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Germany could criminalize denying Israel’s right to exist. Could the U.S. follow?
As Germany considers an unprecedented law that would criminalize denying Israel’s right to exist, American free speech advocates worry the proposal could spark similar efforts in the U.S. to curb Israel-related speech.
The proposed law, which passed Germany’s upper house of parliament last week, would make publicly denying Israel’s right to exist a crime, with a maximum sentence of five years in prison.
“We’ve now seen a trend of what’s been happening in Europe can come over to the United States,” said Kevin Rachlin, vice president of government relations at the Nexus Project, which describes its mission as both fighting antisemitism and protecting free speech.
He said denying Israel’s right to exist can be antisemitic, yes, but not always.
“If we are going that whole step of making it punitive and punishable by law — that’s why we have our First Amendment to protect us from that.”
The bill specifies that the speech would be criminalized only if it would reasonably encourage “a willingness to commit acts of antisemitic violence.”
But not everyone will agree on what that means, said Michel Rosenfeld, a professor of law and comparative democracy at Yeshiva University’s Cardozo School of Law. A memo accompanying the bill includes as examples chanting “From the river to the sea, Palestine will be free,” or displaying maps in which Israel is replaced by a Palestinian state.
The Foundation for Individual Rights and Expression, an American free speech watchdog, has warned that similar laws could come to American soil.
“We can expect similar bills and regulations to pop up across borders,” the foundation said in a statement. “That’s why the First Amendment is so vital — it can act as a bulwark against speech restrictions that have advanced in other nations from doing the same here.”
In the United States, such a law would be a blatant violation of the First Amendment, scholars say. But Germany, where Holocaust denial, Nazi symbols, and even public insults are already criminal offenses, has long drawn the boundaries of protected speech differently.
“Under German law, antisemitic pronouncements amount to hate speech and can be criminalized,” Rosenfeld said. “In the United States, you can say antisemitic things as much as you want. It’s free speech.”
In Germany, supporters of the bill have argued that antisemitism is occurring “openly on our streets” and pointed to the surge in antisemitic incidents post-Oct. 7 as evidence that stronger measures are needed. Just this week, a 65-year-old German man was assaulted and left with life threatening injuries after an argument over an Israeli flag pin he was wearing, according to German authorities.
Those incidents are why Shannon Seban, director of European affairs for the Combat Antisemitism Movement, hopes the German bill will serve as a model.
“Our judicial system needs to evolve in order to adapt to this new reality, and to the fact that you have contemporary forms of antisemitism,” Seban told the Forward. “I hope that plenty of other European countries will now adopt such a law.”
But that prospect worries some Jewish Americans, who argue that prison time for anti-Zionist speech is a bridge too far. Even organizations that have argued anti-Zionism can veer into antisemitism have generally not envisioned such speech as the basis for criminal prosecutions.
“I have a real issue of criminalizing any thought or speech, regardless of what it is,” Rachlin said.
The German context
According to Rosenfeld, the bill should be understood in the context of Germany’s postwar constitutional order. In the aftermath of World War II, the Allied powers outlawed the Nazi Party and banned its symbols as part of the country’s “denazification.” Those restrictions were later incorporated into German law, reflecting the country’s commitment to preventing the reemergence of Nazism.
That history shapes Germany’s relationship with Israel. The two countries maintain what German officials describe as a “special relationship,” borne out of Germany’s responsibility for the Holocaust, with Berlin defining Israel’s security as part of its Staatsräson, or reason of state.
“In Germany, the Jewish state and standing for the Jewish state is particularly important in that it’s, if you wish, an inescapable outgrowth of the Nazi period,” Rosenfeld said.
Israel’s Ambassador to Germany, Ron Prosor, lauded the bill as a signal that “those who deny Israel’s right to exist and spread antisemitic incitement will not get away with it unpunished.”
The legislation may also reflect broader anxieties about Germany’s political trajectory. The far-right Alternative for Germany, or AfD, whose leaders campaigned on belittling Germany’s efforts to atone for the Holocaust, is now the second-largest party in the country’s parliament. A campaign to ban the party as unconstitutional has gained momentum, though faces an uphill battle given the AfD’s popularity.
But even this latest bill to criminalize denying Israel’s right to exist might not pass Germany’s constitutional test.
According to Rosenfeld, whether German courts uphold the proposal will depend in part on how they characterize anti-Zionism. If judges conclude that denying Israel’s right to exist is necessarily antisemitic, they would be more likely to view the restriction as constitutional and a part of Germany’s historic responsibility, he said.
On the other hand, if a judge understands anti-Zionism as political speech, then the bill would likely be struck down.
“It would be unconstitutional because not only is that a political opinion, but it would single out Israel,” he said. “In other words, to say that the United States should not exist, or that Cuba should not exist and the United States should take it over, that Canada should be the 51st state of the United States — you can say all these things, but you can’t say that Israel should not exist?”
