JUDGE AGREES WITH THE COUNCIL ON AMERIAN-ISLAMIC RELATIONS (CAIR) THAT EXPRESSIONS OF ANTISEMITISM ARE PROTECTED SPEECH

Texas court ruling signals setback for efforts to define Jew-hatred on campus

“The court finds the incorporation of this specific definition of antisemitism is viewpoint discrimination,” a federal district court judge ruled. 

 

By Andrew Bernard

 

JNS

Oct 31, 2024 

 

 

Federal Judge Robert Pitman ruled against Texas Gov. Greg Abbott's executive order, GA-44, instructing the state’s public universities to include the International Holocaust Remembrance Alliance’s working definition of antisemitism in their free speech policies 

 

A federal court in Texas signaled on Tuesday that it intends to roll back measures taken by the state’s universities to protect Jews on campus.

In March, Texas Gov. Greg Abbott, a Republican, signed an executive order, GA-44, instructing the state’s public universities to include the International Holocaust Remembrance Alliance’s (IHRA) working definition of antisemitism in their free speech policies in response to the explosion of anti-Israel campus protests after the Hamas terrorist attacks in Israel on Oct. 7, 2023.

The Council on American-Islamic Relations (CAIR) sued the governor and the administrators of the University of Houston and the University of Texas on behalf of two local chapters of Students for Justice in Palestine and the Democratic Socialists of America. CAIR, which blamed Israel for being attacked shortly after Oct. 7, alleged that the executive order and the policies that the universities enacted under it were impermissible viewpoint discrimination.

Robert Pitman, a district judge of the U.S. District Court for the Western District of Texas, ruled on Tuesday that by adopting the IHRA definition in their policies, the universities violated the First Amendment rights of those anti-Israel protest groups to free expression.

“The court finds the incorporation of this specific definition of antisemitism is viewpoint discrimination,” Pitman wrote. “The speech policies do not leave ‘antisemitism’ open to constitutional definitions and interpretations, because GA-44 mandated a specific definition.”

The court agreed further with the plaintiffs that the IHRA definition’s contemporary examples of antisemitism, which include comparing Israel to Nazi Germany, are protected speech.

“Court finds the revised policies are intertwined with GA-44 and the IHRA examples, which identify content-specific expression—like that the State of Israel is a racist endeavor or drawing comparisons between Israel and Nazis,” the judge wrote. “Through the connection to these examples, the policies make that speech punishable, thereby chilling it.”

Kenneth L. Marcus, the founder and chairman of the Louis D. Brandeis Center for Human Rights Under Law, which filed an amicus brief in the case supporting the defendants, described the order as a “cautionary note” to the state of Texas, which may have gone beyond other states that have tried to adopt the IHRA definition.

“The Texas executive order is a bit of a unique situation, which can’t really be compared to any of the other bills,” Marcus told JNS. “It’s written in a certain way that could be interpreted as being constitutionally permissible or constitutionally problematic.”

The district court declined to grant the plaintiffs a preliminary injunction “at this time,” leaving open a window for the court to craft its own injunction or for the state to take other actions.

“This is only a preliminary determination, so the court could come to a different decision when it finally resolves the merits. Moreover, the whole thing could go to the court of appeals,” Marcus told JNS. “In the meantime, any problems could be addressed by the legislature during their next term or by the governor.”

The case touches on some of the most explosive disputes between pro- and anti-Israel groups on college campuses since Oct. 7, including the meaning of the phrase “from the river to the sea, Palestine will be free.”

Jewish groups, including the American Jewish Committee and the Anti-Defamation League, describe that phrase as an antisemitic call for the destruction of Israel. In their suit, the plaintiffs say that it reflects “an aspiration for peace and dignity for all people.”

The district court ruled that telling students not to use that phrase constituted “harm” to their First Amendment rights but dismissed that part of the suit for lack of standing.

‘Chilling effect on expression’

Tyler Coward, lead counsel for government affairs at the Foundation for Individual Rights and Expression (FIRE), told JNS that courts are unlikely to look favorably on any state institution that proscribes specific phrases.

“That’s the sort of chilling effect on expression that courts just don’t tolerate,” Coward said. “The speech remains protected, even if there are calls for violence against particular states or countries or peoples.”

The three classes of speech most likely to emerge from a protest that the First Amendment does not protect are incitement, harassment and true threats. But Coward said that under U.S. free speech jurisprudence, it is unlikely that even the most incendiary chants from anti-Israel protesters would fall into one of those classes.

“If you think that what they’re calling for is the elimination of the Jewish state—calls for violence, calls for war, calls for military action are forms of speech that enjoy constitutional protection,” he added, “unless there’s a showing that that speech is intended to cause a reasonable person to think that they are in imminent fear of bodily harm or injury, which most of these cases—they’re just not able to show that.”

Since 2019, the U.S. Department of Education has been instructed to consider the IHRA definition in enforcing Title VI of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, or national origin at any institution that receives federal funding, including virtually all U.S. public and private universities.

That order, issued by former President Donald Trump, remains in effect, and the Department of Education has repeatedly found examples of universities violating the civil rights of Jewish students since Oct. 7.

Marcus told JNS that the federal government’s efforts to use the IHRA definition to stop discrimination against Jews will not be slowed by any decision about the Texas order.

“One could debate whether Governor Abbott’s order properly used the definition or not, but it used that definition in a way that’s very different than President Trump’s executive order or the policy of the U.S. Department of Education’s Office for Civil Rights,” he said.