As Schumer presses ahead with Antisemitism Awareness Act, concerns about free speech resurface

WASHINGTON — One of Sen. Chuck Schumer’s last actions as the outgoing Senate majority leader is an attempt to codify a controversial definition of antisemitism in the face of claims from the left and the right that it impinges on free speech.

The New York Jewish Democrat announced Friday that he hopes to attach the text of the Antisemitism Awareness Act, passed overwhelmingly in the U.S. House of Representatives, to a must-pass defense appropriations bill.

The National Defense Authorization Act is in its final stages of negotiation, between the leaders of both parties in the Senate and the U.S. House of Representatives.

The Antisemitism Awareness Act, as passed in the House last May, would enshrine antisemitism as a type of discrimination that could trigger corrective action under Title VI, the section of the landmark 1964 Civil Rights Act that prohibits discrimination in educational institutions that receive federal funds.

The bill was spurred in part by allegations that some campuses have become hotbeds of antisemitism amid the Israel-Hamas war.

“As he always said he would, yesterday, Senator Schumer offered the Antisemitism Awareness Act to be added to the NDAA, a must-pass vehicle, as an amendment in negotiations with congressional leaders,” his spokesman said in an email on Friday. “The GOP is taking a look at his request.”

If Schumer’s statement sounded slightly defensive, it’s because Republicans and conservatives have railed against Schumer for delaying the bill in what they allege was a deliberate attempt to protect Democrats before the election. A number of Senate Democrats have said they oppose the bill on First Amendment grounds, saying that it inappropriately classifies some criticism of Israel as antisemitic.

“After dragging his heels for six months after the bill passed the House overwhelmingly, I am glad that Senator Chuck Schumer has succumbed to pressure and is finally moving the Antisemitism Awareness Act,” said Rep. Mike Lawler, the New York Republican who with New Jersey Democrat Josh Gottheimer, who is Jewish, led the bill to its 320-91 passage in the U.S. House of Representatives in May.

Fox News, the right-wing channel, has focused laser-like on Schumer’s stance on the bill. The New York Post, Schumer’s hometown newspaper that shares an owner with Fox, urged him in an editorial last week to make passing the bill a priority before his historic status as the most senior elected Jew in U.S. history lapses on Jan. 3, when Republicans assume control of the Senate, along with the House and presidency.

The Republican sweep has heightened concerns among the bill’s critics, who say Trump does not need more tools to make good on his threats to weaponize the law to go after his political enemies.

“There is a real concern right now out there on giving the executive branch additional powers going into the next four years,” said Kevin Rachlin, the Washington director of Nexus, a Jewish group promoting a different antisemitism definition that takes into account concerns that IHRA’s definition inhibits speech that is critical of Israel. He said he feared that Trump could use the act to “delegitimize political opponents, defund them and attack them using the institutions of government.”

The Trump transition team did not respond to a request for comment. Trump has also said he would seek to shutter the U.S. Department of Education, whose Office of Civil Rights adjudicates discrimination cases including about alleged antisemitism.

Schumer came under fire recently for reportedly advising leadership at Columbia University to hold fast in the face of criticism that the university enabled antisemitism, telling them that it was a trope advanced only by Republicans.

Over the summer, Pastor John Hagee, the founder of Christians United for Israel, which has lobbied for passage, mocked Schumer for his frequent invocation of his name — derived from the Hebrew “shomer” or guardian.

“You may call yourself the guardian of Israel, but I say to you now that if you fail to allow a Senate vote on this antisemitism awareness act before the end of this Congress, then your guardianship is a joke,” Hagee told CUFI’s Washington summit in July.

A recorded statement by Schumer to a pro-Israel rally in Washington last week elicited boos from a small group among the rally-goers.

Ahead of Schumer’s anticipated announcement, liberal groups that oppose the bill because they believe it will impinge on free speech were already rallying to oppose it.

The problem with the bill, they say, is that the definition it would enshrine into law, originally drafted by the International Holocaust Remembrance Alliance. The definition, they say, includes as examples of criticism of Israel that would inhibit protected protests against Israel and its war conduct.

The American Civil Liberties Union in a letter sent Thursday to every senator called the IHRA definition “overbroad.”

“It equates protected political speech with unprotected discrimination,” said the letter. “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.”

Among IHRA’s examples of antisemitism that the ACLU said constitutes political as opposed to hate speech are “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,” “drawing comparisons of contemporary Israeli policy to that of the Nazis,” and “applying double standards by requiring of [Israel] a behavior not expected or demanded of any other democratic nation.”

But it is not just the left that opposes the bill: Among the 91 who voted against it in the House were 21 Republicans, including Florida Rep. Matt Gaetz, who just quit Congress following President-elect Donald Trump’s nomination to be attorney-general.

Gaetz and others focused on the example in the IHRA definition that identifies as antisemitic “using the symbols and images associated with classic antisemitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis.” Jews killing Jesus is gospel, they said, reflecting a traditional view that most Christian denominations have downplayed or repudiated in recent decades.

Other conservatives advanced arguments closer to those of the left, saying the speech the IHRA definition condemns may indeed be repulsive, but is protected. Writing in the Free Press in May, Christopher Rufo, the leader of efforts to end what he calls “wokeness,” joined with a pro-Palestinian writer to decry the bill as “using the same coercive and corrosive principles as DEI,” the diversity, equity and inclusion principles that Rufo hopes to marginalize, if not crush.

Elan Carr, the CEO of the Israeli American Council, among the many centrist and right-wing Jewish groups that back the bill, said claims that the bill repressed free speech were made in bad faith.

The act, he said, defines what constitutes antisemitism to determine whether discrimination against a protected class has occurred. Expressing the views IHRA defines would not trigger action; using them to inhibit or intimidate students would.

“AAA codifies the use of the IHRA definition to determine whether something is antisemitism, and then mandates enforcement of Title VI when something is discriminatory, period, nothing more,” he said in an interview.

Sponsors of the bill say it is a critical tool to combat antisemitism on campuses, which has become one of the premier agendas among Jewish legacy organizations.

“I am glad to see that the Antisemitism Awareness Act will be brought to a vote in the Senate, Rep. Jared Moskowitz, a Jewish Florida Democrat said in a text. “This had broad bipartisan support in the House, and it is time now for the Senate to protect Jewish students and put a stop to the hate we are seeing on our college campuses.”

Rep. Kathy Manning, a Jewish North Carolina Democrat, said in an interview she hoped Schumer would include in the amendment components of her Confronting Antisemitism Act, which would create a domestic antisemitism coordinator for an all of government approach.

“The IHRA definition is one tool in the toolbox, but having a national coordinator in the White House who reports to the president, whose job it is to convene an interagency task force to monitor what’s going on and also to make sure that each relevant agency is doing everything they can to combat antisemitism,” she said.

Republicans sweeping the White House, the Senate and the House in elections spurred enthusiasm this week at the Jewish Federations of North America’s General Assembly because of the prospect of passage and implementation of the act.

Ethan Roberts, the deputy executive director of the Jewish Community relations Council of Minnesota and the Dakotas, said Jewish advocates were frustrated by the pace of the Biden administration’s action on campus antisemitism.

“There’s a lot of investigations that don’t seem to be going very far right now at the Office of Civil Rights enforcement at the Department of Education,” he said, referring to Title VI inquiries. With the GOP sweep, he said, “Hopefully we can see some action there.”