Congress’s Anti-Semitism Act Won’t Stop Hate Crimes Against Jews

The debate over anti-Semitism on Capitol Hill is about scoring political points, not protecting religious minorities.

Congregants and other members of the public attend a funeral service at the Chabad of Poway Synagogue for Lori Gilbert-Kaye, who was killed in a shooting during a service there on April 29, in Poway, California.
Congregants and other members of the public attend a funeral service at the Chabad of Poway Synagogue for Lori Gilbert-Kaye, who was killed in a shooting during a service there on April 29, in Poway, California. SANDY HUFFAKER/AFP/GETTY IMAGES

Last Saturday, as Jews marked the end of Passover, a shooting killed one person and wounded three at a California synagogue. The same weekend, a cartoon depicting egregiously anti-Semitic tropes found its way into print in the international edition of the New York Times. Coming on top of a wave of incidents and expression hostile to Jews over the last year or two, including the murder of 11 worshippers at a Pittsburgh synagogue last October, bringing greater attention to the menace of anti-Semitism has become a burning priority.

Animus toward Jews is taking root in a new generation, and purveyors of hatred seem to be emboldened. Ignorance of the legacy of anti-Jewish discrimination is widespread, and the intensified campaigns in recent years to expose and root out the invidious stereotypes, biases, and bigotries that pockmark American society have sometimes left anti-Semitism out. U.S. lawmakers are right to seek legislative solutions. Unfortunately, the lone piece of legislation currently before Congress on this issue doesn’t offer one. As currently drafted, the Anti-Semitism Awareness Act would do little to ward off anti-Semitism and risks instead fueling a partisan shouting match that uses anti-Semitism to score political points and would only fan the flames of conflicts over Israel on U.S. college campuses. Lawmakers, Jewish communities, and civil and human rights advocates should focus instead on more targeted and effective approaches to combating this rising scourge.

In its most recent count in 2017, the FBI recorded 938 anti-Semitic incidents, a 37 percent spike over 2016, more than double the annual increase for hate crimes overall. Anti-Semitic echoes have also sounded in our public discourse, most prominently in relation to Rep. Ilhan Omar, a Democrat from Minnesota. A strong advocate of Palestinian rights, Omar has commented on U.S. policy toward Israel with language that, apparently unintentionally, has invoked stereotypes of Jews as manipulative, money-hungry, and disloyal to the United States. Among other controversial comments, Omar has posted and then deleted tweets accusing Israel of having “hypnotized the world” (back in 2012) and, earlier this year, saying that U.S. policy toward Israel is “all about the Benjamins baby,” a reference to Jewish money and influence.

Animus toward Jews is taking root in a new generation.

Some critics doubted that Omar could have trafficked in such stereotypes unwittingly. Yet research about the nature of implicit bias support the notion that beliefs about other races and religions can be implanted at a very young age based on a diffuse, almost ineffable set of messages from varied sources, operating at a subconscious level, beyond the reach of reason.

Omar was born in Somalia, a country where anti-Israel views are fairly common. Her base of support is on the political left, where the views she expressed are unfortunately fairly widespread. Any newly elected national official will have some blind spots and hold viewpoints that are rooted in their background and support base. To her credit, Omar has apologized for the offensive overtones of her remarks and expressed gratitude for the opportunity to be educated on the history of anti-Semitic tropes. At the same time, she’s made clear that she intends to continue criticizing Israel and calling out the influence of its Jewish supporters, skating close to the line of historic insinuations about excessive Jewish influence in the halls of power. Despite her disavowals of anti-Jewish animus, outrage toward her has mounted on the political right, sparking comments derisive of her Muslim faith and resulting in death threats.

The heated debate around Omar’s comments has mostly skirted vital questions concerning the insidious nature of stereotypes, the unique features of anti-Semitism among the panoply of bigotries, and the imperative of being able to debate important policy questions without either veering into bias or being unfairly accused of doing so.

