Summary
Statement prepared by Jewish Voice for Peace - Northern NJ opposing bills in the NJ Legislature adopting the IHRA definition of antisemitism
Jewish Voice for Peace – Northern NJ
May 1, 2024
The NJ Legislature is considering legislation that would adopt for the State of New Jersey a particular definition of antisemitism, that of the International Holocaust remembrance Association (IHRA), along with its included examples. Most of the examples are about Israel. Critics charge that enacting the IHRA definition and its examples into law is actually an attempt to protect the Israeli government from criticism in violation of our First Amendment rights.
The bills in question are S1292, with primary sponsors Senators Beach and Singer, and A3588, with primary sponsors Assemblymembers Schaer and Reynolds-Jackson.
Supporters of the legislation assure us that IHRA doesn’t prohibit people from critiquing Israel’s government and policies. For example, Assemblyman Gary Schaer has stated: “If you disagree with Israel or its policies it does not make you an antisemite. People have the right to express their disagreement.” Assemblyman Schaer notes that the IHRA description states that “criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic.” Schaer says this means that criticism of Israel will be unrestricted, that you “can say whatever awful thing you’d like to say” about Israel.
In fact, however, there is an extensive list of prominent individuals and organizations that disagree with this sanguine assessment and see an official adoption of the IHRA definition as a dangerous attack on free speech:
- Kenneth Stern, the primary author of the IHRA definition: warned that right-wing advocates of Israel have been weaponizing the definition, using it in their persistent effort to close down free speech on Israel in the USA: “The Zionist Organization of America (ZOA) and other groups will hunt political speech with which they disagree and threaten to bring legal cases.” He regrets not anticipating in developing the definition “that it would be used as this blunt instrument to suppress pro-Palestinian speech.”
- Erwin Chemerinsky, leading first amendment scholar and dean of the law school at the University of California, Irvine (2016): “the bill covers more than simply hateful speech toward Jewish students. It could include criticizing Israeli policies or arguing against the existence of Israel, speech that is protected by the Constitution.”
- Prominent legal expert Eugene Volokh, a supporter of Israel, thinks that adopting the IHRA definition and its examples “has the potential to unconstitutionally suppress speech.” “What is the right view and what is the wrong view of the conflict in the Middle East should be a matter for academics and students to debate, without the university condemning one side as bigots — which… sends a strong message to untenured faculty members, graduate students and others that they had better not say certain things.”
- The American Civil Liberties Union (Feb. 6, 2024): “The IHRA working definition of antisemitism includes protected criticism of Israel and its policies.” “If the Department of Education were to use the IHRA working definition of antisemitism in its investigations of Title VI complaints, protected speech would inevitably be chilled.”
- The ACLU of New Jersey (March 18, 2024): “The definition of antisemitism and the examples provided by the International Holocaust Remembrance Alliance that are used in both S1292 and S2937 risk conflating protected political speech with unprotected discrimination, creating a law that impinges on First Amendment rights. The government censoring or penalizing core political speech will lead to an unconstitutional chilling of protected speech in workplaces, at schools and universities, in public protests, rallies, and more.”
- Human Rights Watch (and 103 other civil society organizations) (April 2023): “The IHRA definition has often been used to wrongly label criticism of Israel as antisemitic, and thus chill and sometimes suppress, non-violent protest, activism and speech critical of Israel and/or Zionism, including in the US and Europe.”
- Foundation for Individual Rights and Expression (2020): the definition and examples reach core political speech protected by the First Amendment. Directing federal agencies to rely on this framework in enforcing Title VI would effectively order nearly every campus in the country to censor its students and faculty on the basis of viewpoint—in this case, constitutionally protected speech that is critical of Israel.
