Legislating Hate and the New American Mind Crime
By Luke Peterson
July/Aug 2024
On May 1, the 118th U.S. Congress passed the so-called Antisemitism Awareness Act (H.R.6090), a sweeping piece of sociopolitical legislation introduced by arch-conservative Representative Mike Lawler (R-N.Y.). The bill easily passed through the House — 320-91 — and, as of this writing, is being sent to the Senate for consideration. To an extent, this bill’s passage reflected the partisan thinking in the U.S. on the Palestinian-Israeli conflict: 187 Republicans and 133 Democrats favoring it against 21 Republicans and 70 Democrats opposing (“House approves antisemitism bill amid pro-Palestinian campus protests,” Mychael Schnell and Lexis Lonas, https://thehill.com, May 1).
And though some cracks are beginning to show in the united pro-Israel American political front, as of yet the two mega-parties remain in lockstep in their devotion to the self-declared Jewish state (see this author’s article “Government by Highest Bidder” considering the origins of the U.S. support for Israel in the May-June_24 edition of this magazine.
At the heart of this new legislation is a semantic though critically important alteration to the standard definition of antisemitism to be applied within the federal Department of Education (DoE), the office responsible for creating and implementing policies that affect this nation’s schools and institutions of higher education. The new definition to be adopted would mirror that used by the International Holocaust Remembrance Alliance’s (IHRA) working definition of antisemitism.
A Vaguer Definition for Antisemitism
IHRA was established in 1988 by former Swedish Prime Minister Göran Persson as “an effort to foster international cooperation on disseminating information about the Holocaust.” Upon his invitation, former Prime Minister Tony Blair and former President Bill Clinton joined in. This staggeringly broad definition identifies antisemitism as any form of print or speech that enforces “a certain perception of Jews, which may be expressed as hatred toward Jews.” Writing for Aljazeera on May 8, Federica Marsi’s article asks, “Will the US adopt IHRA’s anti-Semitism definition? What’s the controversy?”.
She further notes that this vaguely worded definition, now one step away from becoming legal policy in all institutions under the DoE’s purview, goes on to impugn “Rhetorical and physical manifestations of antisemitism … directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities” (emphasis added).
Under this new federal framing, antisemitism could rationally be said to include any rhetorical argument against Jewish persons or indeed, against non-Jewish persons or property for reasons construed by the observer to be antisemitic. At the level of the federal government, soon this term will mean whatever an observer of that speech wants it to mean with all associated castigations and punishments
In essence, much like Supreme Court Justice Potter Stewart’s censorial definition of obscenity and pornography in 1964, the Antisemitism Awareness Act aims to give the federal government the vehicle through which to identify antisemitism as anything it deems to be antisemitic, or, in Potter’s words, “I know it when I see it.”
This overbroad and clearly fallible definition is soon to become official federal policy. Moreover, the penalties for violating this new, elastic legal pretext could be incredibly severe. Clearly designed to handicap pro-Palestine speech and/or any humanitarian action, its authors intended to create an impossibly elastic definition, such as the one adopted by the IHRA, to further extend federal protections for Israel in contemporary American discourse. At the same time, adopting it would have the concomitant effect of tightening the noose around those with a humanitarian defense of the Palestinians, their right to life, even their very humanity within Washington’s operational halls of government.
Consequences
Identifying Israel as a settler-colonial enterprise, for example, would violate the new act despite the similarities between Israeli actions in Gaza and the West Bank with previous settler colonial states like France in Algeria and Britain in Kenya. Additionally, any assertion that Israel’s policies are genocidal or resemble, in intent and/or implementation, that actions of the Nazis toward those they deemed “unworthy of life” would likewise be a clear violation and could very easily confront the author with legal consequences associated with racist hate speech.
To put a finer point on it, for those who might consider this kind of sweeping legislative and discursive defense of Israel a positive step, it is not hyperbole to suggest that several Biblical passages would be sufficiently antisemitic to warrant censure and punishment for it states that the Jewish elders of ancient Palestine’s Jewish community were responsible for Jesus’ arrest and eventual crucifixion. Following along from the IHRA definition, wouldn’t the preservation of this long-held Christian tradition be tantamount to antisemitic hate speech under the expansive new federal definition?
