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University of Wisconsin–Madison

The First Amendment and Moral Responsibility


On February 22, 2010, the Badger Herald, an independent student newspaper at the University of Wisconsin-Madison, accepted a paid advertisement for its online site from well-known Holocaust denier Bradley Smith, after the newspaper had posted and then removed anti-Semitic comments from its online stories about a fraternity on the UW campus.  The paid ad linked to Smith’s Web site.  The Herald’s ad sparked a heated controversy, and generated condemnation from many students and others on campus. Jewish students demanded that the ad be taken down.

However, the paper refused to remove the ad, based on its libertarian commitment to a free marketplace of ideas and its belief that students and academics on campus would quickly see Smith for what he is – a non-credible Holocaust denier.

On March 4, students and academics gathered on campus to debate the Herald’s editorial position and to talk more generally about the issue of journalism ethics and controversial speech.  Among the participants on the evening’s panel were Stephen J. A. Ward, director of this Web site and the Center for Journalism Ethics, Prof. Lewis Friedland of the School of Journalism and Mass Communication (SOJMC), Jason Smathers, a graduate student at the SOJMC and managing editor of the Badger Herald, and Nick Penzenstadler, another SOJMC student and publisher of the Herald.

This section opens up editorial space for some of these participants to express their positions. Prof. Friedland begins with his reflections after the March 4 meeting. We also add links to previously published columns by Smathers and Penzenstadler. 

The intent of this section is to probe more deeply into the reasoning of the dissenting views, and to explore what can be learned from this dispute for the future.

The First Amendment and Moral Responsibility

by Lewis Friedland

March 8, 2010

On March 4, I participated in a “Journalism, Ethics, and Sensitivity” forum on the continuing controversy surrounding the Badger Herald’s continuing acceptance of advertising from Bradley Smith, an anti-Semite who denies the existence of the Holocaust.  I was hoping that the forum, sponsored by Hillel and well moderated by University of Wisconsin Dean of Students Lori Berquam, would shed new light on the events, clarify the legal, moral, and ethical issues at stake, and lead to some initial steps toward reconciliation between the Herald and its staff and the UW Jewish community.  Unfortunately, while I left with a better sense of some of the issues and the actors, I now have more questions than answers.

The basic issues and some fundamental facts are clear enough. The Badger Herald is an independent student newspaper, not edited by the University of Wisconsin. Bradley Smith became aware of the Herald because of the Herald’s coverage of an incident approximately three weeks earlier, involving the AEPi, a Jewish fraternity on the UW campus. The Herald’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 the Herald comments, and that his organization had posted an ad on the Herald’s Web site.  The Badger Herald accepted the ad from Smith. The advertising director for the Herald 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. The Herald’s AEPi coverage had undeniably generated anti-Semitic comments from UW students. The Herald 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, the Herald 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, he repudiated them.

So what would lead the Herald to think that running a Holocaust denial ad from someone who was attracted by its coverage of the AEPi incident would not further 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 naiveté 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 chambers…will 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 the Anti-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 the Herald’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 the Herald advertising policy was loose and indeterminate, and that the paper was going to conduct a thorough review.  I’m glad that the Herald is doing this, of course.  But I’m deeply disturbed by his defense of the Herald’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 the Herald’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 the Herald 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, despite knowing it to be untrue and despite the implicit admission, at least at Thursday’s forum, that if they had known (e,g, had minimal procedures, common sense, and taken the time and 3 minutes on the Internet to find out) they would not 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 the Herald the right to publicize Smith’s viewpoint if it so chooses. No one that I have encountered contests this legal right. But Smith’s speech is commercial speech, and the Herald is both a commercial enterprise and a publisher. The same First Amendment that guarantees Smith’s rights and the Herald’s right to publish, guarantees the Herald’s right not to publish. Both are true at the same time.

The First Amendment protects the Herald’s right to not offer itself as an amplifying forum for pro-Nazi propaganda. In publishing this material, and, more important, in continuing 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 the Herald’s First Amendment defense.  By choosing to publish, the Herald 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 publisher Nick Penzenstadtler as well as several Herald 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. The Herald 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, the Herald 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. The Herald 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.

Lew Friedland

LEWIS FRIEDLAND is Professor in the School of Journalism and Mass Communication and Department of Sociology (Affiliated), University of Wisconsin–Madison, where he directs the Center for Communication and Democracy.  He teaches and conducts research on theory of the public sphere and civil society, the impact of new communication technology on society and community, social networks, community structure, public television, and qualitative and social network research methods.   Friedland received the Ph.D. in sociology from Brandeis University (1985) and his A.B from Washington University in St. Louis (1974).

Friedland’s  most recent book (with Carmen Sirianni) is The Civic Renewal Movement (Kettering Foundation Press, 2005).  He has also authored Public Journalism: Past and Future (Kettering Foundation Press, 2003).  He is co-author with  Sirianni of Civic Innovation in America: Community Empowerment, Public Policy, and the Movement for Civic Renewal (University of California Press 2001) and is co-founder with Sirianni of the Civic Practices Network (, the first major website on civic renewal, established in 1994.   In addition, he is the author of Covering the World: International Television News Services (Twentieth Century Fund Press, 1992) and more than 40 monographs, book chapters, and articles on community and civic life, public journalism, public television, new communications technologies and democracy, and international communication. Friedland has conducted  research on civic journalism for the Pew Charitable Trusts, conducted case studies of public journalism for the Kettering Foundation , and consulted for the Ford Foundation on the development of new programs on communication and democracy. He has consulted with newspapers, public television stations, and the Corporation for Public Broadcasting’s National Center for Outreach.

As a documentary producer and executive producer he has won national awards, including the du Pont-Columbia Silver Baton, Corporation for Public Broadcasting Gold, Society of Professional Journalists National Award, Casey Medal for Meritorious Journalism, and others.

Current research interests include modeling the media and civic ecologies of local communities and developing civic mapping software and methods that can be used in a wide variety of community and journalism settings. He is Principal and Managing Partner of Community Knowledgebase, LLC, a community network software company which holds an SBIR contract with the U.S. Department of Education for development civic mapping curricula and  software for American high schools, and is developing the next generation of software for local newsrooms in partnership with the University of Missouri School of Journalism.

Ethics of Controversial Speech – Things to Read

Ethical Exploration of Free Expression [PDF 174 kb]

Hate Speech or Reasonable Racism [PDF 201 kb]

History, Hate and Hegemony [PDF 182 kb]

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