New federal anti-Semitism act, same First Amendment problem

Last Wednesday, a bipartisan group of federal legislators introduced the Anti-Semitism Awareness Act of 2018. Sponsored by Senators Bob Casey and Tim Scott, and Representatives Doug Collins, Ted Deutch, Jerrold Nadler, and Peter Roskam, the legislation seeks to address anti-Semitic harassment in our nation’s schools. Unfortunately, because it relies on the U.S. State Department’s definition of anti-Semitism, the bill presents the same basic First Amendment problem that it did in December 2016, when functionally similar legislation passed the U.S. Senate by voice vote before failing to advance further.

Like its earlier incarnation, the bill requires the U.S. Department of Education to “take into consideration” the State Department definition of anti-Semitism in determining whether conduct “was motivated by anti-Semitic intent” and “whether an investigation of anti-Semitism under [Title VI of the Civil Rights Act of 1964] is warranted.” (The bill would also codify Title VI and Title IX enforcement guidance set forth in a 2004 “Dear Colleague” letter from the Department of Education’s Office for Civil Rights.)

As FIRE has repeatedly pointed out in recent years, incorporating the State Department’s definition threatens speech protected by the First Amendment. The State Department definition is problematically vague — it targets “a certain perception of Jews, which may be expressed as hatred toward Jews” — and broad enough to allow for the investigation and punishment of core political speech, such as the criticism of Israeli policy. Synchronizing the Department of Education’s review of alleged Title VI violations with this unbounded definition places campus speech rights at risk.    

Our concerns have been echoed by First Amendment experts like Eugene Volokh, Erwin Chemerinsky and Howard Gillman, and a range of non-profit organizations, including the American Civil Liberties Union. Kenneth Stern, the lead author of the State Department definition, also opposed the legislation in its 2016 incarnation, writing in The New York Times: “The definition was intended for data collectors writing reports about anti-Semitism in Europe. It was never supposed to curtail speech on campus.”

As my colleague Joe Cohn wrote just last month, upon the passage of a similar bill in South Carolina, “Fighting anti-Semitism on campus can be achieved without curtailing free speech. FIRE is happy to help institutions and lawmakers do so effectively and constitutionally.”

FIRE will have more on this bill soon.