CCR, Palestine Legal, and Other Rights Groups Respond to New Wave of Bills Aiming to Suppress Palestine Advocacy

Letters Submitted to Lawmakers in South Carolina, Maryland, Texas, Virginia, and U.S. Congress

As part of a continuing effort to challenge bills that threaten core First Amendment-protected activity in support of Palestinian rights and raise serious due process concerns, CCR and other rights organizations submitted letters to lawmakers in South Carolina, Maryland, Texas, California, and the U.S. Congress opposing proposed legislation. These letters follow from the efforts of CCR, Palestine Legal, and other allies to challenge legislation in New York, California, Ohio, Georgia, New Jersey, and Pennsylvania. These legislative efforts are part of a growing trend of introducing legislation intended to silence Palestine advocacy in numerous states and the U.S. Congress. For more information about other efforts to suppress First Amendment-protected activities in support of Palestinian human rights, including other legislative efforts to restrict Boycott, Divestment, and Sanctions (BDS) campaign efforts, see CCR and Palestine Legal’s report, The Palestine Exception to Free Speech: A Movement Under Attack in the U.S.

 

South Carolina

On March 2, 2017, CCR, Palestine Legal, the American-Arab Anti-Discrimination Committee, the Arab American Institute, the Bill of Rights Defense Committee/Defending Dissent Foundation, the Carolina Peace Resource Center, Jewish Voice for Peace, the National Lawyers Guild – Palestine Subcommittee, the U.S. Campaign for Palestinian Rights, and the U.S. Palestinian Community Network sent a memorandum to South Carolina lawmakers opposing H.3643, a bill that proposes to amend South Carolina's education laws to classify political speech critical of Israel as antisemitism when investigating discrimination on college campuses.  The bill would require schools to incorporate a widely discredited, overly broad definition of antisemitism that includes virtually all criticism of Israeli government policies while not providing any further protections for Jewish students.

The text of the memorandum is below.

 

Maryland

On February 22, 2017, CCR, Palestine Legal, the Bill of Rights Defense Committee/Defending Dissent Foundation, the Maryland National Lawyers Guild, and the Montgomery County Civil Rights Coalition sent a memorandum to Maryland lawmakers opposing HB 949 and SB 739, anti-boycott bills that would require Maryland to create a blacklist of "persons" - including individuals and community organizations - that engage in BDS and prohibit the state from investing in those "persons."

The text of the memorandum is below.

 

Texas

On February 21, 2017, CCR, Palestine Legal, CAIR-Texas, National Lawyers Guild – Palestine Subcommittee, and the Bill of Rights Defense Committee/Defending Dissent Foundation sent a memorandum to Texas lawmakers opposing HB 89 and SB 134, anti-boycott bills that would require Texas to create a blacklist of companies that support BDS campaigns and prohibit the state from investing in or contracting with those entities.

The text of the memorandum is below.

 

Virginia

On January 27, 2017, CCR, Palestine Legal, and the Bill of Rights Defense Committee/Defending Dissent Foundation sent a memorandum to Virginia lawmakers opposing HB 2261, a bill that was pending in the Virginia House of Delegates. The bill proposed to amend Virginia's Human Rights Act, which already prohibits religious discrimination, to incorporate a widely discredited, overly broad definition of antisemitism that includes virtually all criticism of Israeli government policies. If enacted, the act would have classified political speech supportive of Palestinian human rights as unlawful discrimination in the workplace, in public accommodations, and in educational institutions in Virginia. The bill died in committee on February 8, 2017, but could return in the next legislative session.

The text of the memorandum is below.

 

U.S. Congress

On December 5, 2016, CCR, Palestine Legal, the National Lawyers Guild, the U.S. Campaign for Palestinian Rights, Jewish Voice for Peace, the American-Arab Anti-Discrimination Committee, the Bill of Rights Defense Committee/Defending Dissent Foundation, the Friends Committee on National Legislation, and American Muslims for Palestine sent a memorandum to U.S. Congress members opposing the Anti-Semitism Awareness Act. The bill, which passed the Senate on December 1 by unanimous consent and without debate, would have required the Department of Education to employ a discredited, overbroad, and vague definition of antisemitism that conflates it with criticism of Israeli government policy by including any speech deemed to “demonize,” apply “double standards” to, or “delegitimize” Israel. While purporting to address antisemitic incidents on campuses, the bill instead targeted Palestine advocacy while providing no new protections for Jewish students. The so-called "State Department definition" had been previously considered and rejected by the University of California, and the definition's own author opposed the bill. The bill died in the U.S. House on December 12, 2016, but could return in the next legislative session.

The text of the memorandum is below.

 

H.3643 is Unconstitutional and Must Be Opposed 

H.3643 proposes amending South Carolina’s education laws by directing public colleges and universities to classify virtually all political speech critical of Israel and Israeli government policies as anti-Semitic when “reviewing, investigating, or deciding whether there has been a violation of university policy prohibiting discriminatory practices on the basis of religion.” H.3643 is a blatantly unconstitutional attack on individual liberties, academic freedom, and human rights.

By endorsing a widely criticized, vague, and overbroad definition of anti-Semitism, H.3643 will legitimize censorship of and punishment for political speech supportive of Palestinian human rights. Because this bill targets the expression of viewpoints that some lawmakers may disfavor, it invites South Carolina to violate the First Amendment of the U.S. Constitution.

Further, at a time when bias incidents and hate crimes, including those motivated by anti-Semitism and Islamophobia, are on the rise, this bill provides no new legal protections for Jewish or other residents of South Carolina. On the contrary, if enacted, this bill will almost certainly increase unwarranted government suspicion, surveillance, and investigation into the lives of Muslim and Arab students in South Carolina as well as all students – including many Jewish students – who advocate for Palestinian human rights. As a result, this bill may actually encourage Islamophobia and anti-Semitism. Instead of offering constructive solutions to counter the disturbing rise in discrimination and bigotry that has been documented in recent months, this bill will compound the problem while trampling on Constitutional rights. We call on you to oppose H.3643.[1]

I. Applying the definition of anti-Semitism endorsed by H.3643 domestically would violate the First Amendment 

H.3643 would incorporate a widely-criticized, overbroad definition of anti-Semitism that is currently used for limited international monitoring purposes by the U.S. State Department.[2] The State Department definition is not applied domestically, and is not used by any other federal or state government agency. If adopted by South Carolina, it will unconstitutionally restrict First Amendment-protected speech and advocacy supportive of Palestinian human rights. Even the lead author of the State Department definition opposes its use in the university context.[3]

The State Department definition of anti-Semitism distorts and undermines traditional definitions of anti-Semitism by including criticism of Israel. The definition radically departs from traditional definitions of anti-Semitism with its listing of examples of “Anti-Semitism Related to Israel,” known as the “three D’s”: “demonizing Israel,” “applying a double standard to Israel,” and “delegitimizing Israel.”[4] The “three D’s” brand critics of Israeli policies and advocates for Palestinian human rights as anti-Semitic by blurring the important distinction between criticism of Israel as a nation-state and expressions of hatred against Jewish people. 

This approach denies the legitimacy of extensive and widely recognized documentation of Israel’s human rights abuses, and claims that criticism of Israel’s policies and practices is in fact motivated by hatred of Jewish people and not a concern for Palestinian rights. Moreover, distorting the real definition of anti-Semitism by incorporating criticism of Israel distracts from and undermines the prevention of and relief from truly discriminatory practices.

Because of the State Department definition’s vagueness and overbreadth, bringing within its scope virtually all speech supportive of Palestinian rights, its incorporation into South Carolina’s education laws would violate the First Amendment. Such violations are particularly troubling given the nature of the speech being targeted: Palestinian rights and Israeli government policies are important matters of public concern, regularly debated in the media, in the halls of government, and on college campuses.

