JUSTICE - No. 68

23 Summer 2022 A definition that can encompass these and other possibilities must cut through the timely rationales given for this hatred and focus instead on the actions taken by those who harbor hate; a praxeological, or conduct-based definition, like IHRA’s.35 The examples in IHRA highlight the manifestations of antisemitism, i.e., what antisemites do, as opposed to why they do it. The IHRA definition does not criminalize any act per se; but it does help to clarify what discriminatory antisemitism looks like, so that when authorities are seeking a good definition to use in contexts where discriminatory behavior is already illegal, they now have something to incorporate. The strength of the IHRA definition comes from the consensus of tens of thousands of people across every demographic in the Jewish world agreeing that this explanation best represents their shared lived experiences. In the U.S., for example, the Conference of Presidents of Major American Jewish Organizations, an umbrella group that represents most of the Jewish community, announced in early 2021 that 51 of its 53 member organizations had adopted the definition.36 But the way IHRA does that, the reason people feel that way, is because while antisemites across time and space may provide different reasons for their feelings, those feelings tend to manifest themselves in similar repetitive patterns. For example, antisemitism often looks at Jews as a collective,37 which is why antisemitism in any given era tends to focus on the primary form of collective Jewish identity at that point in time.38 In the Middle Ages, Jews were mostly a religious community and were hated for their religion ‒ even if they were not religious.39 In the 19th and 20th centuries, when many Jews became secularized, the primary unifying collective identity of Jews was their ethnicity, and so the hatred mutated to focus on race – even towards assimilated Jews with only a trace of Jewish blood in them.40 Today, when the primary collective embodiment of Jewish people on the world stage is the people of Israel in their nation state, Jews around the world are hated and held accountable for “their” country ‒ even if they are not Israeli.41 And because modern antisemitism often takes place under a thin veneer of anti-Zionism,42 the IHRA definition includes several helpful examples of discriminatory anti-Zionism that can sometimes cross the line. The examples provided add clarity and definitive guidelines to those tasked with determining the presence of anti-Jewish bias. These specific examples about Israel are provided in the IHRA definition, as IHRA itself notes, not because all forms of criticism about Israel are antisemitic, but precisely because there are those who claim that nothing can ever cross the line. The Difference between Regulating Speech and Regulating Discriminatory Behavior Before we discuss the antisemitism bills that are now being considered, we must differentiate between what a definition does, and how that definition might be used to regulate behavior. A definition is understood to be “the formal statement of the meaning or significance of a word, phrase, idiom, etc., as found in dictionaries.”43 The IHRA definition does not regulate behavior, or silence speech – even outright antisemitic speech. All a definition does is offer people the tools to label things correctly. Using the IHRA definition to determine if a statement is antisemitic does nothing to change the fact that anyone can say whatever they want about Jewish people or the Jewish state. Freedom of speech, even offensive hateful speech, is an important cornerstone of a free, democratic 35. h t t p s : //www. a j c . c om/op i n i o n/op i n i o n - g a - legislature-should-act-on-new-antisemitism-bill/ QUMV6AHUYVDV5L657IGRDSJV3Y/ 36. https://www.conferenceofpresidents.org/news/ press/2021/jan26/conference-presidents-memberorganizations-adopt-ihra-definition 37. Wilhelm Marr, who invented the word antisemitism and founded the “League of Antisemites,” claimed that “Not individual Jews, but the Jewish spirit and Jewish consciousness have overpowered the world.” Wilhelm Marr, “Der Sieg des Judenthums ueber das Germanenthum vom nicht confessionellen Standpunkt ausbetrachtet” (Paul Mendes-Flohr & Jehuda Reinharz trans., 1879), in THE JEW IN THE MODERN WORLD: A DOCUMENTARY HISTORY 331, 332 (Paul Mendes-Flohr & Jehuda Reinharz, eds., 1995). 38. James Wald, “The New Replacement Theory: Anti-Zionism, Antisemitism, and the Denial of History,” in ANTI-ZIONISM AND ANTISEMITISM: THE DYNAMICS OF DELEGITIMIZATION 2, 2–3 (2019). 39. Thomas F. Madden, “The Truth about the Spanish Inquisition,” 24-30 (2003), available at https://www. catholicculture.org/culture/library/view.cfm?recnum=5236 40. “The Nuremberg Laws: Background & Overview,” JEWISH VIRTUAL LIBRARY, available at https://www. jewishvirtuallibrary.org/background-and-overview-ofthe-nuremberg-laws 41. “The Mutating Virus: Understanding Antisemitism,” THE RABBI SACKS LEGACY TRUST (Sept. 27, 2016), available at https://rabbisacks.org/mutating-virus-understandingantisemitism/. See Goldfeder, supra note 2. 42. https://www.nydailynews.com/opinion/ny-oped-antisemi t i sms- true-nature-reveal s- i tsel f -20210525yw3dypevcbdejibzlbwkpt56tm-story.html

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