Colleges Can't Constitutionally Ban Hate Symbols - New York Times

Confederate Flags, Nazi Swastikas, All Protected At State Schools
 
 
Hindu Religious Symbol,Nazi swastika, Caused Problem for GWU
Hindu Religious Symbol,Nazi swastika, Caused Problem for GWU
WASHINGTON - July 31, 2015 - PRLog -- WASHINGTON, D.C. (July 31,  2015):  Amidst the recent concern about official displays of the confederate battle flag, the New York Times has reported on growing controversies about the display of that flag, Nazi swastikas, and other so-called "hate symbols" on campuses.

        Although recognizing that students who display such symbols often do not fully appreciate how offensive they may be to others, the Times quotes two major sources which remind us that the First Amendment, with limited exceptions, protects such displays at state schools.

        After discussing how the George Washington University [GWU] initially suspended a student for briefly displaying an ancient Indian Hindu symbol which was very briefly mistaken for a Nazi swastika, the Times noted: “The Foundation for Individual Rights in Education was quick to remind the George Washington University that even Nazi-style swastikas are protected by the First Amendment.”

        It also quoted another expert to the same effect:

        "State schools cannot ban them under constitutional free-speech protections unless displayed in the course of an illegality, like vandalism or 'a threat of imminent violence,' says John F. Banzhaf III, a professor of law at G.W. While the courts have given private organizations more leeway, he says, as a practical matter private colleges would also be subject to the constitutional law because their handbooks boast of respecting free speech."

        "And no crime had been committed by the G.W. student to justify the president’s call for a hate-crime investigation, Mr. Banzhaf says, acknowledging that the president, Stephen Knapp, might have acted reflexively after being criticized just a few weeks earlier for not responding forcefully to swastika vandalism. What would one do, he wonders, if a Hindu student displayed a swastika as a spiritual statement of hopefulness?"

        When Prof. Banzhaf testified successfully to prevent the GWU student who briefly displayed the swastika-like symbol from being expelled, he noted that the Supreme Court had held that even burning the American flag was protected by the Constitution.

        Subsequently, he said, the Court unanimously declared unconstitutional a city’s ordinance that would punish those who burn crosses, display swastikas, or otherwise express religious and racial hatred in a manner likely to anger, alarm or cause resentment.  A state cannot punish those who "communicate messages of racial, gender or religious intolerance" simply because such ideas are offensive to most and deeply hurtful to some because the First Amendment forbids "silencing speech on the basis of its content."

        More recently, the Court declared unconstitutional a Virginia law that prohibited cross burning. It struck it down to the extent that it considered cross burning as prima facie evidence of intent to intimidate. Such a provision, the Court argued, blurs the distinction between proscribable "threats of intimidation" and the Ku Klux Klan's protected "messages of shared ideology."

        In short, says Banzhaf, while a state university may of course choose not to display symbols which it considers offensive, and may prevent those which are put up as a result of trespass or which constitute vandalism or other crimes, it cannot constitutionally prevent its students from displaying so-called hate symbols, either as used on a flyer for a campus event, or simply to express their own point of view, and it certainly can’t have such displays punished under criminal law as hate crimes.

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

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