Lawfare: Targeting US Academia – Tracking the Cases

When President Donald Trump signed his executive order on antisemitism back on December 11, 2019, some of us warned the real target was campus free speech critical of Israel. Complaints filed in the wake of the executive order demonstrate these accuracy of these warnings. To help people track these cases (and the many cases that preceded them in recent years), I’ve created this resource table, which I will update whenever new information becomes available.

Last update: June 29, 2023

In July 2021, the US ice cream giant Ben & Jerry’s – which is today owned by Unilever – announced a decision to cease distribution in Israeli settlements, sparking an international controversy that focused in large part on laws in various US states that seek to target/punish those who refuse to treat Israeli settlements in the Occupied Palestinian Territories as part of the sovereign state of Israel.

FMEP’s Lara Friedman has been documenting, analyzing, and reporting on these laws and efforts around them since they first appeared in 2014, publishing comprehensive data tracking:

  • Legislation in states and in Congress seeking to quash criticism/protest of Israeli policies and legislate support for Israeli settlements (in effect legislating a policy of recognizing Israeli sovereignty in the West Bank, irrespective of a formal Israel act of annexation)
  • The explicit conflation in some of these laws between Israel and settlements
  • Constitutional challenges to these and related kinds of legislation
  • The re-purposing of pro-settlement/Israel-related free speech quashing legislation, to attack other forms of political free speech (e.g., seeking to punish boycotts/”discrimination” against the firearms and ammunition industries and against the oil and gas sector).

Given this context, Lara has been consulted by widely consulted by journalists covering the Ben & Jerry’s saga, and has provided background and analysis both on and off the record. For some of her on-the-record comments, see:

Beginning in 2014, opponents of boycotts, divestment, and sanctions (BDS) against Israel began promoting legislation in various U.S. states denouncing the BDS movement. In 2015, these efforts shifted/expanded to efforts in the U.S. Congress (as well as at the state level) to pass legislation targeting boycotts of Israel and/or settlements. These efforts continue through the present day.

To track this legislative trend in the US Congress, see this data table here. (Last update: July 17, 2023)

To follow what is happening at the state level, see here.

Questions about this issue or data table should be directed to: Lara@fmep.org

In this episode of “Occupied Thoughts,” Peter Beinart interviews FMEP President Lara Friedman about the potential blowback Ben & Jerry’s faces for their decision to stop selling their products in Jewish settlements in the Occupied West Bank and East Jerusalem. Lara is an expert in the efforts to exploit U.S. laws (state and federal) and courts to quash criticism and activism challenging Israeli policies, which she has been documenting for years. Her research & databases are available here.

Subscribe to “Occupied Thoughts” on iTunes | Soundcloud |Spotify
Recorded July 22, 2021
Watch a video of this conversation on YouTube.
Lara Friedman is the president of the Foundation for Middle East Peace. With more than 25 years working in the Middle East foreign policy arena, Lara is a leading authority on U.S. foreign policy in the Middle East, with particular expertise on the Israeli-Arab conflict, Israeli settlements, Jerusalem, and the role of the U.S. Congress. Prior to joining FMEP, Lara was the Director of Policy and Government Relations at Americans for Peace Now, and before that she was a U.S. Foreign Service Officer, serving in Jerusalem, Washington, Tunis and Beirut. She tweets @LaraFriedmanDC.
Peter Beinart is a Non-Resident Fellow at the Foundation for Middle East Peace. He is also a Professor of Journalism and Political Science at the City University of New York, a Contributing opinion writer at the New York Times, an Editor-at-Large at Jewish Currents, and a CNN Political Commentator. He publishes on https://peterbeinart.substack.com/ and tweets @PeterBeinart. 

In 2014, opponents of boycotts, divestment, and sanctions (BDS) against Israel began promoting legislation in various U.S. states denouncing the BDS movement. In 2015, these efforts shifted/expanded to mirror efforts in the U.S. Congress to hijack concerns about BDS against Israel in order to pass legislation mandating that Israeli settlements be treated, in effect, as part of sovereign Israel.

Starting in 2016, through the present, these efforts are delivering results, with more and more states adopting patently unconstitutional legislation — amounting to laws explicitly designed to quash political free speech — requiring the states to boycott, divest from, and sanction companies, contracts, and even individuals that boycott Israel, or in many cases, that boycott settlements and the occupation (even if they don’t boycott Israel itself).

Since the beginning of 2015, I’ve has been tracking these bills/laws — my data is available to the public in a regularly updated table, available here.

