Lawmakers want to define antisemitism. But do they limit free speech?

Lawmakers in more than a half-dozen U.S. states are pushing laws to define antisemitism, triggering debates about free speech and bringing complicated world politics into statehouses.

Supporters say it’s increasingly important to add a definition that lays out how to determine whether some criticism of Israel also amounts to hatred of Jewish people. In so doing, lawmakers cited the Oct. 7 attacks in which Hamas killed some 1,200 people, mostly civilians, and took about 250 hostages back to Gaza, which sparked a war that has killed more than 26,000 Palestinians.

“For anybody that didn’t think that anti-Zionism could cross into antisemitism, the rest of the world could see that it had,” said Democratic Rep. Esther Panitch, the only Jewish member of Georgia’s Legislature and one of the sponsors of a bill that the state Legislature passed last week. Republican Gov. Brian Kemp is expected to sign.

Defined in 2016 by the the International Holocaust Remembrance Alliance, antisemitism is “a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”

But Kenneth Stern, the author of IHRA’s definition, said using such language in law is problematic.

“There’s an increasingly large number of young Jews for whom their Judaism leads to an antizionist position,” said Mr. Stern, director of the Bard Center for the Study of Hate. “I don’t want the state to decide that issue.”

Over the past three months, there has been a rise in protests around the country calling for a cease-fire in Gaza and the release of Israeli hostages. A coalition of organizations, including Jewish Voice for Peace and CAIR, issued a joint statement saying that the Georgia bill “falsely equates critiques of Israel and Zionism with discrimination against Jewish people.”

Measures using the same definition of antisemitism – but in anti-discrimination laws – have advanced in legislative chambers in Indiana and South Dakota. A report from the Anti-Defamation League last year found major increases in antisemitic incidents in Georgia and Indiana, but not in South Dakota, where fewer than 10 a year were recently reported.

Other legislation with the definition is pending in at least five other states this year.

Bill supporters say that more than 30 states have adopted the definition in some way over the years. Before now, the legal definitions – including in New York, the state with the largest Jewish population – came primarily through resolutions or executive orders rather than forceful laws.

In other parts of the country, Iowa incorporated the definition into law in 2022 and Virginia did the same last year, among others.
Lawmakers say their bills are in response to the Oct. 7 attacks, though before that, the problem of antisemitism has been on the rise in the U.S. and globally. Since the Israel-Hamas war erupted, several states have passed resolutions condemning Hamas and voicing support for Israel.

Thousands of entities around the world, including the U.S. State Department, major companies, and colleges, have officially recognized the definition, with groups including the American Jewish Committee supporting it.

However the U.S. Congress and American Bar Association have declined to do so. Among those urging lawmakers to vote no are chapters of the ACLU.

“There is fundamental First Amendment harm whenever the state tries to silence pure speech on the basis of its viewpoint,” said Brian Hauss, an ACLU lawyer.

Backers of the laws emphasize that they’re not trying to ban speech but rather decipher between actions that amount to discrimination or hate crimes, which carry different degrees of severity.

“This bill is entirely about conduct – adverse or unequal treatment that’s prohibited in state law,” said South Dakota state Rep. Fred Deutsch, a Republican whose father was a Holocaust survivor. “This bill doesn’t limit a person or organization’s freedom of speech or expression.” This week the chamber passed a measure by a 53-14 vote.

Lara Freidman, president of Foundation for Middle East Peace, said the laws could elevate charges, such as those against a protester for property destruction to the level of a hate crime if the perpetrator is seen with a Palestinian flag.

Georgia State Rep. Ruwa Romman, a Democrat of Palestinian descent, said that the definition when adopted by colleges, has stifled students’ right to free speech.

“When they attempted to host a Palestinian poet or Palestinian culture night, the administration has preemptively canceled the events for fears of being antisemitic,” she said.

Some protesters gathered in the capitol in Indiana this month before the House unanimously advanced a bill incorporating the definition there.

“I don’t need to feel like as a student I’m going to be either censored or attacked or harassed,” said Yaqoub Saadeh, president of the Middle Eastern Student Association at Indiana University – Purdue University Indianapolis.

How colleges are acting to prevent or stop antisemitism on campus has become a hot-button issue across the country. Last year, the fallout from campus presidents’ testimony before Congress led to the resignation of presidents at Harvard and the University of Pennsylvania.

This story was reported by The Associated Press.