Abstract
Excerpted From: Lili Levi, Anti-Antisemitism Now, 78 University of Miami Law Review 745 (Spring, 2024) (324 Footnotes) (Full Document)
In response to an alarming increase in public antisemitism, both online and offline, in politics and culture in the U.S., the Biden White House released the country's first-ever U.S. National Strategy to Combat Antisemitism (hereinafter referred to as the National Strategy) on May 25, 2023. The Administration subsequently revealed on November 1, 2023 that it was developing the country's first national strategy to combat Islamophobia as well. Despite these governmental commitments, however, there has reportedly been a nearly 400% increase in antisemitic incidents in the United States since Hamas' October 7, 2023 attack on Israel and the start of the Israel-Hamas war in Gaza. Islamophobic incidents in the U.S. have escalated as well, including, for example, the shooting of three college students and the murder of a child of Arab descent. All told, this is a particularly important moment for the implementation of national strategies to fight antisemitism and Islamophobia in the United States.
This Article focuses on the National Strategy. The National Strategy calls for “a whole-of-society approach to countering antisemitism,” highlighting (1) a variety of anti-normalization strategies, (2) ways to decrease public susceptibility to antisemitism by calling for increased awareness and solidarity, and (3) the need to ensure safety for the American Jewish community. Specifically, this Article addresses the suggestions in the National Strategy of ways to reverse the normalization of antisemitism online and offline.
The National Strategy is very important as a political document. The White House is to be commended for its powerful recognition of the risks posed by antisemitism both to American Jews and to the nation as a whole: “Antisemitism threatens not only the Jewish community, but all Americans.”
In one of its key contributions, the National Strategy explicitly recognizes the connection between antisemitism and the increasingly visible white nationalist movement in the United States. Antisemitism is deeply woven into the conspiracy theories that have gained purchase among some conservative voters and that are reflected in some of the white supremacist ideas--like the Great Replacement Theory--that have directly or indirectly crossed over into some mainstream conservative political discourse. Antisemitism plays a variety of roles in creating linkages among white power groups and serves as a gateway prejudice or organizing principle for other identity-based hate. One important lesson from the January 6, 2021 storming of the Capitol is that many American citizens, under the influence of electoral conspiracy theories, would countenance political violence destabilizing to democracy. The fact that antisemitism was clearly visible on January 6 and in the conspiracy theories that fed the attack on the Capitol signals clear ties between antisemitism and the possibility of broader attacks on the republic.
By placing anti-antisemitism on the national agenda, the White House reminds American citizens and politicians that antisemitism is real, rising, and harmful, even if some find reasons to dismiss it. The National Strategy implicitly criticizes conservatives who flirt with neo-Nazis and accept conspiracist political ideas infused with antisemitism. At the same time, it also implicitly warns progressives who fail to acknowledge the extent and dangers of antisemitism that antisemitism is a key tool used by white nationalists to fight progressive efforts to achieve social justice overall. Thus, the National Strategy implicitly challenges the extremes of both conservative and progressive discourse about antisemitism. It also serves as a wake-up call to young Americans, significant numbers of whom are reported to believe that the Holocaust is (or may be) a myth, and that “Jews wield too much power in America.”
In addressing antisemitism as a broad societal problem whose reduction requires society-wide initiatives, the National Strategy also commendably zooms out beyond a focus on antisemitism in colleges and universities. Since the Trump Administration and increasingly since the start of the Israel-Hamas war, the issue of campus antisemitism has been highlighted, particularly by Republican politicians. Pinpointing antisemitism narrowly on the college campus mires the issue in fundamental conflicts as to the scope of American commitments to free speech without addressing the clear examples of rising antisemitism beyond school. Although the National Strategy attends specifically to antisemitism in K--12 schools and college campuses in its Strategic Goal 3.4, it nevertheless reminds us that the pernicious effects of antisemitism in the U.S. extend beyond the conflicts on college campuses (often related to events in the Middle East, even if those conflicts are incorporated into broader narratives about Jews).