But others don’t see any inconsistency. Seban, a French politician who spoke out against antisemitic comments directed at her during her campaign, maintains she supports free speech as “a fundamental principle of our democracy.”
At the same time, Seban said she doesn’t view the language the bill targets as deserving of legal protection.
“When you would like to erase a country from the map, a country that has been recognized by international organizations and such, it’s no longer free speech. It’s a call to violence. It’s a call to destroy states. It’s a call to erase people,” Seban said. “So there is no free speech anymore.”
‘Non-legally binding’
For years, antisemitism watchdog groups like the Anti-Defamation League have advocated for U.S. states to pass legislation adopting a definition of antisemitism that treats most expressions of anti-Zionism as antisemitic.
But it was always with a caveat: the definition, written by the International Holocaust Remembrance Alliance, would be “non-legally binding.”
In practice, that meant institutions such as schools, branches of government, or law enforcement could use the definition as a training tool or guideline to help identify antisemitism — not for criminal prosecution.
For example, on its website, the ADL says it “does not support the adoption and application of the IHRA Definition in a manner that would create new categories of legally prohibited speech that are subjected to either civil or criminal penalties – something we believe the First Amendment and principles of free speech would prevent.”
The ADL did not respond to the Forward’s question about its stance on the German bill, instead directing the Forward to speak with the Central Council of Jews in Germany, which backs the bill.
“Freedom of expression is a fundamental right of the utmost importance and a vital safeguard of our democracy,” Katharina Glinder of the Central Council of Jews in Germany wrote in a statement to the Forward. “Yet it, too, is subject to legal limits and must yield where human dignity is violated. Anyone who calls for the annihilation of peoples or the destruction of entire nations must not be allowed to hide behind fundamental freedoms with impunity.”
Glinder added that the bill could “serve as a model for other liberal democracies to follow.”
Remko Leemhuis, director of the Berlin office of American Jewish Committee, which also supports the IHRA definition as “non-legally binding,” said in a statement that AJC supports the German bill, “provided it is designed to withstand constitutional scrutiny.”
Meanwhile, the Nexus Project — which wrote an alternative definition of antisemitism that does not classify all anti-Zionism as antisemitism — has argued that lawmakers undermine the premise that IHRA is “non-legally binding” when they codify it in legislation.
Rachlin said Germany’s proposed bill illustrates that slippery slope, calling it the logical next step after the country codified the IHRA definition into law in 2017. He said he wouldn’t be surprised if such a proposal to criminalize anti-Zionism cropped up in the U.S. — though that doesn’t mean it would pass constitutional muster.
“Could this happen at the federal level? Maybe. Could it happen at the state level? I could see that happening,” Rachlin said. “Would it be challenged? Yes.”
Yet Rachlin also acknowledged that his commitment to a more absolutist version of free speech stems from what may be a distinctly American tradition.
“I can hate what you say, but I’ll defend it because you have the right to say it,” Rachlin said. “That’s kind of the American viewpoint on this. In Europe, it’s a very different game.”
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6 Jewish takeaways from the midterm elections
(JTA) — The sheer size and geographic scope of the Republican wipeout Tuesday makes it hard to read anything definitive into the results beyond a nationwide repudiation of President Donald Trump (and his candidate selections). But whether or not any other factors were at play in the GOP bloodbath, the fallout will have a range of reverberations. Here are 6 takeaways that point to what comes next.
1. A significantly weakened Donald Trump doesn’t bode well for Netanyahu
For Prime Minister Benjamin Netanyahu, Trump has been a longshot bet that keeps on paying off. It’s hard to overstate how significant Trump’s improbable wins in 2016 and 2024 were in bolstering Netanyahu’s domestic standing and giving him space to advance his regional agenda. Trump also served as a security blanket, leaving Netanyahu and his allies with a sense for many years that they need not worry too much about skyrocketing Democratic and international anger with Israel.
In fact, there was even a hope in Bibi world that The Donald’s support could save Netanyahu from political defeat at home (and, to be fair, his 11th-hour endorsement may have). Whether Netanyahu holds on or chief rival Gadi Eisenkot succeeds in replacing him, Israel is entering uncharted territory. There is little chance that the combination of a weakened Trump and an emboldened Democratic Congress produces similar levels of support for aggressive action against Iran and its proxies, and other policies that a wide spectrum of Israelis see as crucial to their security.
2. Jeffries and Schumer have a massive headache coming their way
With Tuesday night’s Democratic wave, Hakeem Jeffries is on track to become Speaker of the U.S. House of Representatives and Chuck Schumer will likely get a second shot as U.S. Senate Majority Leader. These New Yorkers have longstanding ties to the pro-Israel community and are among their party’s strongest Israel supporters – putting them at odds with the growing number of congressional Democrats who want their party to take a much harder line against Israel. It won’t be long before members in each caucus are demanding concrete action, including meaningful limits on U.S. military sales.
