By Ken Paulson

Executive Director

First Amendment Center

[email protected]

Just how free are America’s campuses?

That’s an open question in the wake of a controversial newspaper ad opposing reparations for the descendants of slaves.

During the past month, the ad has touched off First Amendment brushfires on numerous college campuses. Placed by David Horowitz, an author who has moved from the left to the right of the political spectrum over the past 30 years, the ad was headlined “Ten Reasons Why Reparations for Slavery is a Bad Idea & And Racist, Too.”

Horowitz points out that no single group was responsible for slavery and that “most living Americans have no connection (direct or indirect) to slavery.” Horowitz’s more controversial points include the assertion that African-Americans have benefited economically from slavery: “If slave labor created wealth for Americans, then obviously it has created wealth for black Americans as well, including the descendants of slaves.”

If Horowitz’s goal was to raise his visibility on this issue, he has succeeded. If his goal was to demonstrate that college campuses are not exactly havens for free speech, he has succeeded many times over. According to Horowitz’s Web page, he has attempted to place the ad in 71 college newspapers. To date, 22 have published the ad, 39 have rejected the ad and three campus papers have published the ad and then apologized after feeling heat from student organizations.

That heat has been widespread. Students have marched into newspaper offices and demanded that any fees paid by Horowitz be turned over to campus groups. At Brown University, a coalition of student groups stole about 4,000 copies of The Brown Daily Herald in retaliation for publication of the ad. To be sure, college newspapers have no obligation to run any ad. It’s their First Amendment right to decide whether or not a commercial message will be published. If, as some commentators have suggested, the failure to run a controversial ad flies in the face of free expression, then virtually all American newspapers are guilty of the charge.

What makes the current ad controversy particularly unsettling, however, is the number of student groups & particularly groups concerned about racism & that want to punish both Horowitz and campus newspapers for exercising their free-speech rights. I don’t question the passion of their beliefs or their sense of injury. I do wonder, though, how they’ve lost sight of the role free speech has played in righting wrongs. There’s room in this debate for additional perspective. This was an ad that clearly offended many in the community, it was an ad that many maintained was racially one-sided and the newspapers in which the ad appeared were criticized as irresponsible and unfair.

Now consider that these same three elements were cited in relation to another ad, one published in The New York Times on March 29, 1960. Under the headline “Heed the Rising Voices,” the ad copy stated: “As the whole world knows by now, thousands of Southern Negro students are engaged in widespread non-violent demonstrations and positive affirmation of the right to live in human dignity guaranteed by the U.S. Constitution and the Bill of Rights.”

The ad referred to police crackdowns in Montgomery, Ala., saying that the students were “being met by an unprecedented wave of terror.” The ad then asked for donations to support three controversial causes: the student movement, the voting-rights movement and the legal defense of Martin Luther King Jr. The Times distributed 650,000 copies of the newspaper containing the ad & only 394 of them in Alabama.

As in the Horowitz controversy, however, this was an ad that clearly offended many in the community & in this case, the community of Montgomery. It was an ad that many maintained was racially one-sided. The newspaper in which it appeared was criticized as irresponsible and unfair. Yet retaliation against The Times wasn’t as easy as stealing papers from campus vending boxes. To strike back, Montgomery City Commissioner L.B. Sullivan sued the paper for libel.

The fact that the ad contained some minor errors in addition to its criticism of Southern officials paved the way for Sullivan’s legal victories in both the trial court and the Alabama Supreme Court. Those who were offended by The Times ad found themselves one step away from victory over the newspaper that had made them uncomfortable. All that stood between Sullivan and a monetary award was the U.S. Supreme Court.In the landmark case of The New York Times Company v. Sullivan, however, the Supreme Court unanimously reversed the lower-court decision, holding that a public official cannot recover for defamation unless he proves actual malice. This proved to be a pivotal case in First Amendment law, providing the news media considerable leeway and protection when pursuing stories in the public interest. While the ruling doesn’t directly apply to this current controversy, the spirit of the court’s decision certainly does.

In his majority opinion, Justice William Brennan wrote: “We consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide open.” Today’s controversy suggests that many students have forgotten the importance of maintaining their own campuses as forums for “uninhibited, robust and wide open” discussion. Universities, historically, have been places where people could express their views openly in the hopes of building a better society.

Those who seek to punish student media for publishing a controversial ad have lost sight of the role of the First Amendment in transforming race relations in this country over the past 50 years. Freedom of the press protected The New York Times ad and extensive coverage of the civil rights movement in other news media.

Free speech protected King and civil rights activists. The rights of assembly and petition made marches and legislative reforms possible. And freedom of religion motivated and invigorated those crusading for change. The First Amendment has served us extraordinarily well. Is it possible that we’re now seeing a generation so committed to inoffensive speech that it’s willing to chip away at these fundamental freedoms?

Speech that offends no one is generally speech without substance. Unless we embrace free expression on America’s campuses, our universities risk becoming doctrinaire boot camps teaching intolerance rather than free-speech forums preparing young people for citizenship in the world’s oldest democracy.