In addition, by popular demand I’ve created a new resource – a table tracking state laws that make explicit the conflation between Israel and settlements (by stating that the law applies to Israel and “Israeli controlled territories” or some similar formulation). These laws represent an unequivocal statement by U.S. states that they are viewing settlements as, effectively, part of sovereign Israel. That new table is available here. Last update: November 19, 2021

It is important to note that many of the state laws that do NOT make this conflation explicit achieve the same goal implicitly. That is, the language of the laws is  crafted to ensure that the ban on boycotts, as defined in other terms, applies to both boycotts of Israel and boycotts of settlements (for example, banning the boycott of “a person or an entity based in or doing business with a jurisdiction” with which this state can enjoy open trade.

Questions about this issue or any of the data tables should be directed to: Lara@fmep.org

The Foundation for Middle East Peace (FMEP) and Palestine Legal invite you to attend 

The IHRA Definition & the Fight Against Antisemitism

Part 6: Implications and Impacts of the IHRA Definition on Palestinians

Friday, February 19th, 2021

You can listen to this conversation as a podcast here.

FMEP is proud to host a webinar featuring Palestinian scholars and activists discussing the implications and impact of the IHRA definition of antisemitism for Palestinians. Join us as we host Ahmad Daraldik, Florida State University student and former Student Senate President, Dima Khalidi, Founder and Director of Palestine Legal, and Dr. Sherene Seikaly, professor and historian of the modern Middle East — all in discussion with FMEP President Lara Friedman. 

For the list of resources shared during this webinar, please scroll down. 

To find past recordings and future events and resources in this series, click here

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The IHRA (International Holocaust Remembrance Alliance) “working definition of antisemitism” — including its examples — is on its way to being adopted and used across the globe, where it poses a serious threat to free speech. From the State Department to English Premier League soccer teams, from universities to social media platforms, concerted campaigns to label criticism of Israeli policies and challenges to Zionism as antisemitism — and to impose formal/legal consequences — continue to gain momentum. 

In this webinar, we will explore the unique and urgent impacts on Palestinians of the IHRA definition, which Palestinian and Arab scholars describe as “a stratagem to delegitimise the fight against the oppression of the Palestinians, the denial of their rights and the continued occupation of their land.” Palestinians are especially targeted by the implementation of the IHRA definition, from attacking their activism and advocacy on their own behalf to labeling expressions of their identities, their lived experiences, and their history and experiences antisemitic. This impossible dynamic is especially visible on college campuses, where students and faculty face campaigns that undermine their rights to constitutionally-protected freedom of speech. 

Panelists

Ahmad Omar Daraldik is a third year student majoring in International Affairs at Florida State University where he serves as a Student Senator. He is a 1st Generation Palestinian Muslim American and was the first with this background to serve FSU as the Student Senate President. His university education is supported by the Center for Academic Retention and Enhancement (CARE), which assists students who are traditionally underrepresented for socioeconomic and educational reasons. His instagram is https://www.instagram.com/deeko_the_palestinian/.  

Dima Khalidi is the founder and director of Palestine Legal and Cooperating Counsel with the Center for Constitutional Rights (CCR). She oversees Palestine Legal’s array of legal and advocacy work to protect people speaking out for Palestinian rights from attacks on their civil and constitutional rights. Prior to founding Palestine Legal in 2012, Dima worked with CCR as a cooperating attorney on the Mamilla Cemetery Campaign, submitting a Petition to United Nations officials to stop the desecration of an ancient Muslim cemetery in Jerusalem, and advocating on behalf of Palestinian descendants of individuals interred in the cemetery. Dima has a JD from DePaul University College of Law, an MA in International and Comparative Legal Studies from the University of London – SOAS, and a BA in History and Near Eastern Studies from the University of Michigan. 

Sherene Seikaly is Associate Professor of History at the University of California, Santa Barbara. Seikaly’s Men of Capital: Scarcity and Economy in Mandate Palestine (Stanford University Press, 2016) explores how Palestinian capitalists and British colonial officials used economy to shape territory, nationalism, the home, and the body. Her second book, From Baltimore to Beirut: On the Question of Palestine focuses on a Palestinian man who was at once a colonial officer and a colonized subject, an enslaver and a refugee. His trajectory from nineteenth century mobility across Baltimore and Sudan to twentieth century immobility in Lebanon places the question of Palestine in a global history of race, capital, slavery, and dispossession. Seikaly is the recipient of the Distinguished Teaching Award from the Academic Senate, the University of California, Santa Barbara; the Harold J. Plous Award at UCSB; and the UC President’s Faculty Research Fellowship. She currently serves as co-editor of Journal of Palestine Studies and co-founder and co-editor of Jadaliyya.