This more expansive vantage point is consistent with yet another major contribution by the National Strategy--the recognition that one of the major roadblocks to combating antisemitism is simply a lack of adequate information and understanding, particularly of antisemitism online. Antisemitism is a complex type of prejudice-- one that includes both traditional types of dehumanizing tropes classing Jews as vermin, and an aggrandizing conspiracism that accuses Jews of seeking world domination. In addition, sophisticated strategies have been activated--often by white nationalists seeking to use antisemitism and its tropes as a connective thread--to disguise and code references to antisemitism in order to avoid detection. Thus, the National Strategy's emphasis on the need for further antisemitism research as part of a more granular approach to the control of hate speech is critical. Moreover, the Article concurs with the National Strategy that access to the online data generated by internet platforms is critical for much such research. However, rather than the National Strategy's call for immediate Congressional access legislation, it argues for a prudential strategy of waiting to determine what the platforms do in response to the disclosure obligations in the European Union's new Digital Services Act (“DSA”).
With respect to its more specific recommendations, the National Strategy also properly focuses on the role played by social media in the dissemination and amplification of antisemitism online. However, this Article argues, the National Strategy's recommendation that Congress undertake blunderbuss Section 230 reform threatens to increase antisemitism online rather than reversing its rise. This piece also expresses concern that, in requesting voluntary network adoption of unrealistic “zero tolerance” terms of service regarding antisemitism, the National Strategy could unintentionally lead to over-enforcement and backfire against Jews (even if it passed constitutional muster in response to critics' claims of government coercion of speech).
Beyond social media, the National Strategy recommends public condemnation and counter-speech as well as contract-based sanctions by corporate firms whose representatives have engaged in antisemitism. While condemnations of antisemitism can be stirring and set aspirational social norms, and although some private corporations have already responded to antisemitic expression by their brand ambassadors in a variety of ways, this Article argues that both recommendations would benefit from closer and more rigorous empirical testing before implementation.
As it is, the White House's call for public condemnation does not grapple explicitly enough with the ambivalence in modern political and cultural discourse about Jews. By emphasizing the fact that it constitutes a “whole-of-society” proposal, the National Strategy implicitly raises the question of what happens if all its moving parts do not work--if the whole of society does not go along. The current politicization of Jewish issues in our partisan political landscape raises questions about universal agreement on antisemitism. Particularly in the time of so-called “cancel culture,” many presumably justify antisemitic hate speech as a courageous telling of truth to power. Moreover, the Israel-Hamas war has led to intense conflicts in public discourse about Israel and antisemitism. Under such circumstances, figuring out how to operationalize the National Strategy's public condemnation strategies will take further hard thinking and research.
Similarly, the National Strategy's implicit reliance on contract terminations or educative sanctions against its agents who express antisemitic views is under-analyzed and might well backfire. This Article recommends that--instead of rubber-stamping what could end up being merely performative sanctions--more nuanced attention be paid to assessing the contextual effectiveness of the variety of possible private remedies.
The National Strategy breaks important ground in centering anti-antisemitism in American policy and explaining the moral and practical threats it poses whether online or in person. The detailed implementation of the new strategy is largely left to the future and to the many actors it charges to effectuate it. With the sharp uptick in antisemitism and Islamophobia since the start of the Israel-Hamas war, this is a particularly important moment for the effective implementation of the national strategies to combat such rhetoric and incidents. At the same time, it is also the most fraught and complex context in recent memory for Jews and Muslims to work together on reducing prejudice against each group. But the polarized discourse in the United States about Jews and Israel in light of the events of October 7 in Israel and their aftermath should not obscure the ways in which Jews and Muslims are linked by bigotry in the United States. While it would be naïve to expect that the relationship between these communities in America would not be deeply inflected by events in the Middle East, it would be a shame and a step back for American democracy if the White House's efforts to stem antisemitism and Islamophobia in the U.S. were delayed or even scuttled by charges of pro-Israel or pro-Palestinian partisanship. Sociologists would surely identify differences between the two forms of prejudice, but a recognition of the roles they play in American politics could offer a path forward here. Similarly, the White House's support for rigorous empirical research and analysis could pressure-test intuitions about the likely effectiveness of various possible interventions.
This Article proceeds in four parts. Part I describes the normalization of antisemitism in both politics and culture in the U.S.; outlines the Biden Administration's new National Strategy to Counter Antisemitism; sketches the links between antisemitism and white nationalism; commends the National Strategy for expanding its concerns about antisemitism beyond the commonly-addressed context of college and university campuses; and addresses the importance of the White House's support for more antisemitism-focused research. Part II explores the National Strategy's recommendations for countering antisemitism online. It addresses the White House's suggestions both for Congress--Section 230 reform and platform transparency requirements--and for the platforms themselves. Part III considers the National Strategy's recommendation to reverse the normalization of antisemitism by counter-speech and public condemnation. Part IV looks at the Biden Administration's recommendation for corporate responses, focusing on brand dissociation and educative sanctions.
