How to Read Two Data Sets on Domestic Antisemitism

The Anti-Defamation League’s statistics on antisemitism can tell us something about hate crime law, but they are not a substitute for hate crime data.

Anti-Defamation League Director Jonathan Greenblatt speaks at an event in May 2023. (Picture by Maryland GovPics; https://commons.wikimedia.org/wiki/File:ADL_Nation_Leadership_Summit_(52865958753).jpg; CC BY 2.0)

Since 1979, the Anti-Defamation League (ADL) has published statistics on the occurrence of “antisemitic incidents” in the United States. According to the ADL, a Jewish advocacy group that calls itself “the leading anti-hate organization in the world,” such incidents “have skyrocketed” since the Oct. 7 attacks in Israel and the resulting war in Gaza. At the same time, law enforcement data have shown an increase of reported hate crimes in cities across the country, including hate crimes against American Jews.

That both trend lines point in the same direction should come as no surprise. The numbers are related, and there is overlap between them. But there are important distinctions between the two data sets, and there is a wide range of conduct that falls under the ADL’s definition of “antisemitic incident” but not, however, the legal definition of hate crime. Exploring these distinctions sheds light on the often misunderstood law of hate crime in general. And on a more practical level, it is important for journalists and lawmakers to understand the differences between these data sets and to avoid conflating them.

The first important difference between “antisemitic incidents” and anti-Jewish hate crimes is that the latter necessarily involve criminal conduct, as the name suggests. The precise definition of “hate crime” varies from one jurisdiction to the next. Generally, however, a hate crime occurs when someone commits a criminal offense because of another person’s actual or perceived personal characteristics, such as their religion or ethnicity. If you punch someone because you think they are Jewish, for instance, you may have committed not only assault but also a hate crime, regardless of whether your perception is correct. Or if you deface a private home, a place of worship, or some other property because you think a Jewish person is associated with that property, then you may have committed not only vandalism but also a hate crime. In no circumstance, however, can you commit a hate crime without also committing an underlying criminal offense. Hate crime laws do not expand the range of conduct that can be punished as a crime; rather, a hate crime charge is just a specific type of criminal sanction.

In contrast to official hate crime data, ADL statistics on antisemitic incidents include both criminal and noncriminal acts, “given that American criminal law only covers a small portion of hateful activity.” Specifically, the ADL defines antisemitic incidents “as vandalism of property, or as harassment or assault on individuals or groups, where either 1) circumstances indicate anti-Jewish animus on the part of the perpetrator, or 2) a person or group of people has been victimized because of their Jewish identity.” This more comprehensive approach to data collection is not uncommon. The U.S. Department of Justice, for example, encourages people to report both hate crimes and “hate incidents,” which are defined as “[a]cts of prejudice that are not crimes and do not involve violence, threats, or property damage.” Under this definition, uttering an anti-Jewish slur and harassing another person would likely amount to a noncriminal hate incident, so long as the speaker does not threaten the person or otherwise commit a crime during the exchange.

But this distinction alone does not account for all the differences between “antisemitic incidents” and anti-Jewish hate crimes. As Arno Rosenfeld reported in the Forward, since the Oct. 7 attacks, the ADL has “significantly broadened its definition of antisemitic incidents … to include rallies that feature ‘anti-Zionist chants and slogans.’” According to the ADL’s website, “rallies that include … expressions of anti-Zionism such as the phrase ‘Zionism is terrorism,’ or ‘From the river to the sea, Palestine will be free,’ are now included” in the organization’s audit of antisemitic incidents, presumably (the ADL does not specify) as a form of harassment. This significant change in methodology came on the heels of ADL CEO Jonathan Greenblatt’s 2022 declaration that “anti-Zionism is antisemitism.”

One obvious consequence of this broadened definition is that ADL statistics now capture an overwhelming amount of protected-speech activity at lawful protests. It is no wonder, then, that reports of antisemitic incidents more than doubled from 2022 to 2023, with the number of incidents reported between Oct. 7 and Dec. 31 of last year—when we saw a surge of protests against the war in Gaza—accounting for the entire increase. Another consequence, and one that touches on the subtleties of hate crime law, is that some of the ADL’s recorded antisemitic incidents might even cross the line into criminal conduct but not meet the definition of anti-Jewish hate crime. Consider, for instance, a ceasefire protester who, during chants of “From the river to the sea, Palestine will be free,” spray paints that message on the property where the protest is staged. The protester has arguably committed a crime, such as vandalism or a similar property offense, and one that might amount to an “antisemitic incident,” per the ADL definition. But the protester has not committed an anti-Jewish hate crime unless they targeted that property because of its perceived association with a Jewish person or Jewish people.

In short, the legal definition of “anti-Jewish hate crime” is narrower than the ADL’s definition “antisemitic incident” in at least two respects. First, some antisemitic incidents do not cross the line into criminal conduct and therefore cannot be hate crimes. If someone harasses another person for being Jewish but does not commit a crime, then a hate crime has not occurred, let alone an anti-Jewish hate crime. Second, some crimes that the ADL would treat as antisemitic incidents would not amount to anti-Jewish hate crimes because they were not committed with the required intent. A hate crime is a criminal offense committed because of the actual or perceived personal characteristics of another person or group of people, whether that person is the victim of the offense or that person or group is associated with the property targeted in the offense. If someone commits a crime against another person, even a Jewish person, but does not commit that crime because of their perception that the other person (or somebody else) is Jewish, then an anti-Jewish hate crime has not occurred.

