Published On: Fri, Dec 9th, 2016

Is the Antisemitism Awareness Act a Bad Idea?

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The Anti-Semitism Awareness Act of 2016 was introduced in the U.S. Congress this month. While it is intended to curb anti-Semitism, many see it as an attack on free speech.

The new law is meant to crack down on anti-Israel rhetoric and activities on American campuses and to respond to the recent wave of ant-Semitic attacks which have transpired since Donald Trump was elected President. It is also intended to protect Jewish university students from what is perceived to be a growing discrimination against them because of increasingly hostile ant-Israel activities on American campuses.

Introduced in the Senate by Senators Bob Casey and Tim Scott, the Anti-Semitism Awareness Act of 2016 intends to provide for the “consideration of a definition of Antisemitism for the enforcement of Federal anti-discrimination laws concerning education programs or activities and to adopt the State Department’s policy which equated anti-Israel activities with Antisemitism.”

It would require the Department of Education, when reviewing whether there has been a violation of title VI of the Civil Rights Act of 1964 (prohibits discrimination on the basis of race, color, or national origin in programs and activities receiving federal financial assistance) based on an individual’s actual or perceived shared Jewish ancestry or Jewish ethnic characteristics, to consider the definition of Antisemitism as part of its assessment of whether the alleged practice was motivated by anti-Semitic intent.

So what does this mean exactly? Basically it would broaden the activities which can be acted upon by Federal authorities which are included in the Civil Rights Act. Hate speech is limited in Europe where it can be prosecuted as a criminal offense. Many democratic nations have determined that racist and anti-Semitic comments are not protected under the right of free speech.

But America is different because of the First Amendment to the U.S. Constitution. The amendment guarantees free speech and the American courts have consistently ruled that it covers all speech, no matter how heinous or hate filled.

And many people feel that it is wrong to equate condemnations of Israel with Antisemitism. But even the Reverend Martin Luther King Jr.said that when people attack Israel they are really attacking Jews.

Well the Anti Defamation League, of course, does not see any Constitutional problem and worked with Senators to frame the bill. It said of the Anti-Semitism Awareness Act of 2016 that it, “addresses a core concern of Jewish and pro-Israel students and parents: When does the expression of Antisemitism, anti-Israel sentiment and anti-Zionist beliefs cross the line from First Amendment protected free expression to unlawful discriminatory conduct?”

The left leaning Jewish Daily Forward has taken the opposite position saying, “In an era in which Islamophobia and Antisemitism are both on the rise, these actions are deeply harmful. Now, more urgently than ever, Jewish organizations need to engage those voices, especially those of Arabs and Muslims, who disagree with them on Israel.”

Americans have always had to walk the tightrope between protecting individuals and communities from violence and race based attacks while upholding the principals of free speech as set forth in their Constitution. American courts have consistently ruled that speech can only be limited if it includes calls for illegal acts such as specifically saying that people of a certain ethnic group should be harmed or have their rights violated in any way.

But there are different types of democracies in the world and a myriad of opinions on what exactly constitutes free speech. Europeans do not feel that their freedoms are threatened by laws which prohibit Holocaust denial. Countries like Germany and Israel ban swastikas and other Nazi symbols with no real outcry over freedom of speech.

America, however, is different. And should the Anti-Semitism Awareness Act become law, then it will eventually be up to the Supreme Court of the United States to determine if it is merely a politically motivated attempt to placate certain interests which violates the Constitution, or if it is a necessary limitation on speech intended to protect people from harm.

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