In November, Sen. Robert P. Casey Jr. (D-Pa.) met with a diverse group of students at the University of Pennsylvania to listen to their concerns about bigotry and hate speech on campus. In a Nov. 14 news release coinciding with the reported rise in hate crimes following the election of Donald Trump, Casey pledged to be a crusader against bigotry on college campuses.

“If the students around this table leave here today remembering only one thing, I hope it’s this: I stand with you,” Casey said. “As your United States senator, as your elected representative, I commit to continue to fight to guard your safety and protect your rights.”

Now Casey and Republican Sen. Tim Scott (S.C.) have submitted legislation that would expand the definition of anti-Semitism used by the Education Department to include some anti-Israel protests. It appears targeted at Palestinian rights activism on campuses. (The Intercept describes how much discrimination Palestinian rights activists already face.)

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House bill introduced Friday mirrors the Senate bill, calling on the Education Department to adopt the State Department’s definition of when anti-Israel speech turns into anti-Semitic speech. That criteria include “applying double standards by requiring of it [Israel] a behavior not expected or demanded of any other democratic nation” and “multilateral organizations focusing on Israel only for peace or human rights investigations.”

The end of each bill claims, almost as an afterthought, that this doesn’t constitute an infringement of free speech: “Nothing in this Act, or an amendment made by this Act, shall be construed to diminish or infringe upon any right protected under the First Amendment to the Constitution of the United States.” That provision is not reassuring to the ACLU’s legislative chief of staff and First Amendment counsel, Michael Macleod-Ball. “That’s just empty rhetoric,” he tells The Watch. “All it is [doing] is restating the First Amendment.”

He says that the law is political posturing and has no chance of standing up in court when it’s likely challenged. “We’ve seen it before,” he explains of legislation like this. “This bill passes, under the right set of circumstances the Department of Education goes after a group, it’s challenged in court and tossed out — except for the hassle you’re putting those people through who were penalized and a larger chilling effect.” And the ACLU is interested not in the politics of the boycott, divestment and sanctions movement or other movements but in activists having the right to free speech without the threat of government interference.

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Macleod-Ball points out that every policymaker who denounced Trump’s throwback-to-the-’90s suggestion that flag-burners be penalized by the government should also be against these measures.

The Watch reached out to the press offices of Scott, Rep. Peter J. Roskam (R-Ill.), who co-introduced the House bill, and the Anti-Defamation League, which helped to draft the legislation, to ask what steps they’d take to ensure the law protects free speech on campuses.

Roskam’s staff said that getting a comment Tuesday was “not going to work on our end.” Scott’s spokesperson contested the idea that the law threatens free speech at all:

Nothing in this bill restricts an individual’s right to practice free speech. Rather it provides the Department of Education a firm baseline on which to determine if discrimination, specifically anti-Semitic acts, have occurred on their campus. We are looking to hold institutions accountable to fostering environments that are free of blatant religious discrimination and it is in no way intended to infringe on any American’s individual rights protected by the Constitution.

ADL spokesman Michael Lieberman tells The Watch that the law would merely be advisory rather than trigger an instant investigation and that it’s furthermore intended to address the worst type of speech.

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“If a campus speaker comes onto a campus and says ‘Israel is an apartheid nation,’ that’s not going to trigger it, that’s freedom of speech,” Lieberman says. “That’s not something that’s depriving Jewish students of an educational experience.”

But someone writing “Netanyahu was a Nazi” on a whiteboard in a way that seemed to target Jewish students, Lieberman says, would not be protected speech.

It should be noted that the author of the “working definition of antisemitism” that inspired the State Department guidelines has come out against its use on college campuses. Universities have been sued over pro-Palestine activism before, including when activists built fake Israeli checkpoints on campus.

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Documenting hate crimes is important. But it’s also important to not let concern over a rise in bias-motivated crime allow legislators and policymakers to push through laws that might end up being counterproductive.

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Vocal shows of support by politicians to marginalized communities is critical. Any rise in bias-motivated crimes is terrifying. But the rush to pass legislation targeting anti-Israel protests on campuses shows that sometimes the completely legitimate fear over bias-motivated crimes and hate speech can be turned into potentially unconstitutional government powers — which is not ideal given the views of the incoming administration.

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