Testimony of Professor Barry Trachtenberg to the United States House Judiciary Committee about proposed speech codes on November 7, 2017
Barry Trachtenberg is the Rubin Presidential Chair of Jewish History and the Director of the Jewish Studies Program at Wake Forest University.
First published in the Forward and reprinted by permission of the author
It is increasingly common to hear reports that a “new antisemitism” threatens to endanger Jews on a scale not seen since the second World War and the Holocaust. Studies from several major Jewish organizations have sounded the alarm that antisemitism is a “clear and present danger,” while a number of commentators have argued that yet another “war against the Jews” is upon us.
As much as these sort of statements try to call our attention to a looming catastrophe, they are motivated less by an actual threat facing American or world Jewry than they are part of a persistent campaign to thwart debates, conversations, scholarly research, and political activism (all of which often occur within the Jewish community itself) that is critical of the State of Israel.
“Interviewees reported low levels of antisemitism or discomfort. When they did encounter discomfort, they traced it either to the carelessness of student speech or to tensions within campus debates about the Israel-Palestine conflict, which they characterized as strident, inflammatory, and divisive. They held both supporters and critics of Israel responsible for creating this environment. The tone of student activism created a divided campus that left little room for reasoned, productive debate.”
Much of the testimony you will hear today is likely to describe alleged incidents of antisemitism, and it may cite studies purporting to prove that antisemitism is at crisis levels. I urge you to be sceptical of such claims.
First, many of the stories that get wide circulation contain factual distortions and are misrepresented in the media. Second, many studies are based on a definition of antisemitism that de facto defines criticism of Israel as antisemitic, and which limit their interviews to a specific set of Jewish students who are highly identified with the state of Israel. Yet as within American Jewry as a whole, Jewish students hold a wide range of views concerning Israel, from unilaterally supportive to sharply critical.
Motivated by concern for human rights
Legislation designed to curtail activity that is critical of Israel — be it political, scholarly, or simply conversational — most often rests upon a distortion of the State Department’s definition of antisemitism, which is appropriated from the “Working Definition of Anti-Semitism of the European Monitoring Center on Racism and Xenophobia,” a definition that was created for the purpose of research and not government policy. As well-intentioned as the State Department’s concern for antisemitism may be, its understanding of antisemitism is both flawed and overly expansive, and should not serve as the basis for speech codes.
Indeed, so expansive is the State Department’s definition that some of the founding premises of Zionism would themselves be considered antisemitic. For example, the State Department insists that an example of antisemitism is “Accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interest of their own nations.”
Of course, history tells us that quite often Jews’ citizenship in any particular country cannot so easily be taken for granted; this has been one of the factors behind the widespread belief among Jews that wherever they are in the world, they bear a responsibility to one another. The founders of Zionism consequently concluded that, regardless of where in the world they live, Jews have more in common with one another than they do with non-Jews.
Such arguments can be traced back at least to Theodor Herzl, who argued in his seminal 1896 book, The Jewish State, that antisemitism is an inescapable fact of modern existence and therefore Jews “…are a people—One people” and for that reason, “it is useless for us to be loyal patriots.”
Elsewhere, the State Department’s definition is far too broad and encompasses what in other contexts would easily be classified as protected political speech against a foreign government. While I agree that using “classic” antisemitic symbols and images is inappropriate (although not illegal), there is nothing necessarily wrong in comparing the actions of Israel to those of Nazi Germany.
In fact, comparisons of foreign leaders and countries to Nazism are made regularly. In 1990, President George H. W. Bush famously compared Iraqi leader Saddam Hussein to Adolf Hitler (a comparison also made by President George W. Bush). Given that comparisons of foreign leaders and governments to Nazism occur regularly, creating a “special status” for speech concerning Jews and Israel would only reaffirm otherwise antisemitic claims that Jews are exceptional and therefore need to have a special category of laws that apply only to them.
Even among Jews, one hears such comparisons levelled with great frequency, coming from both the political left and right. In December 1948 (three and a half years after the end of World War II and seven months after the founding of Israel), Albert Einstein famously co-signed a letter published in the New York Times comparing the political party of the Israeli leader Menachem Begin (a precursor to today’s Likud) to Nazism. More recently, United States Ambassador to Israel David Friedman had to apologize during his nomination process for having once called liberal Zionists, “worse than kapos.”