The Supreme Court has frequently reaffirmed that speech on public issues – like Palestinian rights – occupies the “highest rung on the hierarchy of First Amendment values” and is therefore “entitled to special protection.”[5] Codifying the State Department definition would violate this principle, and would require the state to engage in unconstitutional content and viewpoint-based discrimination. The First Amendment savings clause tacked onto the end of this bill does not magically save it. Requiring public colleges and universities to use the State Department definition when investigating alleged instances of anti-Semitism is tantamount to inviting these government actors to violate the First Amendment.
 
II. The definition of anti-Semitism endorsed by H.3643 is particularly destructive to colleges and universities that value unfettered speech
 

Adopting a definition of anti-Semitism that encompasses even the most routine criticism of a nation-state is particularly inappropriate for South Carolina’s educational institutions because of the essential role that academic freedom and unfettered debate play in the university setting. The United States Supreme Court has recognized the importance of this role, stating that “[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”[6] The State Department definition would silence legitimate opinions and perspectives, and would impose standards on universities that undermine their commitments to academic freedom and inquiry.

Would a mock-checkpoint on a campus quad, aimed at raising awareness about the way Israeli military checkpoints severely curtail Palestinians’ freedom of movement, be considered demonizing Israel, and therefore anti-Semitic? Would a lecture on Israel’s violations of international law be considered delegitimization of Israel? Would a legal panel on the constitutional right to engage in boycotts for Palestinian rights be considered a double standard against Israel? Similar accusations have been made against activities on college campuses by the same Israel advocacy groups that support legislation like H.3643.[7] Notably, criticism of Israeli government policy has been found, again and again, to be protected political speech, not discrimination against a protected group.[8]  Nevertheless, this is the type of inquiry South Carolina’s educational institutions will be required to enter into if this bill becomes law.

The University of California and other universities have already been subjected to pressure to adopt the anti-Semitism definition endorsed by this bill, and have ultimately rejected it due to free speech concerns.[9] Israel advocacy organizations pushed for its adoption in March 2015, causing outcry from free speech advocates[10] across the political spectrum, media,[11] students,[12] graduate student instructors,[13] and Jewish[14] and other civil rights organizations.[15] Jewish commentators,[16] including the State Department definition’s original author, Kenneth Stern, repudiated its use on college campuses.[17]

Legislation similar to H.3643 was introduced – and defeated – in the U.S. Congress in December 2016 after public outcry from human rights and free speech advocates[18] and lawyers,[19] and criticism from the media.[20] Earlier this year, a similar proposal was defeated in Virginia.[21]

South Carolina lawmakers should heed the constitutional concerns this bill raises, and follow other lawmakers in rejecting this blatant attempt to unconstitutionally suppress and chill student advocacy for Palestinian human rights.

III. Conclusion

We appreciate the importance of addressing allegations of anti-Semitism on campus and elsewhere at this time of heightened threats to Jewish and other communities. H.3643’s misguided reliance on the discredited State Department definition of anti-Semitism, however, fails to give colleges and universities the proper tools to fight anti-Semitism and other forms of discrimination. Instead, it will encourage the college and university administrations to infringe on free speech and academic freedom on campus, in violation of the First Amendment.

We call on you to drop consideration of this bill and, instead, engage in meaningful efforts to address the alarming rise in anti-Semitic, racist, anti-Muslim, anti-Arab, anti-immigrant, anti-women, and anti-LGBT incidents and other forms of discrimination that have been fueled by increasing tolerance for such bigotry. This bill will only intensify targeting of already vulnerable communities that are exercising their constitutional rights to speak out for Palestinian rights. It will ultimately undermine civil liberties on campuses, while failing to address or hold accountable the sources of the alarming incidents of bigotry that are occurring on campuses and elsewhere.

H.3643 is an unconstitutional and unwise proposal. It must be vigorously opposed.



[1] This memorandum has been endorsed by the following organizations: Palestine Legal (www.palestinelegal.org); the Center for Constitutional Rights (www.ccrjustice.org); the American-Arab Anti-Discrimination Committee (www.adc.org); the Arab American Institute (www.aaiusa.org); the Bill of Rights Defense Committee and Defending Dissent Foundation (www.bordc.org); the Carolina Peace Resource Center (www.carolinapeace.org); Jewish Voice for Peace (www.jewishvoiceforpeace.org); the National Lawyers Guild – Palestine Subcommittee (www.nlginternational.org/palestine-subcommittee); the U.S. Campaign for Palestinian Rights (www.uscpr.org); and the U.S. Palestinian Community Network (www.uspcn.org).

[2] See Palestine Legal, FAQ: What to know about efforts to re-define anti-Semitism and to silence criticism of Israel, http://bit.ly/2kt31HJ; see also Foundation for Individual Rights in Education, Problematic Campus anti-Semitism Bill Clears Senate, Dec. 2, 2016, https://www.thefire.org/problematic-campus-anti-semitism-bill-clears-senate.

[3] See Kenneth Stern, Will Campus Criticism of Israel Violate Federal Law? New York Times, Dec. 12, 2016, https://www.nytimes.com/2016/12/12/opinion/will-campus-criticism-of-israel-violatefederal-law.html.

[4] See Palestine Legal FAQ, supra note 2.

[5] NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982); Carey v. Brown, 447 U.S. 455, 467 (1980).

[6] Keyishian v. Board of Regents, 385 U.S. 589 (1967).

[7] For example, Kenneth Marcus of the Brandeis Center for Human Rights, a proponent of this bill, was an architect of the failed strategy to use Title VI of the federal Civil Rights Act of 1964 to censor Palestinian rights advocacy on campuses. For more information, see Palestine Legal and Center for Constitutional Rights, The Palestine Exception to Free Speech: a Movement Under Attack in the U.S.: Lawsuits and Legal Threats, http://palestinelegal.org/thepalestine-exception/#tactics7.

[8] For example, the U.S. Department of Education Office for Civil Rights (OCR) has affirmed in four separate cases―after conducting lengthy investigations of alleged harassment of Jewish students based on student and faculty advocacy for or academic engagement on Palestinian rights issues―that expression of political viewpoints does not, standing alone, give rise to actionable harassment under Title VI simply because some may find it offensive. More information about the four cases are available at the following links: http://palestinelegal.org/thepalestine-exception-appendix#berkeley2 (UC Berkeley); http://palestinelegal.org/the-palestine-exceptionappendix#irvine1 (UC Irvine); http://palestinelegal.org/the-palestine-exception-appendix#santacruz1 (UC Santa Cruz); and http://palestinelegal.org/the-palestine-exception-appendix#rutgers2 (Rutgers University).

[9] See UC Drops Consideration of State Department Anti-Semitism Definition, Palestine Legal, July 22, 2015, http://palestinelegal.org/news/2015/7/22/uc-drops-consideration-of-state-department-anti-semitism-definition.

[10] See Will Creely, State Department’s Anti-Semitism Definition Would Likely Violate First Amendment on Public Campuses, Foundation for Individual Rights in Education, May 22, 2015, https://www.thefire.org/state-departments-anti-semitism-definition-would-likely-violate-first-amendment-on-public-campuses/.

[11] Editorial, How far should UC go with an anti-Semitism policy, Los Angeles Times, July 16, 2015, http://www.latimes.com/opinion/editorials/la-ed-anti-semitism-20150716-story.html.

[12] Letter, Students ask Janet Napolitano not to endorse conflation of anti-Semitism with critique of Israel, SJP West, June 29, 2015, http://sjpwest.org/2015/06/29/students-ask-janet-napolitano-not-to-endorse-conflation-of-antisemitism-with-critique-of-israel.

[13] UAW Letter to Janet Napolitano, UC Student Workers Union – UAW Local 2865, July 6, 2015, http://www.uaw2865.org/uaw-letter-to-president-napolitano.

[14] Action alert, Tell UC President Napolitano and the UC Regents: criticizing Israel is not anti-Semitic, Jewish Voice for Peace, http://org.salsalabs.com/o/301/p/dia/action3/common/public/?action_KEY=18000.

