A bill to ban anti-Semitism in New Jersey educational institutions has worried free speech advocates, who fear that it might ban constitutionally protected criticism of Israel.
The bill was introduced last month in the State Senate by Robert Singer (R-30), a Republican from Ocean County, and Stephen M. Sweeney (D-3), a Democrat from Camden who is the president of the state senate.
“I just think the bill is a step too far,” Loretta Weinberg, a Democrat from Teaneck who is the state Senate majority leader, said. “I don’t think we should be passing a law that somehow implies that if one criticizes the country of Israel, that falls under the anti-Semitism law.”
Ms. Weinberg said she will discuss her concerns with Mr. Sweeney when he returns from vacation. “I don’t think the bill is going to go too far without being revised somewhat,” she said.
Mr. Singer said that “these issues will be brought up in the committee.” He said the initiative for the bill came from the Jewish Federation of Ocean County, and that it had been modeled on a similar bill passed in Florida in May. (Mr. Singer is a past president of the Ocean County Jewish federation.) He said he was moved to act “when the ADL came out with a report stating that the three worst states for acts of anti-Semitism were California, New York and — guess what! — New Jersey.
“We’ve seen problems within universities of Jewish groups and leaders wanting to speak and being denounced by Arab groups. We’ve seen professors who have done things to Jewish students like saying you have to take your finals on Yom Kippur.
“We have to say, enough is enough. Just as we bend over backward not to be anti-Muslim, we have to ensure people bend over backward not to be anti-Semitic. We want to send the message that it is not tolerated in the classroom, in school, in university, or in college.”
The bill treats discrimination resulting from anti-Semitism as similar to discrimination based on already protected categories, including race, creed, color, national origin, and ancestry. It defines anti-Semitism with eight examples, ranging from “calling for, aiding, or justifying the killing or harming of Jewish people” to “ focusing peace or human rights investigations only on Israel” to “delegitimizing Israel by denying the Jewish people their right to self-determination and denying Israel the right to exist.” (See box.)
“I don’t see this as about first amendment rights,” Mr. Singer said. “We’re referring to talking about Israel as a Jewish state. You have the right to criticize Israel, but not as the Jewish state. We don’t hear the first amendment rights group saying anything about what comes from the left. Why don’t we once err on the side of the Jew?”
But Rabbi Rachel Kahn-Troster of Teaneck said the proposed bill is “very troubling. It would have a chilling effect on free speech.” Rabbi Kahn-Troster is the deputy director of T’ruah, the Rabbinic Call for Human Rights.
The proposed law “seems to define criticizing the State of Israel as anti-Semitism. How would a group that is criticizing the occupation prove they weren’t applying a double standard to Israel? Would it require that if you brought a speaker to campus to speak about human rights issues in the occupation, that you would then have to speak about human rights issues in other countries?
“We have to defend free speech even if we find it objectionable,” she said.
Kenneth Stern, who helped draft the eight-part definition of anti-Semitism at the heart of the bill, believes that passing the bill as it is “will harm Jewish students, on top of harming the academy.”
Mr. Stern is the former director of the American Jewish Committee’s division on anti-Semitism and extremism. (He now directs the Bard Center for the Study of Hate.) The definition was meant to help tally anti-Semitism in Western Europe. The State Department subsequently adopted it. But Mr. Stern, whose book “The Conflict over the Conflict: The Israel Palestine Campus Debate” comes out next year, strongly opposes using the definition to squelch anti-Israel speech on college campuses.
“It creates an environment where it looks like the Jewish community is saying we can’t answer these criticisms about Israel,” he said. It would discourage professors from teaching about Israel, he added, because why risk being accused of “focusing peace or human rights investigations only on Israel,” which the bill defines as anti-Semitic?
Joe Cohen also opposes using Mr. Stern’s definition of anti-Semitism as a guide to what to ban on campus. Mr. Cohen is legislative and policy director of the Foundation for Individual Rights in Education. Campus anti-Semitism “is not an imagined problem,” he said, noting that his organization has intervened on behalf of Jews and Jewish groups discriminated against because of pro-Israel activism. “The challenge is finding a solution that’s constitutional.
“While some criticism of Israel might be intertwined with anti-Semitic rhetoric, ultimately it still constitutes protected speech. You’re allowed to criticize government actors. You can’t have a bill that says you can criticize this actor and not another.
“One provision says you can’t compare Israeli policies to Nazi policies. Would it be constitutional to say no one is allowed to criticize the Trump administration for instituting Nazi-like policies? No one would say that is constitutional. Under the First Amendment people are allowed to make political arguments. You can’t pick or choose who can be criticized in various ways.”
He said defining anti-Semitism into law would be a departure from how American law has dealt with bigotry until now. “In this country, we don’t ban racism or sexism or anti-Semitism or any of these things,” he said. “Instead, we ban discrimination based on broad protected classes. You can’t discriminate on the basis of race or religion or gender. Courts decide whether a fact pattern constitutes discrimination along those lines.”
By defining anti-Semitism, the New Jersey bill “opens up a Pandora’s box.
“Do we want the legislature to define what is or is not racist? Would they decide support for affirmative action is racist, or opposition to affirmative action is racist? It highly politicizes those concepts. That’s why this particular approach of defining these terms is a bad one. That’s not to say that governments and schools shouldn’t be doing things to ensure that campuses are welcoming environments for Jewish students and all students.”
One proposal he supports, on the federal level, is adding religion to the classes protected against discrimination on campus. Shortly before the 1964 Civil Rights Act came to a vote, “religion” was struck from the section dealing with higher education because of concerns raised by religious colleges. (This is not a problem on the state level in New Jersey, since existing law includes “creed” as a protected class.)
In recent years, the federal department of education has worked around the omission, by ruling that anti-Semitic and Islamophobic discrimination and harassment is based on bias against a student’s national origins, a protected category.
“To the extant anti-Semitism is not about Jewish belief but about cultural stereotypes of Jews, then they can exercise jurisdiction,” Mr. Cohen said. “FIRE thinks that’s a very smart policy. One solution is locking that rationale into law. A second is adding religion as a protected class. Neither of those things require censorship.
“If you want to punish people for being offensive, be careful about that, because your political opponents find your views offensive. You should imagine giving the power you’re asking for to your political adversaries, because on a long enough timeline, they might be the ones in power, not you.”
From N.J. bill Senate 4001
Anti-Semitism related to Jewish people and to Israel includes, but is not limited to:
1. calling for, aiding, or justifying the killing or harming of Jewish people, often in the name of a radical ideology or an extremist view of religion;
2. making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jewish people or the power of Jewish people as a collective, especially, but not exclusively, the myth about a world Jewish conspiracy or of Jewish people controlling the media, economy, government, or other societal institutions;
3. accusing Jewish people as a whole of being responsible for real or imagined wrongdoing committed by a single Jewish person or group, the State of Israel, or even for acts committed by non-Jewish people;
4. accusing Jewish people as a whole or the State of Israel of inventing or exaggerating the Holocaust;
5. accusing Jewish people of being more loyal to Israel, or to the alleged priorities of Jewish people worldwide, than to the interest of their own nations;
6. demonizing Israel by using the symbols and images associated with classic anti-Semitism to characterize Israel or Israeli people, drawing comparisons of contemporary Israeli policy to that of the Nazis, or blaming Israel for all inter-religious or political tensions;
7. applying a double standard to Israel by requiring behavior of Israel that is not expected or demanded of any other democratic nation, or focusing peace or human rights investigations only on Israel; and
8. delegitimizing Israel by denying the Jewish people their right to self-determination and denying Israel the right to exist.