- The Progressive Israel Network (which includes Ameinu, Americans for Peace Now, Habonim Dror North America, Hashomer Hatzair World Movement, Jewish Labor Committee, J Street, New Israel Fund, Partners for Progressive Israel, Reconstructing Judaism, and T’ruah; Jan. 2021): while being “deeply committed to the struggle against antisemitism,” we are concerned that efforts to combat the phenomenon are being “misused and exploited to instead suppress legitimate free speech, criticism of Israeli government actions, and advocacy for Palestinian rights.”
- American Association of University Professors (2022): “These legislative attacks are presented in the guise of protecting students from discrimination. In reality, these restrictions themselves discriminate on the basis of speech content and pedagogical viewpoint.”
- Middle East Studies Association (2021): “Some elements of the ‘Contemporary Examples’ accompanying the IHRA definition broaden the definition of antisemitism . . . to encompass legitimate criticism of and opposition to Israel, its policies, and/or Zionism as Israel’s official state ideology, thereby posing a threat to free speech and academic freedom.”
- A group of 42 civil liberties and peace and justice organizations led by the American Civil Liberties Union, Americans for Peace Now, Center for Constitutional Rights, Foundation for Middle East Peace, and Palestine Legal (Jan. 2023): “Regardless of the original intent of its drafters, in practice the IHRA definition has been used consistently (and nearly exclusively) not to fight antisemitism, but rather to defend Israel and harm Palestinians – at the cost of undermining and dangerously chilling fundamental rights of free speech, freedom of assembly and protest, and academic freedom.”
- A group of 14 organizations, including American-Arab Anti-Discrimination Committee (ADC), Center for Constitutional Rights, Council on American-Islamic Relations (CAIR), National Lawyers Guild, and Palestine Legal (Jan. 2024): “A rule or policy which further codifies the use of this definition would infringe on bedrock First Amendment protections, reinforce anti-Palestinian racism, and contravene the purpose of Title VI of the Civil Rights Act to protect vulnerable student populations from discrimination and harassment.”
- A group of 128 respected scholars specializing in antisemitism, Holocaust Studies, Modern Jewish History, and related fields expressed their growing concern over “politically motivated efforts to instrumentalize the fight against antisemitism at and against the United Nations” by trying to push for adoption of the IHRA. They stated: “We find this definition deeply problematic. Vague and incoherent, the IHRA WDA [Working Definition of Antisemitism] does not satisfy the basic requirements of a good definition. Rather than ensuring greater clarity, the IHRA WDA has been generating confusion about what constitutes antisemitism…. Ample evidence shows that these examples are being weaponized to discredit and silence legitimate criticism of Israel’s policies as antisemitism.”
- The Union for Reform Judaism, the largest Jewish movement in North America, while endorsing the IHRA definition, is critical of the appended examples, particularly those that they believe conflict with protected speech. In particular, they note that the definition should not be legally binding, and they pledge that “we will oppose any effort to use the definition to silence, marginalize, or shun those seeking to positively contribute to the public conversation – even if they espouse views with which we strongly disagree – around the issues we confront as Jews and as concerned citizens.”
How IHRA Has Been Used in Practice
Here are a few of the ways that the IHRA definition has been used to try to squelch free speech.
- A November 2018 vigil organized by Jewish students at UC Berkeley to jointly mourn the deaths of Palestinian children killed in Gaza and Jewish people killed in the Pittsburgh massacre became the subject of a complaint to the U.S. Department of Education, alleging that the vigil was to portray “Israel as a barbarian and racist nation,” and thus falling under the IHRA definition, and warranting the expulsion of the vigil organizers.
- In April 2019, professor and former Harvard University president Larry Summers cited IHRA to label educational activities at Harvard antisemitic. Summers was criticizing Harvard students’ Israel Apartheid Week, during which they aimed to educate their peers about Israel’s application of different sets of laws to Palestinians and Jewish Israelis.
- In January 2020, Israel advocacy groups called for the University of Michigan to review the agenda for a “Youth for Palestine” conference focused on student activism and community organizing on Palestine, and to “compare it to the IHRA definition,” and consider canceling it over concerns that it will feed antisemitism.
