NEW YORK—A report that Senator Tim Scott (R.-S.C.) is trying to insert language from the Anti-Semitism Awareness Act into the upcoming spending legislation in Washington represents a misguided approach to confronting rising hate on campus, PEN America said in a statement today.
The Act would mandate that the Department of Education could consider a definition of anti-Semitism from the State Department in its evaluation of civil rights complaints on college campuses and at other educational institutions. The definition was drafted for use in cataloging instances of anti-Semitic sentiment around the world, and would not enhance civil rights enforcement on campuses. The definition spells out that speech critical of Israel can reflect anti-Semitic bias. While it is certainly the case some criticism of Israel is inflected with anti-Semitic bias, existing law already allows universities and investigators to take this into account. The definition adds nothing to this analysis and could lead to the chilling of legitimate political speech, heightened polarization of already contentious campus debates, as well as opening the door to the adoption other definitions of bias that likewise run the risk of impinging upon legally protected speech.
PEN America has argued that the invocation of this definition in the context of campus speech controversies, and specifically to delineate potential grounds for civil rights complaints against students and faculty, runs the risk of chilling debate on topics of public concern by those fearful that political analysis and discussion regarding Israel might be treated as evidence of harassment. If such a definition is adopted, universities may also be inclined toward overly aggressive approaches to policing speech on Israel in order to avoid triggering civil rights complaints. In Testimony before the House Judiciary Committee in November, 2017 PEN America CEO Suzanne Nossel also pointed out that passage of the legislation could prompt other ethnic groups to pursue detailed definitions of racism, Islamophobia and other forms of bigotry, including potentially definitions that would encompass historical claims, visual depictions, and other potential manifestations of bias, all of which could further encroach on freedom of speech on campus. Because existing law allows for consideration of all facts and circumstances in order to determine whether harassment has occurred, such definitions pose an unnecessary risk to speech.
“In the face of a recent surge of anti-Semitism on campuses, and in the wake of the mass shooting at the Tree of Life Synagogue in Pittsburgh on October 27, lawmakers rightly feel compelled to stand firmly against anti-Semitism, as well as other forms of hateful speech,” said Nossel. “But adopting this highly detailed definition of anti-Semitism, which adds nothing to our ability to identify or respond to anti-Semitic speech or attacks, is the wrong approach. The definition risks exacerbating tensions on campus by raising the possibility that legitimate political speech might be viewed as crossing a line into harassment. It also invites copycat definitions of other forms of discrimination that would create similar problems. We urge policymakers to counter anti-Semitism and other hateful speech not through new legislative restrictions, but by the exercise of unflinching moral leadership, enforcement of existing civil rights laws, holding accountable those responsible for hate crimes, defending robust protections for free speech, and supporting education and open dialogue on campuses as an antidote to hate.”
PEN America has previously addressed flaws in the Anti-Semitism Awareness Act in its 2017 white paper, “Wrong Answer: How Good Faith Attempts to Address Free Speech and Anti-Semitism on Campus Could Backfire.” Nossel’s writings have also addressed problems with making hate speech illegal, and advice to campus leaders on how to respond to hateful expression in ways that condemn it, while reinforcing the value of free speech.
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PEN America stands at the intersection of literature and human rights to protect open expression in the United States and worldwide. We champion the freedom to write, recognizing the power of the word to transform the world. Our mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible. pen.org
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