Yes, Anti-Zionism Is Anti-Semitic. But It’s Still Protected Speech. by the Forward

Yes, Anti-Zionism Is Anti-Semitic. But It’s Still Protected Speech.

Sending a child off to college this year will be especially fraught for American Jewish parents. In addition to all the usual worries, they have to contend with an uptick in anti-Semitism sweeping through our nation. Last week, President Trump accused Jewish voters who vote Democratic of “either a total lack of knowledge or great disloyalty.” The comments sparked a vigorous debate about the anti-Semitic canard of Jews having dual loyalty, mirroring an earlier one over Minnesota Congresswoman Ilhan Omar’s comments using a similar anti-Semitic trope earlier this year.

Omar’s supporters defended her on the grounds that she wasn’t attacking Jews but criticizing Israel, invoking the distinction between anti-Zionism and anti-Semitism. This distinction is often invoked to protect the free speech of anti-Zionists by those who believe anti-Semitic speech should be censored. But framing the issue this way has undermined efforts to protect Jews from anti-Semitism, while also infringing on free speech.

Opinion | Yes, Anti-Zionism Is Anti-Semitic. But It’s Still Protected Speech.

The reality is that much anti-Israel speech is anti-Semitic. But as difficult as it can be to accept, most anti-Semitic expression is also protected by the right to freedom of speech. Only by acknowledging both of these two truths can we combat the growing tide of anti-Semitism on campus (and off) while also defending free speech.

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It’s difficult to ignore the rise of anti-Semitism on college campuses. The AMCHA Initiative maintains a database of anti-Semitic incidents on campus. From January 2018 through July 2019, they list over 1,000 incidents. Many (though certainly not all) involve anti-Zionist sentiment.

Last spring at NYU, for instance, two members of two different anti-Israel student groups were arrested for assault and reckless endangerment at a Jewish student group’s Israeli Independence Day celebration. Afterward, a coalition of student groups organized a demonstration of support — not for the Jewish group, but for the two who were arrested.

When Jewish students or others raise concerns about anti-Semitism in connection with incidents involving Israel, they are often condescendingly dismissed as conflating political views about Israel with anti-Semitism. When flyers featuring artwork replete with obvious Jewish caricatures were displayed on the Stanford University campus, for example, two student groups apologized for posting the flyers without “due discussion and delicacy,” while in the same breath calling it “absurd” to suggest that the art was anti-Semitic.

When people dismiss the obvious links between much anti-Israel rhetoric and anti-Semitism, it leaves many Jews feeling like we are “just being smiled and nodded at,” in the words of one member of UC Berkeley’s student government.

The case for protecting anti-Zionist speech because it is not anti-Semitic is unconvincing to the many people who see it as a distinction without a difference. But even when the anti-Semitic nature of anti-Zionist speech is indisputable, too often, censorship is viewed as the appropriate solution. That’s why when looking at whether speech should be protected, “anti-Zionism versus anti-Semitism” is the wrong lens.

The right lens derives from the First Amendment. Under the First Amendment, your viewpoint — whether you’re anti-Israel or anti-Jewish — is not what determines if speech is protected. What determines the limits of protected expression is whether the speech in question poses a threat to public safety or security, far beyond the causing of offense or hurt feelings. As the Supreme Court wrote in its landmark decision upholding the right to burn the American flag, “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”

Rather than focusing on whether speech is anti-Zionist or is anti-Semitic, using this lens, we can focus on distinguishing between anti-Semitism that is protected and anti-Semitism that is not, and effectively address each type.

The first task is to identify which of the most common expressions of anti-Semitism are not protected.

Vandalism Is Not Protected

Free speech does not allow one to destroy, deface, or disrupt the free speech or activities of others, including those with whom one disagrees. Vandalism is clearly unprotected. A student at San Francisco State University, for example, recently found a Jewish star, the words “Free Palestine,” and a swastika carved in a toilet-paper dispenser in a campus bathroom, and in May, a pro-Israel display at Brandeis University was vandalized with “Free Palestine” graffiti. In a statement addressing why the vandalism violated university policy, the president of Brandeis perfectly delineated the distinction between protected and unprotected activity:

If the messages left on the installation had been conveyed without vandalizing property and in accordance with university policy, the speech would have been protected. But this case involved vandalism targeted at a specific group.

Opinion | Yes, Anti-Zionism Is Anti-Semitic. But It’s Still Protected Speech.

Shouting Down Speakers Is Not Protected

Contrary to what many believe, drowning out an invited speaker is not a protected exercise of the right to free speech. While protest need not be absolutely silent, the kind of sustained disruptions carried out at many campus pro-Israel events cross the line into unprotected disruption.

True Threats Are Not Protected

There is no free speech right to make “true threats.” The Supreme Court has defined these as statements communicating “a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

In January 2018, after objecting to a University of South Florida student government resolution opposing Israel, the university’s only Jewish student senator reported receiving the message, “You will die by our hands and we will take Jerusalem and fill Palestine with your impure blood. Jerusalem is for us, and death for you.” Credible threats of bodily harm or death are not protected.

Assault Is Not Protected

Physical assault (as should be obvious) is not protected expression. There have been incidents in which disagreements about Israel have escalated into physical confrontations. One of the above mentioned students at NYU, for example, was charged with third-degree assault.

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When faced with unprotected anti-Semitism, we must ensure that perpetrators are held accountable and that unlawful activity is never excused simply because college administrators may be politically sympathetic to the perpetrators.

