80 No. 78 JUSTICE American nationhood, yet she could not escape the taint of Jewishness,” Loeffler explains. “Growing public acceptance concealed rampant private discrimination. Few laws directly targeted Jews, most of whom were treated as white by law, and yet an unwritten code of rules barred them from whole swaths of society.” His conclusion resonates painfully on America’s post-encampment campuses today: “The invisibility of that animus made it no less powerful.” Myerson soon became the spokesperson of a nationwide 1946 ADL campaign: “You Can’t Be Beautiful and Hate.” Alas, “Very few of these millions of statements explicitly mentioned Jews or antisemitism.” American Jews kept folding the fight against antisemitism into an all-American campaign for equality. “As a result, the largest publicity campaign against antisemitism in history kept both the problem it sought to eliminate and the people it aimed to protect hidden from the very country it hoped to influence.” By contrast, Loeffler notes, Hannah Arendt proclaimed: “If one is attacked as a Jew, one must defend oneself as a Jew. Not as a German, not as a world-citizen, not as an upholder of the Rights of Man.” While Loeffler’s three case studies are illuminating, he overstates by branding them the “three moments” since World War II when antisemitism “erupted into the center of public life.” Focusing on Chicago minimizes the antisemitic surge in the 1950s against Jews as alleged Communists in the North during McCarthyism and against Jews as too supportive of civil rights in the South. Focusing on Skokie obscures the rise of Black and New Left antisemitism in the 1970s. And claiming that “our current era of antisemitism began” in Charlottesville “where torch-bearing white supremacists met Black Lives Matter protesters” underestimates how Progressive antisemitism and Black antisemitism built for years, long before Donald Trump’s election. Overall, despite addressing the most recent, campus-fueled antisemitism, Loeffler, like most American Jews, is more comfortable recognizing and countering right-wing Jew-hatred. And his reading of Trump’s assault on antisemitism and the universities is too pat and tendentious. Calling it “pseudo-justice − policies that claimed to combat antisemitism while eroding everyone’s freedom” – sidesteps the tragic paradox. Whatever its motives, despite its authoritarian overreach, while he should never have targeted the sciences, Trump’s 2019 Title VI Executive Order also worked, spurring college administrators to act after years of inexcusable inaction. Still, the three flashpoints elegantly map out the limits of American law in policing hate speech, for better and worse. Terminiello v. Chicago (1949) pitted two compelling legal theories – and towering jurists – against one another. Writing for the majority, Justice William O. Douglas explained that a speech that “stirred people to anger, invited public dispute, or brought about a condition of unrest” cannot be banned without the “showing of a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.” Justice Robert H. Jackson dissented, insisting: “The choice is not between order and liberty. It is between liberty with order and anarchy without either.” Especially after the Holocaust, Jackson feared a Court too “doctrinaire” about free speech would “convert the constitutional Bill of Rights into a suicide pact.” Three years later, although Beauharnais v. Illinois (1952) seemed to push the Court closer to outlawing hate speech and allowing group libel laws, the American consensus resisted both initiatives. “Assuming that law and education eradicated large-scale discrimination, hateful words mattered less,” Loeffler summarizes: Defaming a group was wrong, but not harmful enough to compromise individual free expression. Yet if the volume and tenor of such speech increased to the point where it posed a direct threat to society, then it could and should legitimately be targeted…. The need for the law was indexed directly to the perception of danger. Similarly, the clash regarding the National Socialist Party of America marching in Skokie, a village with a high percentage of Holocaust survivors, reinforced America’s near-absolutist commitment to free speech. Even a hateful ideology, not just hate speech, and the potential trauma survivors might endure, did not override the need to tolerate the intolerable, or at least not outlaw it. Still, Loeffler teaches, the Skokie clash left scars: It “fractured American liberalism. Half the ACLU’s national membership resigned in protest. A great many of those resignations came from Jews angry with the organization’s defense of bigotry in the name of freedom.” Many Jews’ quite justified fear “bred a deeper cynicism about the larger tilt of civil rights in the 1970s. As affirmative action reshaped American society, Jews faced an unsettling paradox: They remained a vulnerable, racialized minority, yet new laws placed them on the white side of the color line.”
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