A couple of weeks ago, the Anti-Semitism Awareness Act of 2016, a.k.a. S. 10, was introduced in the Senate, read three times, and approved by unanimous consent without debate or amendment—all on the same day. That sort of bipartisan consensus, which suggests a bill is so obviously unobjectionable that no discussion of its merits is necessary, usually means trouble, and this case is no exception. In the name of protecting Jewish students from discrimination, S. 10, if approved by the House, will encourage universities to suppress dissenting political opinions and have a chilling effect on constitutionally protected speech.

S. 10, which was introduced by Sens. Tim Scott (R-S.C.) and Robert P. Casey Jr. (D-Pa.), codifies a controversial State Department definition of anti-Semitism that includes one-sided criticism of Israel and opposition to Zionism. Last year the University of California declined to adopt that definition based on concerns that it would violate the First Amendment by deterring pro-Palestinian activism. S. 10 would have the same effect on a national scale, notwithstanding its assurance that “nothing in this Act…shall be construed to diminish or infringe upon any right protected under the First Amendment.”

The Anti-Semitism Awareness Act is supposed to help the Education Department enforce Title VI of the Civil Rights Act of 1964, which bans discrimination on the basis of race, color, or national origin by educational institutions that receive federal money. Although Judaism is not a race, color, or national origin, the Justice Department says“discrimination against Jews, Muslims, Sikhs, and members of other groups violates Title VI when that discrimination is based on the group’s actual or perceived shared ancestry or ethnic characteristics.” Furthermore, discrimination can include a “hostile environment” that interferes with a student’s education, and a hostile environment can be created by things other people say.

Given this legal context, the official definition of anti-Semitism has clear First Amendment ramifications. If on-campus speech is viewed as anti-Semitic, it may prompt an investigation by the Education Department, which could conclude that a university has violated Title VI by tolerating anti-Jewish harassment. Awareness of that possibility encourages administrators to regulate and punish speech, which makes students reluctant to express opinions that could be deemed anti-Semitic. The looser the definition of anti-Semitism, the greater the potential for censorship.

Even the clearest expression of anti-Semitism is protected by the First Amendment, provided it does not rise to the level of harassment or assault. It should be possible for a student to question the Holocaust or claim that Jews control the media—two examples mentioned in the State Department’s definition—without triggering a federal investigation. The right response to bigoted misconceptions is refutation, not censorship, especially at an educational institution that values free inquiry and open debate.

More here. H/T: DM