[15] Palestine Legal, Jewish Voice for Peace, National Lawyers Guild, and the Center for Constitutional Rights sent a letter to Janet Napolitano and the UC Regents outlining First Amendment concerns with the State Department’s redefinition of anti-Semitism. The letter is available at http://static1.squarespace.com/static/548748b1e4b083fc03ebf70e/t/558abe8ae4b050f36b381190/1435156106563/U COPLetterAntiSemitismFinal.pdf.   

[16] See, e.g., Jay Michaelson, Why U. of California Should Dump “Three D” Definition of Anti-Semitism, The Forward, July 22, 2015, http://forward.com/opinion/312358/why-u-of-california-should-dump-three-d-definition-ofanti-semitism.

[17] Kenneth Stern, supra note 3.

[18] See Foundation for Individual Rights in Education, Problematic Campus Anti-Semitism Bill Clears Senate, Dec. 2, 2016, https://www.thefire.org/problematic-campus-anti-semitism-bill-clears-senate.

[19] See Palestine Legal, Bill aimed at censoring Palestine advocacy fails to pass U.S. House, Dec. 12, 2016, http://palestinelegal.org/news/2016/12/12/bill-aimed-at-censoring-palestine-advocacy-on-campuses-fails-to-pass-us-house.

[20] See Palestine Legal, Media Spotlight: “Anti-Semitism Awareness Act” draws criticism in the media, Dec. 15, 2016, http://palestinelegal.org/news/2016/12/14/media-spotlight-anti-semitism-awareness-act-draws-criticism.

[21] See Palestine Legal, Victory! Unconstitutional bill defeated in Virginia, Jan. 30, 2017, http://palestinelegal.org/news/2017/1/30/virginia-lawmakers-considering-unconstitutional-bill-aimed-at-censoring-palestine-advocacy-1.

 

February 22, 2017

Dear Honorable Member of the Maryland General Assembly,

We are writing to express our opposition to SB739/HB949. This bill is aimed at suppressing First Amendment protected speech by denying public benefits to those who boycott Israel or “Israeli-controlled territories.” In order to accomplish this goal, the bill would task the Board of Trustees for the State Retirement and Pension System with assembling a blacklist of persons engaged in such boycotts. This list is to be based on publicly available information and to be published online. Its definition of “person” explicitly includes “natural persons” and “non government organizations,” meaning that individuals, churches, trade unions, and other civil society groups could wind up on an online blacklist. Such a practice is reminiscent of the worst abuses of the McCarthy Era.

The bill is aimed at the Boycott, Divestment, and Sanctions (BDS) movement, which seeks to use non-violent protest to change Israel’s human rights policies towards the Palestinian people. Regardless of one’s personal opinion of BDS, the First Amendment of the United States Constitution gives all people the right to criticize the policies of both our own government, and that of a foreign government. We recognize that the co-sponsors of SB739/HB949 feel passionately about their opposition to BDS, and that the First Amendment protects those views no less than it protects the views of those who support BDS. The First Amendment, however, prohibits the government from using its power to silence one side of a contentious debate on a matter of public concern.

First Amendment Concerns with Anti-Boycott Legislation

SB739/HB949 singles out those who boycott Israel or “Israeli-controlled territories” for denial of procurement opportunities or investment by Maryland’s pension funds. This violates the First Amendment.

In 1982, the Supreme Court ruled that boycotts to “bring about political, social, and economic change” are a form of political speech.1 Political speech receives the maximum protection afforded by the First Amendment. The BDS movement is a response to a 2005 call from Palestinian civil society for boycotts to be imposed against Israel until it compiles with three demands concerning its treatment of the Palestinian people. They are, in the words of the call itself, as follows:

  1. Ending its occupation and colonization of all Arab lands and dismantling the Wall;
  2. Recognizing the fundamental rights of the Arab-Palestinian citizens of Israel to full equality; and
  3. Respecting, protecting and promoting the rights of Palestinian refugees to return to their homes and properties as stipulated in UN resolution 194.2

Regardless of what one thinks of these demands, they are undeniably demands for political and social change, as are boycotts seeking Israel’s compliance with them.

Additionally, the First Amendment requires that laws be viewpoint neutral; that is, they cannot discriminate against a particular point of view. A law that singles out speech critical of Israel or supportive of Palestinian human rights to be penalized would be subjecting a particular point of view to state sanction.

SB739/HB949 would deny public benefits, in the form of pension fund investment or contracts, to individuals and entities that participate in a boycott of Israel. While the state has broad procurement powers and there is no right to receive a public benefit, the Supreme Court has for decades articulated what is known as the unconstitutional conditions doctrine. According to this doctrine, even if someone does not have a right to receive a public benefit, they cannot be denied one due to their exercise of First Amendment protected speech.3

In the 1950s, the state of California required individuals to sign a loyalty oath in order to receive a tax benefit for veterans. California argued that this was not an infringement of the First Amendment, as the tax benefit was a privilege not a right. However, the Supreme Court stated that “[t]o deny an exemption to claimants who engage in certain forms of speech is, in effect, to penalize them for such speech. Its deterrent effect is the same as if the State were to fine them for this speech.” 4

This principle has been applied more broadly than just tax benefits; it has been applied to any public benefit. The Supreme Court has found that the government cannot elect not to renew an employee’s contract because of their First Amendment protected speech, nor can the government require that recipients of funding to fight HIV/AIDS state their opposition to the legalization of sex work.5 Government contracts are such a public benefit and thus cannot be denied on the basis of political views. The Supreme Court has explicitly ruled that the government cannot penalize its contractors based on their First Amendment protected political beliefs, associations, and activities.6 The state’s procurement powers are not exempt from the First Amendment's protection of free speech.

The bill’s lead sponsor, Sen. Bobby Zirkin (D-District 11), was quoted in the Baltimore Jewish Times saying, “I just want to ensure that this ridiculous messenger movement against Israel never sees the light of day in our state.”7 Making sure that a political movement does not “see the light of day” is exactly the type of government suppression of political expression the First Amendment was designed to prevent.

Public Policy Concerns with Anti-Boycott Legislation

Robust debate strengthens our democracy and boycotts have often played a role in that debate, including boycotts of “allied nations.” In the past, the US considered Apartheid South Africa and the military junta of General Augusto Pinochet in Chile, allies. Responding to calls from the African National Congress and the Worker’s United Center of Chile, international solidarity activists boycotted South Africa and Chile. In many cases, these boycotts became the main nexus of organizing solidarity campaigns. In the United States, grassroots solidarity movements were able to alter US foreign policy towards both Apartheid South Africa and the military junta of General Augusto Pinochet in Chile. During the colonial period those seeking independence boycotted British goods. Abolitionists boycotted goods produced by slave labor. Opponents of the Japanese invasion of China boycotted stockings made from Japanese silk. Boycotts were of particular importance to the Civil Rights movement. As a result, these early boycotters are today remembered as human rights pioneers, which illustrates why the freedom to boycott US “allies” is vital to a robust democracy. The Maryland General Assembly passed resolutions in support of both the Grape Boycott and the boycott of Apartheid South Africa and currently engages in boycotts and divestment against Iran and Sudan.

The need for robust democratic debate is no less true with Israel-Palestine. Yet, instead of promoting such a debate, SB739/HB949 would chill speech. We know that whenever the state takes measures to repress a social movement, the effects of that repression are felt beyond the immediate targets of the legislation in question. While SB739/HB949 would most directly impact those seeking certain public benefits, it will cast a wide chill over public discussion of the ongoing crisis in the Middle East. The BDS movement has in recent years gained significant traction, and churches, professional associations, labor unions, and student governments have debated varying degrees of support for the BDS movement. The existence of a board that culls through existing public information in order to ascertain and publicize which individuals, businesses, and non-government organizations support BDS will cause Marylanders to think twice before speaking in favor of Palestinian rights. Given the bill’s chief sponsor’s comments about wanting to ensure the BDS movement does not “see the light of day” in Maryland, this appears to be its intent.

