BY KENNETH S. STERN AND ERNST BENJAMIN

This is a guest post by Kenneth S. Stern and Ernst Benjamin. Kenneth S. Stern is the Executive Director of the Justus & Karin Rosenberg Foundation, and a Fellow of the Center for Civic Engagement at Bard College (where he has taught a course on antisemitism as a Visiting Assistant Professor of Human Rights). He is also the author of four books on hate and/or antisemitism, as well as material and syllabi about antisemitism (available on the JKR Foundation website). Ernst Benjamin served the AAUP as general secretary (1984-1994) and in several other roles. A former Wayne State University faculty member, he is the author of numerous articles on academic freedom and other higher education issues and has edited three books, most recently Academic Collective Bargaining (with Michael Mauer).

The South Carolina legislature is moving to adopt a definition of antisemitism which, despite disclaimers, will chill speech deemed excessively critical of Israel.

The anti-speech agenda behind South Carolina’s Antisemitism bill (H. 3643) was made clear in a recent tweet by its legislative sponsor, Representative Alan Clemmons, quickly retweeted by its chief proponent, Kenneth Marcus of the Brandeis Center (with the comment “this is very important”).

Clemmons cited an opinion piece by a South Carolina rabbi, who supports this legislative effort. The rabbi wrote:

Genocide begins with words. It starts, almost imperceptibly, with careful characterization of a people as less than the rest of us. I remind everyone I meet that Adolf Hitler, as far as I know, never murdered anyone. All he did was speak. And through his carefully crafted words, he caused mass murder, unfathomable brutality and millions of deaths across the globe. . . .

Is it really necessary to debate whether to decry anti-Semitism? I thought it would seem self-evident that inciting hatred has no place in America.

The Holocaust was certainly driven by hateful ideas about Jews and others. But perhaps the rabbi should have considered that it was also made possible by the silencing of dissent, and official pronouncements of what thoughts were disapproved.

We are not drawing a parallel between this bill and Nazism. Some well-intentioned people, including the rabbi, are concerned – as we are – of the level of hate and antisemitism in the world today, and unfortunately on some campuses too.

But this legislation, like the proposed Anti-Semitism Awareness Act in Congress, is a hate speech code which, if enacted, will do much damage to the university and to the Jewish students proponents seek to protect.

Specifically, the South Carolina bill would adopt the U.S. Department of State Definition of Anti-Semitism, a broader version of what is referred to as the “working definition of antisemitism,” of which one of us, Kenneth Stern, was the lead author.

The definition was created for data collectors in Europe, not for managing speech on American college campuses. It also gave a few examples of where the data collected should include verbal expressions about Israel, such as “Applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation,” and “Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.”

In 2010 the Department of Education clarified that Jews (and Sikhs and Muslims) were protected from discrimination and harassment under Title VI of the Civil Rights Act, even though the act did not protect people from religious harassment. They were protected because of shared ethnicity.

This was a positive development. In a case which Kenneth Stern initiated, Jewish students were indeed protected, when the DOE found a violation in a New York school district, where they had been bullied and harassed (by such acts as “Kick a Jew Day”).

But some right-wing Jewish groups and individuals decided to use the antisemitism definition as part of Title VI-based lawsuits. While the cases also included allegations of harassing conduct, they nonetheless complained that about expressions they said transgressed the definition. A finding of a Title VI violation can result in loss of federal funding.

Among the complaints, a program about “the Occupation,” a film termed “propaganda,” classroom texts alleged to be “one-sided and anti-Israel,” and a program, “Arabs and The Holocaust,” which allegedly claimed that Israel’s creation was a “tragedy” for Palestinians.

As Kenneth Stern (who was then with the American Jewish Committee) and then AAUP President Cary Nelson warned six years ago in a joint statement (later repudiated by the AJC), this is a misuse of the definition and of Title VI, and was an effort to chill political speech.

Those who wanted to use the definition on campus weren’t deterred by the fact that all their cases lost. One proponent argued that the lawsuits, and threat of such lawsuits, still had value since “Israel-haters now publicly complain that these cases make it harder for them to recruit new adherents.”