Moderator

Lara Friedman is the President of the Foundation for Middle East Peace (FMEP) and a leading authority on U.S. foreign policy in the Middle East, with particular expertise on the Israeli-Arab conflict, Israeli settlements, Jerusalem, and the role of the U.S. Congress. She is published widely in the U.S. and international press and is regularly consulted by members of Congress and their staffs, by Washington-based diplomats, by policy-makers in capitals around the world, and by journalists in the U.S. and abroad. In addition to her work at FMEP, Lara is a Contributing Writer at Jewish Currents and a non-resident fellow at the U.S./Middle East Project (USMEP). She tweets at @LaraFriedmanDC.

Resources shared during this webinar: 

Palestine Legal: 

Two interviews with Dima Khalidi: 

Statement from Palestinian and Arab academics, journalists, and intellectuals, “Palestinian rights and the IHRA definition of antisemitism” → https://www.theguardian.com/news/2020/nov/29/palestinian-rights-and-the-ihra-definition-of-antisemitism?fbclid=IwAR1j_NOutmYAC6sduOE4GP4DgUp1M037x-3sO4cO0Hk4HhvQrrdOhkgkMok

Sherene Seikaly’s New York Times essay: “Anti-Zionism Can and Should Be Anti-Racism,” part of their “Is Anti-Zionism Merely Anti-Semitism in Disguise?” debate → https://www.nytimes.com/roomfordebate/2016/04/04/is-anti-zionism-anti-semitism/anti-zionism-can-and-should-be-anti-racism

For more on the University College London IHRA decision, which Dima Khalidi referenced —> https://www.palestinecampaign.org/press-release-ucls-academic-board-finds-the-ihra-definition-of-antisemitism-not-fit-for-purpose/

Resources from Lara Friedman: 

This is Palestine is a podcast by IMEU

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From Pompeo’s attack on BDS to the battle for free speech on college campuses, anti-Semitism is being weaponized to silence criticism of Israel and stifle advocacy for Palestinian rights. Omar Baddar speaks with Diana Buttu, Lara Friedman, and Roua Daas about this crisis of free expression and political speech.

Listen to The Weaponization of Anti-Semitism

Analysis by FMEP’s Lara Friedman, published at the American Prospect on November 12, 2020

Weaponizing Anti-Semitism, State Department Delegitimizes Human Rights Groups

Authoritarian regimes and illiberal forces will exploit the new U.S. policy.

Amidst the hullabaloo around last week’s U.S. elections, most people probably forgot the recent shocking news that the U.S. Department of State plans to label three leading global human rights groups—Amnesty International, Human Rights Watch, and Oxfam—“anti-Semitic.” They shouldn’t have. A new report today suggests that the plans will not only move forward, but will be geared to have even broader impact than originally suggested. With the victory of President-elect Biden, some might now be tempted to dismiss all of this as a desperate, partisan gambit that, if implemented, will be easily undone by a new Biden administration. In reality, the labeling of humanitarian and civil society groups as “anti-Semitic” looms as an inexorable outcome, now or in the future, of an ongoing and escalating campaign, embraced by Democrats and Republicans alike, which has weaponized combating anti-Semitism to quash criticism of Israel, attack progressive political actors and movements, and delegitimize civil society organizations.

At the core of this campaign is the International Holocaust Remembrance Alliance’s (IHRA) “working definition of antisemitism,” which, in a memo explaining the targeting of Amnesty and friends, the State Department contends the groups are violating. The IHRA was established in 1998 to “strengthen, advance and promote Holocaust education, research and remembrance.” Over time, it increasingly focused on anti-Semitism, and today positions itself as the international body with responsibility for fighting—and authoritatively defining—anti-Semitism. Herein lies the controversy.

There appears to be bipartisan support around making the IHRA definition the official U.S. tool for rooting out alleged anti-Semitism.

