Panelists relate First Amendment struggles, triumphs

Thursday, September 21, 2000
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
and The Washington
, which stepped forward to join the
Times in its dispute with the Nixon

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

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

“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

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

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

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

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