Issue Briefs

Issue Brief: Threats to Free Speech and Palestinian Civil Rights – The IHRA Definition of Antisemitism

A vague definition, together with a list of eleven examples, conflates criticism of Zionism or Israeli policies and violence against Palestinians with antisemitism.

The desired outcome is clear: censor and punish the humanization of Palestinians through academic research, political analysis, or public condemnation of Israeli practices, policies, and laws.

In the United States, Israel’s supporters actively utilize the IHRA working definition of antisemitism to intimidate and attack individuals and institutions that defend the equality of Palestinians, challenge U.S. foreign policy toward Israel and Palestinians and criticize the foreign state of Israel. That a sizeable number of Jews in the US, as in Israel, also face spurious charges of antisemitism when they criticize Israel lays bare the lie: the IHRA working definition of antisemitism aims not to protect Jews, but to shield Israel from criticism and accountability under international law by suppressing free speech and academic freedom.

The past two years have exposed the dangerous outcome of such content and viewpoint-based suppression of speech, activism, and academic work: systematic violations of First Amendment protected free speech rights and the freedom to study, write, and teach about Israel’s violence against Palestinians on American university campuses.

Accordingly, the Center for Security, Race and Rights offers two policy recommendations:

1. Reject codification into law or policy of the IHRA Working Definition of Antisemitism. 

The IHRA working definition of antisemitism has no place in law.  The analysis presented here makes clear that the IHRA definition reproduces anti-Palestinian racism, exacerbates antisemitism, and serves as a tool of censorship of political speech, academic work, and civic engagement on matters of public importance, including criticism of Israel. A recent letter, organized by the Genocide and Holocaust Studies Crisis Network and signed by more than 1100 scholars – working in all fields, from doctoral students to senior professors, in universities large and small, public and private, around the world – calls for the rejection of the IHRA definition in law or policy. Furthermore, the original IHRA document explicitly notes it is a “non-legally binding” definition. That the IHRA definition has nevertheless been weaponized through legislation caused Kenneth Stern, a lead drafter of the text of the definition, to repudiate ongoing legislative efforts to codify it into law.

Existing anti-discrimination laws already protect Jewish people, as well as other minority groups, from discrimination.  For that reason, there is no equivalent definition for anti-Muslim racism, anti-Black racism or racism against Indigenous people (to note just a few examples) in any state or federal law.  Singling out antisemitism as the only form of racism deserving of a separate definition is not only unnecessary to protect Jews from discrimination, but also may give rise to antisemitic conspiracies about Jews controlling the government.

2. State legislatures and the U.S. Congress should rely on existing anti-discrimination laws to combat antisemitism, anti-Palestinian racism, and Islamophobia; and adhere to constitutional prohibitions against viewpoint-based regulation of speech.

State legislatures and the U.S. Congress should reject pending or future legislation that codify the IHRA definition of antisemitism into law.  Existing statutes that adopt the IHRA definition of antisemitism should be amended to remove the definition in adherence to the constitutional prohibition of regulation of speech and expressive conduct based purely on content or viewpoint.

The First Amendment of the U.S. Constitution prohibits the government or public institutions from regulating speech based on content or viewpoint, unless a legally specified exception applies. Three legally prescribed exceptions include 1) speech or expressive conduct that pose a clear and present danger, 2) regulations of speech or expressive conduct that are content and viewpoint neutral, and 3) restrictions on the time, place and manner of the expression of speech or expressive conduct that are viewpoint and content neutral.  None of these exceptions protect the laws codifying the IHRA definition from meritorious constitutional challenges.

The federal Antisemitism Awareness Act as well as state laws that adopt the IHRA definition are unconstitutionally prohibiting viewpoints whether explicitly in the law, in its “design” or  by “operation,” because these laws favor pro-Israeli points of views while disfavoring views critical or opposed to Israel. That is, these laws intentionally regulate speech or expressive conduct based on the speaker’s content. The U.S. Supreme Court makes it clear that even valid justifications, such as combating antisemitism, cannot save a law “that is in fact based on the desire to suppress a particular point of view.”

The IHRA definition of antisemitism, if codified into law or enforced as policy by state actors, violates these constitutional prohibitions by imposing a legal penalty for speech and expressive conduct based on viewpoints that are critical of Israel in specific ways and the political ideology of Zionism.  Attempts to codify it into law or policy should be rejected.  Existing anti-discrimination law is sufficient to allow for the fact-specific and context-based analysis necessary to effectively combat hateful acts.

Read the Issue Brief Threats to Free Speech and Palestinian Civil Rights: The IHRA Definition of Antisemitism here.