The roots of antisemitism go back thousands of years. In the ancient Western world, the Jews, who believed in one god, refused to pay tribute to the many gods of the Greeks and Romans, and their refusal was viewed as disloyalty to the state, arousing resentment among pagans. After the crucifixion of Jesus, Christianity soon became a rival to Judaism, and as the Christian Church grew in popularity and power, it demonized the Jews and discriminated against them.
The term “antisemitism” itself was not coined until 1879 when the German agitator Wilhelm Marr used it to designate the anti-Jewish campaigns underway in central Europe that would culminate in the Nazi Holocaust.
In the United States, as elsewhere around the world, Jews have been the target of stereotyping, hatred and discrimination. As part of the emerging civil rights movement in the mid-20th century, Jews were extended protections under various state and federal anti-discriminations laws. However, those laws, though well-intentioned, have sometimes come in conflict with First Amendment protections for freedom of speech and freedom of the press.
Contrary to conventional wisdom, there is no categorical exception to the free speech protections of the First Amendment for what is called “hate speech” in general, or antisemitism in particular. Violent crimes, on the other hand, such as vandalism and physical assault, that are motivated by hate on the basis of race, color, religion, ethnicity, gender or sexual orientation can be punished under the law. Similarly, discrimination in housing, employment and education is punishable. But speech alone, even if it is hateful, offensive or controversial on the basis of race, color, religion, ethnicity, gender or sexual orientation – including antisemitic speech – is protected under the First Amendment. This rule is subject to only a few, narrow exceptions, including true threats, incitement and harassment.
Planned Nazi march in Skokie in 1977 set off free speech battle
The closest the U.S. Supreme Court has come to addressing whether expressions of antisemitism are protected by the First Amendment came in a famous controversy that arose in 1977 when Frank Collin, the leader of the National Socialist Party of America, tried to conduct a march in which demonstrators would wear uniforms similar to those traditionally worn by Nazis, including swastika armbands, in the Village of Skokie, Illinois. Most of Skokie’s residents were Jewish and thousands had survived the Holocaust. The efforts by the city to stop the march triggered one of the most famous free speech battles in American history. ACLU attorneys – including several Jews – defended the Nazis’ free speech rights, creating anger and disappointment in many ACLU supporters and others.
The Village of Skokie convinced a county court to grant a preliminary injunction stopping the march. The Illinois courts denied the Nazi Party’s request to stay the injunction, and the case went to the U.S. Supreme Court. On June 14, 1977, in an unsigned per curiam opinion on behalf of six of the justices, the court reversed the injunction. It held that Illinois had failed to provide strict procedural safeguards, including appellate review, to enable the Nazis to challenge the injunction, thereby depriving the Nazi Party of its First Amendment rights.
On remand, the Illinois Supreme Court focused on the First Amendment implications of the display of the swastika. Skokie attorneys argued that for Holocaust survivors, seeing the swastika was like being physically attacked. But the state supreme court rejected that argument, ruling that the display of the swastika is a symbolic form of free speech entitled to First Amendment protection. Its ruling allowed the Nazis to march.
In parallel litigation in the federal courts, the village's ordinance was declared unconstitutional, first by the district court and then by the 7th U.S. Circuit Court of Appeals. (In a footnote to history, after all this litigation establishing their right to march, the Nazis chose not to march in Skokie, but instead held a rally in Chicago.)
‘Suppression of freedom…is a sure prescription for disaster’
Why would the First Amendment protect the right of Nazis to march in the predominately Jewish village of Skokie? One of the most powerful answers came from international human rights advocate Aryeh Neier. Neier escaped from Nazi Germany as a child with his immediate family while the Nazis slaughtered his extended family. He was the ACLU’s executive director in 1977–78 when the ACLU defended the First Amendment rights of Nazis to demonstrate in Skokie.