Once Maryland is in the business of ruling thumbs up or down on one kind of political boycott or divestment campaign, it opens the floodgates for trying the same with others. Environmental, immigration, LGBTQ, and labor movements (to name a few) have all turned to boycotts and divestment as nonviolent means of making their points — and making America, and the world, a better place. Unless you prevent it, efforts to stigmatize or penalize BDS will serve as an instruction manual for well-heeled or well-connected lobbyists to do the same again and again with other peaceful exercises of free speech.

Given this history of boycotts being used to advance human rights and social justice, and their unique role in US and Maryland history, the General Assembly should be promoting, protecting, and defending the right to boycott, not seeking to hamper it.

Conclusion

SB739/HB949 is unconstitutional, as it would restrict public benefits based on constitutionally protected political expression. By its very design it is meant to have a coercive effect on critics of Israel and supporters of Palestinian human rights with the intent of silencing them. The bill, by mandating the creation of a McCarthy-era style blacklist, will have a chilling effect on political speech. The Maryland General Assembly should reject this legislation and instead work to foster an environment where robust democratic debate can take place on issues of public concern.

We look forward to working with you to keep free speech in the free state.

Sincerely,

Bill of Rights Defense Committee/Defending Dissent Foundation
Center for Constitutional Rights
Maryland National Lawyers Guild
Montgomery County Civil Rights Coalition
Palestine Legal

 

HB 89 and SB 134 are Unconstitutional and Must be Opposed

As civil and human rights organizations committed to upholding the rights of individuals and entities to express their political beliefs without fear of government retaliation or retribution, we write to convey our strong opposition to HB 89 and SB 134.[1] These bills would require Texas to create a blacklist of companies that boycott Israel and “Israeli controlled territory” and would prohibit Texas retirement funds and the University of Texas investment management company from investing in those companies. These bills would also prohibit Texas from entering into contracts with companies that boycott Israel and “Israeli controlled territory.”

HB 89 and SB 134 target core political speech and infringe on the freedom to express political beliefs, in violation of the First Amendment to the U.S. Constitution. We urge you to oppose these bills.

A. HB 89 and SB 134 target core political speech in violation of the First Amendment

HB 89 and SB 134 have been introduced at a time when Palestinian human rights activists in Texas and across the country are embracing boycotts to peacefully pressure Israel to respect the human rights of Palestinians and to influence public opinion in the United States in favor of Palestinian rights.

People in the U.S. are growing increasingly frustrated with the status quo in Israel and Palestine,[2] and with the U.S. government’s complicity in perpetuating Israel’s occupation of Palestinian lands, human rights abuses, and violations of international law. Boycott, divestment, and sanctions (BDS) tactics are modelled after the protest movement that helped end Apartheid in South Africa. BDS enables people of conscience across the U.S. to use First Amendment-protected tactics to collectively protest Israeli government policies.

There are multiple reasons why companies might not do business with Israel, but these bills single out only those which do so to penalize or economically harm Israel or limit commercial relations specifically with Israel. For example, Company A, a boutique clothing shop in Austin may have no business relationships with Israel (or any foreign country) because it is a small, local store with no international business ambitions. Company B, a grocery store chain, boycotts Israeli-made products because Company B heeds the Palestinian call to boycott Israel. Companies A and B both limit commercial relations with Israel in some form. But Company A would be unaffected by these bills, while Company B would be targeted.

The difference in treatment between Company A and Company B is the expression of Company B’s viewpoints in support of a political boycott. But government actions and restrictions cannot be based on the desire to punish First Amendment protected activities that either refrain from being complicit in or aim to discourage a nation’s policies. The Supreme Court has held that “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.”[3] The Court has specifically held that boycotts “to bring about political, social and economic change,” such as a boycott of Israel for its international law violations, are unquestionably protected by the First Amendment.[4]

It is undisputed that individuals, institutions, and companies may boycott in response to issues of public concern, as some have done historically to challenge racial segregation in the U.S., the apartheid regime in South Africa, abuse of farmworkers, and, currently, fossil fuel companies. Boycott campaigns targeting Israel cannot be differentiated from these and other historical examples of boycotts simply because they may be unpopular with elected representatives today. Such a differentiation would constitute viewpoint discrimination prohibited by the First Amendment.

B. Denial of public contracts and public pension fund investment, where motivated by a desire to suppress speech, violates the First Amendment

The United States Supreme Court has repeatedly affirmed that government officials’ determinations about what views are acceptable cannot infringe on the First Amendment-protected right to freely express political views – however controversial or unpopular.[5] Thus, under the ‘unconstitutional conditions’ doctrine, the government may not condition a benefit on the requirement that a person forgo a constitutional right. In deciding that the government could not punish public contractors in retaliation for political beliefs, the Supreme Court stated, “[i]f the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited.”[6]

Yet this is precisely what HB 89 and SB 134 would do. By denying public contracts to businesses that engage in boycotts to effect change in Israel’s policies, these bills seek to penalize and inhibit protected speech. Similarly, prohibiting public retirement funds from investing in companies because they seek to uphold human rights would be tantamount to denying a benefit because of constitutionally protected speech. “Such interference with constitutional rights,” the Court stated, “is impermissible.”[7] These bills represent an action by public officials to thwart or penalize speech activities because of the officials' disapproval of the content, and therefore are exactly the type of action that courts have recognized violate the First Amendment.

C. Establishing a blacklist and penalizing blacklisted companies will have a chilling effect on protected speech

These bills also infringe on protected First Amendment activities by subjecting political positions to government approval and penalty. These bills will chill the free speech rights of individuals and businesses by effectively dictating that a position supporting human rights is unacceptable. These individuals and businesses may refrain from adopting ethical political stances regarding Israel/Palestine – a matter of public concern – if they know that making business decisions based on human rights concerns could result in a financial penalty from the state.

In addition, these bills would also discourage grassroots human rights advocacy aimed at pressuring companies to boycott Israel. While they do not directly prohibit such advocacy, these bills would effectively chill advocates’ voices by exacting a toll on their goal, and by stigmatizing their speech. Notably, courts have long recognized that even if a party continues to exercise its First Amendment rights, it “does not mean that it was not being chilled into engaging in less speech than it otherwise would have.”[8] Even if other expressive activity, such as student and community activism urging companies to boycott Israel and respect Palestinian human rights, is not prohibited by these bills, such speech activities are likely to be chilled by this legislation.

Strangely, despite the constitutional concerns raised above, the drafters of these bills included a provision – Section 808.004 – prohibiting lawsuits alleging constitutional violations and placing the burden of lawsuit costs and attorneys’ fees on those bringing the challenge. The legislature cannot legislate away the judiciary’s fundamental role in reviewing the constitutionality of statutes. Section 808.004 is bad law, bad policy, and, perhaps, an unintentional acknowledgement that the bill runs afoul of the U.S. Constitution.

D. Conclusion

We are committed to upholding the First Amendment rights of those opposing complicity in human rights abuses, and ensuring that they are able to challenge orthodox views on a sensitive political issue like Israel/Palestine without government interference. HB 89 and SB 134 would punish companies that use an honored American tactic to effect political change solely because public officials disagree with that tactic in this context. These bills are constitutionally indefensible, and their enactment would necessitate a legal challenge in order to protect the right of any individual or company to engage in speech activities such as boycotts intended to effect social, political and economic change. Allowing these bills to stand would threaten a crucial vehicle by which individuals and groups can make their collective voices heard.



[1] This memorandum has been endorsed by the following organizations: Palestine Legal (www.palestinelegal.org), CAIR-Texas, Houston Chapter (www.cairtexas.com), the National Lawyers Guild – Palestine Subcommittee (http://www.nlginternational.org/palestine-subcommittee), the Center for Constitutional Rights (www.ccrjustice.org), and the Bill of Rights Defense Committee and Defending Dissent Foundation (www.bordc.org).

