Wash Post Publishes One Sided Article About Bombing Israel; Drunken Off-Campus Rant Reported As a Crime, Triggers Expulsion Investigation
WASHINGTON, D.C. (November 11, 2019) – On Sunday the Washington Post reported how George Washington University [GWU], upon learning of an off-campus drunken rant about bombing Israel, referred the matter to the local police as a possible crime, and also began its own investigation aimed at possible discipline, including expulsion of the female student, which some quoted in the article had called for.
But strangely absent from the article was any suggestion - which some GWU law professors, the ACLU, and many others organizations would have been happy to provide - explaining that her statements were fully protected by GWU's Statement of Student Rights and Responsibilities which expressly provides that "students shall be free to examine and to discuss all questions of interest to them and to express opinions publicly and privately."
The omission is especially important because a recent court decision held that GWU is legally bound by its published policies - even if it claims that it did not intend to be and does not want to be - and that violations of its written policies can make the university legally liable.
Indeed, as public interest law professor John Banzhaf noted in an article in another publication entitled "George Washington University Calls Police on Student for Drunkenly Saying 'We're Going to Bomb Israel'," the mere acts of filing a police complaint and then of investigating the student for speech which is legally protected could make the university legally liable for damages, even if she is never disciplined.
A federal Court of Appeals recently held that the mere existence on campus of investigatory bias response teams "objectively chills speech," and acts "by a way of implicit threat of punishment and intimidation to quell speech" on campus, even if such teams have no power to discipline, and no student is ever disciplined.
Thus, says Banzhaf, the mere fact that an off-campus statement of expression by a student is being investigated by GWU bodies which do in fact have disciplinary authority would strongly suggest that such procedures likewise chill free speech and could have adverse legal consequences, especially if they were to be included in a formal legal complaint by one or more students filed pursuant to President Trump's free speech executive order.
That order directs federal agencies to "take appropriate steps" to "promote free inquiry" at institutions that receive federal research and education grants by cutting off major sources of federal funding if an investigation reveals a violation.
The text says it requires compliance with the First Amendment for state universities, and fulfillment of their institutional promises (which, as at GWU, often include free speech guarantees) for private ones.
Indeed, such a complaint could as well also cite another recent incident at GWU where a student's mere use of the word "Jew," even though not necessarily in a derogatory sense, and in a strictly private conversation, was enough to likewise trigger a formal investigation, Banzhaf argues.
Although he says, as a professor, that universities generally are more fearful of expensive, distracting, time consuming, and embarrassing federal investigations than of the very rare loss of funding, cessation of federal money can and does occur, and the impact can be very significant.
Complaints under Title IX about the handling to date rape allegations have forced universities to spend millions of dollars, and enter into onerous settlements, even though no federal funding was ever cut off, and the same thing could happen with complaints under Trump's executive order, Banzhaf notes.
As Court of Appeals Judge Jose Cabranes recently wrote: "Almost monthly, a federal court has occasion to reprimand some college or university for improperly chilling speech."
He also charged universities with the "condemnation of unwelcome ideas as 'hate speech'," and with "making certain thoughts, like certain deeds, into crimes."
That's exactly what's happening here, says Banzhaf, when a student's off-campus criticism of Jews, and the suggestion that Israel should be bombed, was turned over to the police as if it were a crime, and a formal investigation - possibly leading to suspension or expulsion - was launched, even though GWU itself found that "there is no apparent credible threat to our students or our campus at this time."
It should be obvious to any rational person that an American student has no ability to bomb Israel, and her statement was obviously hyperbole.
Yet the Post devoted an article to quoting the university and others criticizing the drunken statement, and discussing possible adverse consequences to the student, without any suggestion that her statements, however objectionable, are nevertheless protected as free speech under GWU's own student code.
Her exclamation that Jews are "pieces of shit" may be objectionable, but, as the Supreme Court has ruled, students "do not shed their constitutional rights to freedom of speech and expression at the schoolhouse gate."
Thus they are free to express even extreme views in tasteless language.
Exclaiming that Jews are "pieces of shit" is protected speech, in much that same way that asserting that Arabs or women or professors or journalists are likewise "pieces of shit."
Indeed, as the Supreme Court has also said, there is no First Amendment exception for so-called hate speech; the remedy to be applied for objectionable speech is more speech, not enforced silence.
At a time when public trust in the mainstream media seems to be at a new low, and claims of bias if not fake news abound, it's more important than ever that leading newspapers like the Washington Post take great care to provide both sides when it reports on controversial events, suggests Banzhaf.