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Why the House's latest antisemitism bill is an attack on free speech

The Antisemitism Awareness Act would do little to protect Jewish students but plenty to stifle criticism of Israel.

The House voted Wednesday on a bill to change how antisemitism is investigated in schools. The final tally — 320-91 — masks how controversial the legislation is or that some Democratic lawmakers voted for it while effectively under duress. Seizing on the pervasive “chaos on campus” narrative, lawmakers passed a bill that doesn’t work to protect Jews on college campuses as its supporters claim, but to stifle dissent around the United States’ Israel policies and criticism of the Israeli government.

Lawmakers passed a bill that doesn’t work to protect Jews on college campuses as its supporters claim, but to stifle dissent around the United States’ Israel policies and criticism of the Israeli government.

The bill, known as the Antisemitism Awareness Act, was first introduced by a group of Republicans and a few moderate Democrats in the aftermath of the Oct. 7, 2023, attacks in Israel, when Hamas fighters launched an assault that killed over 1,100 Israelis. Since then, according to the Gaza Health Ministry, the Israeli invasion and bombardment of Gaza have killed an estimated 34,000 Palestinians. The massive number of civilian casualties has sparked protests across the U.S., leading to the recent pro-Palestinian protests on college campuses and the bill’s sudden reappearance on the House calendar.

At first glance, the bill doesn’t do much that would seem objectionable. Its main function is to alter how the Department of Education assesses whether an incident violates Title VI of the Civil Rights Act of 1964. That section mandates that if an institution receives federal funding, it can’t exclude or discriminate against people based on, among other things, race, national origin and religion. Should the Antisemitism Awareness Act become law, the department would be required to “take into consideration” a “working definition” of antisemitism that the International Holocaust Remembrance Alliance, an intergovernmental group that includes the United States, drafted in 2016.

The “working definition” itself is expressed in two legally nonbinding sentences: “Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.” Taken alone, that’s a relatively anodyne definition, one that the U.S. State Department has adopted and was cited positively in the National Strategy to Counter Antisemitism, which the Biden administration issued last year.

But the IHRA also included illustrative examples along with the definition when distributing it, and that’s where things get dicey. “Manifestations might include the targeting of the state of Israel, conceived as a Jewish collectivity,” the IHRA’s press release read. “However, criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic.” It then went on to list a set of “contemporary examples of antisemitism,” which include several other Israel-specific examples, including “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,” “applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation,” “drawing comparisons of contemporary Israeli policy to that of the Nazis.”

There’s been some debate over whether those examples should be considered part of the working definition. Al Jazeera reported in 2021 that the IRHA plenary that adopted it apparently only approved the two-sentence version due to concerns from some attending governments about the broad sweep of the examples. But the bill the House approved on Wednesday circumvented that issue by specifically including the “contemporary examples” as part of the definition the Education Department would need to reference.

It’s telling the GOP leadership brought this bill up for a vote when another, more comprehensive bipartisan bill was waiting in the wings. The Countering Antisemitism Act, which was introduced earlier this month, would among other things establish a “national coordinator to counter antisemitism” in the White House to implement the strategy released last year. It would also require federal agencies to report to Congress annually on the steps they’ve taken to put the strategy into practice. It’s not a perfect bill, but unlike the bill voted on Friday it recognizes that a definition of antisemitism is already in place in federal law and only cites the IHRA definition as a “valuable tool to raise awareness and increase understanding of antisemitism.”

It’s telling that this bill is the one that came up for a vote when another, more comprehensive bipartisan bill was waiting in the wings.

Contrary to some of the concerns I’ve seen circulating out there, the Antisemitism Awareness Act wouldn’t make the kinds of critical statements listed in the IHRA’s examples outright illegal for the vast majority of Americans. But it would likely have a chilling effect in classrooms and on college campuses. There likely would be an even higher surge in conflation between antisemitism, which targets Jews for who they are, and criticism of Israeli politics and policies than we’ve already seen. That was the main point the American Civil Liberties Union made in a letter to lawmakers last week encouraging them to vote against the bill.

Their pleas clearly went unheeded given the wide margin by which the bill passed, though with some grumbling behind the scenes even from Democrats who wound up voting for it. “It’s so dumb. ... I think we want to send a message about antisemitism, but we should do it in a way that’s more united,” Rep. Scott Peters, D-Calif., told Axios. But there were still dissenting voices — some with better points than others.

“Speech that is critical of Israel — alone — does not constitute unlawful discrimination,” Rep. Jerry Nadler, D-N.Y., a prominent Jewish member of the House, said in a floor speech ahead of the vote. “By encompassing purely political speech about Israel into Title VI’s ambit, the bill sweeps too broadly.” In contrast, GOP Reps. Marjorie Taylor Greene of Georgia and Matt Gaetz of Florida voted against it because they worried that it would do too good a job of preventing people from pushing the antisemitic claim that the Jews, and not the Romans, killed Jesus.

It seems unlikely that this bill will become law because it’s unlikely the Senate will pass it. That raises the question of why even go through with this pantomime in the first place for a bill that Rep. Jamie Raskin, D-Md., said is vague enough to be either pointless or an unconstitutional infringement on the First Amendment. It’s an accurate assessment of the bill’s flaws — which makes it all the more concerning that he and 132 of his Democratic colleagues still voted for a measure that is still, in fact, harmful in its construction.