[. . .]
Although rising antisemitism has been a focus of concern in Europe for some time, antisemitism in the United States had not been at the forefront of public--or even Jewish--concern in the twenty-first century until recently. As the White House recognizes, however, antisemitism is becoming more normalized both in the political and cultural spheres in the United States. In response, the Biden Administration developed the United States' very first National Strategy to Counter Antisemitism, released in late May 2023. Since Hamas' massacre in Israel on October 7, 2023, and the outbreak of the Israel-Hamas war thereafter, there has been a massive rise, of almost 400%, in antisemitic speech and incidents. Islamophobic incidents have also increased markedly, and the White House has promised that it will also issue a national strategy to counter Islamophobia.
The White House is to be commended for having moved antisemitism, Islamophobia and other kinds of identity-based bigotry from the periphery to the center of policy discourse in the United States. This Article has focused attention on the National Strategy.
First, the National Strategy is to be praised as a first-ever governmental acknowledgement that antisemitismis not just a parochial Jewish problem, but a central challenge for American democracy. Antisemitism is a key ideological, organizational, and recruitment tool for white nationalists and political conspiracy theories. The National Strategy correctly identifies the democratic dangers of these pernicious developments. Second, the National Strategy helpfully recognizes antisemitism as a broad social challenge rather than just a university campus problem focused on Middle East conflicts and politics. This elevates the issue beyond partisan attempts to use antisemitism as a tool to combat political progressivism in universities or to address U.S. foreign affairs priorities. Third, the National Strategy properly identifies social media platforms as important actors in the dissemination and amplification of antisemitism, but which have incentives to maintain informational obscurity about their operations. Despite some questions about its specific regulatory recommendations to Congress, its emphasis on social media and the need for informational access is critical. Finally, the National Strategy recognizes the need for further empirical research to study the phenomenon of antisemitism and its spread. While antisemitism shares many characteristics with other forms of bigotry, it differs in important ways that bear further rigorous study. The White House's support of antisemitism-focused academic research laudably cuts across and supports all of its recommendations.
With regard to some of its specific implementation recommendations to counter the normalization of antisemitism in the United States, this Article takes a leaf from the National Strategy and calls for further pressure-testing with empirical study. For example, regarding social media, the Article questions whether the White House's recommendation of blunderbuss legislative Section 230 reform, if successfully executed, might not in fact increase online antisemitism. It worries whether zero-tolerance commitments for online content moderation by social media companies might also have counter-productive effects. And while it agrees that the lack of data access is a major stumbling block for rigorous empirical research of online expression, it also suggests that it would be prudent to wait and assess the platforms' compliance with the EU's new Digital Service Act before insisting on Congressional action.
As for the National Strategy's recommendations for general social condemnation and stigmatization of antisemitism, this Article calls for more rigorous research into what kinds of public condemnation strategies in fact are likely to work to diminish anti-Jewish discourse when antisemitism is both as normalized and as contested as it appears to be today here and around the world. Rather than relying on intuitively sensible initiatives, the Article argues that we would benefit from accurate empirical assessments of what kinds of “speaking out forcefully” are likely to be most effective and lead to least backlash--and why. Finally, the Article asserts that the National Strategy's recommendations to corporations--antisemitism audits and the imposition of sanctions over antisemitism--are overly abstract and unmoored from the realities of the sanctions currently being imposed. Here too research and deep thinking are called for, lest corporate sanctions end up threatening important American values while providing little more than illusory anti-antisemitism theater in practice.
Professor Deborah Lipstadt, historian of antisemitism and U.S. Special Envoy to Monitor and Combat Antisemitism, has said that antisemitism, like a virus, adapts and rises in times of social stress, is available when convenient for strategic, political, and utilitarian purposes, and seemingly cannot be eradicated by education. Perhaps the most that can be hoped for is Lipstadt's goal of “getting people to take it seriously.” What the Biden Administration's National Strategy has done is to provide leadership in taking it seriously. Of course, statements of political commitment can be inspirational, but they can also be dismissed if they are not agenda-setting and if their operational elements are not politically and empirically tested for effectiveness and feasibility. As a practical matter--through a mix of the anti-antisemitism recommendations sketched in the National Strategy and the rigorous research for which it calls--improvement in responding to today's antisemitism lies within the realm of possibility. For that prospect alone, the U.S. National Strategy to Counter Antisemitism deserves kudos.
Professor of Law, University of Miami School of Law.
