To Chairman Manning, Vice Chair Reynolds, Ranking Member Hicks- Hudson, and members of the Senate Judiciary Committee, thank you for this opportunity to provide opponent testimony on Substitute Senate Bill 87.
The ACLU of Ohio believes the General Assembly is correct to be concerned about antisemitism and increased examples of it in and outside Ohio. Of course, no one should be targeted for mistreatment, discrimination, hatred, or violence because of their religious beliefs, among other characteristics.
However, we also reject any attempt to chill, limit, and outlaw constitutionally protected free speech. Even speech we, you, and others may find abhorrent.
SB 87 is a bill to expand Ohio’s laws in two areas. First, this bill applies to the enforcement of state anti-discrimination laws. Second, it applies to our current Ethnic Intimidation offense which is triggered by certain criminal offenses being committed for reasons of race, color, religion, or national origin of victims. SB 87 increases that list of particular offenses to include Riot and Aggravated Riot (offenses with broad application, but those flaws are not the purpose of this testimony).
SB 87 then adopts a definition of “antisemitism” to be used for these various investigatory and enforcement purposes of anti-discrimination and ethnic intimidation laws.
The as introduced version of SB 87 required that definition be identical to the one developed and endorsed by the International Holocaust Remembrance Alliance (IHRA).
SB 87 offers its own definition, tweaked and very similar to the IHRA version, but with the same constitutional infirmities. It reads:
“Antisemitism” means a perception of Jewish people, which may be expressed as hatred toward Jewish people, directed toward Jewish individuals and non-Jewish individuals or their property or toward Jewish community institutions and religious facilities in either rhetorical or physical form. (Lines #177-181)
Indeed, that definition would encompass numerous types of behavior, conduct, and speech that otherwise is constitutionally protected. But the current version of SB 87 goes even farther down the path of outlawing various speech and conduct by adopting an also tweaked version of the IHRA’s “contemporary examples” of antisemitism. These examples are:
- Calling for, aiding, or justifying the killing or harming of Jews in the name of a radical ideology or an extremist view of religion.
- Making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jewish people as such or the power of Jewish people as a collective, including the myth about a world Jewish conspiracy or of Jewish people controlling the media, economy, government or other societal institutions;
- Accusing Jewish people of being responsible for real or imagined wrongdoing committed by a single Jewish individual or group, or for acts committed by non-Jewish people;
- Denying the fact, scope, mechanisms, or intentionality of the genocide of the Jewish people at the hands of national socialist Germany and its supporters and accomplices during World War II;
- Accusing Jewish people, or the state of Israel, of inventing or exaggerating the genocide that occurred in Europe during World War II;
- Accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jewish people worldwide, than to the interests of their own nations;
- Denying the Jewish people their right to self-determination, including claims that the existence of a state of Israel is a racist endeavor;
- Applying double standards by requiring of Israel a behavior not expected or demanded of any other democratic nation;
- Using the symbols and images associated with classic antisemitism, including claims of Jewish people killing Jesus of Nazareth or blood libel, to characterize Israel or Israelis;
- Drawing comparisons of contemporary Israeli policy to that of the Nazis;
- Holding Jewish people collectively responsible for actions of the state of Israel.
(Lines #182-217)
Perhaps in recognition of the free speech concerns previously voiced on past bills like this, SB 87 offers two clarifications. One makes things even worse, the other we argue is irrelevant. First, SB 87 states:
The definition of “antisemitism” in this section does not include criticism of the state of Israel similar to criticism leveled against any other country. (Lines #237-239)
If the above language’s inclusion in SB 87, via the new/current substitute version, is meant to quell concerns about the aforementioned contemporary example language that reads “applying double standards by requiring of Israel a behavior not expected or demanded of any other democratic nation,” it does not.
Instead, it can be interpreted as making explicitly clear all expectations, demands, and criticism leveled at Israel are illegal under SB 87 unless those same expectations, demands, and criticism are also leveled at one or more other countries.
That, itself, is a First Amendment nightmare. In addition, this is the primary example SB 87 is also aimed at protecting the reputation of an entire country, not just adherents of the Jewish faith.
To be clear, under this language, even mere criticisms of Israel – for any and all reasons (political, economic, cultural, etc.) – are illegal under SB 87, as relevant to anti-discrimination and ethnic intimidation laws, if Israel is the only nation experiencing such criticism from those offering it.
SB 87 also includes this apparent disclaimer:
The definition of "antisemitism" in this section shall not be construed to diminish or infringe on any right protected by the first amendment to the United States Constitution or the Ohio Constitution. This division shall not be construed to conflict with this chapter or any other federal, state, or local antidiscrimination law.
(Lines #239-245)
In short, this language does not cure SB 87 of the numerous constitutional headaches it causes and the belief SB 87 would ultimately target and punish constitutionally protected speech.
First, at least some supporters of this bill believe speech and conduct they find offensive, incorrect, and hateful is already not protected by the First Amendment. Will it come as any surprise when those in charge of an investigation on a college campus, workplace, or other location reach the same conclusion? Or are utterly confused by unclear and contradictory language in this bill and when SB 87 should apply versus when it should not? Does the passage of SB 87 mean people alleged to have violated its mandates will have their social media examined, or the books they read, the TV shows and movies they watch, or the people or groups with whom they associate in order to determine motivation and a state of mind of the alleged perpetrator(s)?
Second, it is highly unlikely this “shall not be construed” paragraph makes it from Sub. SB 87 into the actual Revised Code after passage of this bill, essentially making moot its current inclusion in SB 87.
Ohio government is already equipped to investigate and enforce its anti-discrimination laws, which already include explicit protections for religious faith and followers, without selecting one particular target of discrimination and hatred and applying a wholly different standard that involves limiting and outlawing constitutionally protected free speech. For all these reasons and more, the ACLU of Ohio encourages this committee’s rejection of Substitute Senate Bill 87.