The bipartisan-sponsored Antisemitism Awareness Act, passed by the U.S. House of Representatives, codifies the inclusion of the International Holocaust Remembrance Alliance’s (IHRA) working definition of antisemitism under Title VI of the Civil Rights Act of 1964.
Title VI prohibits discrimination based on race, color and national origin in programs and activities, such as colleges and universities, receiving federal financial assistance.
The Antisemitism Awareness Act says the IHRA definition is a vital tool to help individuals understand and identify the various manifestations of antisemitism. In this regard, it should be noted that the United States is a member of the International Holocaust Remembrance Alliance and that this definition of antisemitism was adopted by the U.S. State Department, as well as by more than 40 countries.
All that the act does is include the IHRA definition of antisemitism when considering the illegal basis of discrimination, exclusion or denial of benefits. Notice, these operative words deal with prohibited conduct, not the uttering of words.
The act references Executive Order 13899, which President Donald Trump signed in 2019 during his first term. That order extended protections against discrimination under Title VI to individuals subjected to antisemitism on university campuses and confirmed the use of the IHRA definition. Trump reaffirmed this on Jan. 29, in Executive Order 14188, called “Additional Measures to Combat Anti-Semitism.”
It also correctly finds that the use of alternative definitions of Jew-hatred impairs enforcement efforts by adding multiple standards that fail to identify many of the modern manifestations of antisemitism.
The act is with the Senate Health, Education, Labor and Pensions (HELP) Committee, in a process that has been stalled by a flurry of amendments designed to frustrate the very object of the law, by interposing contrived concerns about the First Amendment that are frankly irrelevant to the act and Title VI.
Consider, for instance, while arguing for an amendment to the act that would allow criticism of the Israeli government—something not prohibited by the IHRA definition—a senator made false and defamatory statements about Israel’s conduct of the defensive war against Hamas. It should be noted that defamation is not fully protected speech under the First Amendment. Moreover, the operative provisions of Title VI are about prohibited conduct, not free speech, making the premise asserted for the amendment baseless.
Another senator made the fatuous claim that because the IHRA definition considers libelously blaming all Jews for the crucifixion of Jesus by the Romans to be antisemitic that the bill would prohibit reading the Gospel of John, Chapters 18 and 19. This assertion is not only baseless; it misses the import of Title VI. In essence, it should be prohibited to discriminate against Jews, whether because it incorrectly holds all Jews responsible for the crucifixion or for any other reason. (As an aside, Pope Paul VI solved the senator’s misreading of John in “Nostra Aetate,” on Oct. 28, 1965.)
It is important to recognize that not all speech is protected under the First Amendment. For example, speech directed toward inciting or producing lawless action is not protected. Similarly, so-called “fighting words”—true threats of violence, as perceived by those who are threatened, and the reckless disregard of a substantial risk that the statements made would be viewed as threatening violence—are not protected (Counterman v. Colorado).
Defamation of a so-called “public figure” with malice (knowingly false or reckless disregard for the truth as described in New York Times v. Sullivan) and negligent defamation of everyone else is also not protected speech. While so-called “public figures” are not afforded the more fulsome standard of protection against libel or slander, that categorization can hardly be applied to ordinary students, who happen to be Jewish, as laid out in Gertz v. Welch.
The U.S. Supreme Court, in its 1952 ruling in Beauharnais v. Illinois, upheld a state libel law that made it illegal to defame a race or class of people. I mention this matter specifically because some of the facts and circumstances—like unsavory leaflets, and depraved and libelous remarks at issue in that case—are eerily similar to the propaganda efforts and devices used by Hamasniks to defame, harass, intimidate and exclude Jewish students from facilities and programs at colleges and universities.
The Antisemitism Awareness Act, in the same pristine form that was adopted by the House, should be immediately passed by the Senate and signed into law by the president.