[2] For example, recent polls indicate that nearly half of Americans support imposing sanctions on Israel to protest Israeli settlement policy. See Shibley Telhami, American attitudes on the Israeli-Palestinian conflict, Brookings Institution, Dec. 2, 2016, https://www.brookings.edu/research/american-attitudes-on-the-israeli-palestinian-conflict.

[3] NAACP v. Claiborne Hardware Co., 458 U.S. 886, 911 (1982).  

[4] Id.

[5] West Virginia Bd. of Ed. v. Barnette, 319 U.S. 624, 642 (1943) (“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”).

[6] O’Hare Truck Service v. City of Northlake, 518 U.S. 712 (1996).

[7] Perry v. Sindermann, 408 U.S. 593, 597 (1972).

[8] Housing Works, Inc. v. City of New York, 72 F. Supp. 2d 402, 421 (S.D.N.Y. 1999).

 

HB 2261 is Unconstitutional and Must be Opposed

HB 2261 amends the Virginia Human Rights Act to bring within the scope of “unlawful discrimination” virtually all criticism of Israel and Israeli government policies. By adopting a widely criticized, vague, and overbroad definition of anti-Semitism, this bill will classify political speech supportive of Palestinian human rights as unlawful discrimination in the workplace, in public accommodations, and in educational institutions in Virginia.

HB 2261 is a blatantly unconstitutional attack on individual liberties, academic freedom, and human rights. While ostensibly introduced to expand the Human Rights Act’s reach, this bill provides no new legal protection for Jewish or other residents of Virginia who are subjected to discrimination on the basis of their religion, and also fails to cover vulnerable populations – like LGBTQ Virginians – who are currently not explicitly protected.

This bill, rather, targets the expression of certain viewpoints that lawmakers may disfavor, and thereby invites Virginia to violate the First Amendment. It makes a mockery of the state’s Human Rights Act by punishing, rather than uplifting, human rights advocacy. We call on you to oppose HB 2261.[1]

I. The definition of anti-Semitism endorsed by HB 2261, if adopted, would violate the First Amendment

HB 2261 would incorporate a widely-criticized definition of anti-Semitism that is currently used for limited international monitoring purposes by the U.S. State Department.[2] The State Department definition is not applied domestically, and is not used by any other federal or state government agency. If integrated into Virginia’s Human Rights Act, it will unconstitutionally restrict First Amendment-protected speech and advocacy supportive of Palestinian human rights.

The State Department definition of anti-Semitism distorts and undermines traditional definitions of anti-Semitism by including criticism of Israel. The definition radically departs from traditional definitions of anti-Semitism with its listing of examples of “Anti-Semitism Related to Israel,” known as the “three D’s”: “demonizing Israel,” “applying a double standard to Israel” and “delegitimizing Israel.”[3] The “three D’s” brand critics of Israeli policies and advocates for Palestinian human rights as anti-Semitic by blurring the important distinction between criticism of Israel as a nation-state and expressions of hatred against Jewish people.

This approach denies the legitimacy of extensive and widely recognized documentation of Israel’s human rights abuses, and claims that criticism of Israel’s policies and practices is in fact motivated by hatred of Jewish people and not a concern for Palestinian rights. Moreover, distorting the real definition of anti-Semitism by incorporating criticism of Israel distracts from and undermines the prevention of and relief from truly discriminatory practices, which is the purpose of Virginia’s Division of Human Rights.[4] 

Because the State Department definition is so vague and overbroad, bringing within its scope virtually all speech supportive of Palestinian rights, its incorporation into Virginia’s Human Rights Act would not just distort the purpose and intent of the human rights law, but it would also violate the First Amendment. Such violations are particularly troubling given the nature of the speech being targeted: Palestinian rights and Israeli government policies are important matters of public concern, regularly debated in the media and in the halls of government.

The Supreme Court has frequently reaffirmed that speech on public issues – like Palestinian rights – occupies the “highest rung on the hierarchy of First Amendment values” and is therefore “entitled to special protection.”[5] Codifying the State Department definition in the Human Rights Act would violate this principle, and would require the state to engage in unconstitutional content and viewpoint-based discrimination. Requiring public universities to adopt policies and regulations based on this definition and directing the state attorney general to consider the definition when investigating alleged violations of the Human Rights Act is tantamount to inviting these government actors to violate the First Amendment.

Consider the following example of what could happen if this bill becomes law: A non-profit human rights organization based in Virginia documents human rights abuses in illegal Israeli settlements. A Jewish staff member who strongly supports Israel, alleging the organization’s focus on Israeli settlements “demonizes” Israel, resigns in response. HB 2261 would make it possible for the staff member to file a complaint with the Division of Human Rights in the Virginia attorney general’s office, asserting that the organization’s work created a hostile, anti-Semitic environment for her. This complaint could trigger an investigation and, oddly, a finding that the organization’s human rights documentation violates Virginia’s Human Rights Act. This finding would be consistent with HB 2261, but would be a violation of the First Amendment and a travesty for human rights advocacy.

II. The definition of anti-Semitism endorsed by HB 2261 is particularly destructive to universities that value unfettered speech

In addition to inviting unconstitutional actions in the workplace and in public accommodations, HB 2261 imposes a re-definition of anti-Semitism on educational institutions. Any definition that encompasses even the most routine criticism of a nation-state is particularly inappropriate at Virginia’s educational institutions because of the essential role that academic freedom and unfettered debate play in the university setting. The United States Supreme Court has recognized the importance of this role, stating that “[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”[6]

The State Department definition would silence legitimate opinions and perspectives, and would impose standards on universities that undermine their commitments to academic freedom and inquiry. Would a mock-checkpoint on a campus quad, aimed at raising awareness about the way Israeli military checkpoints severely curtail Palestinians’ freedom of movement, be considered demonizing Israel, and therefore anti-Semitic? Would a lecture on Israel’s violations of international law be considered delegitimization of Israel? Would a legal panel on the constitutional right to engage in boycotts for Palestinian rights be considered a double standard against Israel? Similar accusations have been made against activities on college campuses by the same Israel advocacy groups that support legislation like HB 2261.[7]

Notably, criticism of Israeli government policy has been found, again and again, to be protected political speech, not discrimination against a protected group.[8]  Nevertheless, this is the type of inquiry educational institutions and the state attorney general’s office will be required to enter into if this bill becomes law. The type of viewpoint and content-based discrimination that would be required to determine that educational events are anti-Semitic would be constitutionally intolerable.

The University of California and other universities have already been pressured to adopt the anti-Semitism definition endorsed by this bill, and have ultimately rejected it due to free speech concerns.[9] Israel advocacy organizations pushed for its adoption in March 2015, causing outcry from free speech advocates[10] across the political spectrum, from media,[11] students,[12] graduate student instructors,[13] and Jewish[14] and other civil rights organizations.[15]  Jewish commentators,[16] including the State Department definition’s original drafter, Kenneth Stern, repudiated its use on a college campus.[17]

Virginia lawmakers would be wise to heed the constitutional concerns raised by these previous attempts to suppress speech critical of Israel, and vigorously oppose HB 2261.

III. Recommendations

Virginia’s Human Rights Act is a crucial anti-discrimination law, and a vital safeguard for Virginians who face discrimination based on race, color, religion, national origin, sex, pregnancy, childbirth, age, marital status, or disability. At a time when bias-motivated incidents, including but not limited to anti-Semitic, anti-Muslim, and anti-Sikh harassment, are on the rise across the country, it is important for state lawmakers to take meaningful and appropriate action to ensure the safety and legal protection of all Virginians.

HB 2261 does not accomplish this goal. Instead of further protecting residents of Virginia against discrimination on the basis of their religion, which the Virginia Human Rights Act already does, this bill attacks Virginians’ constitutionally protected right to express criticism of Israeli government policies. A smarter – and constitutionally sound – approach to expanding anti-discrimination protections for targeted Virginians would do the following:

First, acknowledging that the Virginia Human Rights Act already prohibits religious discrimination, the state legislature should enhance Virginia’s ability to respond to these incidents, including through funding more preventive programs, documenting the problem, and allocating additional resources to the state’s Human Rights Division.

