Two Antisemitism Bills in Congress – Enact Both

When it comes to defining antisemitism, if there is one progressive drumbeat that trumps all of the others, it is opposition to use of the International Holocaust Remembrance Alliance Working Definition of Antisemitism. Week after week after week, for example, the “Pro-Israel Political Update” of Chicago’s Steve Sheffey includes links to articles by his fellow progressive commentators and politicians inaccurately claiming that the IHRA definition will chill speech, ban criticism of Israel’s policies, prohibit dialogue, and more. This false narrative is more than wrong – it is dangerous for Jews in the U.S., in Israel, and wherever they live because it enables further antisemitism and insulates those who engage in it. Enough.

I’ve previously written and spoken at length on the “dueling definitions” of antisemitism (the Jerusalem Declaration and the Nexus Document), and why the IHRA definition is superior – and does none of the things its critics claim. For the main article, see here, and for the DePaul Law School Center for Jewish Law and Judaic Studies symposium on “Defining Antisemitism and Why It Matters,” see here for my presentation (and that of StandWithUs’s Carly Gammill), and here for the panel discussion that includes one of the authors of the IHRA definition, AJC’s Andrew Baker. To summarize for now, the real difference between the definitions is that the two alternatives to the IHRA definition, both published in March 2021, are designed to give progressives cover to attack Zionism and Israel’s existence – not just the policies of a particular Israeli government – without being identified as antisemites. Progressives seek to re-define antisemitism so that their statements and actions do not count as such.

The latest manifestation of this battle is the progressive attack on the Antisemitism Awareness Act (“AAA”) and pushing of the Countering Antisemitism Act (“CAA”). If, however, one actually takes the time to read both, it becomes apparent that they are not in the least contradictory– and both should be enacted. The articles and testimony cited by folks like Steve Sheffey are so biased, so internally inconsistent, and so out-of-touch that they should be utterly rejected for the sophistry that they are.

Section 4 of the AAA defines the “definition of antisemitism” as the IHRA Working Definition and its “contemporary examples.” Section 5 is the only operative section, and it requires (emphasis added):

In reviewing, investigating, or deciding whether there has been a violation of title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d et seq.) on the basis of race, color, or national origin, based on an individual’s actual or perceived shared Jewish ancestry or Jewish ethnic characteristics, the Department of Education shall take into consideration the definition of antisemitism as part of the Department’s assessment of whether the practice was motivated by antisemitic intent.

That’s it – that the Department of Education shall “take into consideration” the IHRA definition “as part” of its assessment. Nothing “codifying” the IHRA definition. Nothing denying the Department from using other items as elements of its assessments – indeed, nothing limiting any other sources of information in any way. It does little more than codify President Trump’s December 11, 2019 Executive Order 13899 – which the Biden Administration left in place but without statutory authority would be left to the whim of any President who decided to revoke a predecessor’s Executive Orders.

The CAA also positively references the IHRA definition – and makes no express mention at all of the competing, alternative definitions (although it does reference the Biden Administration’s National Strategy to Counter Antisemitism, which in turn references the alternative definitions). Section 3(b) expressly states that the IHRA definition “is a valuable tool . . .” and “should be utilized by Federal, State, and local agencies.” It then says: “The term ‘antisemitism’ has the meaning given to the term in section 3 of the Never Again Education Act (36 U.S.C. 2301)” – and proceeds to list thirty-two federal agencies that should utilize the IHRA definition. The Never Again Education Act primarily involves Holocaust education, but section 3 defines antisemitism using the word-for-word exact language in the IHRA definition – but without the “contemporary examples.”

Therefore, two things are undeniably clear: first, there is no significant difference between how antisemitism is defined by both proposed statutes – they both reference the IHRA definition and require that it be “taken into consideration” or “utilized.” Second, the real problem that the progressive left has with the IHRA definition are the examples that include references to Israel, double standards, and Zionism.

That anti-Israel bias is quite obvious upon review of the actual articles and testimony. Thus, Steve Sheffey’s September 29, 2024 newsletter, for example, includes a link to New York Times columnist Michelle Goldberg’s May 6, 2024 column. There, she refers to the Gaza war as “Israel’s war” (as if Israel were the one who started it and, as always, ignoring Hamas’s use of human shields) moving “into a brutal new phase.” No mystery on where Ms. Goldberg stands on Israel, is there? She refers to Ken Stern – who opposes the AAA – as “one of the lead drafters behind the IHRA definition” (more on that later). She claims that “it is hard to demand that pro-Palestinian activists submit to the rigors of open dialogue while the government is decreeing their views verboten.”

These themes repeat. Steve Sheffey’s newsletter also includes a link to Representative Jerry Nadler’s May 8, 2024 Washington Post article on why he voted against the AAA. He inaccurately asserts that the AAA requires the Department of Education to use “only [the IHRA definition]” (it says no such thing), and that the IHRA definition’s examples “might sweep perfectly valid criticism of the state of Israel” into its scope – even though the IHRA definition expressly says that “criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic.” He claims that the IHRA definition – and the AAA – would result in “categorically banning” speech about Israel, and remarkably argues that (if anything) the IHRA examples are perhaps too limiting because “[i]n time, we might also come to understand that additional conduct constitutes a new kind of antisemitic threat, and that some of what is in this particular definition is no longer relevant.”

