Anti-Semitism on the Rise: Comparing German and American Free Speech Law
Following the horrific October 7 attack in which Hamas committed the barbaric massacre of over 1200 Israelis and kidnapped another 240, there has been a significant global surge in antisemitism.[1] In the United States, the Anti-Defamation League has reported that antisemitic incidents have increased by nearly 400% following the attack, as physical violence and threats have targeted Jewish individuals, community centers, and synagogues.[2]
In the United States, antisemitism has especially run rampant on the campuses of some of the nation’s top colleges and universities.[3] At Cornell University, junior Patrick Dai was arrested after making online threats to harm Jewish students.[4] Other antisemitic incidents have occurred at schools such as Drexel University, Cooper Union, and Tulane University.[5] Much of this behavior has been fueled by the failure of university administrations to properly address hateful rhetoric that has been incited by students, professors, and organizations on campus. Most universities and institutions within this country have not taken action to combat antisemitism.[6] Following October 7, statements from student organizations[7] and academic faculty[8] at multiple renowned universities in the United States entirely direct the blame at Israel for Hamas’ attack.[9] Further, during a recent congressional hearing, the presidents of Harvard, Penn, and MIT were unable to condemn calls for the genocide of Jewish people as antisemitic.[10]
Hateful rhetoric, physical violence, and intimidation of Jews has been permitted and defended on the grounds of free speech protection.[11] In the United States, free speech is heavily protected from governmental limitation by the First Amendment to the Constitution.[12] There are a few categories of speech that are exempt from First Amendment protection, such as “incitement, defamation, fraud, obscenity, child pornography, fighting words, and threats.”[13] Most relevant to the issue at hand here, Incitement includes speech that calls for “imminent,” specific action, and fighting words include insults likely to provoke a physical fight.[14] However, there is no exception for hate speech, which receives First Amendment protection. In 2023, a federal appellate court reversed school disciplinary action against a student who captioned a photo, “Me and the boys bout to exterminate the Jews,” and posted it to his private Snapchat story.[15] The court held the student speech was protected under the First Amendment as it did not “substantially interfere with the work of the school or impinge upon the rights of other students.”[16] More recently, the ACLU has defended college students’ rights to use slogans such as "from the river to the sea."[17] This slogan used by the designated terrorist group Hamas, has First Amendment protection “no matter how offensive” it may be.[18] Thus, the recent outpour of antisemitic speech has been constitutionally protected.
While the United States has relatively lax standards on speech, Germany has stricter laws that criminalize antisemitic hate speech.[19] These German restrictions are rooted in history, given the country’s past in perpetrating the Holocaust.[20] German laws have been applied to criminalize Holocaust denial, Nazi imagery, and the dissemination of Nazi propaganda, such as expressing support for Hitler.[21] For example, Section 130 of the German criminal code, which “bans incitement to hatred and insults that assault human dignity against people based on their racial, national, religious or ethnic background,” has been invoked to sentence a German chemist who engaged in Holocaust denial to two and a half years in prison.[22] Following Hamas’ attack and subsequent worldwide protests, top German officials have reasserted that Germany remains historically responsible for and obligated to support Israel.[23]
Given this comparison between German and American free speech laws, perhaps lawmakers may reevaluate current laws on campus speech to prevent antisemitic rhetoric. Anti-Israel protests across the nation have urged for another Intifada and have declared that “from the river to the sea, Palestine will be free,” calling for the establishment Palestinian state from the Jordan River to the Mediterranean Sea, erasing the State of Israel and ethnically cleansing its people.[24] This rhetoric, currently protected by many top universities, has contributed to the rising number of antisemitic incidents and targeted attacks on Jewish people. There is glaring hypocrisy regarding the current stance of top universities like Harvard and Penn that protect this hate speech. Harvard ranks last out of 248 schools in the Foundation for Individual Rights and Expression (FIRE) survey on college free speech, while Penn is second to last.[25] These universities have completely mismanaged their internal policies by selectively protecting certain types of speech. Jewish people overwhelmingly face the most religious-related hate crimes in the United States.[26] Lawmakers should work towards shifting towards the German model of punishing antisemitic hate speech to protect Jewish students on college campuses.
Benjamin Schwartz is a staff member of Fordham International Law Journal Volume XLVII.
[1] See Toi Staff & Agencies, Israel revises death toll from Oct. 7 Hamas assault, dropping it from 1,400 to 1,200, Times of Israel (Nov. 10, 2023), https://www.timesofisrael.com/israel-revises-death-toll-from-oct-7-hamas-assault-dropping-it-from-1400-to-1200.