Both Democratic leaders have ratcheted up their criticism of Prime Minister Benjamin Netanyahu and his government in the wake of its war on Hamas in Gaza, but they have ultimately voted against various legislative attempts to punish Israel. This past April, Schumer was one of only seven Senate Democrats to vote against a pair of resolutions that together would have blocked the sale of D-9 bulldozers, widely used in military operations, and 1,000-pound bombs to Israel. In July, Jeffries voted against ending U.S. military aid to Israel, but the measure was supported by almost half of the Democratic caucus. As leaders of their respective chambers, Jeffries and Schumer will likely face immense pressure for more such votes and face much tougher scrutiny from the party base over continued support for Israel.
3. The impact of the anti-Israel vote was diluted
On the other hand, the massive Democratic victory dilutes the power of the anti-Israel lawmakers in Congress. Their numbers will grow, causing problems for party leaders trying to keep anti-Israel measures off the agenda. But they will remain a relatively small subset within a much larger Democratic majority that includes many moderates and Israel supporters.
Not only will anti-Israel members have less ability to hold Congress hostage, the overall issue of Israel loses some of its potency when the broader political winds indicate that all Democrats were boosted.
4. John Fetterman just lost his juice
Just as the sizable Democratic House majority makes Jeffries less dependent on anti-Israel lawmakers in his caucus, the next Senate Majority Leader won’t need to rely on Pennsylvania Sen. John Fetterman. For years, Fetterman has been driving fellow Democrats crazy with his cozying up to Republicans, with progressives especially upset over his die-hard support for Israel. Fetterman has even said that the one thing that could cause him to leave the Democratic Senate caucus would be his party turning decisively against Israel.
Had things broken differently, with Democrats grabbing a narrow 51-49 majority in the chamber, Fetterman’s influence would have been hypercharged. Now, not so much. The Democrats no longer need him to keep control of the chamber. So Schumer, should he regain the majority leader role, will have to worry much less about keeping the party’s top pro-Israel cheerleader happy. In 2028, he’ll be up for reelection and highly unlikely to survive the Democratic primary.
5. AIPAC has not found a formula for success
A few years back, the leading pro-Israel lobby decided the best way to counter the initial anti-Israel rumblings in Congress was to jump deep into the campaign fundraising business. Hundreds of millions of dollars later, the number of Israel critics in Congress – especially on the Democratic side of the aisle – has grown, with a fresh batch on the way. Moreover, in many races, anti-Israel candidates and AIPAC critics managed to turn the lobby’s backing into a liability.
Meanwhile, Trump’s seemingly impromptu announcement Tuesday that his administration would end aid to Israel after this year suggests that Republican backing for such support is dropping alongside Democrats’. And Tuesday’s results suggest AIPAC’s strong support for the U.S. and Israeli military strikes against Iran is out of step with the American public and many incoming lawmakers.
All of this indicates that AIPAC has yet to figure out how to manage the anti-Israel turn sweeping through American politics.
6. It was a great night for Jewish presidential hopefuls
U.S. Sen. Jon Ossoff says he isn’t running for president in 2028. But that won’t stop the speculation from skyrocketing after his impressive reelection in Georgia – Georgia?! – with nearly 60% of the vote. More importantly, he probably just grabbed frontrunner status in the race to become America’s first Jewish president. Pennsylvania Gov. Josh Shapiro also registered a similarly sized reelection victory in a state that Trump won just two years ago, but Ossoff – a fierce Trump antagonist and, increasingly, a critic of Israel’s military actions – cemented his rock star status among Democrats this cycle and has demonstrated an ability to bridge the gap between younger progressives and more traditional liberals.
Illinois Gov. JB Pritzker also cruised to reelection. Meanwhile in Michigan, moderate Elissa Slotkin – another senator and likely presidential hopeful (of course, which senator isn’t a presidential hopeful?) – may have at least propped open the door to some progressive support by campaigning hard for Abdul El-Sayed. All four have been highly critical of Netanyahu, with both Ossoff and Slotkin joining most of their fellow Democratic senators in voting in April for a curb on various weapons sales. Both senators have declined to label Israel’s actions in Gaza as genocide.
This article originally appeared on JTA.org.
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El-Sayed declares victory in Michigan Senate race that left many Jews uneasy
(JTA) — DETROIT – Democrat Abdul El-Sayed has declared victory in the hotly contested race for Michigan’s open U.S. Senate seat, capping a campaign that has prompted deep anxieties among Jews in the state and beyond.
