By John F. Banzhaf III, professor of public interest law:
Despite The Hatchet’s extensive coverage of swastikas being drawn on whiteboards, several very important issues have been overlooked, if not misrepresented. First, an article entitled “What is a Hate Crime” (Nov. 1, p. A1) implied that a particular D.C. criminal statute may have been violated. However the relevant law [ 22-3701] provides only that certain acts which are already crimes – e.g., “assault, burglary, injury to property” – become “bias-related crimes” if they demonstrate certain types of prejudice. But since writing on a whiteboard does not constitute “injury to property” or any other independent crime, it appears that a person who writes anything – however hateful – is not guilty of this crime.
Several articles strongly suggested that a federal statute may have been violated, thereby providing a basis for FBI intervention. But what seems to be the relevant federal criminal statute [18 USC 245] appears to apply only to interference with governmentally protected activities and specifically applies to “enrolling in or attending any public school or public college.” But since GW is not a “public college” as that term is ordinarily used, there may be no federal crime and possibly no real basis for FBI intervention.
Despite repeated suggestions that those who draw hateful symbols on whiteboards will be subject to University discipline, and more broadly that any form of hate speech will not be tolerated on campus, no one has yet suggested which written and published GW policy would authorize disciplinary action – especially in light of the strong guarantees of freedom of speech and academic freedom the University provides.
On what basis would a faculty member or student who writes on a whiteboard, posts a flyer or writes a letter to The Hatchet expressing hatred for some group, whether lawyers, the Dallas Cowboys, terrorists, abortion providers, rapists or Nazis – or even Jews, blacks, gays, etc. – be subject to firing or expulsion?
If only the latter expressions of hatred warrant disciplinary action, then the University would be put in the very difficult position of deciding those for whom we can publicly express our hatred and those for whom we can not. Since people can apparently disagree about whether real posters for “Islamo-Fascism Awareness Week” express hatred or whether phony posters allegedly mocking the same event express hatred andwhether we judge if speech is hateful based upon the motives of those who post it, by those who profess to be injured or by some other criteria, this may prove to be impossible – or impossibly vague – in practice and therefore have a chilling effect on free speech.
Indeed, while outright intimidation and threats (regardless of their basis), like the filing of a false police report, are crimes and would warrant university discipline, merely expressing hatred – whether in words or symbols – may well be protected by academic freedom and free speech, protections designed more for that speech which we hate and deplores, than that with which we agree.
Those who argue that merely posting symbols of hatred may constitute crimes under D.C. or federal law or provide the basis for expulsion should be required to explain and substantiate these claims, and The Hatchet should hold them accountable by asking these tough questions and demanding precise answers. This is especially important if a “Commitment to Values Document,” similar to that which demands academic integrity and punishes plagiarism, is to be promulgated.
