As recently noted in The Guardian, legislation regulating against anti-Semitism is likely to be enacted in various American states in response to the mounting persecution of Jews. The pieces of legislation address criminal and discriminatory conduct not protected as free speech; indeed, it includes specific provisions that the law shall “not diminish or infringe upon any right protected under the First Amendment.” Accordingly, laws such as this have now passed with unanimous bipartisan votes in both Florida and South Carolina. As the primary legal expert who helped develop such legislation, I believe the matter ought to be clarified so that the public can appreciate this important effort to combat hate and bigotry.
All current data indicate that anti-Semitic activity is on the rise. Three years ago, a Louis D. Brandeis Center study found that most Jewish students attending American colleges had personally experienced or witnessed anti-Semitism in 2015. An AMCHA Initiative survey found a 45% increase in anti-Semitic activity on college and university campuses between 2015 and 2016. And last year, the Anti-Defamation League issued a report detailing a shocking 67% increase in anti-Semitic incidents from 2016 to 2017.
The unanimous bipartisan support for these bills demonstrates that an overwhelming majority of Americans agree that anti-Semitic incidents should be treated in the same manner as other incidents of crime and discrimination that are motivated by hate and bigotry. It is widely recognized that double standards, applied only to Jews and Israel, can be a primary indicator of anti-Semitism. Onlookers unaware of this fact might wonder why anyone would stand opposed to equal protection for Jews.
Critics of legislation addressing the problem of unlawful anti-Semitic activity wrongly argue that it somehow infringes upon free speech rights. However, the First Amendment does not protect criminal and discriminatory conduct — which is what these laws solely address. First Amendment advocates who worry about the anti-Semitism legislation at hand fail to express any concern over the suppression of pro-Israel speech by groups such as the Irvine 11. The truth is that, far from penalizing or restricting anyone’s private right to free expression, these laws will protect against the unlawful suppression of others’ free speech, a sad occurrence happening all too often at educational institutions these days.
Beyond the First Amendment pretense, the real reason why some oppose this legislation is because it is so effective in identifying anti-Semitism. The codified definition has been adopted by branches of the U.S. government and over thirty other countries because it makes it possible to identify when anti-Israel expressions are systematically used as a means of conveying anti-Jewish intent. As Justice Brandeis famously stated, “sunlight is the best disinfectant.” The clarity provided by this definition means that anti-Semitic crime and discrimination can no longer be whitewashed by claims of mere political opposition to Israel.
In the course of promoting discrimination against Israel, terror-affiliated groups within the Boycott, Divestment, and Sanctions (BDS) Movement, such as Students for Justice in Palestine, deliberately propagate misinformation and baseless claims, as well as classic anti-Semitic themes such as the suggestion of Jewish subversion, conspiracy, dual loyalty, greed, economic control, and most insidiously, blood libels. The BDS Movement’s messaging strategy helps to systematically facilitate the development of bigoted anti-Jewish perspectives that, as history repeatedly shows, will eventually give way to anti-Semitic discrimination and ultimately persecution. It is no coincidence that criminal statistics now indisputably show that Jews are by far one of the most likely of all minority groups to be victimized in incidents motivated by hate. Thankfully, Americans and their elected officials are taking a bold stand against hate and bigotry.
Joseph Sabag is the Executive Director of IAC for Action. He is an attorney who has provided legal and policy resources to more than half the American states as they have passed legislation regulating against anti-Semitism and BDS.