With 88% of the ballots counted at around 2:27 a.m. ET, The Associated Press called the race for El-Sayed, who had 52% of the vote compared with 46% for his Republican rival, former U.S. Rep. Mike Rogers.”
In his acceptance speech, El-Sayed thanked supporters whom he said had welcomed him into “your homes, your churches, your synagogues.”
He also referenced his ardently pro-Palestinian views, saying, “They try to call you hateful if you believe that Palestinian kids should get to grow up in the land of their forefathers without being martyred by our tax dollars… We don’t want our money to be sent to do apartheid or genocidal war.”
During his victory speech, chants of “Free Palestine” were heard throughout the crowd. Mahmoud Khalil, the Palestinian Columbia University activist who was detained by the Trump administration, was in attendance.
The race had been viewed as crucial to Democrats’ hopes of retaking the chamber. But for many of Michigan’s estimated 105,000 Jewish voters, the campaign was defined instead by El-Sayed’s tumultuous relationship to the community.
That animosity extended beyond the Democrat’s fierce criticism of Israel to encompass his statements about attacks targeting the state’s Jewish community and his early campaigning with streamer Hasan Piker, who has made several controversial comments about Jewish voters.
His uncompromising stances on Israel have also made him a target among pro-Israel groups, including AIPAC, which has spent heavily against him in both the primary and general election. AIPAC’s rare entry into a general election race was in support of Rogers.
One of El-Sayed’s positions on Israel — to end all U.S. military aid — was once thought a far-left pipe dream. But that has changed. On Election Day morning, Trump announced that, under his watch, nearly $4 billion in annual U.S. military aid to Israel would wind down by the end of the year. Trump said Israeli Prime Minister Benjamin Netanyahu was in agreement with the need to end aid and deny Democratic critics a point of attack.
El-Sayed’s campaign has galvanized young voters and a range of other constituencies, and he pulled ahead in the polls in the race’s final stretch. But his questioning of Israel’s existence as a Jewish state and whether it or Iran posed a greater threat to the United States, as well as his prior associations with figures such as Hasan Piker, the streamer who has spread extreme rhetoric about American Jews, have sparked concern among Jewish Michiganders.
So, too, did comments the candidate made following the March terror attack on Temple Israel, a major synagogue in the state, in which El-Sayed appeared to link the attack to Israel’s war in Lebanon after reports that the attacker lost family in an Israeli strike. Hostile behavior from some of El-Sayed’s supporters toward pro-Israel Democrats, most prominently on display at the state party’s spring convention, has also alarmed Jews. El-Sayed has pledged to stand up to antisemitism.
Some Jews who had long considered themselves Democrats, including several local Jewish leaders, have cited such controversies in pledging to vote for Rogers. In some Michigan Jewish neighborhoods, yard signs proclaim that a vote for Rogers is a vote “against antisemitism.”
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Moskowitz wins Florida seat in race between two pro-Israel candidates
(JTA) — Democratic Rep. Jared Moskowitz beat Republican Scott Singer, the former mayor of Boca Raton, in a battle between two staunchly pro-Israel politicians in a redrawn district.
The redrawn district covers a stretch of Florida shoreline north of Miami and includes large Jewish communities in areas including Boca and Fort Lauderdale, and is seen as leaning slightly Democratic.
Moskowitz, who was endorsed by the lobbying group AIPAC, has touted himself as “the most pro-Israel Jewish Democrat in Congress.” Singer, meanwhile, was endorsed by President Donald Trump and the Republican Jewish Coalition.
Moskowitz has said there is an “ostracizing” associated with being staunchly pro-Israel in a Democratic Party that is increasingly including anti-Zionist voices. Singer seized on that sentiment, saying during a synagogue candidates’ forum that Moskowitz will be drowned out by the Democrats’ anti-Israel wing if he is reelected.
The candidates themselves have largely been aligned on the issue of Israel. Both have condemned accusations that Israel has committed genocide against Palestinians in Gaza. They each oppose any effort to condition or cut off U.S. military aid to Israel. Both supported Israel’s strikes on Iranian facilities in 2025, though Moskowitz has since called for the U.S. to end its war with Iran, whereas Singer said during a forum that the U.S. needs “to ensure victory here.”
Both candidates have also emphasized combating antisemitism in their campaigns, and say they would push to expand the Nonprofit Security Grant Program to increase funding for security at Jewish schools, synagogues and other institutions. They also are both in favor of codifying the International Holocaust Remembrance Alliance definition of antisemitism into federal law; critics say the definition wrongly lumps in some criticism of Israel.
In a campaign ad targeting antisemitism, Moskowitz pulled from the story of his family, some of whom — including his great-grandparents — were killed in Auschwitz during the Holocaust.
“In every generation, they rise against us,” Moskowitz said in the ad.
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