Second, expand the Human Rights Act to include sexual orientation, gender identity, and gender expression as protected classes. HB 2261 as currently drafted adds no new legal protections to Jewish or other residents of Virginia, except against political ideas that some may disagree with. If the state legislature is serious about expanding the Human Rights Act’s protections, lawmakers should add sexual orientation, gender identity, and gender expression to the list of protected classes in §2.2-3901 of the Code of Virginia.

Finally, Virginia lawmakers must recommit to protecting and defending the First Amendment, including the right to criticize government policies – domestic and foreign. In workplaces, public fora, and especially in educational institutions, the free exchange of ideas, particularly on matters of public concern, allows for intellectual growth and development, and ultimately leads to a healthier and more sustainable democracy. Legislators must protect our First Amendment rights, not limit those ideas that they may personally dislike.

As currently drafted, HB 2261 is an unconstitutional proposal that fails to expand legal protections and educational opportunities. This bill must be vigorously opposed.



[1] This memorandum is endorsed by the following organizations: Palestine Legal (http://www.palestinelegal.org), the Center for Constitutional Rights (http://www.ccrjustice.org), and the Bill of Rights Defense Committee & Defending Dissent Foundation (http://www.bordc.org).

[2] See Palestine Legal, FAQ: What to know about efforts to re-define anti-Semitism and to silence criticism of Israel, http://bit.ly/2kt31HJ; see also Kenneth Stern, Will Campus Criticism of Israel Violate Federal Law?, New York Times, Dec. 12, 2016, https://www.nytimes.com/2016/12/12/opinion/will-campus-criticism-of-israel-violate-federal-law.html; Foundation for Individual Rights in Education, Problematic Campus anti-Semitism Bill Clears Senate, Dec. 2, 2016, https://www.thefire.org/problematic-campus-anti-semitism-bill-clears-senate/.

[3] See Palestine Legal FAQ, supra note 2.

[4] VA Code ANN. §2.2-520 (2016).

[5] NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982); Carey v. Brown, 447 U.S. 455, 467 (1980).

[6] Keyishian v. Board of Regents, 385 U.S. 589 (1967).

[7] For example, Kenneth Marcus of the Brandeis Center for Human Rights, a proponent of HB 2261, was an architect of the failed strategy to use Title VI of the federal Civil Rights Act of 1964 to censor Palestinian rights advocacy on campuses. For more information, see Palestine Legal and Center for Constitutional Rights, The Palestine Exception to Free Speech: a Movement Under Attack in the U.S.: Lawsuits and Legal Threats, http://palestinelegal.org/the-palestine-exception/#tactics7.

[8] For example, the U.S. Department of Education Office for Civil Rights (OCR) has affirmed in four separate cases―after conducting lengthy investigations of alleged harassment of Jewish students based on student and faculty advocacy for or academic engagement on Palestinian rights issues―that expression of political viewpoints does not, standing alone, give rise to actionable harassment under Title VI simply because some may find it offensive. More information about the four cases are available at the following links: http://palestinelegal.org/the-palestine-exception-appendix#berkeley2 (UC Berkeley); http://palestinelegal.org/the-palestine-exception-appendix#irvine1 (UC Irvine); http://palestinelegal.org/the-palestine-exception-appendix#santacruz1 (UC Santa Cruz); and http://palestinelegal.org/the-palestine-exception-appendix#rutgers2 (Rutgers University).

[9] See UC Drops Consideration of State Department Anti-Semitism Definition, Palestine Legal, July 22, 2015, http://palestinelegal.org/news/2015/7/22/uc-drops-consideration-of-state-department-anti-semitism-definition.

[10] Will Creely, State Department’s Anti-Semitism Definition Would Likely Violate First Amendment on Public Campuses, Foundation for Individual Rights in Education, May 22, 2015, https://www.thefire.org/state-departments-anti-semitism-definition-would-likely-violate-first-amendment-on-public-campuses/.

[11] Editorial, How far should UC go with an anti-Semitism policy, Los Angeles Times, July 16, 2015, http://www.latimes.com/opinion/editorials/la-ed-anti-semitism-20150716-story.html.

[12] Letter, Students ask Janet Napolitano not to endorse conflation of anti-Semitism with critique of Israel, SJP West, June 29, 2015, http://sjpwest.org/2015/06/29/students-ask-janet-napolitano-not-to-endorse-conflation-of-anti-semitism-with-critique-of-israel.

[13] UAW Letter to Janet Napolitano, UC Student Workers Union – UAW Local 2865, July 6, 2015, http://www.uaw2865.org/uaw-letter-to-president-napolitano/.

[14] Action alert, Tell UC President Napolitano and the UC Regents: criticizing Israel is not anti-Semitic, Jewish Voice for Peace, http://org.salsalabs.com/o/301/p/dia/action3/common/public/?action_KEY=18000.

[15] Palestine Legal, Jewish Voice for Peace, National Lawyers Guild, and the Center for Constitutional Rights sent a letter to Janet Napolitano and the UC Regents outlining First Amendment concerns with the State Department’s re-definition of anti-Semitism. The letter is available at http://static1.squarespace.com/static/548748b1e4b083fc03ebf70e/t/558abe8ae4b050f36b381190/1435156106563/UCOPLetterAntiSemitismFinal.pdf.

[16] See, e.g., Jay Michaelson, Why U. of California Should Dump “Three D” Definition of Anti-Semitism, The Forward, July 22, 2015, http://forward.com/opinion/312358/why-u-of-california-should-dump-three-d-definition-of-anti-semitism/.

[17] Kenneth Stern, supra note 2.

 

December 5, 2016

Hon. Bob Goodlatte
2309 Rayburn Office Building
Washington, DC 20515

Hon. John Conyers, Jr.
2426 Rayburn Office Building
Washington, DC 20515

Re:  First Amendment concerns with Anti-Semitism Awareness Act

Dear Rep. Goodlatte and Rep. Conyers:

As civil and human rights organizations committed to racial justice, we support your efforts to confront racism and bigotry on campuses across the U.S. However, we write to raise concerns with the Anti-Semitism Awareness Act (the Act), which directs the U.S. Department of Education (DOE) to consider a widely discredited re-definition of anti-Semitism[1] in assessing whether alleged violations of Title VI of the Civil Rights Act are “motivated by anti-Semitic intent.” This vague and overbroad re-definition conflates political criticism of Israel with anti-Semitism, infringing on constitutionally protected speech. The re-definition is especially detrimental to universities, where freedom of speech, critical inquiry, and unfettered debate are integral. The re-definition’s application to college campuses has even been repudiated by its original drafter, Kenneth Stern.[2] 

Incidents of racism, xenophobia, Islamophobia, anti-Semitism, anti-Arab sentiment, and other forms of discrimination have spiked in recent weeks,[3] and it is incumbent on lawmakers at all levels of government to take action to ensure safety and security for all people, especially those vulnerable populations targeted by such attacks. The Act does not achieve this goal. Instead of combatting the sources of recent spikes in anti-Semitism in a meaningful way, this bill aims to censor First Amendment-protected advocacy for Palestinian rights. It invites the DOE and universities to violate free speech principles by discriminating against certain viewpoints and chilling one side of an important political debate. For reasons set forth below, we urge you to drop consideration of this bill.

