Requiring the government to consider someone’s political views to determine whether their conduct is punishable leads to no good.
These are challenging times to be Jewish in America.
I attend synagogue, and my children attend Jewish day school, under the watchful eye of armed guards. When I explained to my young daughter why my husband was out the other night ― he attended a simulated security drill at our synagogue, where he serves on the board ― she asked whether I thought “bad people might come” to our synagogue and whether I would find her and protect her if they did. Needless to say, my heart broke into a million pieces.
What’s particularly distressing about the current moment is that the antisemitism feels like it comes from every direction. White supremacists and the progressive Left, for example, have practically nothing in common, yet members of both groups can be found trading in antisemitic tropes and stereotypes. It’s a bit too much like that line from Tom Lehrer’s “National Brotherhood Week,” where he sings,
Oh the Protestants hate the Catholics,
and the Catholics hate the Protestants,
and the Hindus hate the Muslims,
and everybody hates the Jews.
And yet, antisemitism often goes unacknowledged, particularly at America’s colleges and universities. That’s why, in December, many people cheered the president’s new executive order on antisemitism for addressing a problem that too many have turned a blind eye to: the rise of antisemitism on college campuses.
Last spring, for example, the University of North Carolina at Chapel Hill hosted a conference entitled “Conflict Over Gaza: People, Politics, and Possibilities.” The conference featured Tamer Nafar, a Palestinian rapper, performing what he proudly called an “anti-Semitic song.” Undercover video taken by filmmaker Ami Horowitz showed Tamer asking the audience to join in, saying, “I cannot be antisemitic alone” — followed by audience members singing gleefully along as Tamer sang, “I’m in love with a Jew . . .” When confronted with the recording, UNC defensively stated that it “misconstrued the breadth of discourse that took place” at the conference. It is difficult to imagine such indifference from a university if similar rhetoric had been directed at almost any other group.
As both an advocate of free speech on campus and an observant, pro-Israel Jew, these problems have been on my mind a great deal. Unfortunately, the relief at finally having the reality on campus acknowledged has, for many people, obscured problems with the executive order that threaten everyone’s freedom of speech in the long run.
First, the good news: The order promises robust enforcement of campus anti-discrimination laws to prevent antisemitic harassment. The longstanding policy of the Department of Education is that discrimination against Jews is covered by Title VI of the Civil Rights Act of 1964, specifically its prohibition of discrimination based on national origin, and the portion of the executive order locking in this policy signaled the administration’s commitment to robustly enforcing it.
But unfortunately, the executive order did not end there. Instead, it directed federal agencies, in considering whether conduct was antisemitic, to consider a very specific definition of antisemitism and very specific examples of it. Those examples include protected political speech, such as “drawing comparisons of contemporary Israeli policy to that of the Nazis” and “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.”
Many Jews may find these views noxious. And yes, some of the people who hold these views may, in fact, be antisemitic. But requiring the government to even consider someone’s political views to determine whether or not their conduct is punishable is a recipe for disaster — and will ultimately only hurt the people it was intended to help. Do we really want the federal government defining all of the world’s -isms? What happens when President Joe Biden issues an executive order on Islamophobia directing the government to consider things like “denying the Palestinian people their right to self-determination” or “drawing comparisons between Hamas and the Nazis” as evidence of a prohibited anti-Muslim or anti-Arab motive? Or when opposition to affirmative action, or even a vote for Donald Trump, are legally considered evidence of racism?
When we open the door to drawing distinctions among speakers based on their political views, that door will not easily be closed again — and all of our rights are at risk.
We are already seeing evidence that people are seeking to use the executive order to justify censorship of protected speech. For example, several Jewish organizations are demanding that the University of Michigan cancel an upcoming “Youth for Palestine” conference being hosted on its campus, and are citing the new executive order in support of their argument that the conference could lead to harassment of Jewish students. Now of course, if conference participants do harass Jewish students, that could indeed be grounds for a Title VI complaint. But the idea that the university should impose a prior restraint by canceling the conference because of the views of its organizers and attendees is wholly inconsistent with the most basic principles of free speech and association.
The fear that I and other Jewish people feel right now is real. But that fear cannot justify infringing on our most fundamental liberties. Instead, we should focus our energies on ways to fight antisemitism, on campus and beyond, without compromising freedom of speech. For example, we can support legislative efforts to forbid, at institutions of higher education, discriminatory harassment based on religion. We should also work diligently to expose campus antisemitism to public scrutiny, as Ami Horowitz did when he took and publicized video of the viciously antisemitic rhetoric at the UNC conference.
As Supreme Court justice and committed Zionist Louis Brandeis famously said, sunlight is the best disinfectant.