The story might well have ended here—an example of faulty monitoring by a segment of the staff of the Michigan Daily—but the issue became more complicated when, despite the fact that those responsible for running the ad acknowledged doing so as a mistake, the editorial board attempted to transform a blunder into a matter of principle. They recast a snafu as an expression of freedom of speech. On the same day that the advertising staff published its apology, the front page carried an editorial explaining that, though the editors found the ad “offensive and inaccurate,” they could not condone the censorship of “unpopular views from our pages merely because they are offensive or because we disagree with them.”{28} Editor in chief Andrew Gottesman acknowledged that had the decision been in his hands, he would have printed the ad. He argued that rejecting it constituted censorship, which the editorial board found unacceptable.{29}
The following day a campus rally attacked both Holocaust denial and the paper’s editorial policies. Stung by student and faculty condemnations and afraid that its editorial was being interpreted as an endorsement of CODOH, the editorial board devoted the next issue’s lead editorial to the topic. Condemning Holocaust denial as “absurd” and “founded on historical fiction and anti-Jewish bigotry,” they dismissed it as irrational, illogical, and ahistorical propaganda. The editors accurately assessed the ad as lacking intellectual merit. Nonetheless, they continued to support its publication. Their powerful condemnation of Holocaust denial in general and Smith’s ad in particular appeared under a banner quoting Supreme Court Justice Hugo Black’s opinion on free speech: “My view is, without deviation, without exception, without any ifs, buts, or whereases, that freedom of speech means that you shall not do something to people either for the views they have or the views they express or the words they speak or write.”{30}
The strange set of circumstances at Michigan—snatching a constitutional principle from the jaws of a mistake—was further complicated by the entry of the university’s president, James Duderstadt, into the debate. In a letter to the Daily he declared the ad the work of “a warped crank” and proclaimed that denying the Holocaust was to “deny our human potential for evil and to invite its resurgence.” But he, too, defended the paper’s decision, which was more of a nondecision, to run the ad. The president asserted that the Daily had a long history of editorial freedom that had to be protected even when “we disagree either with particular opinions, decisions, or actions.” Most disturbing was Duderstadt’s elevation of Smith’s prejudices to the level of opinions.
There was no doubt about the message the editors and the president were trying to convey: As absurd, illogical, and bigoted as the ad may be, First Amendment guarantees were paramount. The dictates of the American Constitution compelled the Daily to publish. None of those involved seemed to have considered precisely what the First Amendment said: “Congress shall make no law… abridging the freedom of speech or of the press.” Those who argued that free speech guarantees acceptance of the ad ignored the fact that the First Amendment prevents government from interfering in any fashion with an individual’s or group’s right to publish the most outlandish argument.{31} The New York Times made this point in an editorial when it adamantly repudiated the notion that this was a First Amendment question: “Government may not censor Mr. Smith and his fellow ‘Holocaust revisionists,’ no matter how intellectually barren their claims.”{32}
To call rejection of the ad censorship was to ignore the fact that, unlike the government, whose actions are limited by the First Amendment, these papers do not have a monopoly of force.{33} If the government denies someone the right to publish, they have no other option to publish in this country. But if a paper rejects someone’s column, ad, or letter, there are always other publications. The First Amendment does not guarantee access to a private publication. It is designed to serve as a shield to protect individuals and institutions from government interference in their affairs. It is not a sword by which every person who makes an outlandish statement or notorious claim can invoke a Constitutional right to be published.[4] Nor did the Michigan Daily seem to notice how Justice Black, whom they quoted, framed it: “you shall not do something to people….” No one was advocating “doing” anything to Smith.
One of the most ardent advocates of the free-speech argument was the Duke Chronicle. In an editorial column the editor in chief, Ann Heimberger, justified the paper’s decision by acknowledging that while the paper knew it could reject the ad, it “chose” to accept it as an expression of the paper’s desire to “support the advertiser’s rights.” The editorial board believed that it was not the paper’s responsibility to protect “readers from disturbing ideas,” but to “disseminate them.”{34}
Echoing his Michigan colleague, Duke University president Keith Brodie repeated the free-speech defense in a statement that, though it contained a strong refutation of the ad, was more vigorous in its support of the Chronicle’s publication of the ad. To have “suppressed” the ad, he argued, would have violated the university’s commitment to free speech and contradicted its “long tradition of supporting First Amendment rights.”{35}
When the Cornell Daily Sun ran the ad, the editors justified the decision in an editorial statement warning that “page twenty will shock most readers” but proclaimed that it was not the paper’s role to “unjustly censor advertisers’ viewpoints.” Echoing their colleagues on many of the other campuses that printed the ad, the editors declared that they decided to print it because the “First Amendment right to free expression must be extended to those with unpopular or offensive ideas.”{36} Neeraj Khemlani, the editor in chief of the Daily Sun, said his role was not to “protect” readers.{37} Cornell president Frank H. T. Rhodes joined his colleagues at Duke and Michigan in defending the paper’s decision.{38}
The University of Montana’s paper, the Montana Kaimin, also used the First Amendment to defend its publication of the ad. The editor contended that it was not the paper’s place to “decide for the campus community what they should see.”{39} The University of Georgia’s paper, the Red and Black, expressed the hope that publishing the ad would affirm America’s unique commitment to “allowing every opinion to be heard, no matter how objectionable, how outright offensive, how clearly wrong that opinion may be.” After the ad appeared the paper’s editor defended the decision by describing it as “a business decision,” arguing that “if the business department is set up to take ads, they darn well better take ads.” Given the juxtaposition of these two explanations, there was, as Mark Silk, an editorial writer for the Atlanta Constitution, pointed out, something dubious about “this high-minded claim.”{40}
After an extensive debate Washington University’s Student Life decided to run the ad. When the ad appeared in the paper, Sam Moyn, the opinion editor, was responsible for conveying to the university community the reasoning behind the staff’s “controversial action.” The editors, he wrote, conceived of this as a free-speech issue: “The abridgement of Mr. Smith’s rights endangers our own.”{41} The St. Louis Post Dispatch defended the students’ actions. Declaring the ad “offensive, provocative and wrong,” it praised the student newspaper’s courage to print it and stated that its actions strengthened the cause of freedom of speech.{42} The University of Arizona also depicted its actions as protecting the First Amendment. The editor in chief, Beth Silver, proclaimed that the mission of student newspapers is “to uphold the First Amendment and run things that are obviously going to be controversial and take the heat for it.”{43} This attitude—we have to do what is right irrrespective of the costs—was voiced by a number of papers. Ironically, it echoed a theme frequently voiced by the deniers themselves: We will tell the truth, the consequences notwithstanding.
4
In 1931, in