I. Lawmakers must take meaningful action to counter racism, xenophobia, Islamophobia, anti-Semitism, and other forms of discrimination

Incidents of harassment and intimidation against black people, immigrants, Muslims, Jewish people, LGBT people, and women in the U.S. have skyrocketed since the election. The Southern Poverty Law Center (SPLC) recorded over 900 such incidents in the ten days following the election. Some examples include:

  • Immigrant students have been taunted and bullied by classmates chanting “build the wall!”
  • Eighth graders on a Colorado school bus told a Latino student, “Not only should Trump build a wall, but it should be electorcuted [sic] and Mexicans should have to wear shock collars.”
  • In Las Vegas, a white man punched two black men and attempted to assault a black woman, after which he shouted “Donald Trump!” and “White Power!”
  • In Nashville, a white man harassed a woman in a hijab, yelling “[b]e prepared to go back to your country with ISIS…. Donald Trump will kick all of your ass back where you came from.”
  • In Vermont, members of a synagogue found swastikas drawn on the temple’s front door.[4]

Since many incidents go unreported, the SPLC’s report likely represents just the tip of the iceberg.

In this context, it is crucial for lawmakers at all levels of government to take meaningful action to address the concerns of members of targeted communities. Lawmakers can, for example, take steps to ensure the DOE has the resources it needs to investigate such incidents on university campuses.

Instead of addressing the real problems of rising anti-Semitism and other forms of racism and discrimination, however, proponents of the Act are exploiting the moment to pass legislation aimed at stifling and suppressing the First Amendment right to dissent and to criticize Israeli government policies on univeristy campuses.[5] Instead of investigating the types of abuses documented in the SPLC report, the DOE will be directed to investigate the content of film screenings, academic panels, and lectures that are critical of Israeli government policies.

It is not the DOE’s role to be political thought police. The DOE’s duty is to investigate incidents of harassment and discrimination on campus. Empowering the DOE to fulfill that duty is more important than ever.

II. The re-definition of anti-Semitism endorsed by the Act is not appropriate for the university setting and risks violating the First Amendment

The Act purports to address rising anti-Semitism on college campuses, but a close reading reveals that its true purpose is to silence campus advocacy for Palestinian rights and censor any criticism of Israeli government policies. The Act would direct the DOE to consider the State Department’s re-definition of anti-Semitism when determining whether alleged violations of Title VI of the Civil Rights Act are motivated by anti-Semitism. Much of that re-definition is uncontroversial and aligns with a traditional understanding of the term.[6] But the re-definition, which was originally drafted – and subsequently discarded – by a European Union agency,[7] radically departs from that understanding with its listing of examples of “Anti-Semitism Related to Israel,” known as the “three D’s”: “demonizing Israel,” “applying a double standard to Israel,” and “delegitimizing Israel.”[8] This codifies the false conflation of anti-Semitism with political speech critical of Israeli policies. This approach is inappropriate, especially for universities that value and are obligated to protect academic freedom and First Amendment-protected speech.

a. Applying the re-definition of anti-Semitism in the U.S. violates the First Amendment

The State Department’s anti-Semitism re-definition is not binding law in the United States and is used for the limited purpose of “monitoring and combatting acts of anti-Semitism and anti-Semitic incitement that occur in foreign countries.”[9] It does not apply domestically, and is not used by any other U.S. government agency. Adoption of the re-definition on campuses or elsewhere in the U.S. is a violation of the First Amendment, and requiring DOE to consider the re-definition is tantamount to inviting DOE to violate the First Amendment.

Any consideration of the re-definition should alert lawmakers to the constitutional quandary it poses, and makes clear why such a definition cannot be used domestically. By requiring DOE to consider, for example, whether someone who demands Israel’s compliance with international law asks the same “of any other democratic nation,” the Act unconstitutionally discriminates based on viewpoint and compels speech in violation of the First Amendment (despite Sec. 5 of the Act which claims that it shall not be construed to infringe on First Amendment protected rights). Moreover, an Act requiring the DOE to enter such a morass of viewpoint-based distinctions would chill and invite punishment of constitutionally protected speech. 

In addition, the part of the re-definition that identifies “Anti-Semitism as it relates to Israel” is so broad and vague that it would encompass any and all criticism of Israel. What is a “double standard” with regards to criticism of Israel and how and by whom will it be judged? How many additional countries are students and professors required to criticize when they criticize Israel, and what degree or depth of criticism are they required to make in order to avoid applying a “double standard” to Israel? How would the university define “delegitimizing” or “demonizing” Israel?

Requiring the DOE to consider this re-definition in its investigation of Title VI complaints essentially puts DOE officials and university administrators in the position of violating free speech rights. Indeed, the DOE’s Office for Civil Rights (OCR) has already affirmed in four separate cases―after conducting lengthy investigations of alleged harassment of Jewish students based on student and faculty advocacy for or academic engagement on Palestinian rights issues―that expression of political viewpoints does not, standing alone, give rise to actionable harassment under Title VI simply because some may find it offensive.[10]

To the contrary, OCR, in addressing the importance of diverse viewpoints and expression on college and university campuses,[11] noted that the activities described in the harassment complaints:

constituted expression on matters of public concern directed to the University community. In the University environment, exposure to such robust and discordant expressions, even when personally offensive and hurtful, is a circumstance that a reasonable student in higher education may experience.[12] 

If DOE is required to investigate the content of political speech by members of the campus community who advocate for Palestinian rights to determine whether it is “demonizing,” “delegitimizing,” or applying “double standards” to Israel, as the State Department’s re-definition of anti-Semitism would require, it will essentially be applying a political litmus test to speech, and thus violating the First Amendment.

Administrators, who have a duty to mitigate racially-hostile environments, would also be pressured to respond to speech and advocacy critical of Israel that Israel advocacy groups already regularly claim meets the criteria laid out in the re-definition. Under the mistaken illusion that it is appropriate to penalize such speech and advocacy, administrators may end up violating First Amendment rights. This could expose universities and well-intentioned administrators to liability.[13]

Further, adoption of the re-definition would almost certainly have a chilling effect on constitutionally-protected speech and academic inquiry. Students, professors, and researchers will inevitably act in ways to avoid review of their activities and avoid the specter of being accused of or labeled with anti-Semitism for their political speech activities.

b. The re-definition of anti-Semitism is destructive to universities that value unfettered speech

The State Department’s re-definition brands critics of Israeli policies and advocates for Palestinian human rights as anti-Semitic by blurring the important distinction between criticism of Israel as a nation-state and anti-Semitism. It does so by denying the legitimacy of widely shared criticism of Israel’s policies and practices on which such advocacy is based and claiming that such criticism is instead motivated by hatred of Jewish people.

In addition to inviting unconstitutional actions, it is especially inappropriate for Congress to impose on the DOE a definition of anti-Semitism that encompasses criticism of Israel because of the essential role that academic freedom and unfettered debate play in our nation’s universities. The U.S. Supreme Court has recognized the importance of this role, stating that “[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”[14]

The State Department re-definition would silence legitimate opinions and perspectives, and would impose standards on universities that undermine their commitments to academic freedom and inquiry. Would a mock-checkpoint on a campus quad, aimed at raising awareness about Israeli checkpoints, be considered demonizing? Would a lecture on Israel’s violations of international law be considered delegitimization? Would a legal panel on the constitutional right to engage in boycotts for Palestinian rights be considered a double standard? This is the type of inquiry the DOE will be required to enter into if the Act becomes law.

The University of California (UC) and other universities have already been pressured to adopt, and ultimately rejected, the anti-Semitism definition endorsed by the Act due to free speech concerns.[15] Israel advocacy organizations pushed for its adoption in March 2015, causing outcry from free speech advocates[16] across the political spectrum, from media,[17] students,[18] graduate student instructors,[19] and Jewish[20] and other civil rights organizations.[21] Jewish commentators,[22] including – as mentioned above – the definition’s original drafter, Kenneth Stern, repudiated its use on a college campus.[23] We urge you to similarly reject this measure.

