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Newspapers, Bradley Smith's Ads, and the First Amendment

Two arguments have been offered in defense of those editors who have run Smith's ads. One is that they have a First Amendment obligation to print them. The second states that the best way to discredit Smith's views is to publicize them and expose them to rational criticism.

There is some merit to the second argument. In the controversy that followed the first CODOH ad's publication in 1991, many people who had previously been unaware that anyone denied the Holocaust became wholeheartedly opposed to denial. Some colleges designed new courses in Holocaust studies or gave new prominence to existing courses. The countervailing argument held that, on the contrary, many people who had once uncritically accepted the fact of the Holocaust may have developed doubts. Others who may not have even read the text of the CODOH ad may now believe that there is a legitimate Holocaust “controversy,” another “side” to the history of the Holocaust as it has essentially been presented since World War II.

Less can be said for the First Amendment argument in favor of printing Smith's ad. The First Amendment prohibits only the government from regulating what citizens may or may not say or write. American courts have ruled consistently that private publishers have every right to refuse to publish items with which they disagree or deem inappropriate. In 1970, when four Chicago newspapers were sued for refusing to publish a union's advertisement intended to communicate its opposition to the sale of imported clothing, the 7th Circuit Court of Appeals decided that “the Union's right to free speech does not give it the right to make use of the defendant's printing presses and distribution systems without defendant's consent.” Similarly, when the New York Post rejected an advertisement submitted by an attorney who sought to sell shares in a lawsuit, the 2nd Circuit Court of Appeals affirmed the district court's holding that “[a] court may no more tell a privately owned newspaper what not to print than what to print. That commercial advertising is involved makes no difference.” With respect to student newspapers, the courts have ruled in almost all cases that they are to be treated no differently from commercial private publishers. The only exception would be where “state action” exists -- where a state university administration controls the content of its campus newspaper in a manner similar to a government agency controlling what appears in that agency's publications. Under such circumstances, the university would essentially be functioning as an arm of the government, and censorship of advertisements based upon their editorial content would violate the First Amendment. None of the newspapers to which Bradley Smith submitted his ad fell into this category.

Bradley Smith
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Newspapers, Bradley Smith's Ads, and the First Amendment
Bradley Smith's ‘One Person With Proof’ Campaign

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