This post is part of a series from PEN America tracking the progress of educational gag orders and censorious legislative efforts against educational institutions nationwide. These bills are tracked in our Index, updated weekly.
Since the October 7, 2023 attack on Israel by Hamas and the ensuing war in Gaza, America’s college campuses have been consumed by the question of antisemitism: How pervasive is it? What are its causes? And what can be done?
There is no question that the problem is real and growing in severity, evidenced by a series of high profile incidents on campuses across the country. According to a November 2023 survey from the ADL, 73% of Jewish students reported seeing or directly experiencing an antisemitic event since the start of the 2023/24 school year, and 37% of students overall said that they’ve heard somebody make an anti-Jewish (as distinct from anti-Israel) remark. About one in three Jewish students say they need to hide their Jewishness to “fit in.” That’s a serious problem.
At the same time, there has been a spike in tension and turmoil on many campuses related to the Israel-Hamas war. Protests have broken out, some of them violent. Events have been cancelled, professors have been suspended, and students have been disciplined, even expelled, amidst the rapid imposition of new campus policies on activism and speech. Much of this turmoil revolves around antisemitic speech: how it should be defined, whether it should be restricted, and how campus leaders should respond.
Into this combustible situation have plunged state legislators. Some have chosen to intervene in nuanced and constructive ways. Others, much less so.
On the constructive side of the ledger, state lawmakers in New York have introduced a bill designed to track the number of hate and discrimination incidents targeting Jews on campus, and in Maryland lawmakers introduced a bill to provide training on antisemitism and Islamophobia for college and university staff. (The Maryland bill ultimately became law, though the final version covered only K-12 schools, not higher education.) These proposals are consistent with the First Amendment and the principles of academic freedom.
Unfortunately, many other bills introduced this year are not. PEN America is gravely concerned that lawmakers are putting forth ill-considered proposals regarding antisemitism that would restrict the protected speech of students and faculty. Some of these lawmakers may have good intentions, but their efforts threaten to undermine universities as spaces of robust and even vociferous speech. Fighting bigotry is essential, but it cannot come at the expense of free speech and academic freedom, nor can it foreclose space for open dialogue across divides. Many bills proposed this year fail to meet that test.
The IHRA Bills
The most common type of problematic legislation opposing antisemitism would require state agencies – or in some cases, just public colleges and universities – to adopt the International Holocaust Remembrance Alliance’s definition of antisemitism, which defines antisemitism as:
…a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.
So far, so good. But the IHRA definition then goes on to provide a list of examples to illustrate the kinds of speech it says “may” – note this conditional – constitute antisemitism. These include:
- Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor.
- Applying double standards by requiring of [Israel] a behavior not expected or demanded of any other democratic nation.
- Using the symbols and images associated with classic antisemitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis.
- Drawing comparisons of contemporary Israeli policy to that of the Nazis.
It is here, with the issue of Israel, that the complications begin. It is true that sometimes criticism of Israel can cross into antisemitism. Where exactly that line gets drawn, however, is extraordinarily complex. The IHRA definition can be a useful source of guidance for campus leaders in educating their staff and informing their fight against antisemitism. However, it was never intended to be legally binding or otherwise codified into law. Its vague and illustrative nature is ill-suited to serve as a legal standard, much less form a basis for punishment.
Further, in the United States – unlike in many other countries – hate speech is legally protected under the First Amendment, whether that speech targets a religion, nationality, gender, sexuality, or any other group in our society. That doesn’t mean that hateful speech cannot be condemned. On the contrary, when hate makes itself known on campus, academic administrators have a duty to act – but always to act within the law, and certainly not by calling on the legal power of the state to prohibit speech and punish speakers absent a very narrow set of circumstances. Hate speech is not welcome, but neither may it be prohibited. This is what it means to live in a liberal democracy, at least in the American system.
Kenneth Stern, the lead author of the IHRA definition, has himself stated that using the definition as enforceable policy is “both unconstitutional and unwise” and “the worst way to address” antisemitism on campus. Last month, he clarified that “enshrining a particular definition of something that’s inherently involving political speech into law” in this way is “a total travesty.”
In PEN America’s 2016 report Wrong Answer: How Good Faith Attempts to Address Free Speech and Anti-Semitism on Campus Could Backfire, we offered the following analysis of legislation that uses the IHRA definition of antisemitism to ban or restrict campus speech:
Even speech that is indisputably anti-Semitic is protected by the First Amendment, and the government may not either directly restrict that speech because of its content or, as here, deny federal funds to schools that fail to silence it, other than in circumstances where it denies other students equal access to education.
Practically, this legislation will have the effect of restricting speech in ways that do little or nothing to address anti-Semitism on college campuses. It is certainly the case that critiques of Israel can be inflected by bigotry against Jews. But it is also true that academic or humanitarian critiques of Israeli policy in the occupied territories, or even historical questions about the justification and means for the creation of the country, are legitimate subjects of public and academic discussion. By forcing schools to consider criticism of Israeli policies as possible “crypto” anti-Semitism, the likely outcome here will be schools overreacting and being overly censorious toward speech on this particular topic. Such an approach would impair free expression, and open the door to efforts to curtail other forms of speech that specific groups may regard as inherently offensive.
State IHRA bills were common from 2016-2019, but virtually none were introduced between 2021 and mid-2023. Since October 2023, however, at least five states – Florida, Georgia, Indiana, New Jersey, and Rhode Island — have introduced bills that would direct state agencies, including public educational institutions, to adopt the IHRA definition officially, including its series of examples. Significantly, many of these run counter to the original definition by omitting that the examples “may” constitute antisemitism, instead including them as part of the basic definition of antisemitism or positive proof of its presence.
