A definition of antisemitism that can encompass all of these possibilities and more needs to be able to cut through the timely rationales given for this timeless hatred. In order to actually protect people, we need a definition that focuses not on the reasons why people hate but rather on the actions taken by those expressing hatred; a conduct-based definition. The definition that best serves this goal is the IHRA definition, precisely because the examples it gives focus on the modern manifestations of antisemitism, meaning what antisemites do, as opposed to why they do it.
Critics have challenged IHRA’s use in policymaking on two grounds. First, they claim that it conflates political speech against Israel with antisemitism. That part is simply not true; there is a safe harbor provision in IHRA itself which says that “criticism for Israel similar to that leveled against any other country” is not antisemitism, as well as an express caveat that all of the examples given, including the ones about Israel, “could, taking into account the overall context,” be antisemitic. The reason the specific examples are provided (and are important) is explicitly not because all criticism of Israel is antisemitic, but because there are those who falsely claim that no criticism of Israel can ever cross the line, and use their anti-Zionism as a thinly-veiled excuse for antisemitic action. For example, on campuses across the country, and even in Georgia, Jewish students routinely hear antisemitic comments, and when they complain are told that it’s fine because it was “merely anti-Zionism.” IHRA will help to objectively clarify that line, as it already does for Title VI complaints.
The second objection to using the IHRA definition in a policy context is that in the wrong hands, it could theoretically be used to stifle speech. That argument is a red herring. Of course, free speech is a core aspect of democracy; that is why such bills cannot and do not take the form of a speech code. But discriminatory harassment and criminal conduct are not just speech, even if words are sometimes used. Unlike speech, such conduct is absolutely subject to government regulation. Well-established Supreme Court precedent requires behavior to be “objectively offensive” to fall under the category of discriminatory harassment. To meet this “objectively offensive” standard, the definition used in the discriminatory antisemitism motivational analysis must be objectively well-accepted. The IHRA definition is once again the obvious choice.
The new Georgia bill already has bipartisan support, and in theory it should be a no-brainer for every legislator to sign on. But it was still an act of bravery for Wilensky, the only Jewish representative in the entire state, to shoulder the burden of ushering it through the Gold Dome when no one else had. For their courage in actually taking a stand and trying to make the world better, Wilensky and Carson deserve all of our thanks – and of course our political support.
Dr. Mark Goldfeder, Esq., is director of the National Jewish Advocacy Center in Atlanta.