Anti-Zionism and antisemitism: When definitions become legal standards

Law360 Canada (October 7, 2026, 8:40 AM EDT) --

Faisal Kutty

Courts have confronted the problem of anti-Zionism vs. antisemitism.

A federal court in Texas confronted that problem in Students for Justice in Palestine v. Abbott. Gov. Greg Abbott’s Executive Order GA-44 directed public universities to incorporate the state’s definition of antisemitism, which included the International Holocaust Remembrance Alliance (IHRA)’s Working Definition of Antisemitism and its examples, into university free-speech policies. Those examples include denying Jewish self-determination by claiming that Israel’s existence is a racist endeavour and comparing contemporary Israeli policy to that of the Nazis. University policies connected the definition to potential discipline of students and student organizations.

The court found that the plaintiffs were likely to succeed in showing that the resulting policies imposed impermissible viewpoint discrimination and chilled protected speech. It gave the example of a student comparing Israeli policies to Nazi policies. The statement might be deeply offensive, the court reasoned, but that did not allow a public university to make the viewpoint itself punishable. The First Amendment protects ideas even when society finds them offensive or disagreeable.

The court denied the requested preliminary injunction because it was overbroad. It did not invalidate IHRA or suggest that universities could not address antisemitic harassment or disruptive conduct. In fact, it specifically noted that actual disruption could be addressed through content-neutral rules. Its concern was with connecting particular political viewpoints identified in the IHRA examples to university disciplinary policies.

The First Amendment does not govern Canadian institutions, of course. But Abbott illustrates the difficulty that arises when a definition used to identify antisemitism becomes a rule for determining which political expression may attract sanctions.

A British employment tribunal approached the question differently in Miller v. University of Bristol. David Miller, formerly a professor of political sociology at Bristol, argued that his anti-Zionism constituted a philosophical belief protected under the U.K. Equality Act 2010. The tribunal agreed and also found that his dismissal amounted to direct discrimination because of that belief.

That does not mean the tribunal endorsed Miller’s politics or held that everything said in the name of anti-Zionism is protected. The law routinely protects the right to hold a belief without endorsing either the belief or every manifestation of it. But Miller demonstrates why opposition to Zionism cannot simply be treated as legally synonymous with hostility toward Jews.

The Supreme Court of New South Wales dealt with a related issue this year in State of New South Wales v. Farhat. In considering whether anti-Israel expression demonstrated antisemitic motivation, Justice Desmond Fagan rejected the proposition that hostility toward Israel could simply be equated with hostility toward Jews. His treatment of IHRA has been criticized, including by Jewish organizations, but the evidentiary question remains: what allows a court to infer hostility toward a protected group from hostility toward a state or political movement?

There is no single answer even among scholars and organizations working specifically on antisemitism.

IHRA says that criticism of Israel comparable to criticism directed at other countries is not antisemitic. Its examples nevertheless extend into claims about Jewish self-determination and the character of the State of Israel. The Jerusalem Declaration on Antisemitism was developed by scholars in Holocaust history, Jewish studies, Middle East studies and related fields partly in response to concerns about IHRA. The Nexus Document likewise recognizes that speech about Israel and Zionism can become antisemitic without treating opposition to Zionism as inherently antisemitic.

This is the second instalment of a three-part series. Part one: Anti-Zionism can be antisemitic. That doesn’t make it antisemitism.

Faisal Kutty is a lawyer, law professor and writer focusing on constitutional law, international law, Islamic law, national security, and law and religion. His work appears regularly in Newsweek, the Toronto Star, Lawfare and other publications.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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