To combat anti-Semitism, House bill chips away at free speech

Earlier this month, the U.S. House of Representatives passed an amendment to an appropriations bill addressing anti-Semitism on college and university campuses. Unfortunately, the amendment impermissibly threatens the expressive rights of students and faculty across the country. Today, we sent a letter to members of Congress arguing against this unconstitutional provision and urging them to vote against the bill.

Institutions of higher education must meet their legal and moral obligations to address discriminatory anti-Semitic harassment —and all other forms of discriminatory harassment based on race, religion, and national origin. This is a laudable and important endeavor, but one that must be done in a manner consistent with the First Amendment and free speech principles.

The amendment, introduced by New York Rep. Mike Lawler, does not clear this bar. It prohibits an institution of higher education from receiving any federal funds allocated in the federal budget if it “authorizes, facilitates, provides funding for, or otherwise supports any event promoting antisemitism” as defined by the International Holocaust Remembrance Alliance. In our letter we explain how these proposals impermissibly target protected speech:

Importantly, the First Amendment protects most of the protests, demonstrations, and statements related to the conflict. No matter how offensive the speech may be to some, many, or even most Americans, the First Amendment protects all viewpoints equally.

Statements supportive of Hamas or against the state of Israel, while heinous to many, do not intrinsically constitute material support for terrorism, incitement, discriminatory harassment, or true threats. If speech falls outside those narrow exceptions to the First Amendment as defined by the Supreme Court, government actors — including public universities — cannot burden, censor, or punish it. Private universities that promise students and faculty freedom of expression, as do the majority of private institutions nationwide, are likewise bound to honor their commitments to free speech.

We also reiterated our longstanding concerns with the use of the IHRA definition as the standard by which institutions of higher education police speech on campus. The IHRA defines “antisemitism” as “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.”

FIRE is ready to assist leaders across the political spectrum in tackling pressing problems in ways that protect freedom of speech. However, FIRE will oppose legislation, no matter how well intentioned, if it violates the First Amendment. 

As we state in our letter:

FIRE has no objection to the use of the definition for its originally intended purpose: as a tool to measure anti-Semitism. But it is too vague and overbroad to constitutionally serve as a basis for whether campus administrators must forbid expression. What constitutes a “certain perception of Jews” sufficient to qualify is anyone’s guess. This vagueness — and the high stakes for institutions if they allow expression forbidden under the Act — will predictably motivate colleges and universities to bar a wide range of protected speech.

Congress is not without solutions to address instances of anti-Semitic discriminatory harassment on college campuses. In our letter, we suggest three provisions that Congress could enact through separate legislation which would give the Department of Education and institutions of higher education the necessary guidance and tools to protect students of all religions from discriminatory harassment. Our suggestions protect students while also ensuring their First Amendment rights are protected.

As the Israeli-Palestinian conflict escalates, so must our commitment to free speech

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FIRE has long defended the free speech rights of speakers on all sides of the Israeli-Palestinian conflict.

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We propose: 

1. Confirming that Title VI prohibits discrimination based on ethnic stereotypes.
2. Prohibiting harassment on the basis of “religion.”
3. Codifying the Supreme Court of the United States’ speech-protective definition of discriminatory harassment. 

As we note in our letter, “FIRE’s three proposals discussed above are not radical changes. Instead, they are practical legislative solutions that build upon and strengthen current practice and law that Congress can employ to effectively address anti-Semitic discriminatory harassment.”

FIRE is ready to assist leaders across the political spectrum in tackling pressing problems in ways that protect freedom of speech. However, FIRE will oppose legislation, no matter how well intentioned, if it violates the First Amendment. As such, we urge members of the House to vote against HR 5894 so long as it includes this unconstitutional amendment.