III. Conclusion

We appreciate the importance of addressing allegations of anti-Semitism on campus and elsewhere. But the Act’s misguided reliance on the rejected re-definition of anti-Semitism fails to give universities the proper tools to fight anti-Semitism and other forms of discrimination. Instead, it will encourage the DOE and universities to infringe on free speech and academic freedom on campus, in violation of the First Amendment. We urge you to drop consideration of this bill and, instead, engage in meaningful efforts to address the alarming rise in anti-Semitic, racist, anti-Muslim, anti-Arab, anti-immigrant, anti-women, and anti-LGBT incidents and other forms of discrimination that have been fueled by increasing tolerance for such bigotry. This bill will only intensify targeting of already vulnerable communities that are exercising their constitutional rights to speak out for Palestinian rights. It will ultimately undermine civil liberties on campuses, while failing to address or hold accountable the sources of the alarming incidents of bigotry that are occuring on campuses and elsewhere.

Sincerely,

Dima Khalidi
Director
Palestine Legal

Maria LaHood
Deputy Legal Director
Center for Constitutional Rights

Natasha Bannan
President
National Lawyers Guild

Yousef Munayyer
Executive Director
U.S. Campaign for Palestinian Rights

Rebecca Vilkomerson
Executive Director
Jewish Voice for Peace

Samer Khalaf
National President
American-Arab Anti-Discrimination Committee

Sue Udry
Executive Director
Bill of Rights Defense Committee and Defending Dissent Foundation

Kate Gould
Legislative Representative for Middle East Policy
Friends Committee on National Legislation

Kristin Szremski
Director of Media and Communications
American Muslims for Palestine

 



[1] Defining Anti-Semitism, Fact Sheet, Special Envoy to Monitor and Combat Anti-Semitism, U.S. Department of State, http://www.state.gov/j/drl/rls/fs/2010/122352.htm.

[2] Kenneth Stern, Should a major university system have a particular definition of anti-Semitism, Jewish Journal, June 22, 2015, http://www.jewishjournal.com/opinion/article/should_a_major_university_system_have_a_particular_definition_of_anti_semit.

[3] Publication, Ten Days After: Harassment and Intimidation in the Aftermath of the Election, Southern Poverty Law Center, November 29, 2016, https://www.splcenter.org/20161129/ten-days-after-harassment-and-intimidation-aftermath-election.

[4] Id.

[5] See, e.g., Anti-Defamation League (@ADL_National), Twitter (Dec. 2, 2016 12:05 PM), https://twitter.com/ADL_National/status/804778450074697728.  

[6] For example, the State Department’s re-definition begins: “Anti-Semitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of anti-Semitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.” Merriam-Webster defines anti-Semitism as, “Hostility toward or discrimination against Jews as a religious, ethnic or racial group.”

[7] The European Union Monitoring Centre (EUMC), where this description first appeared in 2005 as the result of lobbying efforts by Israel-aligned groups, meant it to be only a “guide for data collection.” (See Seth Berkman, “Anti-Semitism Fight Hinges on Definition,” Forward, September 25, 2012, http://forward.com/articles/163105/anti-semitism-fight-hinges-on-definition/?p=all). It was ultimately discarded even for that limited use due to objections from European organizations. In 2013, it was removed from the agency’s website altogether, over protests by Israeli officials and U.S.-based Israel advocacy groups. (JTA, “EU drops its 'working definition' of anti-Semitism,” The Times of Israel, Dec. 5, 2013, http://www.timesofisrael.com/eu-drops-its-working-definition-of-anti-semitism/).

[8] Defining Anti-Semitism, supra note 1.

[9] See 22 U.S.C. § 2731(b) (emphasis added).

[10] As DOE notes, “harassment must include something beyond the mere expression of views, words, symbols or thought that a student finds personally offensive. The offensiveness of a particular expression, standing alone, is not a legally sufficient basis to establish a hostile environment.” Letter from U.S. Department of Education to UC Berkeley, Aug. 19, 2013, re: Case No. 09-12-2259, available at http://bit.ly/doeucb.

[11] DOE OCR has stated it will not, in its enforcement of anti-discrimination laws, exceed the boundaries of the First Amendment for either private or public universities. See Dear Colleague Letter from U.S. Department of Education, July 28, 2003, http://www2.ed.gov/about/offices/list/ocr/firstamend.html (“OCR's regulations should not be interpreted in ways that would lead to the suppression of protected speech on public or private campuses.”).

[12] See UC Santa Cruz and UC Berkeley DOE determination letters, http://bit.ly/doeucb (Berkeley) and http://bit.ly/doeucsc (Santa Cruz).

[13] Indeed, courts have held that speech addressing public issues – such as Palestine/Israel – rests on the highest rung of the hierarchy of First Amendment values (see Carey v. Brown, 447 U.S. 455 (1980)). Attempts by a government body or a public university to silence one side of the conversation – by claiming that opposition to the state of Israel is anti-Semitic, for example – is contrary to First Amendment principles.

[14] Keyishian v. Board of Regents, 385 U.S. 589 (1967).

[15] See UC Drops Consideration of State Department Anti-Semitism Definition, Palestine Legal, July 22, 2015, http://palestinelegal.org/news/2015/7/22/uc-drops-consideration-of-state-department-anti-semitism-definition.

[16] Will Creely, State Department’s Anti-Semitism Definition Would Likely Violate First Amendment on Public Campuses, Foundation for Individual Rights in Education, May 22, 2015, https://www.thefire.org/state-departments-anti-semitism-definition-would-likely-violate-first-amendment-on-public-campuses/.

[17] Editorial, How far should UC go with an anti-Semitism policy, Los Angeles Times, July 16, 2015, http://www.latimes.com/opinion/editorials/la-ed-anti-semitism-20150716-story.html.

[18] Letter, Students ask Janet Napolitano not to endorse conflation of anti-Semitism with critique of Israel, SJP West, June 29, 2015, http://sjpwest.org/2015/06/29/students-ask-janet-napolitano-not-to-endorse-conflation-of-anti-semitism-with-critique-of-israel.

[19] UAW Letter to Janet Napolitano, UC Student Workers Union – UAW Local 2865, July 6, 2015, http://www.uaw2865.org/uaw-letter-to-president-napolitano/.

[20] Action alert, Tell UC President Napolitano and the UC Regents: criticizing Israel is not anti-Semitic, Jewish Voice for Peace, http://org.salsalabs.com/o/301/p/dia/action3/common/public/?action_KEY=18000.

[21] Palestine Legal, Jewish Voice for Peace, National Lawyers Guild, and the Center for Constitutional Rights sent a letter to Janet Napolitano and the UC Regents outlining First Amendment concerns with the State Department’s re-definition of anti-Semitism. The letter is available at http://static1.squarespace.com/static/548748b1e4b083fc03ebf70e/t/558abe8ae4b050f36b381190/1435156106563/UCOPLetterAntiSemitismFinal.pdf.

[22] See, e.g., Jay Michaelson, Why U. of California Should Dump “Three D” Definition of Anti-Semitism, The Forward, July 22, 2015, http://forward.com/opinion/312358/why-u-of-california-should-dump-three-d-definition-of-anti-semitism/.

[23] Kenneth Stern, supra note 2.

  • 1.  See NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).
  • 2.  See “Palestinian Civil Society Calls for Boycott, Divestment and Sanctions against Israel Until it Complies with International Law and Universal Principles of Human Rights” (July 9, 2005), available at https://bdsmovement.net/call.
  • 3.  See Speiser v. Randall, 357 U.S. 513 (1958); Perry v. Sindermann, 408 U.S. 593 (1972); USAID v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2332 (2013).
  • 4.  See Speiser v. Randall, 357 U.S. 513 (1958).
  • 5.  See Perry v. Sindermann, 408 U.S. 593 (1972); USAID v. Alliance for Open Soc’y Int’l, Inc., 133 S. Ct. 2321, 2332 (2013).
  • 6.  See O’Hare Truck Service v. City of Northlake, 518 U.S. 712 (1996).
  • 7. See Justin Silberman, “Maryland Legislators Will Introduce Anti-BDS Bill,” Baltimore Jewish Times (January 18, 2017), available at http://jewishtimes.com/57394/maryland-legislators-will-introduce-anti-bds-bill/news/.

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March 15, 2017