Defining Anti-Semitism Tests Issues Of Speech, Bias


A freshman business major last year at Rutgers University, Emily Binstein was disturbed by a sentence she saw in an assigned reading for a women and gender studies course she was taking. The author, in a context unrelated to the essay’s theme of Islamophobia, called Israel an apartheid state.

Binstein, a native of Metuchen, N.J., who attended a Solomon Schechter day school through high school and is an activist in several Jewish organizations at her New Brunswick campus, brought the offending statement to the attention of the course’s instructor and a Rutgers dean.

They agreed to remove the essay from the course’s curriculum.

Then it happened again — another assigned reading in the same class, about the status of women in the Islamic community, alleged that Palestinian women in Israel are subject to daily harassment.

Again, Binstein complained to the instructor and dean. This time, they wouldn’t budge.

Binstein’s experiences are part of what observers have called an increasing feeling of discomfort at universities for many visibly identifiable Jews and outspoken defenders of Israel, a situation that pending legislation in Congress seeks to improve.

“In our department,” the dean told Binstein, “it is common knowledge that this [Israeli mistreatment of Palestinian Arabs] is the way it is.”

Binstein is pursuing her complaint through university channels, in order to have the second reading removed from the course’s curriculum.

But her experience at Rutgers raises a question: Was what happened to Binstein an example of anti-Semitism, or of political, anti-Israel bias?

“It’s both,” Binstein said this week, in a break from marching in the Celebrate Israel Parade in Manhattan. “They go hand in hand.”

In a time when supporters of Israel often call anti-Israel actions clear examples of anti-Semitism, and critics of Israel assert that their attacks on the country’s policies are political speech and far removed from classical definitions of anti-Jewish bias, it’s often hard to draw a line between anti-Semitism, anti-Zionism and anti-Israel actions.

Some members of Congress are trying to make that line easier to draw, wading into a thorny area where free speech issues collide with perceived anti-Semitism.

Rep. Ted Deutch (D-Fla.) last month was a primary sponsor, along with a bipartisan group of legislators that includes Rep. Jerrold Nadler (D-N.Y.), of a bill that would define anti-Semitism. The provisions of the Anti-Semitism Awareness Act of 2018 (ASAA), similar to a bill that passed in the Senate two years ago but not in the House, would formally add the State Department’s definition of anti-Semitism to provisions of Title VI of the 1964 Civil Rights Act.

The definition of anti-Semitism formulated by the State Department’s Special Envoy to Monitor and Combat Anti-Semitism in 2010, has been endorsed by the European Parliament and adopted by the 31 nations that constitute the International Holocaust Remembrance Alliance (IHRA).

The bill defines anti-Semitism as “a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of anti-Semitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.” As examples it cites attempts to “demonize Israel” or “delegitimize Israel” or to “accus[e] Jews as a people of being responsible for real or imagined wrongdoing committed by a single Jewish person or group, the State of Israel, or even for acts committed by non-Jews.”

According to the proposed legislation, “Nothing in this Act shall be construed … to diminish or infringe upon any right protected under the [free speech] First Amendment to the Constitution of the United States.”

The principal target of the legislation, which would make it easier for the Department of Education to identify cases of anti-Semitic activity and for the Department of Justice to take legal action against the accused perpetrators, is harassment of Jewish students on university campuses.

Several recent studies have found an increase in campus-based anti-Jewish and anti-Israel activities, particularly among proponents of the boycott, divestment and sanctions (BDS) movement. A Brandeis University study two years ago indicated that schools with anti-Israel boycott movements also had a greater number of anti-Semitic incidents.

Eric Fingerhut, a former House member from Ohio who now serves as president of Hillel: The Foundation for Jewish Campus Life, declined to comment on the pending legislation, citing Hillel’s apolitical stance. But he said, “There is no question that where you have the most virulent, aggressive anti-Israel activities, you see an uptick in anti-Semitic activities.”

Deutch called his proposed legislation “an important step to give the Department of Education some guidance to help tackle the problem. This is a proper role for Congress.”

Just as Supreme Court Justice Potter Stewart famously wrote in a 1964 decision about a pornography case that he could not define it, “But I know it when I see it,” isn’t anti-Semitism obvious? Why is a definition needed?

