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Horowitz ad conflict: Legal issues

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The legal issues that the Horowitz-ad conflict raises are complex and multifaceted. While few students would dispute that Horowitz's right to express his views, however unpopular, is covered by the First Amendment, most are probably unaware of college newspapers' legal right to screen such viewpoints when assembling their pages.

According to the Student Press Law Center, an organization based in Washington, D.C. which monitors the rights of journalists in high school and college, student editors and ad reps at public universities have complete control in deciding which ads to publish or not publish. The Daily Californian, the student publication at the University of California at Berkeley, said as much in an editorial published in March. "Advertisements are not free speech, they are paid speech. Every day, every publication in the nation rejects and accepts ads based on criteria they are not bound to disclose. The policy is no different here."

At a private college, however, the SPLC says the students' decision-making power depends on the policies and practices of their school. If a private school has enacted a policy to protect its students' right to free expression, it may be legally bound to honor that pledge.

A story published in the Boston Phoenix in late March pointed out that when student papers are indirectly subsidized by student fees, the situation can present "some sticky free-speech contradictions (although that is no excuse to censor or threaten)".

But then there are some places where no distinction exists between public and private schools when determining a student newspaper's free press rights. California's state constitution makes private school students' free expression rights equivalent to those of students at public schools, so all students there have discretion on which ads to publish.

Then, there are the papers that fall somewhere in between. While Brown University is a private college, the publication run by its students is completely independent of the school, according to the Boston Phoenix. "[The Brown Daily Herald] receives no student fees, and even pays its own rent for its off-campus office ... The Brown paper, free of subsidies, has every right to accept or reject advertisements as it chooses."

    Case precedents to consider

  • In a column run in the Washington Post in April, Jonathan Yardley cited New York Times Co. v. Sullivan (1964) as a guarantee that advertising is, in effect, free speech. The ruling grew out of a suit against the Times by an Alabama public official who claimed he had been libeled by an advertisement placed in the paper by numerous individuals and groups working on behalf of civil rights.

    In the majority opinion, Justice William Brennan wrote that "editorial advertisements" were "an important outlet for the promulgation of information and ideas by persons who do not themselves have access to publishing facilities -- who wish to exercise their freedom of speech even though they are not members of the press. We hold that if the allegedly libelous statements would otherwise be constitutionally protected . . . they do not forfeit that protection because they were published in the form of a paid advertisement."

    Drawing on the Times v. Sullivan ruling, Yardley concluded in his column that Horowitz "is wholly within his rights to purchase newspaper space to air his views, and newspapers are wholly within their rights to publish them; indeed, as Brennan's opinion leaves little doubt, it is their responsibility to do so."

  • While the Times v. Sullivan case was successful in promoting the principle of free expression as it related to paid advertisements, cases in later years have done much more to assert the right of publications to run only the ads they choose. This precedent stems at least in part from the early '70s case Miami Herald Publishing Co. v. Tornillo, which resulted in the Supreme Court ruling unconstitutional a Florida law requiring newspapers to print replies from political candidates attacked in editorials.

    "A newspaper is more than a passive receptacle or conduit for news, comment, and advertising," Chief Justice Warren Burger wrote in 1974, meaning that the First Amendment places editorial judgment decisions out of the government's control.

  • While federal courts in New York and Wisconsin in the 1960s overturned state-supported school and college administrators ' efforts to keep student newspapers from accepting ads that espoused controversial ideas (Lee v. Board of Regents, Zucker v. Panitz), the outcome of a 1974 case involving ad space on city-run buses changed all that. In Lehman v. Shaker Heights, the Supreme Court refused to rule that government-run entities that ran only commercial ads were still "public forums," obligated to promote community discourse through issue-oriented ads.

    This precedent has largely left publications at state-funded schools to draft their own ad acceptance policies. In keeping with the Lehman precedent, these school publications are legally exempt from running ads they don't want to run as long as they honor their existing contracts and apply their acceptance policies consistently. If they run an ad promoting the political views of one citizen, or candidate, while refusing space to someone promoting a different view or platform, there could be legal recourse stemming from the Fourteenth Amendment's "equal protection" clause. Therefore, if these school publications already had advertising policies effectively banning all political or issue-oriented ads, their refusal to run Horowitz's ad would be sanctioned under law because the publications would not necessarily be seen as a "public forum."

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