Traditionally, “anti-Semitism” means hostility and prejudice toward Jews because they are Jews—a scourge that has imperiled Jews throughout history, and is a source of resurgent threats to Jews today. The IHRA definition, in contrast, is explicitly politicized, refocusing the term to encompass not only hatred of Jews, but also hostility toward and criticism of the modern state of Israel. For example, it labels as anti-Semitic “applying double standards” to Israel or requiring of Israel “behavior not expected or demanded of any other democratic nation.” While it notes that “criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic,” in practice this “double standard” language has paved the way for attacking virtually all criticism of Israel as prima facie anti-Semitic, based on the simplistic argument that focusing criticism on Israel, when other nations are guilty of similarly bad behavior, can only reflect animus against Jews.

According to this logic, it is anti-Semitic to challenge Israel’s occupation of Palestinian lands—unless one is equally challenging occupation anywhere. Likewise, boycotting or calling to boycott Israel or settlements to protest violations of Palestinian rights is considered anti-Semitic—unless one is similarly boycotting every country guilty of violating the rights of any people, anywhere.

The IHRA definition also stipulates that it is anti-Semitic to deny “the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor”—notwithstanding the fact that other peoples, including Palestinians, are denied self-determination, and other nations have their existence challenged, including, for example, by Israelis who argue that the state of Jordan should be replaced with Palestine. Yet, this line has become the basis for indicting anyone who identifies as anti-Zionist, or who supports boycotts of Israel or settlements, as anti-Semitic, irrespective of their reasoning and absent evidence that their views are grounded in hostility toward not Israel, but Jews.

In December 2019, President Donald Trump was applauded by members of both parties for his Executive Order on Combating Anti-Semitism, in which he gave the IHRA definition and its Israel-focused examples the weight of U.S. law. Since then, that order has been the basis for a flood of complaints and investigations targeting U.S. campuses, based on allegations related to criticism of Zionism and Israel. Separately, there have been efforts to incorporate the IHRA definition and its examples into laws dealing with hate crimes and discrimination in U.S. states. There is also an ongoing campaign pressing Facebook and other social media platforms to adopt and enforce the IHRA definition and its examples, with the key backers making clear that their target is not anti-Semitism as it is traditionally defined, but anti-Zionism and criticism of Israel.

In September 2020, the State Department promised a “whole-of-government” approach to the issue of fighting the Boycott, Divestment, and Sanctions (BDS) movement; the department’s targeting of human rights groups, based on tying the IHRA definition to BDS to allege anti-Semitism, makes clear what this approach, if implemented before Trump leaves office, will be about. The threat, however, is not just from the Trump administration. The call to use the IHRA definition in a “whole-of-government” approach to fight anti-Semitism was articulated previously by Democratic congressman Ted Deutch of Florida, in a 2019 op-ed entitled “The US Should Adopt the IHRA Definition of Anti-Semitism.” While Deutch condemned the State Department’s plans to label human rights groups anti-Semitic, he has not retracted his support for implementing the definition in general.

The IHRA definition is explicitly politicized, refocusing the term to encompass not only hatred of Jews, but also hostility toward and criticism of the modern state of Israel.

In short, there appears to be bipartisan support around making the IHRA definition, already adopted by an ever-growing list of countries, the official U.S. tool for rooting out alleged anti-Semitism. Should this come to pass, the full spectrum of organizations that challenge Israeli policies—or that advocate, support, or defend boycotts of Israel or settlements—will find themselves in the U.S. government’s crosshairs.

The State Department’s targeting of humanitarian and civil society groups must be understood in this context. It is not an isolated outrage, as it is being treated by some longtime backers of the IHRA definition who appear shocked to see the definition used this way, like the Anti-Defamation League. Rather, it is an inevitable consequence, intended or not, of the effort to enforce the IHRA’s politicized definition of anti-Semitism, and the dangerous implications of this effort cannot be overstated. It will be a short leap from sticking the “anti-Semitism” label on a group like Amnesty International—which does not accept U.S. funding in any case—to sticking it on virtually all groups that engage on Israel-Palestine, including many that rely on U.S. funding for their work across the globe. Other angles of attack will doubtless come into play, like seeking to strip nonprofit organizations of their tax-exempt status (a first shot at which is already under way). Across the globe, authoritarian regimes and illiberal forces will exploit the new U.S. policy as a pretext to escalate their own attacks on civil society groups.

Delegitimizing the world’s leading human rights organizations with false accusations of anti-Semitism is a feature, not a bug, of a larger effort to weaponize the fight against anti-Semitism for political ends. Even with Biden moving into the White House in January 2021, absent a determined effort to roll back or amend the IHRA definition, or to adopt a different interpretation of its examples, the targeting of vital human rights and humanitarian aid organizations, in the United States and around the world, will be just the start.