In his book “Defending My Enemy” and elsewhere, Neier explained: “I could not bring myself to advocate freedom of speech in Skokie if I did not believe that the chances are best for preventing a repetition of the Holocaust in a society where every incursion on freedom is resisted. Freedom has its risks. Suppression of freedom, I believe, is a sure prescription for disaster.”
Debate erupts over pro-Palestinian protesters
More recently, a heated debate has erupted in the United States over the scope of free speech during campus protests in reaction to Hamas’ deadly attacks in Israel on Oct. 7, 2023, and Israel’s overwhelming military retaliation in Gaza and the West Bank. In particular, pro-Palestinian protesters and their allies have been accused of “antisemitism” for criticizing Israel’s response, using slogans such as “From the river to sea, Palestinians will be free,” and condemning Israel’s actions as genocide. First Amendment advocates have responded by arguing that such criticisms are not antisemitic but instead constitute constitutionally protected political speech.
The debate is complicated by the use of the term Zionism. Zionism is a political movement that was started in the late 19th century with the goal of creating and supporting a modern State of Israel. Defenders of Israel and certain Jewish organizations characterize attacks on Zionism as being antisemitic, while First Amendment advocates and critics of Israel argue that criticisms of Zionism are not antisemitic; they are constitutionally protected political speech.
Zionism was controversial from the start. Its creation immediately resulted in a highly contested debate in the 19th and early 20th centuries. In her book, “The Threshold of Dissent: A History of American Jewish Critics of Zionism,” Marjorie N. Feld, a professor of history at Babson College, describes this vibrant and multi-faceted debate within the European and American Jewish communities. Many Jewish voices sounded well-grounded alarms over the establishment of a militarized theocracy. Feld argues that today that complex history has been largely replaced by an official, sanitized dogma in support of Israel.
Political criticism of Israel or Zionism labeled as antisemitic
First Amendment advocates argue that there is nothing antisemitic about critics of Israel renewing this debate now. They contend that labeling criticism of Israel or Zionism as antisemitic constitutes an effort to silence voices opposed to Israel’s conduct in Gaza and the West Bank, and such an attempt violates the values of the First Amendment, which broadly protect all forms of political debate.
Throughout history, a favorite tactic of repressive governments and intolerant societies has been to stigmatize opponents with a despised and reprehensible label in order to suppress dissent. Labels such as heretics, blasphemers, heathens, witches, savages, Communists, McCarthyism, illegal aliens, racists and terrorists are all examples of derogatory epithets used to isolate and demonize groups and individuals, undermining their credibility and banishing them as legitimate participants in the discussion of any important issue.
Today the label of one of the oldest and most virulent forms of hatred – antisemitism – is used to silence opposition to Israel’s war against the Palestinians. Free speech advocates argue that people should be free to subject Israel’s actions to searching scrutiny, debate and protest, and that neither Israel nor Zionism is entitled to a free pass insulating them from comment and criticism.
UN report: Bans on Palestinian symbols delegitimize political struggle
In August 2024, Irene Khan, the United Nations Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, issued a comprehensive report entitled “Global Threats to Freedom of Expression Arising from the Conflict in Gaza.” Khan found that “blanket bans of Palestinian symbols, by linking Palestinians as a people to terrorism or antisemitism, demonize and stigmatize them and seek to delegitimize their liberation struggle.” She noted that “equating advocacy of Palestinian rights with terrorism or antisemitism is not only a disproportionate response, but may indicate an underlying institutional racism against Palestinians, violating fundamental human rights.”
In particular, she noted that the chant “From the River to the Sea, Palestine Will Be Free” “has been the subject of blanket restrictions by some States and private actors on the grounds that it is a sign of support for Hamas and shows genocidal intent or incitement to violence against Jews.” But Khan points out that that interpretation of the slogan “has been challenged by scholars, human rights experts and Palestinian advocates, including many Jewish groups and scholars who see it as a call for the right to self-determination of Palestinians.”
