a prima facie case that job action after an employee engages in “protected activity” is a statutory violation – and the defendant then has the burden of producing evidence that the job action had a legitimate basis; upon such showing, the burden shifts back to the plaintiff/employee to prove that the employer’s claimed justification is pretextual. The recent Trademark Modernization Act of 2020 establishes a rebuttable presumption of irreparable harm (to support a preliminary injunction) where the plaintiff establishes a likelihood of confusion. As with “reasonableness” standards and multi-factor tests, the concept of rebuttable presumptions permeates the law and is well understood. It is neither vague nor unclear, although (as always), application will depend on the particular facts in a given case.

That same concept applies to application of the IHRA definition. Applying a double standard to Israel, opposing Israel’s existence, or referring to Israel’s creation as a racist endeavor may not be “necessarily” or “per se” antisemitic depending on the overall context, but they are a prima facie evidence of antisemitism. The examples in the IHRA definition create a rebuttable presumption of antisemitism. They can be rebutted, but the burden is on the speaker or actor to make the case, not on those who assert that the comment or action is antisemitic.

This concept is used in other areas of discrimination discourse. Indeed, in discussing racism, the overall context is rarely even considered. A white person who uses the “N-word” in any context whatever is deemed a racist – and no explanation of context is allowed. And those who assert that a definition of antisemitism ought not be “weaponized” or used to estabish real world consequences (such as Title VI discrimination) do not make the same contention about the real world suspensions and firings of persons who violate the N-word taboo, even if it is just to criticize the word itself or to teach about its horrible history.

Yet as to antisemitism, even a definition that expressly calls for context is too much for some. That such critics deliberately ignore the IHRA definition’s own preamble and themselves use double standards regarding defining antisemitism as compared to all other kinds of discrimination calls their own credibility – and motives – into legitimate question. Indeed, the authors of the Nexus definition admit they are partisans, having written a letter (https://israelandantisemitism.com/about/letter-to-biden/) to then-candidate Biden stating that  they “strongly support” his candidacy and referring to Democrats as “our party.” The Nexus “about” page (https://israelandantisemitism.com/about/) expresses this concern: “A disturbing trend to politicize and exploit antisemitism and Israel is growing in conservative and right-wing political circles, including in the Republican Party.” Notably, there is no mention of the equally disturbing trend in progressive and left-wing political circles to do the same – no mention of Representative Ilan Omar (see https://blogs.timesofisrael.com/even-rep-omars-apology-was-problematic/ and https://blogs.timesofisrael.com/house-resolution-on-anti-semitism-almost-acceptable/), whose comments were not about Israel’s policies but about Israel’s existence, and about American Jews and their support for Israel. No mention of Representative Rashida Tlaib and the map in her Congressional Office that denies Israel’s right to exist (https://www.jns.org/new-congresswoman-tlaib-displays-map-with-israel-replaced-by-palestine/).

Analysis confirms that the attacks on the IHRA definition are flawed and partisan. The IHRA definition, and its proposed uses by its proponents, are the standard way that definitions are used in virtually every area of law.

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No consideration of the definition of antisemitism is complete without watching this 3-minute video of Yossi Klein Halevi’s succinct yet complete definition (https://www.facebook.com/watch/?v=281204092524947). If you’ve read this far, take an extra three minutes and watch the video.