Editors Need Not Print Holocaust-Denial Ads

Recently, campus editors have been pressured to print ads and inserts denying the reality of the Holocaust. For instance, the infamous Committee for Open Debate on the Holocaust and Bradley Smith, a notorious leader in the Holocaust-denial movement, have prepared "The Revisionist: A Journal of Independent Thought," an insert targeting college newspapers. The insert includes inflammatory articles contesting the existence of Nazi gas chambers and attacking the United States Holocaust Memorial Museum for "knowingly exploit[ing] a known fraud to propagate the 'genocide' theory."

While it may seem that deciding whether to print these vicious inserts and ads poses difficult constitutional questions, the legal answer is quite simple: The First Amendment absolutely, unequivocally does not require a private, independent campus newspaper to run every advertisement submitted to it. In a letter to its members, The Collegiate Network, which has threatened to expel any member publication accepting these ads, explained, "No newspaper, campus or otherwise, is obligated to sell advertising to any hate group. This is not a free speech
issue. . . ."

Undoubtedly, Holocaust-deniers have the same right to free speech as everyone else. Even their despicable, racist speech is protected by the Constitution. They may stand on street corners or in public parks, asserting that the Nazi genocide never occurred. They may hold meetings and send flyers through the mail. The government cannot censor or punish them. This is the guarantee of the First Amendment -- no more and no less. However, the First Amendment does not secure anyone the right to co-opt a private newspaper. Private companies are not bound by the constraints of the First Amendment, and individuals have no First Amendment right to commandeer a private, professional or college newspaper and force it to run a story or advertisement. One Federal appellate court observed: "The right to freedom of speech does not open every avenue to one who desires to use a particular outlet for expression."

Editors Control Content Including Advertisements

Editors, however, also must be aware of what the Constitution does not require. For example, The Boston Globe or The Miami Herald need not open their pages to anyone who wants to write an article. The U.S. Supreme Court has stated, "A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper ... constitute[s] the exercise of editorial content and judgment." Similarly, if a fraternity member or a professor appears at the door of a college newspaper, demanding that the paper print a story he has written, the editors would be entitled to refuse his request out-of-hand. Determining the paper's editorial content and deciding what stories to print is solely the province of editors.

Generally, student editors are entitled ­­ and constitutionally permitted ­­ to make the same decisions regarding advertisements. Student editors at private universities or at a public university where the newspaper functions as a private, independent entity may accept or reject any ad. Courts generally view student newspapers (even those at public schools) as private when student editors ­­ and not school administrators ­­ make decisions about content, advertising policy and whether to accept advertisements. University regulation and subsidization do not transform a newspaper from a private body into an arm of the state or the university. Only when a newspaper's conduct is "fairly attributable to the state" or school would the Constitution require it to print an ad. It is highly unlikely, though, that a court would ever consider a collegiate newspaper anything but private.

Rejecting Holocaust Denial Ads Does Not Limit Academic Freedom

Individuals who circulate these deplorable ads and inserts further argue falsely that student newspapers are ethically and morally obligated to accept them. They underestimate college newspaper editors' ability to see through their scurrilous campaign, however. All agree that universities are bastions of intellectual thought, vigorous debate and open dialogue. Turning down these ads, however, would not, as individuals circulating the inserts claim, contravene this spirit. While universities must encourage and support academic exploration, tolerance of different viewpoints and rigorous debate, they are not expected to teach classes questioning whether the earth is flat or instructing students that the horrific African slave trade never occurred.

Rejecting an ad or insert denying the Holocaust no more hinders a university's fundamental mission than does refusing to teach a class promoting racism, segregation and racial subjugation. The existence of the Holocaust is beyond debate; these ads are nothing more than anti-Semitic tracts. Worse still, Holocaust deniers strive to confuse readers by disguising this venom and vileness as a legitimate alternative view of history. Newspapers that print these advertisements and inserts risk giving tacit approval to the Holocaust-denial movement and its abhorrent message of racism, Nazism and Fascism.

The Importance Planning Ahead and Setting Policy

Most professional and collegiate newspapers have policies dictating which advertisements they will accept and which they will reject. Most papers, for example, would quickly reject libelous, pornographic or obscene advertisements. Discussing advertisements denying that the Holocaust occurred, the manager of The New York Times Advertising Acceptability Department told the Forward: "It is our policy not to accept ads of this nature. Ads that seek to deny known facts such as the Holocaust or the Rape of Nanking. . . . Any ad like this would be unacceptable."

Student editors are advised to take the time to contemplate and discuss what types of advertisements they will not accept. They should consider all factors: In some states, for instance, there are laws against newspapers with primarily young audiences accepting ads for alcohol. Then, after careful review, editors should devise and record an advertising policy, which they can point to when turning down ads denying the Holocaust. For assistance or more information, editors can contact their local office of the Anti-Defamation League.

Every newspaper editor has a responsibility directly to his community. As a leader in the community, an editor must consider his readers, their feelings and their attitudes. There is little to gain from upsetting, shocking or horrifying them. Newspapers are also businesses. Offending readers only serves to undermine a paper's credibility, decrease its circulation, scare away advertisers and ultimately reduce its profits.

Most important, student editors should remember that while invoking the First Amendment can be exhilarating and rewarding, knowing when it does not apply can be equally exciting and important. In many situations, it is far more noble to make an editorial decision or reject an advertisement ­­ such as a Holocaust-denial one ­­ which saves a newspaper's audience from being insulted and demeaned, stops racism and promotes good journalism, all while still respecting the mandate of the First Amendment.

College Editors and the Constitution

"Congress shall make no law ... abridging the freedom of speech, or of the press. ..."

For generations, newspapers have flourished in the United States, protected by this important constitutional guarantee. Indeed, every good newspaper editor has these words on the tip of his or her tongue, ready to invoke them at a moment's notice. All Newspapers -- College newspapers, The New York Times or The Washington Post ­­ are shielded by the First Amendment. Like their professional counterparts, college editors stand ready to defend the fundamental principles embodied by in the Constitution. No one should interfere with a college paper's content; student editors must be trusted to make informed and responsible editorial decisions.

Unfortunately, for many college newspapers, challenges to their constitutional rights have become a regular part of their daily existence. As much as striving to break a major news story, editors must constantly be watching for the next threat to their constitutional rights to arise. Preparedness is key; knowing their rights is crucial. Often, there is nothing more satisfying for an editor than wrapping himself in the flag and invoking the U.S. Constitution.