Jews have long fought antisemitism in court. Is the law built for the fight?

When historian James Loeffler set out to write a history of antisemitism and free speech in America, he kept running into the same complaint from opposite ends of the political spectrum: that antisemitism is somehow different — either too readily dismissed, or too easily weaponized.

“I wanted to capture and play with a sentiment that is widely held all across American society, that there’s something distinctive about antisemitism, that it doesn’t follow the rules,” Loeffler said in an interview about his new book, “Exceptional Hatred: Antisemitism and the Fight Over Free Speech in Modern America.”

The consequences, he found, are seen across the political spectrum.

“I hear it from deep inside the Jewish community, even more toward the Jewish right. They’ll say, ‘Every other kind of hatred gets its due, is recognized, but somehow antisemitism gets a pass.'” On the progressive left, when it comes to Israel and the Palestinians, he hears the inverse: “When you advocate for Palestinians, free speech becomes the exception, and it gets labeled antisemitism.” 

The right purports to champion free speech, defending far-right, nationalist and extremist voices, while clamping down on the boycott Israel movement and pro-Palestinian activism in the name of fighting antisemitism.

The left, meanwhile, downplays Jewish vulnerability, associating Jews with wealth, status and white privilege. 

The book’s argument, and its title, are a rebuke to such tendencies. Loeffler’s throughline, developed across three flashpoints in postwar American history — the Chicago race riots of the late 1940s, the neo-Nazi march on Skokie, Illinois, in the 1970s, and the Unite the Right rally in Charlottesville, Virginia, in 2017 — is that Jewish civil rights should be defended using the same legal and moral standards applied to any other group, no more and no less. 

“The goal of the book is to take something that too often is turned into an exception and say, okay, we want it to be treated firmly in a uniform manner by law,” said Loeffler, 52, the Felix Posen professor in Modern Jewish History at Johns Hopkins University.

Loeffler’s account begins in a period when many assume, in the wake of the Holocaust, antisemitism was on the wane. “There’s a perception we have that when Americans are shocked by the Nazis and by the Holocaust, the hatred against Jews dies down. It’s not really the case,” he said. “There’s a lot of antisemitic violence in the streets. There are some events that are called pogroms at the time by Jewish commentators.”

Chicago became a testing ground, producing two landmark cases: the 1949 prosecution of the antisemitic priest Arthur Terminiello, in which the Supreme Court upheld the demagogue’s right to free speech, however noxious, and Beauharnais v. Illinois, in which the court narrowly upheld a conviction of an antisemitic pamphleteer on the grounds of “group libel.” An approach championed by Jewish liberals in the 1930s, group libel suggests that, as Loeffler writes, “knowingly false statements and mass propaganda endangered democracy as a whole.” 

“The idea wasn’t to ban the stray remark that someone found offensive,” explained Loeffler. “It was to go after what they understood to be the people who were professionally profiting and trafficking in certain types of hate that was actually leading to dangerous situations.”

Free speech maximalists opposed what today looks like a ban on hate speech, akin to laws now in place in Europe; proponents include what Loeffler calls the “egalitarians.” The latter agreed with the Jewish Supreme Court Justice Felix Frankfurter that false, inflammatory and widely distributed propaganda represented a threat to democracy and public safety. 

Underlying that debate, he argues, was a distinctly Jewish anxiety that grew out of the Holocaust. What poses the greatest danger: a government that has the power to criminalize certain ideas and political behaviors, or a government that allows even despicable ideas to flourish in the marketplace of ideas?

“The people who worried about how hate speech could be so threatening to democracy said, ‘This is exactly what the Nazis did to take over society. They used hate speech,’” Loeffler said. “And the people against curbing speech basically said, ‘This is Nazi Germany,’ because they saw government suppression of speech as another danger.”

Three decades later, Skokie — home to thousands of Holocaust survivors — would test this unresolved debate with a clash between free speech absolutists at the American Civil Liberties Union — who successfully defended the Nazis’ right to march — and a volatile coalition of survivors, lawyers and Jewish militants who came to agree that, as Loeffler writes, “what passed for libertarian principle was in fact permission for hatred.”