Analysis by FMEP’s Lara Friedman, published at Jewish Currents on August 19, 2020

Israel-Advocacy Groups Urge Facebook to Label Criticism of Israel as Hate Speech

ON AUGUST 7th, amid broad efforts to get Facebook to clamp down on extremist activity and hate speech, more than 120 organizations sent a letter to the social media giant, urging it to “fully adopt” the International Holocaust Remembrance Alliance (IHRA) working definition of antisemitism as the “cornerstone of Facebook’s hate speech policy regarding antisemitism.” This definition, which was adopted by the IHRA in 2016 and has been promoted to governments worldwide, includes several examples of what it describes as “contemporary” antisemitism—including “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” and “applying double standards” to Israel—that can be interpreted to define much criticism of Israel, Israeli policies, or Zionism as antisemitism.

This letter represents the latest front in the battle to use the IHRA definition to officially exclude criticism of Israel from the bounds of acceptable discourse. It was spearheaded by pro-Israel attack dog StopAntisemitism.org, which is funded by hardline pro-Israel philanthropists Adam and Gila Milstein. The group is perhaps best known for publicly labeling critics of Israel, including some Jews, as antisemites. So far, the list of signatories to the Facebook letter is a “who’s who” of right-wing groups dedicated to defending Israel from criticism, many of which are also funded by or associated with the Milsteins; in The Jerusalem Post, a former Israeli Knesset member who is associated with one of the signatories credited the Milsteins’ foundation with initiating the campaign. Their effort enjoys the public backing of the Israeli government: Israel’s new Minister of Strategic Affairs, Orit Farkash-Hacohen, told the Post, “I welcome the initiative and call on more bodies and organizations to join the clear demand for change.”

Yet, as attorney Kenneth Stern—an expert on antisemitism who was the lead drafter on the text that became the IHRA definition—has repeatedly expressed, this definition and its examples were never intended to be used as a formalized, enforceable definition of antisemitism, and turning them into one has raised serious free speech concerns. The American Civil Liberties Union described early efforts to codify the IHRA into law as “part of a disturbing surge of government-led attempts to suppress the speech of people on only one side of the Israel-Palestine debate . . . on college campuses, in state contracts, and even in bills to change the federal law.” If social media networks like Facebook adopt the Israel-related examples in the IHRA definition and allow these to guide their hate speech policies, it will likely lead to similar efforts to suppress free speech, this time in the online sphere.

So far, Facebook has responded to the letter by changing its policy regarding hate speech in ways it says take the IHRA definition into account, but it has resisted adopting the IHRA definition in its entirety. On August 11th, Facebook announced that it had updated its hate speech policy “to more specifically account for certain kinds of implicit hate speech, such as . . . stereotypes about Jewish people controlling the world.” In a response sent to to the letter’s signatories, Monika Bickert—Facebook’s vice president of content policy—noted that the company had used the IHRA definition “in informing [its] own approach and definitions,” that its new policy “draws on the spirit—and the text—of the IHRA,” and that under Facebook’s policy, “Jews and Israelis are treated as ‘protected characteristics.’” Sheryl Sandberg, Facebook’s chief operations officer, also wrote to Adam Milstein personally, assuring him that the IHRA definition has been “invaluable” to Facebook.

Though Israel was not mentioned in Facebook’s response to the letter, the company has previously expressed reluctance to adopt the parts of the definition that relate to Israel. In a May 7th webinar hosted by the American Jewish Committee, senior Facebook official Peter Stern said that Facebook had “mapped” the IHRA definition onto its own policies and found it to be “valuable,” but added that “the areas where we would depart to some degree from that definition . . . comes in relation to statements about, particularly, nations.” He added, “We don’t allow people to make certain types of hateful statements against individuals. If the focus turns to a country, an institution, a philosophy, then we allow people to express themselves more freely, because we think that’s an important part of political dialogue . . . and that there’s an important legitimate component to that. So we allow people to criticize the state of Israel, as well as the United States and other countries.” The August 7th letter called out Stern’s comments, claiming that he “admitted that Facebook does not embrace the full adoption of the IHRA working definition because the definition recognizes that modern manifestations of antisemitism relate to Israel.“