“Because the evidence is clear that the Department of Education does not recognize the existence of anti-Semitism on the campus, even when it’s obvious,” Deutch said in a telephone interview this week. Despite a mounting number of verbal — and sometimes physical — attacks on Jewish students at universities in this country and Canada in recent years, usually for participating in pro-Israel activities, the department has never labelled the attacks as being anti-Semitic, Deutch said. “No clear guidance means that they [DOE officials] haven’t taken up a single case of anti-Semitism on campus.”

As an indication of the need for a formal definition of anti-Semitism, Germany and Macedonia recently joined the more than two dozen countries that have taken such a step; last month, both King’s College in London and the State of South Carolina adopted definitions of anti-Semitism similar to those of the ASAA.

Deutch said his proposed legislation, which he said is likely to pass the House and Senate during the current legislative session and be signed by President Trump, contains no enforcement provisions, but will give the Department of Education “a tool” with which to determine what actions are anti-Semitic and which aren’t.

“It’s an important step forward,” said David Brog, executive director of the Maccabee Task Force, an organization that fights anti-Semitism on college campuses. Schools’ reluctance to take action against anti-Semitic/anti-Israel activities “comes from some confusion about definitions,” Brog said.

Reactions to the bill are, during an era of inflamed political rhetoric in the United States, another indication of fault lines in the Jewish community — the divide is largely caused by differences in communities’ relationship with Israel.

Supporting the legislation are such mainstream organizations as the Anti-Defamation League, the American Jewish Committee, the Simon Wiesenthal Center, and the Jewish Federations of North America. They say the legislation would help protect Jewish students and defenders of Israel on campus.

Opposing the bill are Americans for Peace Now, a frequent critic of Israeli policies; Jewish Voice for Peace (JVP), considered a fringe group by many Jewish leaders; Kenneth Stern, a former ADL official who helped write the European Monitoring Committee’s working definition of anti-Semitism but rejects the “blanket assertion that all support for BDS is anti-Semitic”; as well as the American Civil Liberties Union, and several Arab American organizations. They frame their opposition in First Amendment terms, claiming that the bill would limit free speech, and is more concerned with support for Israel than opposition to anti-Semitism.

“This isn’t an ‘Anti-Semitism Awareness Act’ — it’s the ‘Silencing Students Act,’” said Rabbi Joseph Berman, JVP manager of government affairs. “This is a deeply contested definition of anti-Semitism. Criticism of Israel is not inherently anti-Semitic.”

The bill, said Debra DeLee, president of APN in a statement, “will harm both the open discussion in America on Israel, and will cause harm to Israel and its reputation as an open, democratic society.”

The bill “risks chilling constitutionally protected speech by incorrectly equating criticism of Israel with anti-Semitism,” said the ACLU in a statement.

“This isn’t a speech code,” Deutch said. “In an academic environment free speech is vital. This legislation does not violate anyone’s free speech rights” or threaten any “school’s academic freedom. … It does not limit [critics’] right to be critical of Israel.”

He spelled out how the bill’s definition might be applied: “Calling for the harm of Jews is anti-Semitism. When you deny that the Holocaust happened or you claim that the state of Israel has no right to exist, if you’re using Nazi images to characterize the State of Israel,” that also is anti-Semitism.

Mark Weitzman, the Simon Wiesenthal Center’s director of government affairs, called claims of the bill’s possible First Amendment infringement “a red herring …. It clearly states that it is not meant to inhibit and legitimate criticism of Israel.”

Abraham Foxman, former ADL national director, said the bill would “put on record that the American government is opposed to anti-Semitism … it sends a message that this is a serious problem.”

Ira Forman, who served as the State Department’s special envoy on anti-Semitism during the Obama administration, said he favors the legislation’s provisions as “an assessment tool. I’ve seen it be a useful tool overseas. This is not a First Amendment issue. The language says that any criticism of Israel is not [automatically] anti-Semitic.”

At Rutgers, Emily Binstein said the legislation would help her deal with the type of anti-Israel sentiment she encountered last year. “It would back me up,” she said. “It would support me.”