While some Western countries have criminalized or otherwise punished the use of the slogan, elsewhere “the courts and law enforcement agencies have recognized the different meanings of the slogan and have refused to impose blanket bans on it.” She concludes that “general ban or criminalization for the mere utterance of the slogan in all circumstances is disproportionate and not in line with international human rights law.”
Boycott, divest and sanctions movement against Israel criticized
As another example, Khan examined the global “boycott, divest and sanctions” movement, which makes three demands on Israel: ending the occupation; ensuring full equality of all citizens and not privileging the rights derived from Jewish identity; and respecting and allowing the right of return for Palestinian refugees. “All three are aligned with the international obligations of Israel, which it has so far failed to uphold,” Khan notes, adding that “many civil society organizations and individuals, including some Jewish groups, support and participate in the movement.”
While the boycott, divest and sanctions movement is labeled in some Western countries, including Germany and the United States, as “discriminatory” and “antisemitic,” the European Court of Human Rights found that a boycott by the movement’s protestors in France was a legitimate means of expressing political opinion. According to Khan, the court “drew a distinction between expression that serves as a call for antisemitism and is not protected by international law, and political expression, such as the boycott, divest and sanctions movement, which aims to condemn a Government and is unquestionably protected by international law.”
The ruling by the European Court of Human Rights is consistent with U.S. law. In 1982, in National Association for the Advancement of Colored People v. Claiborne Hardware Co., the U.S. Supreme Court unanimously held that although states have broad power to regulate economic activities, they cannot prohibit peaceful advocacy through a politically motivated boycott, which is constitutionally protected under the First Amendment.
38 states restrict or discourage Israel boycotts
Neverthless, as of 2024, 38 states have passed bills and executive orders designed to restrict and discourage boycotts of Israel. Many of these laws have been challenged in court on First Amendment grounds, with mixed results. The Supreme Court has never issued a full dress decision on the issue. In 2023, it declined to review the Arkansas Times’ legal challenge to an Arkansas law requiring government contractors to certify that they are not boycotting Israel or “Israeli-controlled territories.” The denial left in place a previous ruling from the 8th U.S. Circuit Court of Appeals, which held that boycotts are not “expressive” enough to merit First Amendment protection. (Arkansas Times LP v. Waldrip)
Antisemitism efforts by Congress, Trump in 2024, 2025
On January 29, 2025, President Donald Trump issued an Executive Order entitled “Additional Measures to Combat Anti-Semitism” which raised serious First Amendment issues. Among other things, the order reaffirms Executive Order 13899 that Trump issued December 11, 2019, during his first term. It required all executive departments and agencies charged with enforcing anti-discrimination laws to consider the “working definition” of anti-Semitism adopted in 2016 by the International Holocaust Remembrance Alliance (IHRA), including eleven “Examples of Anti-Semitism.” The IHRA is an intergovernmental organization founded in 1998 to promote Holocaust education. It has 34 member countries, including Israel and the United States.
Some of the IHRA examples are anti-Semitic, such as “making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such or the power of Jews as collective — such as, especially but not exclusively, the myth about a world Jewish conspiracy or of Jews controlling the media, economy, government or other societal institutions.” But several other examples are political speech protected by the First Amendment such as “claiming that the existence of a State of Israel is a racist endeavor;” “applying double standards by requiring of [the State of Israel] a behavior not expected or demanded of any other democratic nation;” “using the symbols and images associated with classic antisemitism (e.g., claims of Jews killing Jesus or blood libel) to characterize Israel or Israelis;” and “drawing comparisons of contemporary Israeli policy to that of the Nazis.”
On May 1, 2024, the House of Representatives on a 320-91 bipartisan vote, passed the Antisemitism Awareness Act. It would give the IHRA “working definition” the force of federal law. The bill is pending before the Senate.
The idea of giving the IHRA definition the force of law has drawn widespread criticism in Europe and the US. Kenneth S. Stern, who helped draft the definition and its examples, opposes its enactment into law. In 2011, he co-authored an article about how the definition was being employed in an attempt to "restrict academic freedom and punish political speech." In December 2016 he wrote a letter to members of Congress warning that giving the definition legal status would be "unconstitutional and unwise.” In December 2019, he said the definition “was created primarily so that European data collectors could know what to include and exclude,” but it “was never intended to be a campus hate speech code.”