The campaign to pressure Facebook to adopt the full IHRA definition has been a long time in the making. In December 2019—less than a week after President Trump signed an executive order embracing the IHRA definition—StopAntisemitism.org joined forces with another hardline Israel advocacy group, Zachor Legal Institute, to issue a report entitled “The New Anti-Semites.” (Zachor, also a signatory of the August 7th letter, is the same group that recently called on the Department of Justice “to fully investigate the ties among Black Lives Matter, their BDS [Boycott, Divestment, and Sanctions] partners and foreign terror groups that are promoting violence and unrest in the United States.”) That report, which is cited in the letter to Facebook, argues that most criticism and pressure related to Israel or its policies—but especially the BDS movement and the tactics it endorses—is antisemitic. It offers specific recommendations for vanquishing this antisemitism, including enshrining the IHRA definition into law and expanding the application of the IHRA definition to social media, as well as to “online platforms such as financial service providers and internet site hosts of social media platforms.”

Six months later, on June 4th, Zachor began its efforts to turn this recommendation into a reality, announcing that it had sent letters to Facebook, YouTube, and Twitter “updating them about antisemitic postings that are present on their popular social media platforms.” The sole posting cited in Zachor’s letter to Facebook is a Nakba commemoration post from a page called “Palestine Writes,” sharing a video from the Samidoun Palestinian Prisoner Solidarity Network that mentions “confronting the racist ideology of Zionism.” All of the examples Zachor cited in these letters relate to Palestinian criticism of Israel; none mention anything about Judaism or Jews. Using the IHRA definition as its basis, Zachor argued that the posts violated the social media platforms’ “own hate speech regulations” and demanded their removal.

Diaspora Israel-advocacy groups’ strategy of targeting criticism of Israel on social media is mirrored by similar efforts within the Israeli government. In July, Farkash-Hacohen, the Israeli Minister of Strategic Affairs, published an op-ed in Newsweek urging social media companies to adopt the IHRA definition. The following week, The Jerusalem Post reported that under the new Israeli government, the Ministry of Strategic Affairs was “shifting” its focus from fighting BDS to challenging “delegitimization of Israel more broadly,” and that it has “plans to increase its focus on social media,” where it hopes to—in the words of the ministry’s director general, Ronen Manelis—“balance the antisemitic and anti-Israel discourse.” According to the Post, Jewish Agency chairman Isaac Herzog “said he has sought to have the companies adopt the International Holocaust Remembrance Alliance’s definition of antisemitism” and that he had “met with Facebook executives . . . to discuss the matter.”

The efforts targeting social media are yet another reminder that concerns about the free speech implications of the IHRA definition are not hypothetical. Earlier this year, legislators in several states sought to codify the IHRA definition, including its Israel-related examples, into hate crimes legislation and anti-discrimination laws. Trump’s 2019 executive order adopting the IHRA definition into US policy has, as predicted, spawned a growing list of attacks targeting Israel-related speech on college campuses, as well as an effort targeting a US foundation for its support for a group that criticizes Israel. The IHRA-based conflation of antisemitism and criticism of Israel was also the foundation of a recent report by the Milstein-supported AMCHA initiative purporting to document rising antisemitism on college campuses. While admitting there has been a significant decrease “in the number of incidents of anti-Jewish harassment identified as expressing classic antisemitism,” the report highlighted a “significant increase in the number of Israel-related incidents,” as defined under the IHRA definition. Notably, under the criteria established by AMCHA report, merely challenging the legitimacy of the IHRA definition was treated as an indicator of antisemitism.

The Israel advocacy network’s push on social media comes at a time when Facebook and other social networks are under significant pressure regarding how they deal with controversial content. Conservatives claim to be victims of a politically motivated crackdown on right-wing voices. Progressives decry the proliferation of extremist hate speech and call on social media platforms to remove and ban misinformation and hate speech. In this context, the demand that social media adopt and enforce the full IHRA definition represents a cynical strategy to co-opt progressive concerns about antisemitism in order to promote a hardline, reactionary political agenda that seeks to quash constitutionally protected free speech critical of Israel.

One prominent progressive effort to push Facebook comes from the “Stop Hate for Profit” coalition. Made up of the Anti-Defamation League (ADL) as well as the NAACP, Color of Change, the National Hispanic Media Coalition (NHMC), and several other groups, the coalition formed in June to demand that Facebook, among other things, “find and remove” groups focused on antisemitism. The coalition doesn’t offer its own definition of antisemitism, but its sole Jewish member, the ADL, has long championed the IHRA definition—a position that aligns neatly with the ADL’s evolution into an organization that prioritizes defending Israel from criticism over defending free speech.