- In February 2020, Israel advocacy groups in the US challenged Pitzer and Pomona College’s support for a film screening about Palestinian protests in Gaza against Israeli repression and a panel on “Perspectives on Colleges and the Israeli- Palestinian Conflict,” featuring the prominent Jewish commentator Peter Beinart and Palestinian-American Yousef Munayyer, hosted by Students for Justice in Palestine (SJP). The Israel advocacy groups claimed that SJP’s positions, such as its support for the Boycott, Divestment and Sanctions (BDS) movement, are “clear indicators of anti-Semitism under the examples listed by the IHRA.”
- January 2023 StandWithUS filed a complaint explicitly invoking IHRA and its “contemporary examples” charging that George Washington University Professor Lara Sheehi with fostering an antisemitic learning environment.
- Early 2023: Bard College was pressured by ADL and the Israeli consulate (unsuccessfully) to censor a course titled, “Apartheid in Israel-Palestine” taught by Jewish American visiting faculty Nathan Thrall. The Israeli consul for public diplomacy in New York called on Bard to cancel the class on the grounds that it violated the IHRA definition of antisemitism.
- June 2023: Rep. Josh Gottheimer urged the Department of Education to investigate a CUNY commencement speech for antisemitism which could lead to CUNY losing federal funding. Gottheimer said: Guidance put out by the Department clearly explains that the International Holocaust Remembrance Alliance (IHRA) Working Definition of Antisemitism should be applied when analyzing instances of antisemitism. It also includes as an example of a violation “denying the Jewish people their right to self- determination, by claiming that the existence of a State of Israel is a racist endeavor.”
- Sept 2023 Pro-Israel groups tried to get the University of Pennsylvania (UPenn) to cancel its Palestine Writes Literature Festival on grounds that it was antisemitic according to the IHRA definition.
Note that whether or not some of these efforts to suppress free speech failed is not evidence that IHRA does not harm free expression. As Kenneth Stern, the lead author of the IHRA definition, explained:
“If this bill becomes law it is easy to imagine calls for university administrators to stop pro-Palestinian speech. Even if lawsuits alleging Title VI violations fail, students and faculty members will be scared into silence, and administrators will err on the side of suppressing or censuring speech.”
And the Foundation for Individual Rights and Expression (FIRE) noted:
“Even if no punishment is ultimately enacted, any investigation into expression that is known to be protected may still violate the First Amendment and chill the speech of students and faculty.”
Regarding a federal attempt to enact IHRA, FIRE wrote:
“If Congress enacts this provision into law, colleges and universities will be highly motivated to stamp out speech on one side of a hotly debated issue. The policies that institutions will adopt to avoid losing federal dollars will be viewpoint-based prior restraints — and they will likely be draconian. These policies will chill constitutionally protected speech as students and professors will rationally choose to alter what they say (but, importantly, not necessarily what they think) to avoid harsh penalties.”
The IHRA Examples
S1292 and A3588 call for adopting not just the IHRA definition, but its 11 associated “contemporary examples.” It is these examples that cause the real problems for free expression. Seven of the 11 deal with Israel. Many of them are quite problematic.
Example #7 deems it antisemitic to deny “the Jewish people their right to self- determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.”
But it is not antisemitism to point out the deeply racist nature of Israel’s Nation State Law which states: “The exercise of the right to national self-determination in the State of Israel is unique to the Jewish People.” Nor to observe that Benjamin Netanyahu, Israel’s longest-serving and once-again prime minister has asserted that “Israel is not a state of all its citizens … Israel is the nation-state of the Jewish people and them alone.” Nor to claim that it is racism to have on the books, as Israel does, more than 70 laws that discriminate against Palestinians. Nor to report the findings of the respected international human rights organizations like Human Rights Watch and Amnesty International that Israel is guilty of the crime of apartheid, or similar findings from the leading Israeli human rights organization B’Tselem.
