Rutland Herald and Montpelier (Barre) Times Argus

Sunday March 31st, 2013

By Barrie Dunsmore


There are very few journalists whose work changed the very nature of journalism - to the betterment of society. (Bob Woodward might be one, although he seriously sullied his reputation by claiming recently that he was “threatened” by the White House over his debatable assertion that President Barack Obama had originated the idea of the draconian “sequester” budget cuts.) The journalist I have in mind today is Anthony Lewis of the New York Times, who died this past week at the age of 85. In the lead sentence of its front page obituary, the Times declares that Lewis “transformed American legal   journalism.”


It is hard to imagine, but before Lewis was assigned to cover the Supreme Court in the early 1950s, as the Times notes, “press reports on its decisions were apt to be pedestrian recitations by journalists without legal training, rarely examining the courts reasoning or grappling with the context and consequences of particular rulings. Mr. Lewis’s thorough knowledge of the court’s work changed that. His articles were virtual tutorials about currents in legal thinking, written with ease and sweep and ability to render complex matters accessible.”


I was privileged to get to know Tony Lewis when we were among the panelists several years running at a Harvard University summer seminar. Along with retired Marine Corps General Bernard Trainor and Bernard Kalb of CBS News and the New York Times, our panel focused on the media and public policy. To my eyes, Tony had a jaunty air. He distinguished himself with a fresh flower in his lapel and his Liberty of London silk ties. Sometimes he donned a wide-brimmed felt hat and always seemed to wear a warm smile. Although he was only about ten years my senior, to me he felt like a wise and favorite uncle. Having both been assigned to London for many years, we shared an affection for most things British. And we each advocated publicly for a compromise peace between Israelis and Palestinians.


At the Harvard seminars our panel dealt with First Amendment issues, using the Pentagon Papers as our starting point. Tony of course was a champion of and true expert on the First Amendment, so at first I recall being somewhat surprised that he was not an absolutist on the subject. That was an important part of his public persona. But first, some details about the accomplishments of his career and how he was viewed by his peers and superiors.


Lewis graduated from Harvard in 1948 and landed a job with the New York Times. He left after four years to work on the presidential campaign of Adlai Stevenson. He then did a brief stint at the Washington Daily News where he won his first Pulitzer Prize at the age of 28. That drew the attention of the Times legendary Washington Bureau Chief James Reston who hired him back and sent him off to Harvard Law School to study law “with special reference to the Supreme Court.” According to the Times obituary, Mr. Lewis subsequent coverage of the court so impressed the renowned Justice Felix Frankfurter that one day he called Mr. Reston to say, “I can’t believe what that young man has achieved. There are not two justices of this court who have such a grasp of these cases.”


In addition to his two Pulitzers, Lewis wrote a number of successful books about the law. Perhaps most notable was “Gideon’s Trumpet,” an account of a 1963 case which led to the Supreme Court decision which guaranteed that in future, poor defendants charged with serious crimes would have a lawyer. (My wife Whitney Taylor says that for her and countless others, that book was an important factor in choosing to practice law as a Public Defender, which she did here in Vermont for a decade.)


Ronald K.L. Collins is a scholar at the University of Washington, who has put together a bibliography of Lewis’ work. He is quoted by the Times as crediting Lewis’ reporting on the court of Chief Justice Earl Warren (1953-69) as expanding its impact. Said Collins, “You cannot talk about the legacy of the Warren Court without talking about Tony Lewis. He was part and parcel of it. He was part of ushering in that constitutional revolution in civil rights and civil liberties from Brown v. Board of Education to Miranda v. Arizona.”


Finally, there is Lewis and the First Amendment. Unlike most First Amendment scholars, nearly all journalists and of course the ACLU, Lewis does not believe this bedrock amendment guaranteeing freedom of the press, gives the institution of the press special legal protections. Lewis explained in a Harvard interview in 2006 that “the press” mentioned in the First Amendment was a reference to the products of a printing press – meaning simply that printed words as well as spoken words were protected by the familiar phrase of the Amendment, “Congress shall make no law ...abridging the freedom of speech or of the press.” According to Lewis, “It is a great mistake for the press to give itself a preferred position” - for example, to seek protection from court subpoenas demanding that journalists reveal the names of their sources or go to jail.


In an article in the New York Review of Books, Lewis wrote that the First Amendment is fundamentally a prohibition on government censorship. And in his final book published in 2008, Lewis even questioned the conventional interpretation of protected free speech as anything that wasn’t likely to lead to “imminent violence.” As he put it, in an age when words have inspired acts of mass murder, “I think we should be able to punish speech that urges terrorist violence to an audience, some of whose members are ready to act on the urging. That is imminence enough.”


And so this most liberal of men, with a world class intellect and a strong moral compass, remained at odds with many in his own profession over just exactly what freedoms the First Amendment actually protects.

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