The new measure would therefore portend much more than a conditioning of speech around a marginalized American population. Rather, legislation such as the recent HR 6090 intends to criminalize speech or acts moving outside the standard of Washington’s current policy priorities, namely, the unapologetic sustenance and support of Israel regardless of the level of violence it perpetrates upon the Palestinian people. The measure recalls previous instances of federal legislation and attendant legal proceedings nakedly intended to promote one line of political thought while criminalizing another.
We’ve Seen This Before
Three-quarters of a century ago, the House Committee on Un-American Activities (HCUA, or alternatively, HUAC) heard public testimony from politicians, artists, actors and other well-known figures on the extent of their sympathy for communism as an ideology operating in the post-WW2 world. From 1946 through 1975, this congressional committee sought to identify and shame communists or socialists in the U.S., spending exorbitant sums of money to hunt down and publicly out members of the Communist Party of the United States and its allies. Through these proceedings, HUAC blacklisted artists, sullied reputations and cast a virtually indiscriminate net of aspersions nationwide not for any action that caused actual harm, but for the thought crime of (allegedly) supporting a political ideology contrary to our own.
Does the proposed blanket and indiscriminate new definition of antisemitism portend the same kinds of consequences today? If so, does it not conflict directly with that most lauded of American values, the right to free speech?
Some have argued that it does. Opposing the measure was an odd coalition of progressive Democrats who recognize this newly passed bill’s blatant anti-Palestinian nature, along with a number of conservative small-government Republicans who believe that it goes too far in curtailing the free-speech protections clearly adumbrated in the Constitution. The latter group notably included the 2020 election-denier Greene (R-Ga.) and alleged sex trafficker Matt Gaetz (R-Fla.), who, on May 1, opined on X that “this legislation is written without regard for the Constitution, common sense, or even the common understanding of the meaning of words.”
In this debate then, the adage holds true: Politics has once again made strange bedfellows aligning the viewpoints of the few openly pro-Palestinian voices in Congress — Rashida Tlaib (D-Mich.), Alexandra Ocasio-Corez (D-N.Y.) and Ilhan Omar (D-Minn.) chief among them — with the opinions of fringe and ultra-conservative politicians like the afore-mentioned Gaetz and Greene. The question remains whether this bizarre coalition will have enough influence to stop the Antisemitism Awareness Act before it passes through the Senate and becomes federal law governing thought, speech and action within the U.S.
As Israel’s genocidal war rages on, the U.S. enters another feverish election cycle. The office of the presidency is once again to be contested by two venal and self-interested candidates from either end of the narrow spectrum that circumscribes political opinion. As in 2020, in 2024 these same two wealthy, nepotistic, self-serving and ancient white male presidential candidates disagree on virtually every major talking point concerning American domestic and foreign policy. And yet, one after the other they’ve publicly embraced Israel in all of its violent manifestations time and time again (Joe Biden’s recent decision to delay weapons sales to Israel ahead of their catastrophic invasion of Rafah notwithstanding — especially when the U.S. has already supplied $800 million worth of weapons for the most recent Israeli campaign against Palestine).
And like the rabid, knee-jerk nationalism embraced by the House Un-American Activities Committee during the 1950s and 1960s, the Antisemitism Awareness Act promises to provide whoever should inhabit the office from 2024-28 with ample firepower to continue to identify and criminalize specific forms of speech. In effect, this act would condemn expressions of Palestinian humanity while creating yet more freedoms and discursive space around speech championing Israeli policy and practice no matter how brutal, illegal or inhumane.
Luke Peterson received his Ph.D. from the Faculty of Asian and Middle Eastern Studies at The University of Cambridge — (King’s College). His new book, The U.S. Military in the Print News Media: Service and Sacrifice in Discourse, has been published by Anthem Press.
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