In this last, Representative Nadler is being particularly disingenuous, because the IHRA examples are presented as “contemporary” examples – and specifically referenced as “include, but not limited to . . .” Thus, the IHRA examples are expressly not intended as an exhaustive list; the IHRA definition – by its express language – is intended to be flexible as antisemitism continues to morph.

And, like Steve Sheffey, Ms. Goldberg, Alan Solow (another linked Sheffey article, and a member of the – surprise – the Nexus Project), and Mr. Stern himself, Representative Nadler calls Ken Stern “the lead author of the IHRA definition.” Why all of this reference to Stern as the “lead author” in almost every argument by progressives about the IHRA definition, whether in the AAA or in any other forum? The reason is as obvious as it is specious: because Ken Stern was supposedly the “lead author” of the IHRA definition, he must have greater knowledge than anyone else about why it was drafted and for what purpose. Oddly, this is in a very real sense the progressive version of the “originalism” doctrine that they so decry when conservatives employ it to interpret the U.S. Constitution.

We can, perhaps, leave aside the question of whether or not Stern really was the “lead author” of the IHRA definition – this is certainly contested by others who served on the IHRA committee responsible for the Working Definition’s creation, including Andrew Baker – and instead consider the logic of whether the European Monitoring Centre on Racism and Xenophobia (“EUMC”) would have had Baker, Stern, and others start working on the definition in 2004 and continue working on it for the next twelve years, and adopted by thirty-one countries in 2016 (and many more governments and institutions since) – if the “main purpose was to create a guide for data collection on the temperature of antisemitism in Europe” – as he testified in the U.S. Senate Judiciary Committee on September 17, 2024. That is an awful lot of effort for mere “data collection” and academic study. It is much more likely that the purpose of drafting and adopting the IHRA definition was what others on the drafting committee assert (emphasis added):

In promoting and circulating the Working Definition, its use was neither defined nor circumscribed. We understood then – as we do today – that it is first and foremost an educational tool for those who need to know what antisemitism is. This includes government, the Jewish community, and other civil society monitors responsible for recording antisemitic incidents. It includes those in authority who are responsible for identifying and responding to antisemitic hate crimes and other antisemitic events, such as police, prosecutors, and judges, among others. And it includes the public, whose understanding of the problem is essential to marshal the full force necessary to combat it.

It was called a working definition for a reason. This was not meant to be a tool for academic researchers, but for those, briefly identified above, who would put it to use. They would be the ones to determine its value and its longevity.

Stern’s testimony before the Senate Judiciary Committee is incredibly flawed.

1. “Binary” and inhibit “dialogue”: Like Goldberg, Solow, and others, Stern argues that the IHRA definition is “binary” and inhibits dialogue by means of chilling speech which would be better answered with counter-speech. In an age of siloed news consumption, algorithms that push content that one already agrees with, and cognitive dissonance, that is a pipe dream at best.

But worse still is this: What dialogue? The pro-Palestinian voices and protesters expressly reject dialogue both as a matter of policy and tactics, even as they expressly reject any discussion of a true two-state solution – two states for two peoples. The BDS movement refers to this as “anti-normalization” – and has published guidelines that require its adherents to refuse to participate in and protest at any event in which the participants do not first admit that Israel is an oppressor, settler-colonialist, apartheid state. BDS supporters seek to shut down  – often through a heckler’s veto – any event featuring pro-Israel content, thereby violating the First Amendment rights of the speakers and the audience who came to hear them (see here for ADL’s FAQ’s on BDS, including its anti-normalization policy). The BDS Movement’s rejection of dialogue is long-standing – as the ADL said in 2012: “Anti-normalization is designed to marginalize and suppress the views of the pro-Israel community.”  Yet somehow free speech, dialogue-urging advocates like those who oppose the IHRA definition rarely mention this or criticize BDS for doing what they purport to dislike – they apply double standards not only on Israel but on those combatting antisemitism.

Nor is the IHRA definition binary – it expressly requires consideration of context. Mr. Stern’s reference to Satmar Jews as an example of anti-Zionists (who believe that there should be no Jewish state until the Messiah comes) who are not antisemitic is a further example of sophistry. They are exceptions that prove the rule – the IHRA definition creates a presumption that items within the definition and its examples are antisemitic, but it is rebuttable. The vast majority of Jews support Zionism; that there are exceptions (in context) is not a valid reason to oppose the IHRA definition.

Further, the notion asserted by Stern that antisemitic hate speech is merely “things with which they disagree” is itself absurd. Hate speech such as heard from BDS and on campus is FAR more than merely “disagreeable” or “offensive” – it calls for the eradication of Israel, the Jews who live there, and American Jewry as well.