Facebook’s updates to its hate speech policy haven’t satisfied its IHRA-focused critics, whose goal isn’t to get Facebook to deplatform antisemitism, but to get Facebook to deplatform criticism of Israel. In a response to Sandberg’s letter to him, Milstein made it clear that the campaign to pressure the social network to accept the IHRA definition will continue: “We look forward to working with @Facebook to ensure #antisemitism is eradicated from the platform and the #IHRA working definition of antisemitism is fully adopted by your organization.” Whether Facebook will buckle under the pressure will depend in large part on whether the public—Jewish and non-Jewish—finally recognizes that concerns about antisemitism are being exploited to serve a narrow political and ideological agenda, putting at risk free speech on Israel/Palestine and, by extension, political speech writ large.

Op-ed by Lara Friedman, originally published by Jewish Currents on February 20, 2020.

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A NEW WEAPON has been unveiled in the battle to quash activism and criticism targeting Israel. Pending bipartisan bills, introduced in Arizona’s House and Senate, as well as in Iowa’s House, seek to codify the controversial International Holocaust Remembrance Alliance (IHRA) definition of antisemitism into the states’ hate crimes law and civil rights laws, respectively. Parts of that definition conflate antisemitism with both criticism of Israel and anti-Zionism; as a result, the implications of this new legislation for free speech are alarming.

The IHRA definition of antisemitism was thrust into the spotlight on December 11th, 2019, when Donald Trump issued his controversial executive order on antisemitism—an order focused narrowly on policing academia in the United States. In that respect, Trump’s executive order is like other initiatives that have previously sought to codify the IHRA definition into law and policy—including a long-pending bill in Congress called the “Anti-Semitism Awareness Act” (which the executive order rendered moot) and legislation, passed and pending, in numerous states.

Kenneth Stern, the lead author of the IHRA definition, has long made clear that the language was never intended to be used this way, and that doing so raises serious free speech concerns. Such concerns have proved well-founded, with Trump’s executive order opening the door for a flood of complaints tied to alleged antisemitic incidents. All of the alleged offenses relate to violations of the IHRA’s Israel-related provisions, which fall outside the scope of what has traditionally been defined as antisemitism—that is, hostility toward Jews simply because they are Jewish. Universities that have already come under attack in the two months since the issuance of the executive order include Georgetown, Columbia (two separate claims), UCLA, Duke and the University of North Carolina, and Georgia Tech, as well as Middle East Studies National Resource Centers (NRCs) nationwide.

What is happening in Arizona and Iowa is different, and represents an even more alarming shift in tactics. Rather than targeting free speech on campuses, the Arizona bills seek to inscribe the IHRA formula into the DNA of the state’s laws dealing with hate crimes. By lumping criticism of Israel into the same shameful category as “prejudice based on race, color, religion, national origin, sexual orientation, gender or disability” in a statute related to crime statistics—a list that is used in Arizona’s sentencing statute as the basis for determining which groups, in effect, enjoy protected status—the bills would establish as a matter of law that criticism of Israel must be considered an “aggravating factor” when handing down sentences for criminal convictions. This means that past criticism of Israel could open the door for harsher, “aggravated sentences” for protesters  charged with a crime.

Criminal charges are becoming a go-to weapon of state and local authorities across the nation when it comes to suppressing political protests and other forms of constitutionally protected free speech. One of the most prominent recent examples of this criminalization of protest was the mass indictment of 214 Americans for protesting Trump’s inauguration in 2017—with many of them subjected to a legal ordeal lasting more than a year. In 2019, Arizona had several notable cases of its own. University of Arizona students were hit with criminal charges for protesting a Border Patrol event on campus. Authorities slapped protesters with felony riot charges for demonstrating outside a local prison. And Phoenix police arrested people participating in an immigration rally, charging them with misdemeanors and felonies. In this context, it is not a stretch to imagine criminal charges against protesters in Arizona, on- or off-campus, for opposing Israeli military actions in Gaza or for supporting Palestinians’ human rights. The bill currently moving through Arizona’s legislature would ensure that such charges—and potential sentences—would be more severe, with the protesters’ views on Israel enabling courts to classify their alleged offenses, in effect, as hate crimes.

In Iowa, the new tactic takes a different form. The pending legislation would amend the state’s civil rights laws to require that authorities use the IHRA definition in determining whether an alleged violation of state rules or policies regarding “discriminatory acts . . . was motivated by discriminatory anti-Semitic intent.” The objective behind the legislation is hinted at heavily in the bill’s explanatory language, which describes campus antisemitism as “systemic, broad, and deep,” and says that “State officials and institutions, including educational institutions, have a responsibility to protect citizens from acts of hate and bigotry motivated by discriminatory animus, including anti-Semitism, and must be given the tools to do so.”

