Texas judge: Enforcing the IHRA definition of anti-Semitism limits speech

A federal court in Texas ruled this week that restrictions imposed by Texas public universities on anti-Israel speech violate the First Amendment. The case, Students for Justice in Palestine at the University of Houston et al v Greg Abbott et al, involves student organisations who argue that Texas Governor Greg Abbott’s executive order, known as GA-44, stifles their ability to engage in constitutionally protected criticism of Israel on campus.

The order, issued by Governor Abbott in March 2024, was framed as a measure against rising anti-Semitism in Texas universities. It mandates all higher education institutions in Texas to update their free speech policies to include a specific definition of anti-Semitism, incorporating the highly controversial, International Holocaust Remembrance Alliance (IHRA) definition of anti-Semitism.

Seven of the 11 examples cited in the IHRA conflate criticism of Israel with anti-Jewish racism. It’s widely criticised for having a chilling effect on free speech including by its founder Kenneth Stern. It lists examples of anti-Semitic acts, such as claiming that “the existence of a State of Israel is a racist endeavour” and “drawing comparisons of contemporary Israeli policy to that of the Nazis.”

Student groups argue that these examples restrict their ability to express criticisms of Israeli policies without facing sanctions from the university.

The plaintiffs, including Students for Justice in Palestine (SJP) at the University of Houston and the Palestine Solidarity Committee at the University of Texas at Austin, said amendments to the speech policy were unconstitutional. They argued that the policies discriminate against their legitimate views, effectively censoring their criticisms of Israeli state policies by labelling them anti-Semitic. The plaintiffs further alleged that the policy changes chill free expression on campus, leading to self-censorship due to fear of punishment. This crackdown on speech was unconstitutional, they added.

Judge Robert Pitman, who presided over the case, noted that the IHRA definition specifically targets expressions critical of Israel, thus chilling a form of “political speech that is fundamental to the university experience.” The judge highlighted that universities, as centres of intellectual debate, are “vital spaces” where students should be able to engage in robust discussions on contentious issues, including foreign policy matters such as the Israeli-Palestinian conflict.

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While the court acknowledged that universities have a responsibility to prevent genuine harassment and anti-Semitism, it found that enforcing a definition which includes political criticism of Israel as anti-Semitic oversteps constitutional boundaries. The court’s decision emphasised that the First Amendment prohibits the state from punishing viewpoints it finds disagreeable and that universities cannot impose speech restrictions based solely on anticipated discomfort or controversy.

This ruling is also a significant critique of the IHRA definition of anti-Semitism, which has faced growing scrutiny for conflating criticism of Israel with anti-Semitism. Free speech advocates argue that adopting such definitions threaten to limit open discussions on Israel-Palestine issues. Civil rights organisations and free speech groups have long warned that such definitions, when codified into policy, could stifle legitimate political discourse and are particularly problematic in academic settings.

The court’s decision sends a clear signal about the constitutional risks of using the IHRA definition as a basis for regulating speech in academic settings. As Judge Pitman observed, the inclusion of specific IHRA examples within university policies likely infringes upon the First Amendment by “chilling” protected political expression critical of Israel.

The court ultimately denied the plaintiffs’ request for a preliminary injunction, meaning it declined to enforce any immediate changes to the university’s policies while the case continues. Although the court recognised that the plaintiffs could have a strong First Amendment claim, it found that the specific restrictions they requested were too broad to impose right away.

This interim decision allows the policies to remain in place for now, but the court’s findings suggest that any restrictions on political speech at public universities will undergo rigorous First Amendment scrutiny. The case will continue as the plaintiffs seek a resolution, which could further clarify the limits of permissible restrictions to free speech in academic institutions across the US.