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
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
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
- 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."