GWU Memo - Correct "Swastika" Errors or We Get Sued

WASHINGTON - March 26, 2015 - PRLog -- WASHINGTON, D.C. (March 26, 2015):  A George Washington University memo to its Chief Counsel and Risk Manager warns the University that, unless it corrects two major factual mistakes in its official statement regarding the so-called "swastika" incident, the University - as well as its president and other key officials - could be held liable for defaming a Jewish student simply studying Eastern religions, and for other torts.

        The memo suggests that the University erred when it described "as the symbol of the Nazi Party" and "associat[ed] with genocide" an ancient and deeply religious symbol from India which a Jewish student studying Eastern religions at the University brought back from India and posted briefly on the bulletin board of his largely Jewish fraternity.  It was mistaken for a Nazi swastika by another Jewish student at the same fraternity.  In reaction, the university barred the Jewish student not only from all classes, but also from all campus Passover services and events, and scheduled an expulsion hearing for Monday.

        Yet, notes the legal memo, the University continues to refer to the symbol as a "swastika," and has scheduled a hearing this Monday to permanently expel the student.  The legal memo notes that, even if the Indian religious symbol could possibly be referred to as a "swastika," the University's actions might still constitute deception by failure to disclose - i.e., to disclose to GWU students, most of whom know the swastika only as a symbol associated with Fascism, that it is not a Nazi symbol of hatred but actually the opposite.

        Ironically, a group of GWU law students forced McDonald's to pay over twelve million dollars when it likewise made a truthful statement which was deceptive only because of what it failed to disclose.

        The legal memo also notes that, by stating that the posting might have constituted a "hate crime" which should be investigated by the police, the University made a basic legal error.  As noted in a completely separate legal analysis by law professor Jonathan Turley, posting even a real Nazi swastika cannot constitute a "hate crime" because there is no underlying crime.  A hate crime is simply an ordinary crime - like assault or arson - which is committed because of a hatred based upon the victim's race, religion, etc.

        Here, as Prof. Turley explained, there is no victim and no crime, so there can be no hate crime, regardless of the nature of the object posted on his fraternity's bulletin board.  The legal memo continues:

        "Suggesting that someone has committed a crime constitutes (unless it is true) the tort of  libel per se for which the victim can collect damages even in the absence of proof of any specific loss.  However, accusing a religious Jewish student of committing a crime . . . based upon hatred of the religion of his family, many of his friends, most of the members of his largely-Jewish fraternity, etc. would be seen by almost everyone as very significant harm, and therefore warranting large damages.  The harm is further exacerbated by the fact that, in addition to summarily being told that he cannot attend his classes because he allegedly poses a threat of some unspecified and possibly unlikely kind to other students, he is barred from participating in the on-campus celebrations and activities which make up Passover" [beginning next week].

        The 3-page legal memo suggests that the University correct these two misstatements to prevent a major law suit, or to at least minimize the damages should such a law suit be brought.

JOHN F. BANZHAF III, B.S.E.E., J.D., Sc.D.
Professor of Public Interest Law
George Washington University Law School,
FAMRI Dr. William Cahan Distinguished Professor,
Fellow, World Technology Network,
Founder, Action on Smoking and Health (ASH)
2000 H Street, NW
Washington, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/ @profbanzhaf