ACLU Slams Senate Push to Crack Down on Campus Criticism of Israel

The ACLU on Thursday sent a letter to U.S. senators arguing that bipartisan legislation which backers claim would combat antisemitism on university campuses would actually be an affront to free speech protections and censor legitimate criticism of the Israeli government as it carries out atrocities in Gaza, the occupied West Bank, and Lebanon.

The group's letter comes two weeks after Axios reported that Senate Majority Leader Chuck Schumer (D-N.Y.) "recently promised Jewish leaders that he would try later this year to pass" the House-approved Antisemitism Awareness Act, or S. 4127.

"Instead of addressing antisemitism on campus, this misguided legislation would punish protected political speech," said ACLU senior policy counsel Jenna Leventoff, who signed the letter with Christopher Anders, director of democracy and technology.

"At a time when civil rights enforcement on campus could not be more critical, this bill risks politicizing these vital protections by censoring legitimate political speech that criticizes the Israeli government," Leventoff warned. "The right to criticize government actions is the most fundamental protection provided by the First Amendment—and this includes the actions of foreign governments. The Senate must continue to block this bill and protect free speech."

"It would likely chill free speech of students on college campuses by incorrectly equating criticism of the Israeli government with antisemitism."

The letter highlights that "federal law already prohibits antisemitic discrimination and harassment by federally funded entities. S. 4127 is therefore not needed to protect against antisemitic discrimination; instead, it would likely chill free speech of students on college campuses by incorrectly equating criticism of the Israeli government with antisemitism."

As Israeli forces—armed by the Biden administration and U.S. Congress—have bombed and starved Palestinians in Gaza over the past 13 months, students colleges and universities across the United States have held protests urging their education institutions and government to divest from the assault, which is the subject of a genocide case at the International Court of Justice.

Some campus administrations—under pressure from Zionists in Congress—have called in law enforcement to violently crack down on protesters and enacted new policies intended to limit anti-genocide demonstrations by students and faculty.

"The ACLU does not take a position on the conflict between Israel and Palestine, but it does staunchly defend the right of those in the United States to speak out on domestic and international political matters," the organization emphasized. "The ability to criticize governments and their policies is a critical component of our democracy."

As the letter explains:

This bill directs the Department of Education to take the International Holocaust Remembrance Alliance's (IHRA) working definition of "antisemitism" into consideration when determining whether alleged harassment was motivated by antisemitic intent and violates Title VI of the Civil Rights Act of 1964. Title VI prohibits discrimination on the basis of race, color, or national origin in programs receiving federal financial assistance, including in higher education. The federal government itself has interpreted Title VI to prohibit harassment or discrimination against Jews, Hindus, Muslims, and Sikhs as well as others when that discrimination is based on the group's actual or perceived shared ancestry or ethnic characteristics. These existing protections are critically important, particularly in the current environment.

The IHRA working definition, however, is overbroad. It equates protected political speech with unprotected discrimination. Enshrining this definition into regulation would chill the exercise of First Amendment rights and risk undermining the Department of Education’s legitimate and important efforts to combat discrimination. Criticism of Israel and its policies is political speech, squarely protected by the First Amendment.

"The IHRA definition of antisemitism is also unconstitutional," the letter continues, citing a case about Republican Texas Gov. Greg Abbott's executive order directing the state's higher education institutions to craft policies based on the controversial language.

The letter points out that even "the lead author of the original IHRA definition, Kenneth Stern, has himself opposed the application of this definition to campus speech, noting that codifying this definition would lead campus administrators to 'fear lawsuits when outside groups complain about anti-Israel expression, and the university doesn't punish, stop, or denounce it.'"

The ACLU specifically warned that "S. 4127 could result in colleges and universities suppressing a wide variety of speech critical of Israel or in support of Palestinian rights in an effort to avoid investigations by the department and the potential loss of funding, even where such speech is protected and does not qualify as harassment."

"Even where administrators do not take formal action, students and their organizations, faculty, and university staff may be deterred from speaking and organizing on these issues," the group added. The bill would also "likely inspire an increasing number of complaints focused on constitutionally protected criticism of Israel," taking time away from "meritorious" filings.

The Senate majority leader has faced intense pressure to bring the bill to a vote as this session of Congress winds down. Axios noted that Florence Avenue Initiative, a nonprofit that doesn't have to disclose its donors, "has spent about $5 million on an ad campaign blasting Schumer, the highest-ranking Jewish lawmaker, for his inaction."