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One of the main differences between the American and European systems of democratic government is the absence, on the other side of the Atlantic Ocean, of a First Amendment-style guarantee of free speech. In the United States, for example, it’s perfectly legitimate for a neo-Nazi or an Islamist to deny the Holocaust and display hateful symbols at the same time, while in Europe such activities could theoretically land one with a prison sentence.

Europe, in general, regards hate speech and hate gestures as a form of criminality; it eschews the American approach that such outbursts should be protected, however offensive the words or images might be. And so, it’s worth examining whether anti-Zionist expressions of anti-Semitism—denying Israel’s right to exist, comparing Israel with Nazi Germany and so forth—should also fall under the rubric of the European courts, rather than being tested by public opinion. Two distinct questions arise here: Are legal penalties for anti-Zionism feasible? And are they desirable?

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These issues are not entirely abstract. In Germany and the United Kingdom, for example, the annual “Al Quds Day” (“Jerusalem Day”) rally sponsored by the Iranian regime has been banned in recent years, largely because its open call for the destruction of Israel is invariably accompanied by vulgar anti-Semitic rhetoric. The last time the rally was staged in Berlin, in 2019, one of its organizers told a Jewish counter-demonstrator that “Hitler should come back and kill all the Jews.” Meanwhile, in London in 2017, calls for Israel’s elimination served as the perfect cover for one speaker, who told the crowd that “Zionists” were directly responsible for the devastating fire that tore through a public housing complex in the west of the city during the same year. After several years of lobbying and complaints from Jewish representatives, the authorities finally realized that, at least in the case of the “Al Quds Day” rally, anti-Zionism was not some liberal appeal for the human rights of Palestinians but a vehicle for attacking local Jews and the State of Israel simultaneously.

That observation should serve as a reminder that the main victims of anti-Zionist activism, particularly the BDS campaign seeking to quarantine Israel from the international community, have not been Israeli companies, but Jews living in Diaspora communities. Especially in campus settings, calls to boycott Israel have frequently involved harassment of individual Jews who, while they might well sympathize with the Jewish state, are not its citizens.

Since the 11-day conflict in Gaza between Israel and Hamas in May 2021, that harassment has increasingly taken on a violent form. On both sides of the Atlantic Ocean last year, the slogan “Free Palestine” became inseparable from the physical attacks on Jews, anti-Semitic chants and other horrors that accompanied these ostensible demonstrations of “solidarity.”

What these examples suggest is that the boundary between anti-Zionist rhetoric and hate speech is blurred indeed, while the causal relationship between such rhetoric and anti-Semitic violence has, sadly, become firmly established. One European politician is now calling for anti-Zionist incitement to be prosecuted in much the same way as expressions of traditional anti-Semitism or racism.

Meeting last week with a group of visiting American Jews, the head of the city government in the Spanish capital Madrid, Isabel Díaz Ayuso, informed them that she had submitted an amendment to the European Union’s comprehensive strategy to combat anti-Semitism that would criminalize calls for Israel’s destruction. While the exact details of the proposal have not been explained, it’s reasonable to assume that a slogan like “From the river to the sea, Palestine will be free,” which is precisely a call for Israel’s destruction, would theoretically fall foul of the law. Ditto with flags and banners showing Israel’s Star of David crossed out or replaced with a Nazi swastika. As we know from the “Al Quds Day” rallies and the pro-Palestinian demonstrations last year, wherever such slogans are visible, anti-Semitic violence is not far behind.

Not every aspect of this problem is so easily analyzed, however. Should the organizations sponsoring these activities also be banned? Again, that is not an abstract question; in March, French Interior Minister Gérald Darmanin banned two pro-Palestinian organizations for promoting “hatred, violence and discrimination,” although that decision was later overturned through a legal appeal. Essentially, Darmanin was compelled to realize that his concerns about anti-Semitic incitement were matched by the concerns of others about freedom of speech and assembly.

Those rights cannot easily be dismissed, even when the subject is something as outrageous as the BDS movement, which is built upon a series of fabrications about the nature of Israel—that it is a racist and colonial entity in which Jews segregate and oppress Palestinians through a framework of apartheid. Whether Díaz Ayuso’s proposal would criminalize those who advance this argument is unclear, but regardless, doing so is inadvisable. Those academics and pundits who demean Israel as an apartheid state, carefully making clear at the same time that they scorn anti-Semitism in all its forms, will not be silenced by such measures and will wear any bans or restrictions as a badge of pride.

Rather than seeking to criminalize anti-Zionism in toto, European governments would be better off carving out those aspects that can uncomplicatedly be dealt with by the law, such as preventing the public display of Hezbollah or Hamas flags on the grounds that these incite violence and promote anti-Semitic organizations, and allow civil society to adjudicate the broader political debates.

The depiction of Israel as an apartheid state is wrong and immoral, but it shouldn’t be illegal, for the simple reason that banning certain types of speech is a gateway to further, unexpected restrictions. Additionally, the cause of defending Israel would be severely compromised, perhaps fatally, by the shuttering of anti-Zionist associations. As we’ve discovered over the last two decades, debates and arguments with these groups are frustrating and often pointless, and yet there is no substitute for them. If the goal is to persuade the wider public that Israel’s existence marks a positive for the world, then clamping down on the free speech of Israel’s adversaries sends the signal, however much we might wish otherwise, that the Jewish state’s allies have lost the argument.

 

{Reposted from the JNS site}

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Ben Cohen writes a weekly column for JNS.org on Jewish affairs and Middle Eastern politics. His writings have been published in Commentary, the New York Post, Haaretz, The Wall Street Journal and many other publications.