Trump’s Executive Order to Stifle Israel Critics Probably Violates the Constitution
A BDS protest outside the Trump hotel in Washington, D.C., last year. Photo: Gili Getz
For a long time, some pro-Israel activists and lawmakers have been pushing a deeply authoritarian idea: using the power of the American state to punish those who take part in the so-called Boycott, Divestment, and Sanctions movement. BDS, as it’s known, spans a variety of efforts to pressure Israel to end its occupation of Palestinian territory and to treat Palestinian residents of Israel and the territories better.
As a constitutional matter, the problems with this couldn’t be more obvious: Americans have an ironclad right to protest against any country they want, for any reason they want, however they want, without the government interfering. There are some very narrow, very specific exceptions — you obviously can’t burn down a synagogue because you’re so upset at Israel — but as a general rule, the government really can’t regulate this sort of speech. That hasn’t stopped lawmakers, apparently unconcerned about such matters, from trying to pass legislation effectively outlawing certain types of activism. In 2017, for example, almost 300 members of the House and Senate co-sponsored bills that would have made certain boycotts of Israel a federal felony.
Some states have gotten in on the act, too. Texas’ dabbling in this sort of legislation led to some genuinely ugly results: “A children’s speech pathologist who has worked for the last nine years with developmentally disabled, autistic, and speech-impaired elementary-school students in Austin, Texas, has been told that she can no longer work with the public school district,” wrote Glenn Greenwald in 2018, “after she refused to sign an oath vowing that she ‘does not’ and ‘will not’ engage in a boycott of Israel or ‘otherwise tak[e] any action that is intended to inflict economic harm’ on that foreign nation.” (For those keeping track at home, yes, a state tightly associated with hands-off-my-guns anti-government conservatism passed a law attempting to force its employees to sign a document restricting their ability to criticize another country.) She sued, and, unsurprisingly, the courts weren’t having the law.
A separate but related effort has involved a State Department definition of “anti-Semitism” that, as I wrote in 2016, is both vague and overly broad: It “describes as ‘anti-Semitic’ holding Israel to a double standard, demonizing it to an undue extent for the state of the world, and a wide variety of other sorts of speech that, yes, may be anti-Semitic in a given context, but which are undoubtedly protected by the First Amendment.” For a long time, some lawmakers have attempted to pass legislation which would empower the Department of Education to crack down on campus activity that runs afoul of this standard. They’ve failed, in part because many believe such a law would be unconstitutional — an argument the nonpartisan, free-speech-focused Foundation for Individual Rights in Education has made.
Now, according to the New York Times, President Donald Trump has resurrected this idea in the form of an executive order he plans on signing later today: “In signing the order, Mr. Trump will use his executive power to take action where Congress has not, essentially replicating bipartisan legislation that has stalled on Capitol Hill for years.”
The details here are slightly convoluted. Trump is effectively seeking to “interpret Judaism as a nationality, not just a religion,” which would drag this identity group under the purview of Title VI of the Civil Rights Act, the part of the landmark legislation which empowers the Department of Education to withhold funding from educational institutions which discriminate “on the ground of race, color, or national origin” — but not religion. Since the executive order will define Jewish students as members of a national group rather than a religion, and will use the State Department’s broad definition of anti-Semitism, on paper, at least, it could grant the Department of Education sweeping new powers to snoop on college campuses and interfere with what’s going on there.
Anti-Semitism is certainly a problem on many college campuses, and it’s worth taking seriously. But the idea of the federal government getting involved in the business of determining which arguments in the complicated, heated domain of the Israeli-Palestinian conflict cross some highly subjective line into anti-Semitism is a classic example of what conservatives would normally view as government overreach. “We have consistently opposed the application of the State Department’s definition of anti-Semitism as the benchmark for determining whether or not speech should be regulated on college campus because it’s deemed anti-Semitic, since the definition is both vague and also specifically invites censorship of particular viewpoints related to the Israeli-Palestinian conflict,” said Joe Cohn, policy director at the Foundation for Individual Rights in Education.
It doesn’t require wild flights of fancy to imagine situations in which the Department of Education’s actions, in the wake of this executive order, could spark court challenges. Imagine that a pro-Palestinian student group arouses the ire of a local Hillel chapter, and the Hillel members deciding they are experiencing discrimination because the pro-Palestinian group is “holding Israel to a double standard.” The Department of Education agrees and threatens to yank the university in question’s funding, and the university, backed into a corner, bans the club. The pro-Palestinian group’s members could then claim that their free-speech rights are being violated by the university — and they would be right, of course, because even if some hypothetically neutral arbiter determined they were “holding Israel to a double standard,” that’s a constitutionally protected viewpoint and therefore not one a public university can censor in this manner. Except there’s also an executive order effectively telling the university to censor such speech.
None of this should come as a surprise to anyone who has watched these efforts to clamp down on criticism of Israel endlessly die and revive themselves in recent years — or anyone who has witnessed Donald Trump’s deeply cynical, opportunistic approach to everything related to Israel and to American Jewry. But it’s still disturbing that this is going to happen — it could cause a lot of problems and almost certainly will create a lot of lawsuits.