Plurality of Jewish views
Finally, to say that “denying the Jewish people their right to self-determination, and denying Israel the right to exist” is an example of antisemitism ignores the plurality of views that exist within the Jewish community. For one thing, it ignores the fact that for many Jews today and since its founding, the state of Israel is decidedly not an expression of Jewish self- determination, a concept which has often held cultural, religious, or ethical implications distinct from the idea of a Jewish state. For another, the question of Israel’s “right to exist” is not the same thing as that of its “right to exist as a Jewish state,” if that existence is predicated on the displacement and oppression of the non-Jews within its borders.
Given the flaws in the State Department’s definition of antisemitism, it must not form the basis of law or campus speech codes. As Kenneth S. Stern, the author of the “Working Definition of Anti-Semitism,” has stated, “the worst remedy is to prohibit speech deemed offensive, disparaging or bigoted that would otherwise be protected by the First Amendment.” He further stated that the purpose of the definition that he formulated was for scientific study, and is not suitable as the basis of campus anti-speech codes.
“The definition was intended for data collectors writing reports about antisemitism in Europe,” writes Stern. “It was never supposed to curtail speech on campus.” As someone who began teaching at the college level nearly two and a half decades ago, I agree fully with Stern who has [elsewhere] stated, “Anti-Semitism – like all forms of bigotry – has an impact on some campuses. The worst way to address it is to create a de facto hate speech code, which is what this bill proposes to do.” Although discussions around Israel and Zionism may often be uncomfortable for Israel’s supporters and detractors alike (something that I witness in my classes most semesters), it is the responsibility of students and educators to foster dialogue and not limit it, to understand the historical implications of our speech, and to allow for the meaning and definition of fraught terms to develop and change as a consequence of informed deliberation and debate.
It is profoundly difficult to create a definition of antisemitism that can be used for legislative purposes. The root of current debates on antisemitism lies in a seemingly intractable problem of how to critique Jewish collective power in a way that does not immediately resonate with a long history of antisemitism. Throughout the last thousand years of European history, Jews were regularly characterized as an incommensurate and exceptionalist element that sought to undermine the established religious, political, or economic order. They were accused of being killers of Christ and of seeking to repeat this offense through the murder of innocent Christian children. Such accusations led at times to blood libels (the classic antisemitic allegation that Jews used non-Jewish children’s blood to make matza, the ritual flatbread of Passover) and pogroms (violent and often deadly mob attacks on Jewish communities).
In more recent centuries, Jews have been characterized simultaneously as usurpers of national identities, disloyal citizens, capitalist schemers, and revolutionary subversives. Such allegations led to discriminatory legislation, riots, expulsions, and physical violence. In the early 20th century, Jews were branded as a biological and racial threat and entire armies rose up to exterminate them. In each of these moments, Jews were imagined as a united group that possessed power and authority far beyond their actual numbers.
Yet, in 1948, with the founding of Israel as a solution to antisemitism, the situation changed dramatically. For the first time, a significant number of Jews – identifying as a national group – gained actual, not imaginary, power. Today, the state of Israel has borders, police, courts, a military, a nuclear arsenal, political parties, and a (mostly) representative and (somewhat) democratic system of government.
Like all other states, its actions are — and must be permitted to be — a matter of public debate and discourse both within the Jewish community and outside of it. Yet speech that is critical of Israel still strikes many as inherently antisemitic. The problem, quite simply, is that we still are learning how to talk about Israel’s actual political power and repeated claims to represent Jews all over the world in ways that do not immediately echo much older and antisemitic depictions of imaginary Jewish power. This is not only on account of the long history of anti-Jewish hatred in the West. It is also because, as we see in legislative initiatives such as this, to characterize any speech that is critical of Israel as intrinsically antisemitic has been a highly effective tool employed by those who uncritically support every action of Israel and seek to stigmatize all critics.
Considering the multiple — and constantly shifting — forms of antisemitism that have emerged since the term “Antisemitism” first appeared in Germany in the late nineteenth century, it would be ill-advised for Congress to establish legal authority on a definition of antisemitism that is so deeply contested. To insist that Israel cannot be protested or objected to, to mandate that collective Jewish power cannot be analyzed or debated, or to conclude that Jews, because they were once victims of one of humanity’s greatest genocidal crimes, are somehow immune from becoming perpetrators of acts of violence against other peoples, would only reinforce the antisemitic belief that Jews are a fundamentally different people.
Moreover, and perhaps most dangerously of all, attempts to broaden the definition of antisemitism to encompass phenomena that are clearly not anti-Jewish can only make it more difficult to recognize, isolate, and oppose actual antisemitic hatred when it does appear.