The IHRA antisemitism bill is not censorship — it’s common sense

Last week, in a stunning turn of events, a New Jersey Assembly committee abruptly tabled a vote on a long-awaited antisemitism bill — just minutes before a scheduled hearing. In response, Jewish communal advocates from across the state stood up and walked out of the hearing in unified protest. Bill opponents claim that it infringes on or even criminalizes their expression. That is a red-herring argument undermined by the explicit bill language and longstanding U.S. Supreme Court precedent.

The bill in question, A3558, has been years in the making, with a long history of false starts and delays. It would adopt the International Holocaust Remembrance Alliance (IHRA) working definition of antisemitism as a tool for law enforcement and government agencies to better understand and respond to antisemitic acts. That definition has been endorsed by 46 countries, 37 U.S. states, and more than 1,200 organizations, municipalities, and universities worldwide.

A3558 is not a criminal law, and it does not make any kind of speech illegal. Rather, the legislation simply instructs state authorities to take this widely accepted definition into consideration when investigating hate crimes or acts of discrimination.

Despite this, opponents of the bill have tried to frame it as a threat to free speech. That claim does not stand up to scrutiny. The legislation explicitly protects First Amendment rights, stating that “[n]othing contained in this section shall be construed to diminish or infringe upon any right protected under the First Amendment to the United States Constitution, or paragraph 6 of Article I of the New Jersey State Constitution.”

Let’s be clear: A3558 addresses actions, not opinions. Discriminatory acts, not speech. In fact, the very demonstrators who protested the bill on the front lawn of the State Capitol during the hearing —holding signs calling it a “censorship bill”— were doing so under the very freedoms the bill protects.

In America, people are free to express offensive or even hateful views. What they are not free to do is act on those views in ways that involve violence, harassment, or unlawful discrimination. That distinction is central to both the Constitution and to this legislation.

For example, there is a monumental legal distinction between a person who says “Free Palestine” in the context of a peaceful demonstration and a murderer who yells it immediately after gunning down two people outside the Jewish Museum in Washington, D.C. The former is protected speech, and the latter is a hate crime under both federal and New Jersey law.

The U.S. Supreme Court made this clear over 30 years ago. In Wisconsin v. Mitchell (1993), the court unanimously upheld a law that increased penalties for crimes motivated by bias. The defendant argued that the law was unconstitutional because it considered his racist motive for the crime. And the court also affirmed that the First Amendment does not bar the evidentiary use of a defendant’s speech in evaluating discrimination claims.

In New Jersey, we have seen a disturbing rise in antisemitic bias incidents in recent years — from 347 in 2021 to more than 700 in 2023, as reported by the New Jersey attorney general. Jewish communities across the state have come together to support A3558 because we need tools to identify and respond to those acts. And we need to ensure that authorities have the training and clarity to do so effectively.

The bottom line is this: A3558 does not silence anyone. It protects everyone. And in a moment when antisemitism is rising, that protection could not be more necessary.

David Barkey is the director of the Jewish Community Relations Council at the Jewish Federation of Northern New Jersey. For 20 years he was the senior legal counsel at the Anti-Defamation League, where he focused on First Amendment, hate crimes, and anti-discrimination law.

Opinion

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