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In a disturbing development, South Carolina has become the first state to pass the Anti-Semitism Awareness Act, well-intentioned legislation that is sure to result in an increase in censorship on college campuses.
The Act, which if not challenged in court and struck down as unconstitutional, will require South Carolina’s public institutions of higher education to “take into consideration the [State Department’s] definition of anti-Semitism for purposes of determining whether the alleged practice was motivated by anti-Semitic intent” when “investigating, or deciding whether there has been a violation of a college or university policy prohibiting discriminatory practices on the basis of religion.”
So what is the definition of anti-Semitism that South Carolina’s institutions must now “consider” when determining whether someone’s speech was motivated by anti-Semitism?
The State Department’s definition of anti-Semitism provides:
Anti-Semitism is 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 we have argued in the past, that definition would likely violate the First Amendment if public colleges and universities used it to determine whether speech in question violated their harassment policies. In 2016, I explained the free speech problems created by a nearly identical federal bill when I wrote:
While the bill does include a First Amendment savings clause in Section 5, the definition itself is riddled with vagueness and overbreadth problems. Most obviously, the phrase “a certain perception of Jews” is so vague that consensus on what it means in practical terms would be impossible to achieve. A statute or regulation is void for vagueness when citizens “must necessarily guess at its meaning.” Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973) (internal citations omitted). Such a result would be inescapable here.
Moreover, expressing hatred of a group on its own is also protected expression. Expressions of “hatred” only lose their protection when they constitute incitement, a true threat, intimidation, or actionable harassment, which in the educational context is best understood by reference to the standard set forth by the Supreme Court in Davis v. Monroe County Board of Education, 526 U.S. 629 (1999).
Troublingly, the legislation goes even further by incorporating examples of anti-Semitism included in the State Department’s fact sheet. Those examples declare that both Holocaust denial and “[d]rawing comparisons of contemporary Israeli policy to that of the Nazis” constitute anti-Semitism. Whether such speech is anti-Semitic or not is beside the point, as both types of expression are clearly protected by the First Amendment, and neither can be punished by a government agency (including a public university).
FIRE is not alone in our assessment that using the State Department definition and fact sheet examples, as is the case in both the federal Anti-Semitism Awareness Act and the South Carolina bill, jeopardizes discourse on college campuses, specifically around topics related to the the state of Israel.
The ACLU wrote a letter opposing the federal version of the bill arguing, “The bill poses a serious threat to the First Amendment free speech rights of those on campus who may hold certain political views.” Writing on the problems posed by the federal version of the bill, First Amendment scholars Erwin Chemerinsky and Howard Gillman took to the pages of The Wall Street Journal where they declared that it “runs afoul of the First Amendment.” Other groups who raised free speech concerns regarding the federal legislation include the Center for Constitutional Rights, Palestine Legal, the National Lawyers Guild, the U.S. Campaign for Palestinian Rights, Jewish Voice for Peace, the American-Arab Anti-Discrimination Committee, the Bill of Rights Defense Committee/Defending Dissent Foundation, the Friends Committee on National Legislation, and American Muslims for Palestine, all of whom sent a letter to Congress to register their opposition.
Moreover, while carefully combating known acts of anti-Semitism on college campuses is an important goal, repurposing the definition for this purpose was never intended by its author. As Ken Stern, the primary author of the definition, explained in an op-ed in The New York Times explaining his opposition to the federal version of the legislation:
I was the lead author of the center’s definition, when I was director on anti-Semitism for the American Jewish Committee. I encouraged the State Department to use it when discussing anti-Semitism with other countries.
The definition contains examples related to criticism of Israel, including applying double standards by demanding it behave in ways not expected of other democratic countries, or denying Jews the right of self-determination by claiming that the existence of Israel is a racist endeavor.
The definition was intended for data collectors writing reports about anti-Semitism in Europe. It was never supposed to curtail speech on campus.
Fighting anti-Semitism on campus can be achieved without curtailing free speech. FIRE is happy to help institutions and lawmakers do so effectively and constitutionally.
The legislation, which had stalled earlier in the legislative session, was tacked onto a budget bill just before its passage and is now on its way to the governor’s desk. FIRE will be monitoring the bill’s application on campuses throughout South Carolina and is considering our options for protecting students from the chilling effect this bill is all but guaranteed to create on campus discussions about the state of Israel and its policies.