As Americans come out in huge numbers to challenge the illiberal policies of President Donald J. Trump, they should be mindful of developments in and emanating from another increasingly illiberal democracy: Israel.
In power in Israel for nearly a decade, Prime Minister Benjamin Netanyahu and his political partners have focused their energies on one goal above all others: expanding settlements and securing permanent Israeli control over territory occupied by Israel in 1967. In pursuing this “Greater Israel” agenda, Netanyahu has governed according to a political ethos that has much in common with that of Trump, starting with the belief that political might makes right; that laws, courts, and public institutions exist solely to serve those in power; that the media and activists are the enemy; that hasbara (Hebrew for “propaganda,” often akin to “alt-facts”) trumps facts; and that democratic norms like “rule of law” and “checks-and-balances” are for suckers.
Americans should pay attention to Israel not merely for the many lessons it offers about how illiberalism can take hold in a free society. They should pay attention because the same “Greater Israel” agenda that has eroded Israeli society is today poisoning America’s democracy.
Specifically, recent years have witnessed surging attacks against opponents of Israeli policies. In Israel, these attacks have included demonization by government officials, public hate campaigns led by purpose-built groups, and a raft of legislation aimed at undermining peace and civil society organizations. Legislation has also actively sought to quash activism and legitimize settlements, including defining activism against settlements as an attack against Israel itself.
In parallel, recent years have witnessed an ongoing campaign in the U.S. to pass laws serving many of the same goals, supported – in the name of being “pro-Israel” and fighting anti-Semitism – by forces from across the political and ideological spectrums.
This campaign is focused, in the first instance, on convincing Congress and individual U.S. states to pass laws ostensibly aimed at stopping the Boycotts, Divestment, and Sanctions movement (BDS). In reality, these laws seek to exploit concerns about BDS – a movement that has generated a great deal of noise but has had little tangible impact on Israel – in order to legitimize settlements and stifle opposition to Israeli policies. The campaign, in fact, took off only after the November 2015 European Union notice, which called for EU states to differentiate between Israel and settlements. The results speak for themselves: in 2016, at least 14 states adopted faux-anti-BDS/pro-settlements legislation; so far in 2017, new bills have been introduced in at least 12 U.S. states.
Clearly, it is the right of Americans to oppose boycotts of Israel and even boycotts of settlements. However, turning such opposition into law clearly violates the Constitutionally-protected right to free speech, which the Supreme Court ruled long ago includes boycotts. The American Civil Liberties Union (ACLU) – an organization today enjoying a surge in support for its work challenging Trump – emphatically takes this view, as does The Center for Constitutional Rights, the National Coalition Against Censorship and experts writing in the Harvard Law Review.
Nonetheless, this campaign has continued and in late 2016, it expanded in a new direction, with the introduction of legislation seeking to codify a specific definition of “anti-Semitism” to be applied to activism on U.S. campuses. Entitled “the Anti-Semitism Awareness Act,” this new effort made its debut in bipartisan bills introduced in Congress at the end of the 2016 session, backed by a constellation of Jewish groups, including the ADL. Coming ironically at a time of surging anti-Semitism in the U.S. linked to the emboldening of the “alt-Right,” an editorial in the Los Angeles Times highlighted that, rather than actually targeting anti-Semitism,
“This legislation is really about something else entirely: Israel. What it does is to endorse an expansive definition of anti-Semitism that was adopted by the State Department in 2010 as a benchmark for diplomats. The problem with the definition is that it unfairly conflates anti-Israel speech with anti-Semitic speech, in a way that, if enforced, would violate the free speech rights of students and professors.”
The Act is expected to be re-introduced soon in the new Congress, and has already been introduced this year in Virginia, South Carolina, and Tennessee. In the meantime, the ACLU has once again weighed in, stating that this legislation “opens the door to considering anti-Israel political statements and activities as possible grounds for civil rights investigations.” The Foundation for Individual Rights in Education (FIRE) has said it “would likely violate the First Amendment by prohibiting protected expression.”
Kenneth Stern, the lead author of the definition of “anti-Semitism” used as the basis for the legislation, emphatically agrees. Formerly the Director of the American Jewish Committee’s program on anti-Semitism and extremism, Stern has repeatedly and vociferously denounced what he sees as the misuse of his work, including in a 2015 op-ed in the LA Jewish Journal and a December 2016 letter sent to members of Congress informing them that using his definition of anti-Semitism in this manner “is both unconstitutional and unwise.”
Stern was even more emphatic in a December 2016 op-ed in the New York Times, in which he stated that, “The definition was intended for data collectors writing reports about anti-Semitism in Europe. It was never supposed to curtail speech on campus.” Looking at the implications of the proposed anti-Semitism legislation, Stern went on to warn:
“What’s next? Should Congress define what speech is Islamophobic? Anti-Palestinian? Racist? Anti-white? How about defining ‘anti-United States’ speech? We could dust off the files of the House Un-American Activities Committee.”
Stern’s concerns are neither hyperbolic nor entirely hypothetical. The campaign to legislate support for settlements scored its first big win in 2016, when Congress defined “boycott of Israel” to include boycotts of settlements, in a law governing U.S. trade negotiations. That definition has since become a legal point of reference in subsequent legislation. The same would likely happen to Stern’s definition of “anti-Semitism”: once adopted in any law, it would likely become a touchstone in subsequent legislation designed to quash free speech in other contexts.
The rise of Trump has been a wake-up call to Americans about the need to stand up and defend democratic rights and values. It remains to be seen if it will likewise alert them to the dangers of allowing the “Greater Israel” agenda to hijack U.S. law and undermine the Constitution. If not, many Americans who today are vociferously opposing Trump’s illiberal policies may awaken soon to find that their support for Israel and concerns about anti-Semitism have been abused, and that they have allowed themselves to become the cat’s paw in a broader assault on American democracy.