Rather than reciprocal demonization and false equivalencies, leaders in Congress should be searching for common ground on how to address anti-Semitism, Islamophobia, and other forms of intolerance.

To make matters worse, in the aftermath of last weekend’s California shooting, Omar became embroiled in a war of words with Texas Republican Sen. Ted Cruz and television talk show host Meghan McCain, both of whom accused her of bearing a measure of blame for the rampage. Similar accusations have been leveled against even the most measured critics of Omar, such as former President Bill Clinton’s daughter Chelsea Clinton, suggesting that they bear blame for acts of violence committed against Muslims. Such accusations are as outlandish as they are irresponsible. To impute a causal connection between speech you disagree with, or even that which deeply offends you, and individual acts of violence is an invitation to censorship and repression. Neither Omar nor the vast majority of her critics have come anywhere near advocating or justifying violence. Rather than reciprocal demonization and false equivalencies, leaders in Congress should be searching for common ground on how to address anti-Semitism, Islamophobia, and other forms of intolerance. Unfortunately, the political debate over anti-Semitism is increasingly marked with heated rhetoric and political point-scoring.

These controversies have given new momentum to the Anti-Semitism Awareness Act, first passed by the Senate in 2016 and recently reintroduced. Members of Congress want the public to see them taking action, but that impulse risks creating government policies that make the problem worse, not better. Despite its encompassing name, rather than tackling the question of anti-Semitism broadly, as it should, the act homes in exclusively on college campuses. Civil rights laws prohibit harassment on the basis of race, sex, disability, age, ancestry, or ethnicity—including being Jewish—when it is severe enough to interfere with an individual’s right to an equal education.

The Anti-Semitism Awareness Act would require the Department of Education to “take into consideration” for purposes of enforcing the law a definition of anti-Semitism originated in 2004 and later used by the State Department to monitor anti-Semitism globally. The definition recites historic tropes and stereotypes and also sets out several examples of anti-Semitism as it manifests in criticism of Israel, including comparing Israel to the Nazis, “applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation” and “denying Israel the right to exist.” The definition concludes with the caution: “However, criticism of Israel similar to that leveled against any other country cannot be regarded as anti-Semitic.”

While many opponents of the act have argued that it would penalize speech censuring Israel, that charge is overstated. By merely requiring investigators to “consider” the proffered definition, the act doesn’t actually censor or declare anti-Semitic any particular speech.

The problem with the act is not that its definition of anti-Semitism is wrong or rigid but that it leaves out a wide range of blatantly anti-Semitic symbols and tropes that are rampant on social media and in political campaigns. Some of these noxious symbols and images have even been invoked by those who now count themselves among supporters of the act. Imposing such a detailed legal definition of a form of bigotry is unhelpful and risks a series of unintended effects.

First off, no such definition can be truly comprehensive, nor should it be frozen in time. The act cites many tropes and stereotypes but doesn’t mention the idea that Jews are money-grubbing; caricatures of Jews’ physical appearances or images like that in the offending Times cartoon, which portrayed Israeli Prime Minister Benjamin Netanyahu as a dachshund, part of a long tradition of depicting Jews as subhuman; or the swastika.

In the social media age, new manifestations of bigotry arise every day. Over the last few years, for example, triple parentheses have been used to stigmatize Jews online, and associations with the Jewish philanthropist George Soros have been brought up to discredit social and political movements. Rather than enshrining a static definition into law, new laws or policies are needed to ensure that civil rights investigators, law enforcement officials, and even members of Congress are trained and educated in the widest breadth of manifestations of bigotry, including regular updates on how they evolve.

Debates over Israel policy and anti-Semitism on college campuses and beyond are already highly charged and divisive; the act would inflame those tensions by feeding into existing perceptions that criticisms of Israel are unfairly stifled.