But in addition to the alarming number of incidents of unprotected anti-Semitism on campus, many expressions of anti-Semitism, while offensive, are protected.

The right to free speech includes the right to say deeply offensive things. In upholding the Westboro Baptist Church’s right to picket military funerals with signs like “Thank G-d for Dead Soldiers,” the Supreme Court wrote,

To call Jews “colonizers” in Israel, to claim that Israel is committing genocide in Gaza, to insist that the Jews uniquely do not deserve a nation state, these are all examples of speech that, while deeply offensive to many people, is protected by the First Amendment. Yet, increasingly, we are seeing pro-Israel students and their supporters turning to censorship.

Opinion | Yes, Anti-Zionism Is Anti-Semitic. But It’s Still Protected Speech.

This past spring, students at the University of Massachusetts Amherst sued to block their university from hosting a pro-Palestinian event entitled “Israel, Free Speech, and the Battle for Palestinian Rights.” While much of the media conversation focused on whether the event was anti-Semitic or merely anti-Israel, the judge, refusing to block the event from going forward, got it right that in deciding whether to prevent it, it makes no difference. He explained, “I can’t enjoin a forum just because someone may say something at that forum that fits someone’s definition of anti-Semitism, or racism, or homophobia, or anything else.”

When it comes to combating protected anti-Semitism, censorship is not the answer. Not only does it conflict with our society’s commitment to freedom of speech, it is counterproductive for a group that must rely on that same freedom in the face of increasing hostility from both the left and the right. Any argument for censoring protected anti-Semitic speech (“it is offensive,” “it makes me feel unsafe,” etc.) has already been used in attempts to silence pro-Israel speech — and will inevitably be used again.

So how should we fight it?

Countering Speech with More Speech

One of the best weapons against speech we find hateful is our own speech in response. As U.S. Supreme Court Justice Louis Brandeis (an early leader in the American Zionist movement) wrote, “If there be time to expose through discussion the falsehoods and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”

This is not to say that exercising the right to free speech as a Zionist on campus or elsewhere will be easy. It won’t. The First Amendment guarantees that the government will not restrict our exercise of free speech, but it doesn’t guarantee us comfort in that exercise. And these days, it takes more courage than it should to be openly pro-Israel on campus. Pro-Israel students are routinely told that supporting the Jewish state is incompatible with a concern for human rights, and that they will not be accepted by campus progressives or within the social justice movement.

We must ask Jewish students to be willing to speak up, yet we have not prepared them for the task. Of course, we must ensure they are protected from physical harm, which is why it is so critical that unprotected anti-Semitism be addressed quickly and decisively.

But to change hearts and minds, Jewish students must tolerate the emotional discomfort of vigorous opposition.

Fighting Double Standards

At the same time, we must also work to expose double standards, an insidious way that anti-Semitism manifests on campus. The recent decision by the Williams College student government to deny recognition to a pro-Israel student group (despite having an approved chapter of Students for Justice in Palestine) is an especially transparent example: To our knowledge, no other group in Williams’ history has ever been rejected after meeting all the required criteria.

Much of the anti-Semitism that fails to elicit concern on campus is protected, as is bigoted speech targeting non-Jews on campus. But when a university consistently denounces protected racist or sexist speech while remaining silent in response to protected anti-Jewish speech, what message does the university send?

As Jonathan Tobin, editor-in-chief of the Jewish News Service, pointed out, anti-Jewish expression on campus is often treated as “normal or acceptable discourse.” This may be because anti-Jewish sentiment doesn’t share the same clearly defined power dynamics as other forms of bigotry. Often focusing on theories of alleged Jewish “power,” it is frequently seen as “punching up.” Those who subscribe to the ascendant definition of racism as prejudice-plus-power, therefore, simply do not address it with the same level of concern.

Pluralism, Not Purism

Suppressing hateful views gives them the appearance of importance. (Come learn what those in power don’t want you to know!) Shining a light on them, on the other hand, allows them to be seen for what they are. Only then can they be effectively countered and can we create meaningful, lasting change. Author Jonathan Rauch, writing as a gay man who has personally witnessed the sea change in attitudes towards homosexuality, recounts:

We contend that the path to effectively fighting anti-Semitism without compromising our fundamental freedoms looks like this: First, we must tell it like it is. A lot of anti-Israel speech is anti-Semitic, drawing on age-old tropes about Jewish greed and power. Pretending that it is not anti-Semitic will not make it so.

Second, we must distinguish clearly between unprotected anti-Semitic conduct (threats, vandalism, etc.) and protected anti-Semitic expression (perpetuating ugly stereotypes, etc.).

Opinion | Yes, Anti-Zionism Is Anti-Semitic. But It’s Still Protected Speech.

Third, we must ensure that unprotected anti-Semitic conduct is addressed decisively; pro-Israel students must be able to speak freely without risk of bodily harm.

Finally, rather than demanding the censorship of protected anti-Semitic expression, pro-Israel students must be willing to engage with their opponents in the marketplace of ideas, be resilient in refusing to allow anti-Jewish expression to emotionally defeat them, and be courageous in calling out double standards whenever and wherever they arise.

Pamela Paresky is Senior Scholar in Human Development and Psychology at the Foundation for Individual Rights in Education (FIRE). Samantha Harris is an attorney at FIRE.

The views and opinions expressed in this article are the author’s own and do not necessarily reflect those of the Forward.
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Yes, Anti-Zionism Is Anti-Semitic. But It’s Still Protected Speech.

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