These bills include Florida’s HB 187, Indiana’s HB 1002, and New Jersey’s A 3558, as well as an Executive Order recently issued by Texas Governor Greg Abbott – the only such provision that has been enacted this year. Under these bills and orders, to apply to Israel a “double standard” would, ipso facto, be considered an antisemitic act, and potentially a legally actionable one. Three additional state bills would go further and ban antisemitism on campuses outright. New York’s A 8284, proposed earlier this legislative session, is a representative example. It states:
Notwithstanding any other provision of law, rule or regulation, no state aid shall be granted to any college or university that authorizes, facilitates, provides funding for, or otherwise supports any event promoting anti-Semitism on campus.
The bill adopts much of the IHRA’s definition and examples, creating enormous incentives to suppress First Amendment-protected political speech critical of Israel. The bill adds other problematic language as well. For example, the bill conditions state funding on whether a university or college in any way authorizes, facilitates, funds or otherwise supports “any event” that holds any individual Jew responsible for “wrongdoing committed by the state of Israel.” This language could easily be interpreted to prohibit events where speakers criticize individual Jewish politicians in the Israeli government. The bill also includes overly broad provisions, such as conditioning universities’ access to state funding on whether they block speakers from making comments perceived as “demeaning” toward an individual Jewish person. As written, such impermissible comments would include those that accuse Jews – even Jewish Israeli citizens – of being more loyal to Israel than to the state of New York or the United States of America.
Similar problems exist with bills such as New Jersey’s AB 1288, which would require public colleges and universities to adopt, as a condition of receiving state funding, “a clear and understandable written policy prohibiting antisemitism among faculty, staff and students.” Like the New York bill, the New Jersey bill mandates wholesale adoption of the IHRA definition, including the deeply problematic inclusion of certain criticism of the state of Israel.
Combating antisemitic speech and bigotry on campus is a worthy goal, one that PEN America proudly supports. However, the bills as written are blatantly unconstitutional, threaten academic freedom, and could restrict all manner of legitimate speech.
Anti-Terrorism Bills
A second category of legislation related to the Israel-Gaza conflict purports to restrict alleged campus supporters of terrorism.
Federal anti-terrorism statutes prohibit knowingly providing “material support” to federally recognized foreign terrorist organizations (FTOs), a category that includes Hamas. The term “material support” has a clear legal definition: “any service or tangible or intangible property,” and it is prohibited to knowingly provide such material support to an FTO such as Hamas. (There is a body of law that further defines what is and is not “material support.”)
In October, a “Day of Resistance Toolkit” published by the national office of Students for Justice in Palestine (SJP) provoked some state lawmakers into going further. The toolkit identified Hamas’s October 7 attack on Israel as a “historic win,” stated that Israelis are “settlers” who are “military assets” of a settler colony and not civilians – and thus are legitimate targets of violence – and described Palestinian students in exile as “PART of” the Palestinian liberation movement, “not in solidarity” with it.
While it included a number of deeply abhorrent sentiments, the national SJP toolkit did not on its face, or by virtue of any evidence proffered by its critics, constitute the provision of “material support” for a designated foreign terrorist organization in violation of the law. It was also produced by a national organization, not a campus chapter. But that did not stop Florida’s governor, Ron DeSantis, from immediately ordering that all SJP chapters be kicked off state campuses. Yet university students, like the rest of us in the United States, have a right under the First Amendment to speak in endorsement of (as opposed to provide material support for) even violent groups and their actions – including FTOs like Hamas. Indeed, Florida promptly walked back its order once a lawsuit challenging its constitutionality was filed.
Florida’s legislators, however, did not give up. Lawmakers in Tallahassee proposed SB 470, which was essentially a doubling down on DeSantis’s unconstitutional order. This bill would withhold in-state tuition and state financial aid from students who “promote” Hamas or any other FTO. This is concerningly vague language. In fact, interrogating, debating, and hosting controversial speech – including such events as Iranian president Mahmoud Ahmedinejad’s 2007 speech at Columbia University – is at the core of academia’s mission.
SB 470, like the original DeSantis order, did not become law. Yet similar bills have been introduced in other states. Under Iowa’s HF 2077, for instance, the state attorney general would effectively be required to monitor the activity of university students and student organizations in order to report on those that “promoted or endorsed” terrorism or foreign terrorist organizations. This would include at private colleges and universities. Student organizations and individual students found to have endorsed or promoted terrorism or FTOs would be denied state tuition grants, financial aid, and, in the case of student organizations, would face decertification.
Again, these bills are either blatantly unconstitutional on their face or contain language so broad and vague that they would chill free expression and are likely to be applied in unconstitutional ways. The broader context around these bills makes clear that their goal is to suppress certain types of pro-Palestinian advocacy on campuses. Providing material support for terrorism is already unlawful and the ostensible purpose of these state bills is unnecessary. Rather, these legislative proposals seek to impermissibly restrict, and in some cases even criminalize, speech on college campuses through intimidation and the threat of dire consequences.
Conclusion
Antisemitism on campus is a serious and growing problem that demands immediate attention by campus leaders. Where antisemitic expression and activity is protected by the First Amendment, administrations still can and should condemn it. Unfortunately, rather than try to solve the problem of antisemitism, some state lawmakers have proposed legislation that is designed to exploit it in order to ban broad categories of disfavored speech and the groups that express it. If their bills become law, they are unlikely to bring much relief to Jewish or Israeli students (something other efforts could accomplish more effectively). They could, however, devastate campus free expression.