But the legal battle also birthed a different kind of argument, when survivors’ lawyers proposed that the psychological harm that would be inflicted on their clients, not just the threat of violence, justified blocking a neo-Nazi march. “This isn’t just about civil rights and public order,” Loeffler said of that argument. “This is about basic dignity and psychological harm, and the law, if it cares about civil rights, actually ought to be able to prevent that.”

It’s a theory of law that is still being debated today, in an era when liberal proponents of safe spaces and “trigger warnings” are derided as “snowflakes,” while right-wing lawmakers and pundits have led the charge to suppress ideas that unsettle conservatives.

Jewish organizations, he found, never settled on a single strategy for confronting antisemites. Some favored ignoring them, others demanded confrontation, and still others — the main characters in his book — opted for litigation. “One consistent theme that appears is that the Jewish community establishment and civil rights groups are really torn,” he said. “They want to be assertive on behalf of Jews. They feel that’s their role. But they also don’t want to rock the boat too much.”

Loeffler was teaching Jewish history at the University of Virginia when the “Unite the Right” rally erupted into violence in his own city in August 2017. He was also an expert witness at the trial seven years later of Charlottesville suspect Jacob Joseph Dix on felony hate crimes charges. (It ended in a mistrial; that same year, organizers of the rally were found liable in a civil lawsuit for state-level civil conspiracy and racially motivated violence.)

The violence and aftermath of the rally, he said, helped push him to write the book. “It was a community that I knew as a home,” he said. “It was a test of how our liberal institutions would respond to this kind of antisemitism, and I think it was a test that was really a failure.”

He faults centrist and progressive leaders alike for underplaying the rally’s antisemitic core. Not only did the torch-bearing marches chant “The Jews will not replace us,” but in that subsequent civil suit, Sines v. Kessler, the defendants quoted Hitler and cast themselves as victims of a conspiracy of powerful New York Jewish lawyers.

In the immediate aftermath of the rally, University of Virginia students protesting a legacy of white supremacy at the school made no mention of antisemitism.

Loeffler holds conservatives responsible for another failure: weaponizing antisemitism. In response to the pro-Palestinian protests that followed the Oct. 7 attacks, the Trump administration — which struggled to condemn the far-right rally in Charlottesville — issued executive orders targeting international student visas, froze or cancelled billions in federal grants and research funds, and launched civil rights and Title VI probes. Loeffler calls the effort “a pretext to launch something of a highly politicized campaign against universities” while ignoring antisemitism on the far right.

Loeffler began writing before Oct. 7, 2023, but says the attacks and the campus eruptions that followed scrambled the very political alignments his history describes. “One of the cruel ironies is to see how everything has flipped,” he said. Before Oct. 7, progressives were often the ones pushing to restrict far-right speech, while conservatives railed against “woke” censorship; now, he says, “it’s conservatives who have been champions of repressing speech on campus,” while “it’s been progressives who defend incendiary speech by saying, ‘No, no, we’re for the First Amendment.'”

Asked whether the U.S. should adopt a European-style hate-speech exception that would criminalize certain kinds of biased or bigoted speech, Loeffler is skeptical, but sees room for narrower reforms, including social media regulation and anti-masking laws. What matters most to him is consistency: “We want laws and policies that apply to all groups, and are not going to be something that we only apply to Zionist Jews, and want to deny to Palestinian activists,” he said.

Despite the bleakness of the current moment, Loeffler says the history he traced offers a measure of reassurance. 

“This American history shows us that there is a cyclical element to antisemitism. As bad as it can feel right now, there are specific reasons why antisemitism flares up, having to do with moments of deep, deep change, having to do with populism, having to do with fragmenting of national identity. 

“That can give us, I think, some comfort and also strength to face these challenges squarely, rather than to collapse into kind of a Judeo-pessimistic notion that the age of Jewish America is over.”