Next they urged the University of California Regents to adopt the definition. It declined (although it decried “anti-Semitic forms of anti-Zionism.”

Then they turned to Congress, proposing the “Anti-Semitism Awareness Act,” which passed the Senate late last year (unanimously), but was stalled in the House by the time Congress adjourned. Efforts are now underway to resurrect it.

Meanwhile, proponents are putting forth state legislative clones. One in Virginia stalled. But South Carolina’s bill seems likely to pass in the coming days.

If it does, this will be a blow to academic freedom, free speech, and Jewish students.

First, the law isn’t needed to investigate discrimination of Jewish students. If Jews are victims of discrimination, if they are bullied or harassed because they are Jewish or perceived to be Jewish, the law already protects them. One can indeed imagine scenarios in which the motive for the discrimination falls outside the definition, in which case the definition might be used as a defense.

Second, no other form of bigotry has such an official definition. Imagine the Pandora’s box if the legislature is asked to define racism (would opposition to affirmative action be included?), homophobia, Islamophobia, and so on. If rejection of the right of Jews to self-determination is officially defined as antisemitism, would opposition to a Palestinian state be officially classified as anti-Palestinianism?

Third, definitions of bigotry change over time. If laws define bigotries, legislators will throw themselves into culture wars over which expressions are to be classified as hateful, rather than underscore the importance of protecting free speech and academic inquiry.

Fourth, the battle over the definition is in many ways an internal Jewish conflict over Israel.  Jews who have a religious objection to Zionism, such as the Satmar, are seen as part of the Jewish family, but those whose objections are more ideological are viewed by many as not truly Jewish. No legislature has any business making official state pronouncements on such an internal communal debate.

Fifth, imagine a Palestinian student who says Israel’s creation was a tragedy for his family, or a student who writes a paper critical of Zionism and quotes Hannah Arendt or Martin Buber. Would we really want their expressions to be considered as part of an investigation of discrimination against Jews (who are defined as presumably pro-Israel)? And as much as we both disagree with the equation of Israel with Apartheid era South Africa, would we want to see administrators ban student events which make that equation (as has happened with the application of the definition in the United Kingdom)?

AAUP’s Committee A’s 1994 statement on Freedom of Expression and Campus Speech Codes is instructive. “An institution of higher learning fails to fulfill its mission if it asserts that the power to proscribe ideas. . . .”

That’s the irony of these legislative proposals. The campus is uniquely qualified to examine ideas. Courses and programs that teach about hatred and antisemitism, or the complexities of the Israeli-Palestinian conflict, or what happens to people’s thinking when their identity is wedded to an issue of perceived social justice, are all among the things that a university should promote to reduce campus bigotry. (Others include regular anonymous surveys, staff training, transparent mechanisms for hate crime reporting, etc.)

But as two South Carolina Jewish Studies professors recently wrote: “The notion that this speech is not being criminalized, merely labeled ‘anti-Semitic,’ is misleading to say the least. Indeed the proposed legislation may lead faculty to avoid these topics altogether, leaving students vulnerable to misinformation and failing to give them the critical skills promised by the college’s mission.”

Suzanne Nossel, Executive Director of America PEN, underscored that silencing speech is no way to combat antisemitism. “Making a wide range of opinions the basis for potential civil rights investigations will only further inflame already polarizing discourse on college campuses,” she said. “The best way to deal with perspectives that may be considered disagreeable or even offensive is to air them out openly through reasoned discourse.”

If this bill is passed, the groups that promoted it will be on the hunt for transgressions of the definition, and will threaten administrators if they don’t silence or condemn the offending expressions. Knowing that they will be judged by how they abide by the definition, administrators will not think of what else they should do to make their campus welcoming to Jewish students. Faculty will avoid the minefields of teaching about issues of importance, especially to some Jewish students. And Jewish students, whose interest these outside groups profess to protect, will be seen as part of an effort to silence, rather than answer, anti-Israel speech.