IHRA Definition

The U.S. Supreme Court has held that political speech is “at the core of what the First Amendment is designed to protect.” Ultimately, the ability to criticize government actions is the most fundamental protection provided by the First Amendment – and this includes the actions of foreign governments.
AB-446/SB-445 directs all state and local government entities to consider the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, including its examples, when evaluating evidence of discriminatory intent for any law, ordinance, or policy prohibiting discrimination based on race, religion, color, or national origin and determining whether a hate crime enhancer is applied in a criminal charging decision.
Antisemitic discrimination is abhorrent; it’s destructive to both individuals and communities. The IHRA definition and its non-exhaustive list of examples, however, are overbroad by equating protected speech with unprotected discrimination. Criticism of the Israeli government and its policies is political speech, squarely protected by the First Amendment.
The constitutional concerns with this definition were highlighted in Students for Justice in Palestine v. Abbott, where the U.S. District Court for the Western District of Texas found that an executive order directing all Texas higher education institutions to update and enforce campus free speech policies to address antisemitic speech and apply the IHRA definition of antisemitism likely violates the First Amendment. The judge found that “the incorporation of [the IHRA definition of antisemitism] is viewpoint discrimination” because it makes the utterance of specific content punishable.