subject: The First Amendment and Moral Responsibility [print this page] The First Amendment and Moral Responsibility
The basic issues and some fundamental facts are clear enough.TheBadger Herald is an independent student newspaper, not edited by the University of Wisconsin.Bradley Smith became aware of theHerald because of theHerald'scoverage of an incident approximately three weeks earlier, involving the AEPi, a Jewish fraternity on the UW campus.TheHerald's anonymous comments section responding to that coverage included statements calling for a "final solution" to the AEPi problem, and suggested the fraternity should be "turned into an oven," as well as comments about "Coasties," a not very veiled, negative colloquial reference to Jewish students. Indeed, Smith, in a Feb. 18 post on his own blog, commented that he learned about the term "Coasties" from theHerald comments, and that his organization had posted an ad on theHerald's Web site. TheBadger Herald accepted the ad from Smith. The advertising director for theHerald says that there was not adequate staff to review all ads, so the ad could not be thoroughly reviewed before it was accepted.Jason Smathers,Herald editor, says that he was not aware of the ad for six days after posting (this from the forum on March 4).Let's stop right here.TheHerald's AEPi coverage had undeniably generated anti-Semitic comments from UW students.TheHerald staff, including Jason Smathers, was aware of this, and indeed engaged in discussion with both Mr. Greg Steinberger,director of the UW Jewish student organization, Hillel, and Dean Lori Berquam. So, purely and simply, theHerald and its entire leadership and advisors understood that there were, at minimum, verbal threats to UW students ("turned into an oven") based in prior coverage.Presumably, Smathers, who has voiced great confidence in the rationality of UW students, would not think that these spontaneous comments were rational, and, indeed, herepudiated them.
So what would lead theHerald to think that running a Holocaust denial ad from someone who was attracted by its coverage of the AEPi incident wouldnotfurther inflame the situation on campus, a situation that it had directly contributed to?Smith is one of the leaders of the Holocaust denial movement in the U.S., and has been since 1983.The express mission of his "Committee for Open Debate on the Holocaust" is to disseminate the Holocaust denial message to U.S. college students.In other words, Smith's purpose is to recruit students to his point of view and, presumably, to enlist some of them in his movement. He relies on student naivet and lack of knowledge about the Holocaust.In a 2004 lecture to the Institute for Historical Review and the neo-Nazi National Alliance, Smith said that his stump campus speech is constructed as simply as possible, "to set the issues up in a way that could not really be debated."He refers to "the gas chamber hoax."Among his statements: "What is it about sadomasochism that gives it such appeal among so many Jews?" Smith has publically acknowledged that his views and those of other Holocaust deniers are likely to lead to violence against Jews, saying that "[telling[] the truth about the gas chamberswill result in Arab fanatics having yet one more moral justification for killing innocent, unarmed Jews."
When Iran's president, Mahmoud Ahmadinejad, held an international Holocaust denial conference in December 2006, the event drew neo-Nazis and anti-Semites from around the world, including former KKK leader David Duke. Bradley Smith was prominently in attendance. So no one should claim that they were unaware of who he is. I could go on (I urge anyone who wants Smith's resume in one place to go the site of theAnti-Defamation League ).Of course and this is the real point all of this information is readily available on the Internet, with the simplest Google search. Anyone reading a newspaper or listening to public radio, or paying a moderate amount of attention to the news in December 2006, would have heard of the Iranian conference. Is it really possible that UW-trained journalists, when faced with the possibility of placing an ad for a notorious, international Holocaust denier, didn't think to use Google? That they didn't smell something bad? That no red flags at all went up? Did theHerald's advisors not know this? Not care? Did they urge the staff to check?Thursday night at the UW forum,Herald editor Smathers admitted that theHerald advertising policy was loose and indeterminate, and that the paper was going to conduct a thorough review. I'm glad that theHerald is doing this, of course. But I'm deeply disturbed by his defense of theHerald's actions which centered on Smith's right to free expression. While I don't doubt Smathers' or his staff's sincerity, I believe that theHerald's legal understanding of the First Amendment is false and its ethical stance towards the campus Jewish community is even more troubling.
First, let's look at the legal understanding. Smathers and the paper's staff have consistently invoked the First Amendment as the reason why they cannot take down an ad that they admit is false and malicious. It should be noted that theHerald grounds for its decision are constantly shifting.Smathers, in an email to Mr. Steinberger of Hillel on February 25, said that he didn't know the ad was running, but if he had, and known the content, the board of directors would have run it anyway. Another explanation offered March 3 goes: We made a mistake in putting it up (failure to review, lax policy) but once we put it up, we cannot take it down, despiteknowing it to be untrue and despite the implicit admission, at least at Thursday's forum, thatif they had known (e,g, had minimal procedures, common sense, and taken the time and 3 minutes on the Internet to find out) they wouldnot have put it up in the first place.So, once a known falsehood is published in their paper as an ad, it cannot be taken down on First Amendment grounds.This reasoning is fallacious on multiple grounds.First, the First Amendment does guarantee Smith the right to publicize his views freely, and it does give theHerald theright to publicize Smith's viewpoint if it so chooses. No one that I have encountered contests thislegal right.But Smith's speech is commercial speech, and theHerald is both a commercial enterprise and a publisher.The same First Amendment that guarantees Smith's rights and theHerald'sright to publish, guarantees theHerald's rightnot to publish.Both are true at the same time.The First Amendment protects theHerald's right tonot offer itself as an amplifying forum for pro-Nazi propaganda. In publishing this material, and, more important, incontinuing to publish it, the Herald is making a choice as a publisher to effectively say to its reading public: We believe that these views are worthy of public consideration. They are ideas that are subject to valid debate in the public sphere. That is the real effect of theHerald's First Amendment defense. Bychoosing to publish, theHerald is, if not endorsing Smith's views, validating them as a significant public concern; and of course, this is precisely Smith's goal.
It is also, of course, precisely what is so offensive to many in the campus Jewish community (including myself).Listening to Smathers and publisherNick Penzenstadtler as well as severalHerald staffers who spoke, I believe that, in fact, they do not recognize the harm and hurt that they have caused.And this goes to the heart of the decision. TheHerald has acted with reckless disregard toward the campus community as a whole and towards the Jewish community in particular.They do not understand that the First Amendment is not a shield from moral responsibility, and that, indeed, given their right not to publish, they are effectively certifying ads as presenting views that are worthy of consideration, i.e. within the pale of reasonable debate.It is an amoral response, hiding behind a poorly constructed understanding of the First Amendment.In effect, theHerald is saying: We have let a toxin loose in our community.We either weren't aware that we were doing it (it just slipped through), or we were aware that we were doing it (we would have published it anyway).But in either case, whatever harmful effects the toxin has, we are not responsible.In fact, because a debate has developed, and the toxin may have created some immunity response, we are committing an act of public service. If someone is harmed by this toxin, that's the price that (we have decided) the community has to pay.As a professor of journalism, I'm not sure if I'm more disappointed with the failure of reason here or the failure of ethics, but I am certain that there is a failure of both.TheHerald equates stubbornness with defense of the First Amendment, and moral harm with public good.Both views indicate a failure on our part to teach them the difference.
