Some people who back the controversial International Holocaust Remembrance Alliance (IHRA) working definition of antisemitism freely admit that it’s a tool to suppress criticism of Israel. “The reason that IHRA unfortunately gets a pushback is…because of Israel,” former Israeli antisemitism envoy Noa Tishby told a congressional task force last year. “It’s very convenient to condemn Nazis, nobody likes to walk around and call themself an antisemite, but you kind of go ‘I’m not an antisemite, I’m just an anti-Zionist.’ That is considered okay and that is one of those things that we have to make clear: anti-Zionism is antisemitism. Period. End of story. There’s no question about that.”
Most supporters don’t do this. The vociferously pro-Israel American Jewish Congress (AJC) has a FAQ on its website about the definition where they attempt to assuage any Constitutional anxiety: “Does the IHRA Working Definition censor criticism of Israel? Does it serve to shield Israel from criticism? Absolutely not. The IHRA definition does not prohibit anyone from exercising their First Amendment rights. The definition is a tool to identify and address antisemitism—nothing more. In fact, the IHRA definition expressly recognizes that criticism of Israel’s policies and politics, like criticism leveled at other countries’ policies, cannot be regarded as antisemitic.”
Like anti-BDS bills before them, resolutions to adopt the IHRA definition are being introduced at the local level under the guise of combatting antisemitism. Lots of lawmakers (including many Democrats) probably don’t give a second thought to supporting such measures, and it’s hard to believe most Americans know about the potential danger here.
Take a look at a letter recently sent to the administration from 14 GOP Senators led by Ted Cruz. They’re demanding that Biden reverse its ban on U.S. funding for research projects carried out in the illegally-occupied West Bank. This policy was upheld by the United States for decades but was rescinded by the Trump adminstration. The letter hilariously claims that The White House is violating anti-BDS laws by reinstating the ban. “The new guidance as written constitutes an antisemitic boycott of Israel,” it declares. The letter threatens to derail the administration’s attempts to confirm nominees unless they remove the ban.
This kind of nonsense is not surprising, but there’s an interesting wrinkle here. The letter directly references the IHRA working definition as part of its ludicrous argument. “The United States has embraced the working definition of antisemitism of the International Holocaust Remembrance Alliance, which includes double standards targeting Israel or Israeli Jews,” it notes.
The Senators aren’t wrong. The administration has continually voiced its support for the definition. In 2021 Secretary of State Antony Blinken sent a letter to the American Zionist Movement saying he “enthusiastically embraces” it. However, Biden’s position on the issue has seemingly become more complicated.
This January, the Education Department’s Office for Civil Rights (OCR) released a new fact sheet detailing protections for religious students, and (despite the lobbying efforts of pro-Israel groups) the OCR did not adopt the definition. In May, the administration released a national strategy for combatting antisemitism. Once again pro-Israel groups pressured The White House to codify the definition. They didn’t. Their report acknowledges that they’ve embraced it but also notes that the definition is not legally binding and does not supersede any existing law.
Pro-Israel groups initially celebrated the report and shrugged off suggestions that it didn’t go far enough, but after a couple of weeks, frustration began bubbling up. ADL CEO Jonathan Greenblatt recently criticized the fact that the report doesn’t have more protections for Israel and Israel supporters in it. When asked if he had spoken to the administration about his concerns, he said, “I wouldn’t divulge those conversations. But I think suffice to say the ADL has and will continue to make the case publicly about the need to again maintain this kind of focus.”
This certainly doesn’t indicate that Biden is abandoning the IHRA. Shortly before this newsletter was published, a White House official told the Jewish Insider that Trump’s executive order calling on government departments to adopt the definition remains in effect.
How will this all shake out? Before releasing the antisemitism report, the Biden administration also faced pressure from progressive groups sounding the alarm over the dangers of adopting the definition. The Cruz-led letter demonstrates why that kind of pressure will remain crucial going forward.
Anti-BDS Law Upheld in Texas
Speaking of the First Amendment, an injunction against Texas’s anti-BDS law was recently vacated on procedural grounds.
Rasmy Hassouna, a Houston-based civil engineer and Palestinian, was asked to sign a loyalty oath to Israel as part of his company’s contract with the city. His firm sued Houston and Texas Attorney General Ken Paxton in 2021, looking for the clause to be removed from state contracts and the law to be deemed unconstitutional. In 2022 a district court ruled that the law would violate Hassouna’s First Amendment rights, but it stopped short of blocking the law.
“I want to stay working with the city and any other government entity,” he told The Guardian. “The thing is, I want to do it with my freedom intact and my dignity intact.”
The Circuit Judge here is Andrew Oldham. He’s a Trump appointee, the former general counsel to Texas Governor Greg Abbott, and a member of the Federalist Society. We can probably guess his position on Palestine, but if you look at the court’s dismissal, he doesn’t actually rule on whether the law violates the First Amendment. The focus is that Hassouna can’t connect any economic injury to the clause.
Opponents of the boycott movement have predictably championed this development. IAC for Action Joseph Sabag (who helped lobby Texas’ government to pass the law in the first place) told the Jerusalem Post that, “The forces of BDS are running out of plaintiffs, and their legal arguments have proven lacking through every case they’ve lost.”