The situation in European countries that have adopted the IHRA as a national policy provide a glimpse into what these bills could mean on the ground: in the United Kingdom, a charity event for Palestinian children is canceled, and pro-Palestinian campus activism barred; in Germany, a public lecture is blocked, the director of a Jewish museum is hounded into resigning, and the bank account of a Jewish organization that supports boycott, divestment, and sanctions (BDS) against Israel is closed; and in France, the mere act of calling for boycott of Israel is criminalized.

Another concern is that the pending legislation portends more of the same across other states. This prediction is shaped by the experience of the past five years, during which legislation to quash boycotts of Israel (and, in most cases, its settlements in the West Bank) has spread with remarkable efficiency from one state legislature to another. The success of this strategy speaks for itself: as of this writing, such laws have been enacted or are pending across the US.

This prediction is informed, too, by the example of two previous efforts to promote the IHRA definition in state legislatures. Specifically, in 2018, Rep. Alan Clemmons, a South Carolina legislator who has long been a standard bearer for the far-right agenda on Israel and a leader in the conservative, “model-bill factory” known as ALEC, introduced legislation to codify the IHRA definition into law as part of a provision ostensibly targeting antisemitism in state colleges. His bill passed in South Carolina, and in 2019, Florida followed suit.

Clemmons’s effort enjoyed the backing of a lobbying group funded by the right-wing Jewish casino magnate Sheldon Adelson, the Israel Allies Foundation (IAF), and in particular the help of IAF’s US Director Joe Sabag. Sabag has publicly identified himself as the “the primary legal expert who helped develop” the legislation passed in both South Carolina and Florida. An email—which was sent by the state representative behind the Florida law, Randy Fine, to at least five legislators from other states—notes that Sabag “was instrumental in providing outside support as I pushed the bill and I would recommend anyone considering such an effort to talk to him.” Sabag’s reply-all to that email highlights the goal of spreading such bills across the country: “My legal team has now taken Randy’s bill and refined it into a model that can be brought elsewhere. I urge you to please contact me or Rep. Alan Clemmons and take advantage of our policy support if you are considering filing a bill.” Notably, in that same message, Fine makes clear that the real point of his legislation is to target pro-Palestinian activism: “Students for Justice in Palestine is now treated the same way as the Ku Klux Klan – as they should be.”

Sabag and Adelson are not the only ones backing these bills. There exists today a veritable cottage industry of organizations dedicated to promoting the IHRA definition as a legally-mandated litmus test, designed to delegitimize if not criminalize criticism and activism on Israel, and especially boycotts. Most prominent among them is Israel’s Ministry of Strategic Affairs, which in September 2019 published a report documenting how “leading BDS activists or organizations disseminated content that meet [sic] the internationally accepted definition of antisemitism” under the IHRA definition. Another major player in this effort is the right-wing powerhouse NGO Monitor, which has urged governments and the United Nations to adopt the IHRA definition as a step toward cutting off funding for and cooperation with all or most Palestinian and pro-Palestinian groups.

Within the US, promoters of the IHRA definition include the Anti-Defamation League, which has dismissed concerns that the definition could be used to target free speech critical of Israel. Another player is the Lawfare Project, which in November 2019 argued that upholding the Court of Justice of the European Union’s decision to require labeling of settlement products would “fly in the face” of the IHRA definition of antisemitism. Perhaps most prominently today, there is the Zachor Legal Institute, which has argued for years for using US anti-boycott provisions, antitrust laws, racketeering laws, and anti-terrorism statutes against BDS.

In January 2020, Zachor produced a report entitled “The New Anti-Semites.” Published by StopAntisemitism.Org—an organization born during the Trump era that campaigns against members of Congress and others who criticize Israel—the 120-page report uses the IHRA definition as the foundation of its analysis and of its condemnation of pro-Palestinian activists as antisemites. The report recommends that in order to better target the “new anti-Semites”—by which it means critics of Israel and its policies—the IHRA definition should be “reinforced” by means of “effective laws and policies, and the consistent enforcement of these laws and policies, in order to ensure the limitation of this destructive phenomenon.” The bills now moving through the state legislatures in Arizona and Iowa are examples of laws that, under the pretext of fighting antisemitism, are designed to do precisely that.