Defining Antisemitism

GOLDFEDER (DO NOT DELETE) 10/28/21 4:12 PM Defining Antisemitism Mark Goldfeder* “Some people hate Jews. Fine, alright it’s been done. I mean, that’s part of my problem with it. Could you hate somebody new?” -Gary Gulman Antisemitic harassment is illegal, but without a standard definition of what ‘antisemitism’ includes, that idea is almost meaningless. That is why state legislatures and university administrators across the country are debating enacting policies that adopt the International Holocaust Remembrance Alliance (“IHRA”) definition of antisemitism. This Article will illustrate precisely how a state bill or a university policy utilizing the IHRA definition for assessing motivation when analyzing discriminatory conduct claims would actually function, so that critics can no longer vaguely claim that such policies would somehow offend the First Amendment. It will also explain the difference between protected political speech and thinly-veiled antisemitism, and provide a case study to illustrate the very real danger of what can happen when perpetrators are allowed to confuse speech with acts and conflate politics with demonizing and discriminatory hatred. * Dr. Mark Goldfeder, Esq. is the Director of the National Jewish Advocacy Center, a Member of the United States Holocaust Memorial Council, counsel for Hillels of Georgia, and served as the founding Editor of the Cambridge University Press Series on Law and Judaism. The author wishes to thank Kenneth L. Marcus and Alyza Lewin for their thoughtful and helpful comments, Marc Greendorfer, Gadi Dotz, Eugene Kontorovich, Harry Hutchison, Jay Schaefer, Jeremy Rabkin, Sasha Volokh, Miles Terry, Danielle Park, Jonathan Fiebelkorn, Andrew Pessin, Mark Rotenberg, and Courtney Kramer for their insightful reviews, and Elliot Karp, CEO of Hillels of Georgia, for his leadership and investment on this issue. 119 GOLDFEDER (DO NOT DELETE) 120 10/28/21 4:12 PM SETON HALL LAW REVIEW [Vol. 52:119 I. INTRODUCTION ................................................................................................. 121 II. THE IHRA DEFINITION OF ANTISEMITISM ................................................ 127 III. TITLE VI AND THE EXECUTIVE ORDER ON COMBATING ANTISEMITISM .................................................................................................. 143 IV. THE NEXT STEP FOR STATES AND UNIVERSITIES: PROACTIVELY ADOPTING THE IHRA DEFINITION ............................................................... 150 V. THE MODEL POLICY DOES NOT RESTRICT OR SUPPRESS SPEECH.......... 154 A. What the Policy Does Not Do ......................................................... 154 1. The Model Policy Does Not Restrict or Prohibit Speech ............................................................................................... 154 2. The Model Policy Does Not Create Any Gray Area of Speech/Act Non-Distinction .............................................. 155 3. Finally, Such a Policy Will Not Impermissibly Chill Speech .................................................................................... 158 VI. ADOPTING THE DEFINITION HELPS STATES AND SCHOOLS MONITOR, PREVENT, AND EDUCATE ABOUT ANTISEMITISM .................. 164 A. Adopting a Definition Would Help States and Schools Monitor and Report on Antisemitism ........................................ 164 B. Adopting a Definition Would Help States and Schools Educate Their Constituencies About Antisemitism ............. 168 VII. CRITICISM OF ISRAEL AND ANTISEMITISM .................................................. 169 VIII. A CASE STUDY IN THE NECESSITY OF CLEARLY DEFINING TERMS ......... 184 A. What Happened “Over There” ....................................................... 184 B. Could That Happen Here? ............................................................... 186 IX. CONCLUSION ...................................................................................................... 195 GOLDFEDER(DO NOT DELETE) 2021] 10/28/21 4:12 PM DEFINING ANTISEMITISM 121 I. INTRODUCTION Antisemitism, loosely defined (we shall soon see why) as the prejudice against and hatred of the Jewish people, is often called the oldest form of hatred in the history of man.1 Unfortunately, it is also perhaps the most persistent.2 And, despite the fact that we are still within living memory of the Holocaust,3 for the past several years antisemitism has been making a public comeback,4 even in these United States,5 and even during a pandemic.6 Each year since 1979, the Anti-Defamation League has published a report that measures the number of antisemitic acts in the United States.7 In 2017, there were 1,986 reported antisemitic incidents, a 57 percent increase over the previous year, and the biggest annual jump 1 Hillel Halkin, The Persistence of the Oldest Hatred, N.Y. TIMES (Sept. 10, 2019), https://www.nytimes.com/2019/09/10/books/review/how-to-fight-anti-semitismbari-weiss.html; see generally Ildikó Barna et al., Contemporary Forms of the Oldest Hatred: Modern Antisemitism in the Visegrád Countries, in THE NOBLE BANNER OF HUMAN RIGHTS: ESSAYS IN MEMORY OF TOM LANTOS, 303–38 (Katrina Lantos Swett, Anna-Mária Biró & Máté Fischer eds., 2018). 2 Introduction, in ANTISEMITISM: A HISTORY 8 (Albert S. Lindemann & Richard S. Levy eds., 2010). 3 See generally FACING HISTORY AND OURSELVES, HOLOCAUST AND HUMAN BEHAVIOR, 606– 11, 662 (2017). 4 Ahmed Shaheed (Special Rapporteur on Freedom of Religion or Belief), The Elimination of All Forms of Religious Intolerance, U.N. Doc. A/74/358 (Sept. 20, 2019); Eva Cossé, The Alarming Rise of Antisemitism in Europe: European Governments and Public Should Stand Up Against Hate, HUM. RTS. WATCH (June 4, 2019, 10:12 AM), https:// www.hrw.org/news/2019/06/04/alarming-rise-anti-semitism-europe. 5 See generally AUDIT OF ANTI-SEMITIC INCIDENTS: YEAR IN REVIEW 2018, ANTIDEFAMATION LEAGUE (2019), https://www.adl.org/media/13144/download [hereinafter 2018 REVIEW]; LEONARD SAXE ET AL., BRANDEIS UNIV.: MAURICE & MARILYN COHEN CTR. FOR MODERN JEWISH STUDIES, HOTSPOTS OF ANTISEMITISM AND ANTI-ISRAEL SENTIMENT ON US CAMPUSES (2016), https://bir.brandeis.edu/bitstream/handle/10192/33070/ AntisemitismCampuses102016.pdf?sequence=1&isAllowed=y. 6 Dina Porat, Position Paper, Blaming the Jews and Israel for the Coronavirus Pandemic: Historical Background and Current-Day Reactions, TEL AVIV UNIV.: KANTOR CTR., July 6, 2020; see also Walter Russell Mead, Amid the Pandemic, Anti-Semitism Flares Up, WALL ST. J. (Apr. 15, 2020, 6:53 PM), https://www.wsj.com/articles/amid-thepandemic-anti-semitism-flares-up-11586991224; Samantha Mandeles, Investigation: How Anti-Israel Activists Are Hijacking The Coronavirus Crisis And Turning It Against Israel, LEGAL INSURRECTION (Apr. 9, 2020, 9:00 PM), https://legalinsurrection.com/ 2020/04/investigation-how-anti-israel-activists-are-hijacking-the-coronavirus-crisisand-turning-it-against-israel/#more-312987. 7 2018 REVIEW, supra no (...truncated)