This isn’t true. These laws were being consistently laughed out of courtrooms before Judge Jonathan Kobes (a Trump appointee that the American Bar Association has rated as unqualified) upheld Arkansas’s anti-BDS law in 2022. The Supreme Court didn’t take up a challenge to that decision, so they never ruled on whether the law violated the Constitution. That didn’t stop pro-Israel advocates from claiming as much.
“It is unfortunate that the Supreme Court opted to stay on the sidelines for now, but let’s be very clear – the fight to protect the right to boycott is far from over,” Boycott director Julia Bacha told me earlier this year. “The last and only time the Supreme Court reviewed the right to boycott in 1982, it ruled unanimously that the First Amendment protects the right of Americans to engage in boycotts to affect social and political change. Americans across the country will continue to exercise that right, and take their states to court when that right is violated.”
Odds & Ends
???? Rep. Rashida Tlaib (D-MI) tweeted support for a Sierra Club union that endorsed a resolution expressing solidarity with Palestine.
????️ Rep. Ilhan Omar with a Twitter thread on why she won’t attend a joint congressional session with Israeli President Isaac Herzog. “Last month, I opposed the invitation for Indian Prime Minister Narendra Modi to address a joint session based on his government’s human rights record. And this month I will not attend a similar address from Israeli President Isaac Herzog,” she wrote. “The United States can and should use its diplomatic tools to engage with the Israeli government, but giving the current government the honor of a joint televised address sends the absolute wrong signal at the wrong time.”
???? ‘I didn’t feel protected at all’: Students worry about bill to police anti-Israel speech.
???? NYT reluctant to fault Israel for West Bank aggression
???? New Hampshire governor signs executive order targeting BDS movement
???????? Pro-Israel groups successfully pressured the firm Morningstar into removing its controversy tags from 19 companies doing business in the occupied West Bank.
???? Marc Rod in Jewish Insider: House Appropriations Committee proposes significant funding boost for antisemitism envoy:
The Appropriations Committee report pushes for additional vetting procedures related to combating the Boycott, Divestment and Sanctions movement targeting Israel, to ensure that no U.S. assistance is provided to any individual or organization that “advocates, plans, sponsors, engages in, or has engaged in, the BDS movement.”
It requests additional reporting to Congress on BDS efforts in both the public and private sectors and steps by the State Department to “discourage or end politically-motivated efforts to boycott, divest from, or sanction Israel and Israeli entities.”
???? Legendary American blues guitarist Buddy Guy canceled two shows in Tel Aviv. “To all my fans in Israel, due to ongoing unrest and recent military operations, I am choosing not to travel to the region, and unfortunately I will be cancelling my July 19 and 20 performances,” he said in a statement. “From the bottom of my heart, I am so sorry for any inconvenience. I wish you all peace and love.”
???????? House effort to kill a 22-yr-old endless war bill is a bipartisan affair.
????⚖️ From JNS: ‘Meet the non-Jewish judge spearheading the fight against BDS in the US’
????️ In March, over 200 members of the American Anthropological Association submitted a petition to the Executive Board requesting a full-membership vote on a resolution to boycott Israeli academic institutions. Voting ends tomorrow. “The situation in Palestine has deteriorated, deepening the repression of Palestinians through ongoing and intensifying threats to their rights at every level, including the right to an education and to academic freedom,” said the organizing coalition in a statement. “The recent Israeli elections, which installed the most extreme right-wing coalition government to date, suggest that additional restrictions on Palestinians’ academic and broader freedoms are imminent. In the first month of 2023 alone, Israeli military campaigns have killed 35 Palestinians and injured over 500, while settler attacks on Palestinians and their property have significantly increased, emboldened by the new government.”
Stay safe out there,
Michael
Nice to see Greenblatt, yet again, openly proving that he is an unregistered agent of a foreign government. His main concern about the administration’s program to combat antisemitism? Nope, not about protecting Jews, but instead about protecting Israel and supporters of Israel. Sounds a bit antisemitic to me, now that it think about it.
A & R Engineering v. Scott, No. 22-20047 (5th Cir. 2023) is worth reading to see legal reasoning in action.
The Palestinian engineering firm obtained its contract. Because the case under section 1983 became moot, the injunction had to be dissolved.
The firm could still seek declaratory judgment that concludes the Texas anti-BDS law is unconstitutional for abridgment of freedom of speech. A declaratory judgment is not an injunction.
Here’s the critical paragraph from the ruling.
A statutory violation of section 1983 and a constitutional violation in the form of a state law are different causes of legal action.
Judge Oldham (Fifth Circuit) was a Trump appointee and is extremely conservative. Yet his opinions are exceptionally lucid and well reasoned.
Judge Newsom (11th Circuit) was also a Trump appointee and is extremely conservative, but his opinions cannot be considered so well reasoned.
If we compare NETCHOICE, LLC v. Paxton, 49 F. 4th 439 – Court of Appeals, 5th Circuit 2022 with NetChoice, LLC v. Att’y Gen., Fla., 2022 WL 1613291 (11th Cir. May 23, 2022), we find a substantial likelihood that if the case came before Judge Oldham, Judge Oldham would rule against a social medium platform that removed Palestine-sympathetic content. If the same case came before Judge Newsom, Judge Newsom would rule for a social medium platform that removed Palestine-sympathetic content.
Who appointed a judge is not nearly so important as the corpus of his rulings and opinions.