Another problem with the act is vagueness. Some of the examples listed in the act’s definition are worded so broadly that they raise the risk of stifling academic discussions of Middle East policy or history. While some criticism of Israel is clearly inflected with anti-Semitic bias, it is equally true that some is not. As written, the definition could punish perfectly legitimate speech calling upon Israel to better its treatment of the Palestinians if it does not make similar demands of other countries accused of injustice. But in the context of a discussion specifically focused on Israel, failing to mention mistreatment of minorities in China, Iran, or Russia would not be evidence of bias.

Likewise, the law might cover expression questioning the historical justification for the creation of the state of Israel, including a scholarly examination in class of primary source accounts of the sharply divergent views regarding the events of 1948 that culminated in Israel’s independence. By mandating consideration of such examples, the law invites false positives involving speech that matches the description in the act yet evinces no anti-Semitism at all. It could also have a chilling effect on free speech. Indeed, universities could be tempted to clamp down on legitimate speech for fear that even borderline anti-Israel rhetoric might invite a federal probe. Debates over Israel policy and anti-Semitism on college campuses and beyond are already highly charged and divisive; the act would inflame those tensions by feeding into existing perceptions that criticisms of Israel are unfairly stifled. By targeting speech that is clearly protected by the First Amendment, the application of the law would also invite constitutional challenge.

It is also a slippery slope. If civil rights enforcers are required to consider a highly detailed definition of anti-Semitism, other groups will naturally seek legal recognition for manifestations of bias against their groups as a way to ensure their own equivalent protection under the law. Nearly 19 percent of religiously motivated hate crimes in the United States in 2017 targeted Muslims; at times that percentage has been even higher, fanned by geopolitics, hateful rhetoric, and international incidents. If the federal government were to prepare an inventory of Islamophobic tropes, Muslim-Americans who view any depictions of the Prophet Mohammed as offensive might include it on the list, yet the State Department has fought vociferously against a ban on such images, arguing that it would violate the First Amendment and international protections for freedom of speech.

Nearly half of all Americans cannot name a single concentration camp.

Sixty percent of the hate crimes documented by the FBI in 2017 were motivated not by religion, but by race or ancestry. The Confederate flag is widely viewed as a racist symbol but remains incorporated in the state flag of Mississippi. Could displaying that flag on campus be cited in a civil rights complaint? Should it be? The prospect of trying to legislate every possible manifestation of bias is absurd.

Members of Congress are right to double down on the fight against anti-Semitism, but they should focus instead on practical measures to address this menace. Education is one obvious need. A 2018 survey revealed that 41 percent of millennials thought 2 million or fewer Jews were killed in the Holocaust and that nearly half of all Americans cannot name a single concentration camp. A bipartisan bill introduced by Democratic Rep. Carolyn Maloney would create Department of Education grants to support such programs.

Hate crimes of all types are notoriously underreported, making FBI statistics incomplete, undermining trends analysis, and slowing law enforcement response. New policies could address these gaps by investigating the causes of underreporting and activating and incentivizing law enforcement to take action in jurisdictions where the most egregious underreporting is suspected. The Stop Harmful and Abusive Telecommunications Expression Act, introduced in March by Democratic Sen. Bob Casey, would dramatically step up the Justice Department’s tracking and responding to hate-mongering online, a factor that seems to have influenced both the Pittsburgh and California murderers.

The Justice Department and law enforcement agencies across the country need more resources and additional coordination to break the dangerous link between hateful online ideologies and hate-driven crimes. Such measures would help combat anti-Semitism while also strengthening the fight against other forms of bigotry and hatred. Congress should also restore slashed funding for effective programs aimed at countering violent extremism.

Legislation alone won’t manufacture a more tolerant, measured, and historically aware society. If lawmakers are truly committed to fighting anti-Semitism and other forms of ethnic and religious intolerance, they should begin by dropping the ad hominem attacks and modeling respectful debate that is both devoid of anti-Semitic animus and does not prejudge all criticism of Israel as suspect.

Suzanne Nossel is the CEO of PEN America. Twitter: @SuzanneNossel

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