In May, 2024, some 1,200 Jewish university professors, including Harvard Law Professor Lawrence Tribe, journalist and professor Peter Beinart and Yale law and history professor Samuel Moyn, signed a strongly worded statement rejecting the IHRA definition. The professors urged their “political leaders to reject any effort to codify into federal law a definition of antisemitism that conflates antisemitism with criticism of the state of Israel.” Noting they hold varied opinions on Israel, they all agreed that if imported into federal law, “the IHRA definition will delegitimize and silence Jewish Americans — among others — who advocate for Palestinian human rights or otherwise criticize Israeli policies. By stifling criticism of Israel, the IHRA definition “hardens the dangerous notion that Jewish identity is inextricably linked to every decision of Israel’s government.” They added that “[f]ar from combating antisemitism, this dynamic promises to amplify the real threats Jewish Americans already face.”
‘Anti-Zionist’ school curriculum challenged in California
In May 2022, a group calling itself “Concerned Jewish Parents and Teachers of Los Angeles,” comprised of what the lawsuit called “Jewish, Zionist” teachers and parents in the Los Angeles Unified School District sued the district. They also named the United Teachers of Los Angeles and its president, the Liberated Ethnic Studies Model Curriculum Consortium, its secretary, and its co-founder as additional defendants.
The plaintiffs alleged that as of 2020, the school district had required high school students to take an ethnic studies class designed “to expunge the idea of Zionism, and the legitimacy of the existence of the State of Israel, from the public square[.]” In particular, they alleged the challenged curriculum “includes statements that the existence of the State of Israel is based on ethnic cleansing and land theft, apartheid and genocide” and that “Zionism is distinct from Judaism.” Because the challenged curriculum contained “anti-Zionist material,” plaintiffs alleged it was “antisemitic.”
Since the challenged curriculum is being used by only a few teachers but has not yet been approved districtwide, the lawsuit was a pre-emptive strike that asked the court to enjoin it before it was fully implemented.
On Nov. 30, 2024, U.S. District Judge Fernando M. Olguin dismissed the lawsuit. He reaffirmed that a system of education “which discovers truth out of a multitude of tongues” must allow teachers and their students “to explore difficult and conflicting ideas.”
In his decision, Judge Olguin relied on the 9th U.S. Circuit Court of Appeals decision in Monteiro v. Tempe Union School District decided in 1998. In that case, a parent sued the school district, on behalf of her daughter and other Black students, over the high school curriculum’s inclusion of certain literary works, such as “The Adventures of Huckleberry Finn” and “A Rose For Emily.” The plaintiff argued that because these works contained racially derogatory terms, their inclusion in the curriculum violated the Black students’ rights under the Equal Protection Clause. In response, the 9th Circuit held that “objections to curriculum assignments cannot form the basis of a viable Equal Protection claim, because curriculum decisions must remain the province of school authorities.” Absent an allegation of an underlying racist policy, “plaintiffs cannot challenge the assignment of material deemed to have educational value by school authorities.”
In dismissing the case against the Los Angeles school district, Judge Olguin ruled that “we must be careful not to curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the pedagogical methods they believe are most effective.” Although “teachers must be sensitive to students’ personal beliefs and take care not to abuse their positions of authority,” they “must also be given leeway to challenge students to foster critical thinking skills and develop their analytical abilities.”
Affording First Amendment protection to expressions viewed by many as offensive is surely a bitter pill, as groups are now learning who claim that pro-Palestinian protesters and their allies are antisemitic. But that’s exactly why we have a First Amendment in the first place. Almost 100 years ago, Justice Oliver Wendell Holmes Jr. wrote that "if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought that we hate."
Stephen Rohde is a retired constitutional lawyer, lecturer, writer and political activist.