2. “Change the scenario”: Stern’s attempt to “change the scenario and see if the same rules apply” uses skewed reasoning. He suggests that a definition that defines racism as including opposition to affirmative action or to Black Lives Matter would be the analogy. But one can argue, for example, that affirmative action actually harms Black Americans by keeping them in a perpetual state of victimhood, and that a better way to raise their standing in America is engage in true equality before the law without tipping the scales. One can also argue against that position – but the point is that while the parties to the argument may strongly disagree about the best approach, both sides would be seeking to make the lives of Black Americans better.

No one, however, makes the case that Zionism harms Jews or that anti-Zionism can make their lives better. Within Zionism, arguments can be debated about, say, whether a two-state solution is better for Jews than a one-state solution. But even progressives never argue that Zionism itself is harmful to Jews.

Further, let us indeed “change the scenario and see if the same rules apply” for “pure speech” absolutists like Mr. Stern. The history of the consequences that white people have suffered – as alleged racists – for merely uttering the “N-word” (which, of course, I cannot fully type out here) is instructive. The “N-word” is, of course, pure speech. Yet even a single use in an employment setting can be grounds for liability. See here as well, and the NAACP’s position on its use. A Washington state judge was reprimanded for uttering it as an example of a racial slur to be avoided.

So, as to the “N-word,” a “bright line” and “binary” position exists – use by a white person means that the person is a racist and subject to adverse consequences. No nuance, no context, no excuses allowed. That is the better reverse-positions evaluation, and it demonstrates the fallacy of Stern’s position about the need for dialogue as an excuse for refusing to apply the IHRA definition.

Indeed, the entire cancel culture so often evoked by progressives evinces the rejection of dialogue and “creating critical thinkers” (Stern testimony, fn 6). There was no critical thinking in the post-10/7 campus protests and encampments, no interest in hearing the other side’s perspectives.

3. The IHRA definition “chills speech”: Stern complains that using a definition of antisemitism to take action (such as threatening funding of a university department) – rather than collect data, inhibits speech. First, is he really suggesting that the government should actively fund those who engage in antisemitism, however defined? Should it also fund those who engage in racism, and hatred against Asians, Muslims, and Hispanics?

Second, hate speech is NOT protected by the First Amendment; the Supreme Court has repeatedly and expressly rejected an absolutist interpretation of the First Amendment, finding that all sorts of speech are restricted, including defamation, obscenity, copyright and trademark infringement, true threats, and more.

None of these restrictions involve prior restraints, but all of them are intended to provide consequences for those who engage in such speech – both criminal and civil consequences are available.

4. We should address all forms of hate: Stern is not entirely wrong in saying that all forms of hate speech need to be addressed – but he is wrong in objecting to a bill that expressly seeks to counter antisemitism. One of his co-presenters at the September 17, 2024, Senate Judiciary Committee hearing was Maya Berry, Executive Director of the Arab American Institute. Her testimony primarily involved providing statistics of hate crimes against various groups, including anti-Arab, anti-Jewish, anti-Black, and Anti-Asian. While all groups sustained increases in hate crimes, her testimony confirms that anti-Jewish crimes dwarfed all others. For example, there were 180 reported anti-Arab hate crimes in 27 states plus D.C. in 2023 (a substantial increase from 98 in 2021), but 2,073 anti-Jewish hate crimes in that year (a substantial increase from 1,029 in 2021); even one anti-Arab hate crime is too many, but there were 11.5 times more anti-Jewish hate crimes than anti-Arab, representing 20% of all reported hate crimes. Another Berry chart is similar: in ten states, D.C., and NYC, anti-Jewish hate crimes were 31.2% of all hate crimes in 2024, while anti-Arab hate crimes were 1.75% – with similar comparisons back to 2019.

In every measure in Ms. Berry’s statistics throughout her report (see, e.g., her state-specific reporting on p. 11), anti-Jewish hate crimes far exceeded anti-Arab hate crimes by orders of magnitude (in 2023, she reports that New York City had two anti-Arab hate crimes while there were 478 anti-Jewish hate crimes (which made up about 44% of all reported NYC hate crimes).

Thus, Congress has every reason to treat antisemitism – especially given its dramatic increase since the 10/7 pogrom – as exceptional and deserving of special treatment. This does not diminish in the least the need to act against all forms of hate and hate speech, but Stern’s argument that there is something incorrect about legislating specifically regarding antisemitism is invalid.

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Criticisms of the IHRA definition and proposed legislation that utilize or adopt it cannot stand up to scrutiny. It is entirely appropriate to legislate that the definition be considered or utilized by government and other authorities, and by university units responsible for discipline and actions on campus.

The critics of the IHRA definition do more than inhibit the response to antisemitism. The actually cause harm to Jews and Israel by enabling hate speech with impunity. Legislation is needed to empower universities and other institutions to know what antisemitism is, to avoid their ability to pass it off as something else, and to take action against it when it occurs.

Both pending bills propose to do just that. The CAA also adds additional elements – such as the creation of a National Coordinator for Counter Antisemitism. These and other elements are positive developments. But the CAA and AAA do not in any way contradict each other. Both should be enacted and signed by the President – whomever the President turns out to be at the time of enactment.