Tomorrow, the Florida House of Representatives’ Criminal Justice Subcommittee will hear HB 741, a bill with a problematic definition of anti-Semitism that endangers the constitutionality of the proposed law.
FIRE shares the concerns of the bill’s sponsors that anti-Semitism on college campuses appears to be on the rise. We support the provision in the bill adding religion as a protected class at institutions of higher education. This sensible step would strengthen institutions’ ability to address anti-Semitic harassment while also providing protections for students subject to harassment motivated by Islamophobia, hostility to Christianity, or any other faith.
Despite our support for that provision, we must nevertheless oppose HB 741 because its solution to the problem is unconstitutional.
The central constitutional defect in HB 741 is that it attempts to define anti-Semitism in law. Defining anti-Semitism is a mistake. Generally speaking, in the United States, we don’t statutorily define terms like racism, sexism, or other forms of prejudice. Instead, we prohibit discrimination on the basis of broad protected classes, like race, religion, and gender, and let courts evaluate cases in their individual contexts.
If anti-Semitism were statutorily defined, Pandora’s box would be opened. It would only be a matter of time before there would be enormous pressure to define terms like racism and sexism. The pitfalls to defining those terms politically is obvious. One obvious example: Is it racist to support affirmative action or to oppose it? The answer will reflect whatever politically charged definition the legislative body is inclined to adopt.
FIRE’s primary concern, of course, is that HB 741’s definition of anti-Semitism is also unconstitutional if applied in the educational context. FIRE and other civil liberties organizations have criticized the use of this definition of anti-Semitism in the educational context in the past. For example, the bill further provides examples of “anti-Semitism related to Israel” as:
Demonizing Israel by using the symbols and images associated with classic anti-Semitism to characterize Israel, Israelis, drawing comparisons of contemporary Israeli policy to that of Nazis, or blaming Israel for all inter-religious or political tensions.
Applying a double standard to Israel by requiring behavior of Israel that is not expected or demanded of any other democratic nation, or focusing peace or human rights investigations only on Israel.
These overbroad and vague definitions and examples of anti-Semitism show that even core political speech can, and likely will, be censored by the bill based on the viewpoints espoused.
In an inadequate attempt to salvage the constitutionality of the bill, it also includes a savings clause that declares:
(b) This subsection does not diminish or infringe upon any right protected under the First Amendment to the Constitution of the United States, or the State Constitution. This subsection shall not be construed to conflict with federal or state discrimination laws.
Yet that language cannot save text in the bill that, on its face, violates the First Amendment.
Because HB 741 unconstitutionally addresses anti-Semitism, we urge legislators to reject or replace it with legislation that complies with the First Amendment.