The second distinction is harder to grasp than the first, but also more illuminating when it comes to the role of speech and expression in hate crime prosecutions, which is easily misunderstood. A “hate crime” can be reduced to the following equation: crime + bias motivation = hate crime. In practice, a defendant’s speech or expressive conduct during or in close relation to a crime is often relevant to proving a bias motivation, which may in turn give rise to a hate crime prosecution. But for this narrow purpose, however, the defendant’s speech or expressive conduct is legally irrelevant. There is no independent legal significance of whether an anti-Jewish hate-crime defendant’s contemporaneous speech or expressive conduct is offensive, hateful, or antisemitic; all that matters is whether it can be treated as evidence of the defendant’s anti-Jewish bias motivation. A corollary to this point is that, to serve as evidence of a defendant’s anti-Jewish bias motivation, the defendant’s contemporaneous speech or expressive conduct needn’t be offensive, hateful, or antisemitic per se.

The statement “Free Palestine,” for example, is arguably no more antisemitic than “God bless America” is xenophobic. (That qualification owes to a recognition that, in contrast to “God bless America,” “Free Palestine” is more readily interpreted as containing a direct, although implicit, reference to the actions of another state, Israel, which makes for an imperfect comparison.) But if someone yelled “God bless America” before assaulting another person they perceived to be foreign, or if they spray painted the same on that person’s front door, their use of the phrase might be evidence that the assault—or the vandalism—was bias motivated and therefore a hate crime based on national origin.

One can imagine scenarios in which the utterance of “Free Palestine” plays a similar role in a hate crime prosecution. But that does not mean that “Free Palestine” is in itself an antisemitic phrase. If you deface a property that is not yours with a written message, then you have likely committed a crime, no matter the content of that message. But whether you have also committed a hate crime depends solely on your intent, specifically, whether you chose that property because of the personal characteristics of a person or group of people associated with that property.

On the question of intent, sometimes the nature of the property targeted, when coupled with the content of the message written, could make an act of vandalism look more like a hate crime. If you spray paint “Free Palestine” onto a bank façade, for example, then absent additional facts, there would be no reason to think you chose the bank because of the perceived personal characteristics of a person or group of people associated with that property. But if you scribble the same message onto a synagogue or Jewish community center (JCC), then given the content of that message, there would be reason to think you intentionally selected that property because it housed a Jewish institution. Or said otherwise, there would be reason to think you have committed not just a crime but, more specifically, a hate crime.

Notice how this inference turns not so much on the viewpoint expressed in the written message but, rather, on its content. If you tagged that same synagogue or JCC with a different message, say, “Support Israel,” the content of that message would nevertheless support an inference that you intentionally selected a Jewish institution. Even if you do not harbor animus toward Israel, Israelis, Judaism, or Jews, it would seem not only that you have committed a property crime but also that you have selected a specific property because of its connection to a person or group of people with certain personal characteristics. Your conduct would therefore meet the legal definition of a hate crime, regardless of the term’s colloquial meaning. 

We should remember, however, that this inference will get us only so far, because the ultimate question in a hate crime prosecution is one of the defendant’s intent. If a pro-Palestinian protester shoves a counterprotester, whom the former perceives to be Jewish, while shouting “Free Palestine,” then only if the protester’s conduct was based on that perception did an anti-Jewish hate crime occur. If that perception was incidental, and the protester intended to shove the counterprotester for some other reason, for example, their respective positions on the Israeli-Palestinian conflict and the war in Gaza, then a crime may have happened, but an anti-Jewish hate crime has not.

This is all to say that, despite some definite overlap, there are significant differences between what the law considers an anti-Jewish hate crime and what the ADL considers an antisemitic incident. Furthermore, the law does not share in the ADL’s preoccupation with speech and expression. What matters to a hate crime prosecution is a defendant’s intent, which often—but not always—can be established from the defendant’s speech or expressive conduct during or in close proximity to their commission of a crime. But for this purpose alone, the content of that speech or expressive conduct, to say nothing of its viewpoint, is incidental—irrelevant, even—to the legal question of hate crime liability.

What appears to matter more to the ADL, at least since expanding its definition of antisemitic incidents, is the speech or expressive conduct itself and what the ADL has presupposed to be its impact, and not what a protester or some other person intends to communicate through a particular slogan. The ADL is, in other words, policing speech, which it has every right to do as a private organization.

But that should inform how we read the data. The number of antisemitic incidents recorded by the ADL last year more than doubled, from 3,698 in 2022 to 8,873 in 2023, but it’s possible that very few of the incidents that account for this increase were anti-Jewish hate crimes. The ADL recorded 5,207 incidents between Oct. 7 and Dec. 31, which is more than the difference between the 2022 and 2023 totals. As mentioned above, the lion’s share of these incidents might stem from protected-speech activity at lawful protests that the ADL has deemed antisemitic. Others may have been individual cases of anti-Jewish harassment (what the Department of Justice would define as hate incidents) that do not rise to the level of crime. But even among recorded antisemitic incidents that involve criminal activity, including vandalism and assault, an uncertain share of those incidents might not amount to anti-Jewish hate crimes.

If nothing more, the distinctions between the ADL’s definition of “antisemitic incident” and the legal definition of “anti-Jewish hate crime” can teach us something about hate crime law. But at a time of real concern about rising antisemitism, these distinctions are also important to keep in mind, both for journalists covering antisemitism and for lawmakers seeking to address antisemitism. In short, these data sets are not interchangeable, and when journalists set out to inform public perception, or when lawmakers set out to create public policy, they should not be treated as such.

– Kai Wiggins holds a J.D. from Stanford Law School and a B.A. in Religion from Middlebury College. He is a former policy analyst at the Arab American Institute. Published courtesy of Lawfare.

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