On March 2, 2017, CCR, Palestine Legal, the American-Arab Anti-Discrimination Committee, the Arab American Institute, the Bill of Rights Defense Committee/Defending Dissent Foundation, the Carolina Peace Resource Center, Jewish Voice for Peace, the National Lawyers Guild – Palestine Subcommittee, the U.S. Campaign for Palestinian Rights, and the U.S. Palestinian Community Network sent a memorandum to South Carolina lawmakers opposing H.3643, a bill that proposes to amend South Carolina's education laws to classify political speech critical of Israel as antisemitism when investigating discrimination on college campuses.  The bill would require schools to incorporate a widely discredited, overly broad definition of antisemitism that includes virtually all criticism of Israeli government policies while not providing any further protections for Jewish students.

This letter is part of a continuing effort to challenge bills that threaten core First Amendment-protected activity in support of Palestinian rights, following from the efforts of CCR, Palestine Legal, and other allies to challenge legislation in New York, California, Ohio, Georgia, New Jersey, Pennsylvania, Massachusetts, Maryland, Texas, Virginia, Illinois, Florida, and the U.S. Congress. These bills are part of a growing trend of introducing legislation intended to silence Palestinian rights advocacy in numerous states and the U.S. Congress. For more information about other efforts to suppress First Amendment-protected activities in support of Palestinian rights, including other legislative efforts to restrict Boycott, Divestment, and Sanctions (BDS) campaign efforts, see CCR and Palestine Legal’s report, The Palestine Exception to Free Speech: A Movement Under Attack in the U.S.

The text of the memorandum is below.

H.3643 is Unconstitutional and Must Be Opposed 

H.3643 proposes amending South Carolina’s education laws by directing public colleges and universities to classify virtually all political speech critical of Israel and Israeli government policies as anti-Semitic when “reviewing, investigating, or deciding whether there has been a violation of university policy prohibiting discriminatory practices on the basis of religion.” H.3643 is a blatantly unconstitutional attack on individual liberties, academic freedom, and human rights.

By endorsing a widely criticized, vague, and overbroad definition of anti-Semitism, H.3643 will legitimize censorship of and punishment for political speech supportive of Palestinian human rights. Because this bill targets the expression of viewpoints that some lawmakers may disfavor, it invites South Carolina to violate the First Amendment of the U.S. Constitution.

Further, at a time when bias incidents and hate crimes, including those motivated by anti-Semitism and Islamophobia, are on the rise, this bill provides no new legal protections for Jewish or other residents of South Carolina. On the contrary, if enacted, this bill will almost certainly increase unwarranted government suspicion, surveillance, and investigation into the lives of Muslim and Arab students in South Carolina as well as all students – including many Jewish students – who advocate for Palestinian human rights. As a result, this bill may actually encourage Islamophobia and anti-Semitism. Instead of offering constructive solutions to counter the disturbing rise in discrimination and bigotry that has been documented in recent months, this bill will compound the problem while trampling on Constitutional rights. We call on you to oppose H.3643.[1]

I. Applying the definition of anti-Semitism endorsed by H.3643 domestically would violate the First Amendment 

Adopting a definition of anti-Semitism that encompasses even the most routine criticism of a nation-state is particularly inappropriate for South Carolina’s educational institutions because of the essential role that academic freedom and unfettered debate play in the university setting. The United States Supreme Court has recognized the importance of this role, stating that “[o]ur Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”[6] The State Department definition would silence legitimate opinions and perspectives, and would impose standards on universities that undermine their commitments to academic freedom and inquiry.

Would a mock-checkpoint on a campus quad, aimed at raising awareness about the way Israeli military checkpoints severely curtail Palestinians’ freedom of movement, be considered demonizing Israel, and therefore anti-Semitic? Would a lecture on Israel’s violations of international law be considered delegitimization of Israel? Would a legal panel on the constitutional right to engage in boycotts for Palestinian rights be considered a double standard against Israel? Similar accusations have been made against activities on college campuses by the same Israel advocacy groups that support legislation like H.3643.[7] Notably, criticism of Israeli government policy has been found, again and again, to be protected political speech, not discrimination against a protected group.[8]  Nevertheless, this is the type of inquiry South Carolina’s educational institutions will be required to enter into if this bill becomes law.

The University of California and other universities have already been subjected to pressure to adopt the anti-Semitism definition endorsed by this bill, and have ultimately rejected it due to free speech concerns.[9] Israel advocacy organizations pushed for its adoption in March 2015, causing outcry from free speech advocates[10] across the political spectrum, media,[11] students,[12] graduate student instructors,[13] and Jewish[14] and other civil rights organizations.[15] Jewish commentators,[16] including the State Department definition’s original author, Kenneth Stern, repudiated its use on college campuses.[17]

Legislation similar to H.3643 was introduced – and defeated – in the U.S. Congress in December 2016 after public outcry from human rights and free speech advocates[18] and lawyers,[19] and criticism from the media.[20] Earlier this year, a similar proposal was defeated in Virginia.[21]

South Carolina lawmakers should heed the constitutional concerns this bill raises, and follow other lawmakers in rejecting this blatant attempt to unconstitutionally suppress and chill student advocacy for Palestinian human rights.

III. Conclusion

We appreciate the importance of addressing allegations of anti-Semitism on campus and elsewhere at this time of heightened threats to Jewish and other communities. H.3643’s misguided reliance on the discredited State Department definition of anti-Semitism, however, fails to give colleges and universities the proper tools to fight anti-Semitism and other forms of discrimination. Instead, it will encourage the college and university administrations to infringe on free speech and academic freedom on campus, in violation of the First Amendment.

We call on you to drop consideration of this bill and, instead, engage in meaningful efforts to address the alarming rise in anti-Semitic, racist, anti-Muslim, anti-Arab, anti-immigrant, anti-women, and anti-LGBT incidents and other forms of discrimination that have been fueled by increasing tolerance for such bigotry. This bill will only intensify targeting of already vulnerable communities that are exercising their constitutional rights to speak out for Palestinian rights. It will ultimately undermine civil liberties on campuses, while failing to address or hold accountable the sources of the alarming incidents of bigotry that are occurring on campuses and elsewhere.

H.3643 is an unconstitutional and unwise proposal. It must be vigorously opposed.

[5] NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982); Carey v. Brown, 447 U.S. 455, 467 (1980).

[17] Kenneth Stern, supra note 3.

[21] See Palestine Legal, Victory! Unconstitutional bill defeated in Virginia, Jan. 30, 2017, http://palestinelegal.org/news/2017/1/30/virginia-lawmakers-considering-unconstitutional-bill-aimed-at-censoring-palestine-advocacy-1.