Congress’ Antisemitism Bill is a Disaster

Why it is Unconstitutional and Anti-Christian

The U.S. House of Representatives voted Wednesday (May 1st, 2024) on a bill meant to tackle the problem of antisemitism (“The Antisemitism Awareness Act of 2023”). This was in response to the widespread hooliganism of leftist agitators on American college campuses protesting claimed abuses of Palestinians in the Israeli military response to the Hamas attack on Israeli civilians on October 7th, 2023. The bill is also a response to the many ways in which these leftists speak against Jews and Israel.

The bill, if made U.S. law, would make legally binding the International Holocaust Remembrance Alliance’s working definition of antisemitism (which they themselves emphasize is “non-legally binding”) with regard to “the enforcement of federal anti-discrimination laws concerning education programs or activities, and for other purposes.” In other words, currently existing non-discrimination law would begin to be applied to any instance of speech deemed antisemitic according to the IHRA’s definition.

I’m willing to grant that many, if not most, of the legislators who voted in favor of the bill had good intentions. I’m not, however, willing to grant that the consequences of this bill, if enshrined into law, will be good. This is the case for two reasons. First, it bans speech that is currently protected under the First Amendment of the U.S. Constitution: “Congress shall make no law . . . abridging the freedom of speech, or of the press . . . .” Second, as written, the bill bans language used in the New Testament, and must therefore be opposed by all Christians. For both of these reasons, this bill should not be passed by the Senate, or should be vetoed if it makes it to the President’s desk.

I am myself opposed to many of the things deemed antisemitic in the IHRA’s definition. I think, for example, that it is historically and morally wrong to deny or downplay the Holocaust, or to accuse “Jews as a people of being responsible for real or imagined wrongdoing committed by a single Jewish person or group.” It is wrong to accuse any national, ethnic, or religious group of being responsible for real or imagined wrongdoing committed by a single member of that group. It is wrong to hate Jews and seek to harm them because of their ethnicity, nationality, or religion.

But it is also plainly unconstitutional, and for good reason, to make speech illegal simply because it is wrong or offensive to some. The First Amendment was never intended to protect all speech—obscene speech, for example. It was, however, very clearly incorporated into the Constitution in order to protect disfavored political speech. The standard, moreover, of what is allowed according to the First Amendment is not whether a statement is true. Policing whether a statement about a given group (in this case Jews) is true or false, however, is the effect of the antisemitism bill. One can now be in violation of federal anti-discrimination law if one is deemed to have said untrue things about Jews. Those things may very well be untrue, but the First Amendment clearly does not state that the only speech that will be allowed is true speech, or speech determined to be true by some ruling body. We know exactly where this way of approaching free speech will lead, because it is already there in the “hate crimes” legislation of the UK, Canada, and most of Europe. It leads to the criminalization of disfavored political, religious, and cultural speech, the very things protected by the First Amendment. The fact that supposed conservatives are adopting the language of hate crimes should be extremely troubling to everyone on the right. This is true completely independently of what one thinks about the Israel-Hamas war, or about Judaism, or about anything else.

The antisemitism bill claims in Section 6(b) that “[n]othing in this Act shall be construed to diminish or infringe upon any right protected under the First Amendment to the Constitution of the United States.” This is an empty platitude, however. The enshrinement of the IHRA’s definition of antisemitism into federal anti-discrimination law formally contradicts the First Amendment, regardless of whether the bill’s authors intend it to or not. Doing so is simply not compatible with the Constitution.

The bill also poses intractable problems for Christians. The IHRA’s working definition says that it is antisemitic to claim that the Jews killed Jesus. I’m perfectly aware of ways in which Jews have at times been historically mistreated for supposed complicity in Christ’s death (“the blood libel” claim that the IHRA addresses). The New Testament does, however, assign blame for Christ’s death to “the Jews,” along with Pilate as a cowardly, apathetic enabler. What does the New Testament mean when it refers to this group? It does not mean that all Jews, even at the time of the crucifixion of Christ, were culpable or guilty of that act. Jesus was a Jew. His disciples were Jews. The focus is clearly on the Jewish leaders (and those who supported them) who actually condemned Christ. This is evident in the key passages that address this in the NT, among them John 18–19, Acts 2:22–24; 5:27–32; 13:27–29; and 1 Thessalonians 2:14–16. It is also the case that there was much Jewish opposition to the spread of the gospel in the days of the early church, which is also reflected in the NT, but that is, of course, different from culpability for the judicial murder of Christ.

Getting into exegetical debates about these (and other) biblical passages, however, is beside the point. Just as the bill is formally opposed to the First Amendment, regardless of what its authors intend, so it is formally opposed to explicit biblical language, despite whatever its defenders (including, bizarrely, some Christians in Congress) claim. One example is sufficient: “the Jews, who killed both the Lord Jesus and the prophets” (1 Thess 2:14–15). One could get engaged in all sorts of debates about what this passage means, and who it is even referring to. Again, all of that is beside the point: strictly speaking, on a formal level, the New Testament says things that are antisemitic according to the IHRA’s definition, and will therefore be in violation of federal anti-discrimination law whether one thinks it should be that way or not. One could claim (naively, I should think) that the law will never be enforced in this way. But that also does not matter: it can be enforced in this way, and, therefore, every Christian who would teach what the New Testament says will instantly become liable to prosecution. The purpose of the First Amendment is not to protect our disfavored speech as long as everyone who can punish us remains happy with that speech. It is to protect our speech, regardless of what anyone thinks of it.

For these reasons, the “Antisemitism Awareness Act of 2023” must be opposed. It must be opposed by those who adhere to the Constitution; it must be opposed by those who would not have their freedom to speak determined by whether it offends others; it must be opposed by Christians who stand on the truths of the Bible.