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Panelists relate First Amendment struggles, triumphs

By Cheryl Arvidson
The Freedom Forum Online

09.21.00

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Daniel Ellsberg

WASHINGTON — Antiwar activist Daniel Ellsberg, who risked jail to leak the Pentagon Papers detailing U.S. policy deceptions about the Vietnam War, said yesterday that the decision by two major newspapers to defy the government and publish the classified documents was one of the greatest moments in American journalism.

Ellsberg was one of four individuals appearing at a special program sponsored by the First Amendment Center and the National Archives on the impact of the First Amendment. The event, held at the National Archives, celebrated the Constitution's 213th anniversary as part of Constitution Week 2000.

Three of the participants were involved in groundbreaking First Amendment cases before the Supreme Court. A fourth panelist, Hilary Shelton, represented an organization that also won a landmark Supreme Court ruling.

The program highlighted freedom of the press by focusing on Ellsberg's experience. After he leaked the Pentagon Papers to The New York Times, the newspaper decided to begin publishing the documents despite the Nixon administration's claims they would jeopardize national security. The 1971 Supreme Court ruling in New York Times v. United States allowed publication of the rest of the documents and stands as the definitive decision freeing news media from pre-publication restraints.

"There had never been an attempt by the government to get prior restraint of the press in our 200-year history," Ellsberg said.

Mary Beth Tinker

The case involved both the ability of the government to "protect itself" from having embarrassing information revealed and to "protect the public" from learning things "the government doesn't want known," Ellsberg said. It was a deeply troubling case, and one that caused considerable agonizing at the highest levels at The New York Times and The Washington Post, which stepped forward to join the Times in its dispute with the Nixon administration.

The lawyers for the Times even dropped the paper as a client because they concluded "that to print these papers would be treason," Ellsberg said.

"If there was a finer hour for the U.S. press in this century, I don't know what it was," Ellsberg said, noting that 17 newspapers ultimately joined in printing the Pentagon Papers. "They defied the government; in effect, 17 papers undertook nonviolent civil disobedience. I think it was marvelous."

The "freedom of expression" segment of the discussion featured Mary Beth Tinker, who, as a 13-year-old student in 1965 in Des Moines, Iowa, wore a black armband to school to protest the deaths on both sides of the Vietnam War. Tinker, her brother, John, and a third student, Chris Eckhardt, were suspended from school for wearing the armbands, and their appeal of that decision resulted in the landmark 1969 decision Tinker v. Des Moines Indep. School Dist. affirming that students in public schools do have First Amendment rights.

Tinker, whose father was a Methodist minister and whose mother was a "rabble rouser" for civil rights and other causes, said she was motivated to protest the carnage on both sides of the war because her family had a strong tradition of taking action to illustrate their religious beliefs.

"My family had a commitment for your religious views to be put into action," she said. "I had taken that to heart as part of my upbringing.

"Kids have a general feeling about unfairness," she continued. "Largely it (the armband protest) was an emotional reaction from seeing what was on the news every day."

Her father initially did not agree with the decision of his children to wear the black armbands, "but once we did it," she said, her parents strongly supported the children's decision, even in the face of threats against their lives and harassment. Despite those incidents, including one caller on Christmas Eve who threatened to blow up her family's house, she said her parents never wavered in their commitment to press the case all the way to the nation's highest court.

"They felt proud to be part of a country that had the Bill of Rights," Tinker said. "They were just that kind of people."

Tinker confided that at the time, "I wasn't sure that we were going to win the case. It didn't ever surprise me that people in authority ... would be in favor of having kids not speaking up." Now, she said, "I'm very proud to have been part of that case. I'm just so proud that this turned out as it did."

Alton T. Lemon

Alton T. Lemon is the individual whose concern about the quality of public education in his hometown of Philadelphia led to a landmark Supreme Court case on the separation of church and state. Lemon challenged a provision passed by the Pennsylvania Legislature in 1968 that allowed direct public support of salaries for teachers who taught in parochial and other private schools.

"I jumped in because I thought that to provide public funds to non-public schools in Philadelphia would further deteriorate public education," he said.

Lemon, who was a member of the American Civil Liberties Union, said, "I always felt if you have an issue and you can take it to court, take it to court." The resulting Supreme Court ruling in Lemon v. Kurtzman established a three-part test to determine whether government action violates establishment clause of the First Amendment. The Lemon test specifies that government actions must have a secular purpose, the primary effect must neither advance nor inhibit religion and there must be no excessive government entanglement.

Sander Vanocur

Under questioning by moderator Sander Vanocur, Lemon agreed that there had been a regression from the advances won in his 1971 court ruling, especially the current debate over offering parents financial vouchers to help with the cost of private schools and the charter school movement.

"You can never be too sure in this arena involving the courts that there will never be a turning back," Lemon said. "I think there is a real problem involving religion in the public school system."

The division between church and state "is going to be tested all the time," Lemon told the audience. "We're going to be in this fight for a long, long time, long after I'm dead. But it certainly is worth fighting for."

Hilary Shelton, director of the Washington bureau of the National Association for the Advancement of Colored People, discussed an NAACP lawsuit brought after the Virginia Legislature passed laws aimed at preventing the NAACP from filing civil rights lawsuits on behalf of its members and raising funds to pay for them.

Hilary Shelton

"We know those laws were created for the purpose of maintaining segregation," Shelton said. "If Virginia was able to concoct a major stronghold" against desegregation, "then other states would follow." By challenging those laws on First Amendment grounds, he said, the NAACP was able to "open the doors ... to make the case that desegregation needed to happen."

Vanocur said the lawsuit Shelton was discussing represented "all elements of the First Amendment" — the right to bring cases challenging a government action aimed at denying individual rights, and the right to be heard "as eloquently and forcefully as possible."

Noting that the three individual panelists were now considered heroes of the First Amendment, Vanocur said that, in an earlier time, they would have been considered heretics because their views ran so strongly against mainstream thought.

John Seigenthaler, founder of the First Amendment Center, picked up on the "heretic" theme in his closing remarks. When he reads the various poll results concerning Americans' views on the First Amendment, Seigenthaler said, he is reminded that "there are people today, too many people today, perhaps most people, who still would burn the heretics."

"Remember the heretics," he admonished the crowd. "They speak for themselves, but in a very real sense, so often, they speak for us."

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