Missouri Law Requires Public Schools and Colleges To Report Criticisms of Israel Considered ‘Antisemitic’

Beginning this month, state officials in Missouri schools and colleges are required to report speech and conduct critical of Israel if it’s considered antisemitic. The reports to state education officials could lead to discipline or other punishment.

HB 2061, passed by the Missouri Legislature and signed by Gov. Mike Kehoe, prohibits and punishes speech that creates “an atmosphere of fear or intimidation” against Jews. Students, parents, faculty and staff are to report speech for possible disciplinary action. 18 other states have passed similar laws.

Michael Berg, a St. Louis-based member of Jewish Voice for Peace, testified against the bill earlier this year arguing that, “We’re talking about codifying into law a definition of antisemitism which would restrict and punish accurate and necessary criticisms of Israel. It’s an attack on the ability to say things that are objectively true.” Criticisms of Israel such as an “apartheid state” or for engaging in “genocide” in Gaza could be subject to punishment even though those characterizations are supported by international organizations, he said.

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Berg noted that the American Civil Liberties Union of Missouri did not actively oppose the bill this year. It did not submit testimony in opposition even though it had last year and even though its national office continues to oppose laws like the one passed here. Repeated calls and emails to Tom Bastian, the spokesperson for the ACLU, were not returned. 

Among the influential St. Louis leaders who supported the bill was Stacey Newman, former head of the progressive caucus in the Missouri House. She formed a political action committee with Rabbi Jeffrey Abraham that supported the bill. Abraham has faced criticism for his remark that there were “no innocents in Gaza.” The Jewish Federations of America, the St. Louis Kaplan Feldman Holocaust Museum, Missouri Police Chiefs and Attorney General Catherine Hanaway also supported the law.

The law states that it is not infringing on the First Amendment rights of any group, but the special protection it extends in cases of alleged antisemitism, is viewed by civil liberties groups as creating an anti-Palestinian exception to the First Amendment.

Gregory P. Magarian, a first-amendment expert and law professor at WashU, said it is difficult to escape the conclusion that there is a Palestine exception to free speech that has been created over the past 18 months.

“What we’ve observed with these Palestine protests measured against any norm of free speech — in the case of public universities, the actual First Amendment — is something that I’ve rarely seen before,” Magarian said. “You’ve got congressional committees browbeating and driving out of their jobs university presidents for the sin of not punishing students who say things like ‘from the river to the sea Palestine will be free.’ The notion that that slogan is outside the First Amendment’s protection, or outside ordinary norms of free speech, is a completely crazy notion that is textbook day one, free speech stuff. If someone is out on the street yelling ‘Kill all the Jews,’ that’s a different conversation.

“This exception is creating a new wave of McCarthyism as too many people are deliberately attempting to weaponize false connections between dissent and terrorism,” he said. “In addition to the term terrorist and instead of the label of communist, critics are calling pro-Palestine speech and criticism of Israel antisemitic.

“There’s a lot of rhetoric from a certain segment of people who support Israel saying, ‘If you’re participating in these protests, you are a terrorist, or you are a supporter of terrorists,’” he said. “That is functionally identical to […] being in the 1950s and saying [if you are] expressing commitments to any kind of social or economic egalitarianism, you’re a communist.”

Can critics accuse Israel of genocide, apartheid or Nazi tactics?

A key provision of the new law directs schools to use the International Holocaust Remembrance Alliance’s (IHRA) Working Definition of Antisemitism. The law says that is not intended to abridge the First Amendment or to punish, “criticism of Israel that is similar to criticism toward any other country.” 

Aisha Sultan, the noted St. Louis Post-Dispatch columnist, has probed what the law actually prohibits during a Q and A with the sponsor of the law, Rep. George Hruza, R-Huntleigh.

Sultan movingly recounted hateful taunts she faced in 7th grade in Houston from a boy who would repeatedly berate her saying, “Your mom’s a raghead, You all should go back to where you came from.” When Sultan summoned the courage to ask a counselor at her school for help, he told her to get used to it because people were not going to like her.

She said the experience was why “rising attacks on free speech, along with a spike in religious bigotry, feels so personal.” 

Sultan asked Hruza in the Q & A if calling Israel’s actions in Gaza “genocide” was antisemitic under HB 2061?

Hruza’s response suggests accusing Israel of Genocide would violate the law.