Example #8 declares that as antisemitic “Applying double standards by requiring of [Israel] a behavior not expected or demanded of any other democratic nation.” As Erwin Chemerinsky points out, however, “Many staunch supporters of Israel believe that Israel, like the U.S., should be held to a higher standard when it comes to human rights. Under [IHRA], expressing that view is deemed anti-Semitism.”
Moreover, as Human Rights Watch and other organizations point out, Example #8
“on ‘applying double standards’ opens the door to labeling as antisemitic anyone who focuses on Israeli abuses as long as worse abuses are deemed to be occurring elsewhere. By that logic, a person dedicated to defending the rights of Tibetans could be accused of anti-Chinese racism, or a group dedicated to promoting democracy and minority rights in Saudi Arabia could be accused of Islamophobia. This example suggests also that itis antisemitic to evaluate Israel as anything but a democracy, also when assessing its actions in the Occupied Palestinian Territory, where it has for more than half a century governed millions of Palestinians who have no say on the most consequential issues affecting their lives and who are deprived of their basic civil rights.”
Rabbi Jay Michaelson, a contributing editor of the Jewish newspaper The Forward, points out that “There’s a Good Reason for ‘Singling Out’ Israel,” and it’s not antisemitism.
“A ‘different standard’ is appropriate when entities are situated differently…. And the standard to which we hold our country’s enemies is different from the standard to which we hold our closest allies.
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“Different situations, different standards, different responses. Entirely consistent.
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“It is absurd to look at images of Palestinian homes being ransacked by Israeli soldiers and then be told that Israel is the victim of a ‘different standard.’ Name another beneficiary of American foreign aid that behaves this way.”
Note that Michaelson wrote these words in 2014, well before Israel was ordered by the International Court of Justice to take steps to prevent genocide in Gaza, an order with which it has thus far failed to comply.
Example #10 declares as antisemitic ““Drawing comparisons of contemporary Israeli policy to that of the Nazis.” But, as scholars have noted, “Israel politicians frequently invoke the Nazis when criticizing the Palestinians” and “Israelis and pro-Israel advocates regularly use Nazi terminology and comparisons when attacking left-wing Jews.”
As FIRE wrote:
“And to be perfectly clear, the First Amendment allows comparing every country in the world’s policies to those of Nazis. In fact, many prominent figures across the political spectrum have compared American policies to those of Nazi Germany. Even the United States Holocaust Memorial Museum’s Holocaust Encyclopedia compares the United States to Nazi Germany on its website, noting ‘discriminatory and segregationist practices in Germany and the United States were similar’ during the 1920s through the 1940s. All of these comparisons are constitutionally protected.”
The IHRA definition has a clause stating that “criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic,” and this is repeated in S1292/A3588. But as FIRE points out, this is an “ineffective caveat” given that it directly contradicts Example #10, which prohibits comparing the policies of Israel to those of Nazi Germany, even though any other country’s policies can be compared to those of Nazi Germany. More generally, Human Rights Watch and other groups say this about the purported saving clause:
“The IHRA qualifies the examples by noting that “criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic” and that any finding of antisemitism must ‘[take] into account the overall context.’ However, in practice, these disclaimers have failed to prevent the politically motivated instrumentalization of the IHRA definition in efforts to muzzle legitimate speech and activism by critics of Israel’s human rights record and advocates for Palestinian rights.”
Protecting Jewish Students
Proponents of incorporating the IHRA definition into law claim that in these tense times it is necessary to protect Jewish students at colleges and universities.
There has indeed been an upsurge of antisemitic incidents around the country and on campuses since October 7. There has also been an upsurge in Islamophobic, anti-Arab, and anti-Palestinian incidents, which gets much less attention. These are all concerning and require a firm response. But the IHRA definition is of no benefit here.
As one pro-Israel commentator wrote in The Times of Israel,
“Seven of the 11 IHRA definition examples are about Israel, but those guards at our synagogues are not there to protect us from people holding Israel to double standards or accusing Israel of racism (nor is it antisemitic to do so). Rather, those guards are there to protect us from the right-wing extremists shooting up our synagogues.”
