Jamie Raskin, a House Democrat and former constitutional law professor, wrote a statement explaining the problems with the bill at length, before justifying his “yes” vote with a kind of defeated shrug: “At this moment of anguish and confusion over the dangerous surge of antisemitism, authoritarianism and racism all over the country and the world, it seems unlikely that this meaningless ‘gotcha’ legislation can help much — but neither can it hurt much, and it may now bring some people despairing over manifestations of antisemitism a sense of consolation.” There are few people in Congress I admire more than Raskin, but I don’t agree that the bill is harmless, and I hope someone in the Senate will stop it.
The bill relies on a definition of antisemitism adopted by the International Holocaust Remembrance Alliance in 2016, which lists several examples that could, accounting for “overall context,” constitute antisemitism. Among them are “applying double standards to Israel,” claiming that the country’s existence “is a racist endeavor” or using “the symbols and images associated with classic antisemitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis.”
Even if you agree that all these things are signs of anti-Jewish animus, there are serious First Amendment problems with trying to classify them that way legally. That’s why, as I’ve written before, one of the lead drafters behind the IHRA definition of antisemitism, Ken Stern, has consistently opposed the Anti-Semitism Awareness Act.
Stern, who directs the Center for the Study of Hate at Bard College, spent 25 years as the in-house expert on antisemitism at the American Jewish Committee, where he worked on what would become the IHRA’s definition of antisemitism. As he explained it, the document was meant as a research tool, not a basis for legislation. He offered an analogy: Someone studying racism in America, he said, might want to look at opposition to affirmative action, Black Lives Matter and the removal of Confederate statues. That’s very different, however, from enacting a law declaring those attitudes racist. The law is supposed to address conduct, not ideas, which is why federal civil rights law doesn’t define racism, sexism or homophobia.
“Once you start defining what speech is OK for teaching, for funding, for all sorts of things, how does that differ from what we were doing in the McCarthy era?” Stern asked. It’s true, as Raskin pointed out, that Donald Trump already issued an executive order, never rescinded, directing the government to use the IHRA definition when enforcing civil rights law on college campuses. But Stern argues that writing the definition into law, with broad liberal assent, serves to cement it.