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FindLaw Forum: Asking who benefited from slavery invites racist attacks By Anthony J. Sebok FindLaw Columnist Special to CNN.com

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(FINDLAW) -- The question of restitution for historical wrongdoing has generated a flurry of legal cases over the past decade, particularly from survivors of the Holocaust and heirs of the victims. Now other groups are asking whether similar claims can be made on their behalf.

As I recently discussed in a two-part series, the movement to demand reparations for African-American slavery seems to be adopting a legal strategy similar to the one that worked effectively in the Holocaust cases.

That is, the claimants are framing their demands as property claims and asking those who benefited from the historic wrongdoing to repay the value of the labor that was stolen through slavery.

As I pointed out, there are legal concerns that make these "unjust enrichment" claims attractive to lawyers who want to build the strongest cases they can. I also suggested there are larger policy reasons lawyers should be wary of embracing it with too much gusto.

Recent events surrounding a controversy over the publication of an advertisement opposing reparations for African-American slavery give me even more reasons to be skeptical that, whatever the legal advantage, treating claims based upon slavery (and other past historical injustices) as property claims is a misguided cure.

The Horowitz ad controversy

David Horowitz is a neo-conservative journalist (one who by chance used to be a far-left journalist in the 1960s but switched sides in an infamous conversion).

Horowitz attempted in February to publish an ad titled "Ten Reasons Why Reparations for Slavery are a bad idea for Black People-and Racist Too" in several college newspapers.

He evidently selected the Ivy League and about 10 other major schools, such as the University of California, Berkeley, and the universities of Chicago, Wisconsin and Texas.

Horowitz previously published a longer version of the ad in an article in the Internet magazine Salon, for which he is a columnist. The column attracted almost no attention. But Horowitz's ad, derived from the column, attracted a great deal of attention. It also bred significant controversy.

Eighteen college newspapers, including those of Harvard and Columbia, rejected the ad because their editors thought it offensive and racist.

Some compared Horowitz's effort to purchase advertising space in college newspapers for what was, in effect, a right-wing editorial with an earlier attempt by a Holocaust denier to purchase advertising space in college newspapers to publicize his extremely bizarre view that the Holocaust was a hoax.

As the newspapers pointed out, they are not obliged to accept every advertiser who can afford to purchase an ad. (Many newspapers refuse to run ads for escort services, for example). They certainly can exercise editorial judgment over potentially fallacious, misleading and offensive advertisements.

A few newspapers, however, ran the ad. The student paper at Berkeley was besieged by protests after the ad appeared and published an apology soon after.

There were vigorous protests at Wisconsin and Brown after the ad appeared, although the editors of the papers there refused to back down from their decision to publish. As far as I can tell, only at the University of Chicago did the ad appear without encountering a strong hostile reaction.

The aftershocks following Horowitz's ad produced a lot of agonized and angry editorials in newspapers around the country. The Wall Street Journal, of course, sees the rejection of the ad as evidence of "politically correct" censorship on America's campuses.

Many columnists in other major American newspapers (such as The Washington Post) adopted an anxious, ACLU-esque tone, expressing concern about the censorship of unpopular views -- and what that might mean for freedom of expression.

Hororwitz's 'balance sheet'

In my view, the Horowitz essay in Salon is deeply offensive, but not because it is racist. He does not deny that slavery occurred. Nor does he suggest that Africans who were enslaved were not wronged. Nor does he suggest that Africans are inferior in any respect to any other ethnic group.

But Horowitz does attempt to set up a sort of balance sheet, to purportedly ascertain which groups benefited from slavery, and how.

Horowitz contends that Africans (and other non-Europeans) participated in and benefited from the practice of African slavery.

At the same time, he argues that since the end of African slavery in America, descendants of African slaves have benefited from slavery in the sense that they have benefited from living in the United States, rather than in Africa.

Horowitz also notes that European-Americans and other non-African-Americans worked to end African slavery, thus conferring a benefit upon African slaves in America.

Finally, he asserts that some non-African-Americans in America today (especially, he argues, Asian-Americans and Hispanic-Americans) received no benefit from the practice of African slavery.

On the basis of these arguments, Horowitz contends there is no moral basis for returning to the descendants of African slaves the "benefits" of their ancestors' labor that were retained by non-African-Americans in America.

The wrong premise

I understand why an African-American would find Horowitz's ad offensive.

The contention that African-Americans somehow benefited from slavery minimizes slavery's grave wrongs.

The argument that African-Americans are better off in America than they would have been in Africa sounds like justifying a brutal kidnapping on the ground that the victim's children will end up in a country with a higher standard of living.

On the other hand, I think Horowitz's ad should have been run by the university papers -- not because they have an obligation to do so, but because Horowitz's view is not based on reasoning "totally outside the mainstream," as some have contended.

In fact, Horowitz shares some central premises with his enemies: those who are pushing for reparation based on claims of unjust enrichment.

The first and most important of the premises they share is that the appropriate way to think of the historical oppression of one ethnic group by another is by viewing the wrong as one of stolen property, or unjustly gained benefit.

To put it bluntly, the reason it was, and is, wrong to kill and enslave another race has little to do with the transfer of wealth and everything to do with the idea of human dignity.

Property and tort law are good at adjudicating the injustice of wrongful acts between persons.

It is wrong to kill another person or steal his or her labor, and each country has laws designed to address that wrong. But human rights and justice between groups of people concern themselves with a different problem entirely.

There is, as international human rights law (and our own civil rights law) recognizes, a special wrong that comes from killing and enslaving other people -- whole groups of people -- because of their race or religion.

That wrong relates to the fact that people still partially structure their identity through race and religion, and when one group destroys that structure for another group, they destroy something more precious than property or even bodily integrity.

Thus, to frame the discussion about Holocaust or African slavery in terms of who benefited is to ask the wrong question at the outset, regardless of the answer.

The second and related premise is that the wrong of historical oppression "follows the property."

It is true that according to the law of unjust enrichment that the legal taint of an unjust act is "carried," so to speak, in the property it produces.

But this is a specious way to think about slavery, which happened many years ago and which involved many social and political institutions in addition to economic ones.

A collective responsibility

Contrary to what Horowitz argues, non-African Americans may bear responsibility for slavery even if they came to America after 1865, simply because they joined the social enterprise called America.

As in any group activity, one accepts as one's own the values, actions and commitments of others when one embraces the group. That is why being a citizen who is part of a nation is different from, say, being a consumer who is part of a market economy.

Conversely, just because one has benefited from slavery in an economic sense, or possesses property that was partially produced by slavery, does not mean that one is more or less obliged to respond to the historical wrong of slavery than if one had never received the benefit, or possessed the property.

There really is no "special" connection between the human rights violation and the property: Where the benefits have fallen in the past century is a matter of fortuity.

Indeed, to frame the question in terms of costs and benefits in the first place is to play into the hands of people like Horowitz -- who can and will divert the argument into blind alleys like the one he presents in his ad.

I am sorry that the reaction to Horowitz's provocation has been to try to shut him up.

His view -- that the descendants of African slaves in America were conferred a net benefit by non-Africans and enjoyed a net benefit from their ancestors' enslavement -- is easy to rebut.

The very question Horowitz asks, however -- Who benefited from slavery? -- is one which many people want to ask now, and I think that it is one that we should resist, in the courtroom and in the court of public opinion.

Anthony J. Sebok is a professor of law at Brooklyn Law School. Anthony J. Sebok is also a FindLaw columnist.

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A new dream team intends to seek reparations for slavery - Part I

Should claims based on African-American slavery be litigated in the courts? And if so, how? - Part II