Hruza responded to Hruza: “Calling Israel’s actions in Gaza genocide does not comport with the situation on the ground or it is some kind of twisted definition of genocide. No other country would be accused of genocide for fighting a defensive war after an unprovoked attack and bending over backward to minimize civilian casualties, only Israel. Hamas committed the massacre, torture, mass rape and hostage-taking against Israeli civilians and uses their own people as human shields, storing weapons and building tunnels in and under schools, mosques and hospitals as well as stealing 90% of the food aid sent to Gaza. Hamas has committed themselves to the annihilation of the State of Israel. That would seem to be the genocidal organization in this conflict.”

Sultan noted that Hruza’s interpretation of the destruction of Gaza “stands in opposition to the world’s leading professional organization of experts, the International Association of Genocide Scholars, which has declared that Israel’s policies and actions in Gaza meet the legal definition of genocide. Many prominent Holocaust historians, human rights organizations, and international law experts, including Israeli and Jewish experts, have also classified the military campaign in Gaza as a genocide.

“Are they all antisemitic?” Sultan asked. “Would any teacher assigning their work be reported to the state? Would any student debating this ongoing event be accused of harassment?”

Sultan also asked if comparisons of Israeli actions to Nazi actions during World War II would be considered antisemitic. She noted that the International Holocaust definition includes as an example of antisemitism, “drawing comparisons of contemporary Israeli policy to that of the Nazis.” 

Hruza said: “Comparing Israeli policy to that of the Nazi’s shows a massive ignorance of history, is insulting to the 6 million Jews and millions of other ‘undesirables’ murdered by the Nazi’s on an unprecedented industrial scale and shows a complete ignorance of history and the current situation in Israel and Gaza. HB 2061 explicitly protects free speech including such abhorrent antisemitic speech. It is when the speech causes harm to others through harassment, intimidation, bullying or an atmosphere of fear that it becomes an issue for schools to address. Free speech ends at the end of one’s nose. When it causes harm to others, it is no longer protected speech.”

Magarian, the First Amendment expert at Washington University, thinks politics is overtaking justice.

“I’m inclined to frame the problem in more explicitly political terms,” he wrote in an email. “ …The right’s concern about “anti-semitism” is paper-thin cover for a political program of advancing the right-wing State of Israel and blocking criticism of Israel’s genocide in Gaza and atrocities in the West Bank and Lebanon. Censorship is not an incidental consequence of right-wing governments’ embracing the IHRA definition; censorship is the entire goal of that embrace. Public opinion is turning against Israel. Israel and its right-wing defenders lack arguments to defend Israel’s genocide and atrocities. Therefore, they are trying to silence arguments that condemn Israel’s genocide and atrocities. What Missouri is doing here is all about promoting a right-wing political agenda. That’s the whole story.”

Berg, who testified against the law, put it this way: “If you say Israel is a racist state that kills people solely based on who they are…..that is antisemitic and unprotected. But if you say Hamas is racist because they killed Jews on Oct. 7, that is protected.”

Should the IHRA definition of antisemitism be codified?

Kenneth S. Stern, director of the Bard Center for the Study of Hate, was involved in the development of the IHRA definition of antisemitism but says it was not intended to be codified into law.

“This assault on the academy, using the IHRA definition as a key ingredient, is McCarthyism. And we’ll all suffer. The Trump administration’s attack on higher education, including pressuring universities to adopt the IHRA definition and targeting of international students for visa revocation and deportation, will profoundly impoverish debate on campus.”

The Trump administration has used Title VI of the Civil Rights Act to cut off money to colleges that don’t adequately protect Jewish students from antisemitic actions of pro-Palestinian advocates.

When the Trump administration froze funding to Harvard for not adequately protecting Jewish students, a judge ruled in favor of the university in September, writing that she found it “difficult to conclude anything other than that [the Trump administration] used antisemitism as a smokescreen for a targeted, ideologically-motivated assault on this country’s premier universities.”

Critics have called the strategy of pro-Israel groups bringing such cases “lawfare” designed to silence criticism of Israel. 

Judges in an MIT case echoed that view. Responding to claims that “from the river to the sea” calls for the genocide of Jews, a panel of appeals court judges wrote: “Plaintiffs must again rely on a theory that they can dictate the interpretation of the protestors’ speech in order to suppress it.” The MIT order is the only appeals court ruling on the issue since October 2023, giving it precedential value.

In a 2024 Texas case a court found that the state’s incorporation of this specific definition of antisemitism is “viewpoint discrimination . . .(violating) the characteristic of universities as an environment for vigorous debate is outcome determinative. The revised university policies chill a kind of expression that is a hallmark of university activity,… this type of passionate political debate is essential at universities, where students are forming their worldview as adults.”