If someone paints a swastika on a synagogue or a college Hillel building, the perpetrators should be punished, and the law already provides ample means for doing so. IHRA adds nothing. If someone refuses to hire someone because they are Jewish, the law — Title VII of the Civil Rights Act of 1964 and the New Jersey Law Against Discrimination (LAD) — already prohibits that. IHRA adds nothing. If a landlord refuses to rent an apartment to a Jewish person, NJ law already prohibits that. IHRA adds nothing. If someone intimidates someone based on the fact that they are Jewish, that already runs afoul of the NJ statute against bias intimidation. IHRA adds nothing. But what the law doesn’t and shouldn’t provide is a way to label criticisms of Israel as antisemitism and illegal. Some would like to outlaw calling for Palestinian freedom “from the river to the sea,” but no society that believes in free speech thinks this is something requiring legislative action (leaving aside the fact that the party of Israel’s prime minister has long called for only Jewish sovereignty between the river and the sea).
Yes, many Jewish students are uncomfortable. Here’s what Kenneth Stern, the lead author of the IHRA definition, said about this in congressional testimony in 2017:
“…there is an internal and frequently distasteful debate in the Jewish community as to who is included in the family and who is not based on whether they are Zionists. We know for sure, and we have heard today, of Jewish students who are Zionist who have sometimes suffered and suffered severely, but Jewish students who are anti-Zionists have been called traitors, have been called capos by pro- Israel Jews and told they are really not Jewish at all.
“Now, whether you can be an 18 year old anti-Zionist and inside the Jewish community is not a debate the Congress should decide. But by adopting this definition, Congress would do so by labeling anti-Zionist Jews anti-Semites.”
In the same way, the New Jersey Legislature should not be trying to decide which Jewish students should be made to feel comfortable, nor which positions within the Jewish community represent antisemitism. Would we want the Legislature to be declaring which view on affirmative action – pro or con – should be labeled racist? Legislatures should not be in the business of labeling what are essentially political positions. They should be insisting on an atmosphere where all students have the right to express their views, even passionately, as long as they do not engage in some narrowly defined illegal acts, such as harassment.
S1292/A3588
Even though the IHRA definition explicitly states that it is not legally binding, the wording of S1292/A3588 clearly indicates an attempt to codify the definition and its examples for purposes of punitive law enforcement and regulation:
“Section 2(b) In reviewing, investigating, or deciding whether there has been a violation of any policy, law, or regulation prohibiting discriminatory acts, the State shall take into consideration the definition of anti-Semitism adopted by the IHRA for purposes of determining whether the alleged act was motivated by anti-Semitic intent.”
The next section states:
“Nothing contained in this section, shall be construed to diminish or infringe upon any right protected under the First Amendment to the United States Constitution, or paragraph 6 of Article I of the New Jersey State Constitution.”
But including language in a bill that infringes on free expression stating that free expression should not be infringed upon is an inadequate protection of our rights. As First Amendment expert Eugene Volokh explained with regard to another instance of enacting IHRA (an Executive Order from President Trump):
“Nor do I think that the Order’s statement that, ‘In considering the materials described …, agencies shall not diminish or infringe upon any right protected under Federal law or under the First Amendment,’ helps much. The problem is that government officials often tend not to recognize that various speech, especially speech that is viewed as bigoted or ‘discriminatory,’ is protected by the First Amendment; the Order, notwithstanding its ‘shall not diminish or infringe language,’ tends to reinforce this attitude.”
Advocates of IHRA definition, such as the Jewish Federations of North America, claim that IHRA is a “consensus definition.” It is anything but.
