GWU Forced To Apologize for Violating Free Speech Rights - For a Second Time!

WASHINGTON - Dec. 10, 2015 - PRLog -- WASHINGTON, D.C. (December 10, 2015): The George Washington University was forced to apologize for taking down a Palestinian flag flown by a student, and warning him about further discipline, while other students were permitted to fly flags and banners in the same way if they convened less controversial messages.

        This is the second time in less than a year that GWU has violated the free speech and academic freedom rights it guarantees to its students, says Banzhaf, noting that in the spring it suspended a student for briefly displaying an ancient religious symbol from India which was momentarily mistaken for a Nazi Swastika, says public interest law professor John Banzhaf from the GWU Law School.

        Then it took a combinations of legal threats, condemnation and ridicule both in the U.S. and abroad, angry complaints from many religious leaders including its own former rabbi, and a call by a major magazine that donors stop contributing to GWU, for them back down and allow the student to continue.

        Here, although the official statement suggests that the flag was ordered taken down because of a strict policy prohibiting hanging flags of any kind, Banzhaf explains why this appears to be a cover up.

        First, many flags routinely fly from students’ windows without objection, and pictures of these “illegal flags” are being displayed on many web sites protesting this alleged ethic discrimination.

        Second, the campus police reportedly told the student that the flag had to come down because of complaints, and the letter of warning emphasized the flag’s “effect on the community.”

        Third, many students active on campus said they had never heard of any such rule.  Indeed, the regulation in question refers to things thrown or hanging from windows which could "seriously threaten or injure,” and - unlike the new rule - makes no mention whatsoever of flags or banners.

        At the very least, says Banzhaf, the rule the student was accused of violating was Void for Vagueness because it did not clearly specify what conduct was allegedly prohibited.  Actually, it seems much more likely that the flag was ordered taken down because the message it appeared to send was offensive to many GWU students, charges Banzhaf.

        In short, while the university is certainly free to ban, for whatever reasons, the hanging of all flags and banners from residence hall windows (what courts call "time, place, and manner restrictions" on expressive conduct which apply equally to everyone), it cannot permit banners which are generally favored and uncontroversial, but prohibit those which might be objectionable to some students.

        The same results can be - and apparently have been - achieved by having a very vague rule unknown to most students, and enforced only when there are complaints based upon the content of the message.  This is very similar to what is known in First Amendment law as the "heckler's veto."

        This likewise constitutes prohibited censorship of student speech by GWU, says Banzhaf.

        This applies even to flags or other speech or expressive conduct which could be classified as hateful, since, as the Supreme Court has often ruled, there is no exception under the First Amendment for hate speech, just as there is no exception under free speech and academic freedom for hate speech.

        No doubt many students would disapprove of the Palestinian flag and the message it sends.

        However, as the old saying goes, "I disapprove of what you say, but I will defend to the death your right to say it" Political correctness cannot and should not trump our most basis rights.

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, Wash, DC 20052, USA
(202) 994-7229 // (703) 527-8418
http://banzhaf.net/  jbanzhaf@law.gwu.edu  @profbanzhaf