[2] See Reuters, How the surge in antisemitism is affecting countries around the world (Oct. 31, 2023), https://www.reuters.com/world/how-surge-antisemitism-is-affecting-countries-around-world-2023-10-31/.
[3] See Tovia Smith, Colleges face pressure to curb antisemitism and Islamophobia, NPR (Nov. 11, 2023), https://www.npr.org/2023/11/11/1211234951/colleges-face-pressure-to-curb-antisemitism-and-islamophobia.
[4] See Brian Mann, Cornell student arrested in connection with antisemitic threats on New York campus, NPR (Oct. 31, 2023), https://www.npr.org/2023/10/31/1209839480/cornell-student-arrested-antisemitic-threats.
[5] Smith, supra note 3.
[6] See Collin Binkley, The Biden administration says colleges must fight ‘alarming rise’ in antisemitism and Islamophobia, ASSOCIATED PRESS (Nov. 7, 2023), https://apnews.com/article/antisemitism-islamophobia-colleges-biden-israel-hamas-57e32457f9113a168cc21d16fa008a79.
[7] Student organizations such as Students for Justice in Palestine (SJP) and Jewish Voice for Peace (JVP) released statements claiming that the source of the attack was Israel. See Center on Extremism, Jewish Voice for Peace (JVP): What You Need to Know, ADL (Oct. 25, 2023), https://www.adl.org/resources/blog/jewish-voice-peace-jvp-what-you-need-know?gclid=Cj0KCQiAjMKqBhCgARIsAPDgWlzVR9Ot4qDhdW5muo_YbWZIwHkQLBA_D6bcjpoEPd-R3mwQ67IlsUUaAtFnEALw_wcB.
[8] See Yaron Steinbuch, Cornell professor who found Hamas attack ‘exhilarating’ and ‘energizing’ now on leave of absence, N.Y. POST (Oct. 25, 2023), https://nypost.com/2023/10/25/news/cornell-prof-who-found-hamas-attack-exhilarating-now-on-leave-of-absence/.
[9] Such universities included Columbia University, Harvard University, Northwestern University, and the University of Michigan Law School. See Melissa Koenig, Thirty-one Harvard organizations blame Israel for Hamas attack: ‘Entirely responsible’, N.Y. POST, (Oct. 9, 2023), https://nypost.com/2023/10/09/thirty-one-harvard-organizations-blame-israel-for-hamas-attack/.
[10] See Kevin Frey, University leaders' responses to Stefanik's questions on antisemitism spark furor, SPECTRUM NEWS, (Dec. 8, 2023), https://ny1.com/nyc/all-boroughs/politics/2023/12/09/university-presidents-responses-to-stefanik-questions-spark-firestorm.
[11] See Sarah Beth Hensley, ACLU defends free speech in furor over university presidents' handling of antisemitic rhetoric on campus, Abc News (Dec. 8, 2023), https://abcnews.go.com/Politics/aclu-defends-free-speech-furor-university-presidents-handling/story?id=105497367.
[12] See Permissible restrictions on expression, Britannica, https://www.britannica.com/topic/First-Amendment/Permissible-restrictions-on-expression.
[13] See id.
[14] See id.
[15] See Michael Stefanilo Jr, Student’s Anti-Semitic “Snap” Protected as Free Speech, ABA (Jan. 12, 2023), https://www.americanbar.org/groups/litigation/resources/litigation-news/2023/students-anti-semitic-snap-protected-free-speech/.
[16] Id.
[17] Hensley, supra note 13.
[18] Id.
[19] See Dan Glaun, Germany’s Laws on Hate Speech, Nazi Propaganda & Holocaust Denial: An Explainer, PBS (July 1, 2021), https://www.pbs.org/wgbh/frontline/article/germanys-laws-antisemitic-hate-speech-nazi-propaganda-holocaust-denial/.
[20] Id.
[21] Id.
[22] Id.
[23] See Jessica Parker, Jewish fears as German support for Israel is challenged on streets, BBC (Oct. 10, 2023), https://www.bbc.com/news/world-europe-67368409.
[24] See Translate Hate: From the River to the Sea, AJC, https://www.ajc.org/translatehate/From-the-River-to-the-Sea (last visited Nov. 11, 2023).
[25] See Sean Stevens, Harvard gets worst score ever in FIRE’s College Free Speech Rankings, FIRE (Sept. 6, 2023) https://www.thefire.org/news/harvard-gets-worst-score-ever-fires-college-free-speech-rankings
[26] FBI Releases Supplement to the 2021 Hate Crime Statistics, DOJ (Apr. 4, 2023), https://www.justice.gov/crs/highlights/2021-hate-crime-statistics.
This is a student blog post and in no way represents the views of the Fordham International Law Journal.