There are several other well-regarded definitions of antisemitism, with extremely prestigious and knowledgeable authorship. The Jerusalem Declaration on Antisemitism was drawn up by a politically diverse group of hundreds of scholars of antisemitism, Holocaust studies, Jewish studies, and Middle East studies. The Jerusalem Declaration is very careful not to conflate antisemitism with criticism of Israel. They note, for example, that it is NOT antisemitic to criticize or oppose “Zionism as a form of nationalism, or arguing for a variety of constitutional arrangements for Jews and Palestinians in the area between the Jordan River and the Mediterranean. It is not antisemitic to support arrangements that accord full equality to all inhabitants ‘between the river and the sea,’ whether in two states, a binational state, unitary democratic state, federal state, or in whatever form.”
Another definition comes from the Nexus Document written by a distinguished task force affiliated with Bard College and the University of Southern California. It too makes a distinction between criticism of Israel and antisemitism. Among its conclusions: As a general rule, criticism of Zionism and Israel, opposition to Israel’s policies, or nonviolent political action directed at the State of Israel and/or its policies should not, as such, be deemed antisemitic. Even contentious, strident, or harsh criticism of Israel for its policies and actions, including those that led to the creation of Israel, is not per se illegitimate or antisemitic. Paying disproportionate attention to Israel and treating Israel differently than other countries is not prima facie proof of antisemitism. (There are numerous reasons for devoting special attention to Israel and treating Israel differently, e.g., some people care about Israel more; others may pay more attention because Israel has a special relationship with the United States and receives $4 billion in American aid).
And yet another definition comes from T’ruah, The Rabbinic Call for Human Rights, which in 2022 issued a booklet entitled “A Very Brief Guide to Antisemitism.” This guide also rejects the IHRA definition’s attempt to lump together criticisms of Israel with antisemitism. The Jewish Federation strongly opposes these alternative definitions of antisemitism. They oppose legitimizing anything other than the IHRA definition. Why dismiss these other definitions? Because they don’t lend themselves to the goal of shutting down criticism of Israel. StandWithUs, one of the leading pro-Israel organizations backing IHRA, says that the Nexus definition is flawed because it “demonstrates a misunderstanding of Zionism by claiming that opposition to Zionism [is] not antisemitic.” But that’s the whole point: the IHRA definition simply defines opposition to a political ideology to be antisemitic as a way to discredit all who reject or criticize that ideology.
Conclusion
Those who support free expression of political views and who believe that Israel should not be above criticism will oppose S1292/A3588.
And they will oppose as well AJR88: “A Joint Resolution adopting a working definition of antisemitism for the State of New Jersey” (sponsored by Assemblymembers Schaer and Carter) and its Senate counterpart SJR48 (sponsored by Senators Zwicker and Greenstein).
There is also a Senate Bill, S2937, sponsored by Senators Beach and Johnson, “Requires definitions of Antisemitism and Islamophobia be included in State’s diversity, equity, inclusion, and belonging policies, and in any such policy for recipients of State’s funds.” This bill would require any entity that receives state funds to incorporate the IHRA definition in its diversity, equity, and inclusion policies — a very serious attack on academic freedom. It is not possible to claim that passage of this bill would have no effect on free speech when it ties state funding to the IHRA definition. Yes, the bill commendably tries to include both antisemitism and Islamophobia, but the state should not be in the business of legislating either of these terms.
We appreciate that in these troubled times, legislators wish to try to bring down the level of controversy. But one can’t resolve contentious issues by trying to silence one side of a debate. Polls show that a majority of Americans oppose Israel’s war in Gaza and call for a ceasefire. Those who endorse Israel’s war despite the horrendous humanitarian consequences know they can’t prevail in an honest debate and so they are hoping to recruit the assistance of the Legislature in suppressing the war’s critics. This should not be the way legislative bodies in a democracy behave.
Moreover, current anti-discrimination laws adequately protect students, employees, and others from genuine antisemitism that is typically motivated by stereotypes and conspiracies about Jews and alleged Jewish power. Criticism of Israeli state policy, however, has little to do with such beliefs and thus there can be and should be no conflation between the two.