vol. 2, no. 6

AMERICAN CIVIL LIBERTIES UNIONNEWS

FREE SPEECH FREE PRESS FREE ASSEMBLAGE

“Eternal vigilance is the price of liberty.”

Vol II. SAN FRANCISCO, CALIFORNIA, JUNE, 1937 No. 6

ACADEMIC FREEDOM DENIED

Victor Jewett’s Dismissal Affirmed; Court Charges Violation Of Loyalty Oath

The Third District Court of Appeal : on April 17 affirmed a Superior Court judgment of Humboldt County, finding Victor E. Jewett guilty of “unprofessional conduct,”’ and dismissing him from his position as a teacher in the Junior High School in the City of Eureka. Jewett’s ouster resulted from charges of ‘radicalism’ filed against him in Sep- tember, 1935. The court, after over-riding technical objections, held that Jewett had violated a loyalty oath, taken when he secured his teaching credentials, by “‘his per- sistent efforts to enlist support for his antiAmerican views from his pupils.” Clarence E. Rust of Oakland, attorney for Jewett and member of the AGL.U, Advisory Committee, will petition the court for a rehearing of the case before carrying an appeal to the State Supreme Court. ine) ~~ eidentally, this same reactionary court wili hear the appeals in the Sacramento criminal syndicalism cases and the Gabrielli flag salute case.

The non-technical portions of the court’s opinion follow:

Violated ‘Loyalty Oath”’

“The appellant was a teacher in the Junior High School. Children who had completed the work of the sixth grade are eligible to enter that school. The pupils receiving instruction from appellant would therefore range in age from twelve years upward. That the children coming under the supervision and influence of a teacher in the Junior High School are of an impressionable age must be conceded. To obtain his credentials appellant subscribed to an oath to support the Constitution and laws of the United States and of the State of _ California, and by precept and example to promote respect for the flag, and undivided allegiance to the government of the United States. Violation of the oath justifies a revocation of his credentials by the State least, constitute unprofessional conduct. In Goldsmith vs. Board of Education, 66 Cal. App. 157, it was held that solicitation. by a teacher of support for a candidate for the office of County Superintendent of Schools constituted unprofessional conduct.

How The “Loyalty Oath’? Was Violated

“The statement of the appellant to one of his pupils that it was silly and foolish to salute the American flag is certainly not calculated to promote respect for our em- blem. His admission to the witness Jacobs that he had told his pupils that ‘Russia had the best government in the world, and we had one of the worst,’ leads one to question appellant’s fitness to instruct children of tender years. The same witness stated that appellant had said to him that Russia ‘always pays its debts, it is this country that doesn’t pay its debts’; that the United States was ‘the aggressor in every war we have been in,’ that we were ‘a bully amongst nations and took advantage of all the smaller nations.’ Appellant ened the attendance of his pupils at the cinema to view a patriotic moving picture; he distributed. to his pupils in the class room, pamphlets commenting on communism, and. ‘also circulated pamphlets concerning the case of Thomas J. Mooney, whom he described asa greater martyr than Abraham Lincuir, le tuld. lus pupiis uat he would rather be a ‘live coward than go to war.’

On another occasion he stated that if the United States became involved in war he ‘would have nothing to do with it’; that the United States needed neither Army or Navy. To some of his pupils he spoke disparagingly of Abraham Lincoln. To others he decried religion. When accused by one (Continued on Page 4, Col. 1)

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BILL FORBIDDING USE OF HIGHWAY ~~ PATROL IN LABOR DISPUTES LOSES

Efforts to end the strike-breaking activities of the California Highway Patrol were defeated in the Assembly on May 20 when that body rejected A.B. No. 1427 by Hunt and Rosenthal by a vote of 30 to 37. The bill expressly forbade the use of the Highway Patrol in labor disputes. The roll call on the bill follows: Ayes—Burns, Michael J., Cassidy, co Dannenbrink, Dawson, Donihue, Flint, Gil‘bert, Hawkins, Hornblower, Hunt, King, “Laughlin, Levey, Lore, Maloney, Meehan, -Miller, George P., O’Donnell, Patterson, Peek, Pelletier, Reeves, Richie, Rosenthal, Tenney, Turner, Voigt, Yorty and Speaker Jones—30.

Noes—Baynham, Beene, Breed, Call, Cottrell, Cronin, Cunningham, Dilworth, Donnelly, Field, Gannon, Garibaldi, Garland, Glick, Heisinger, Johnson, Kepple, Kuchel, Latham, Leonard, Martin, Mayo, Miller, Eleanor; Millington,’ Morgan, Muldoon, Peyser, Redwine, Robertson, Sawallisch, Scudder, Sheehan, Stream, Thorp, Walker, Watson and Weber—37.

RECOMMEND DISMISSAL OF DEPORTATION PROCEEDINGS AGAINST ‘JOHN PAPPAS)

The strange case of John Pappas is virtually ended. Almost a year to the day . from his arrest by Immigration authorities for deportation to Greece on charges of becoming a member of an organization. advocating the forcible overthrow of the government, to-wit, the Communist Party, the local Immigration authorities have recommended cancellation of the. warrant of arrest. If the recommendation is followed by Washington—as it invariably is—-Pappas will once again be a free man.

But, strangely enough, Beaches will go free even though the government sustained its charges. He WAS a member of the Communist Party. The government. not. only proved it, but he admitted it. He joined in order to spy, and once detected he was ‘summarily expelled as a ‘‘Rat.’’ Now, in effect, the Immigration officials have de‘cided that if an alien joins a proscribed organization with his fingers crossed he isn’t deportable, since he was only fooling, and consequently he was never in fact a member of the organization. And for authority they rely upon the San Francisco Industrial Association which assured them that eer pas really was only fooling.

The Industrial Association admitted employing Pappas as their paid undercover agent from June, 1934, for a period of three months. For the magnificent compensation of $15.00 a week, paid in cash; he submitted to them written reports of meetings of members of the Communist Party together with the names of Communists who were on relief and who were active in the Communist Party. Thus ends the strange case of ‘the at- tempted deportation of an alien red-baiter as a “red"

HEARINGS CONCLUDED IN KOCI DEPORTATION PROCEEDINGS

x final hearing in the Koci deportation proceedings was held on May 24. R. R.. Mil- ler, Chief Probation Officer of the Juvenile Court, was called as the concluding defense — witness. He appeared pursuant to an order signed by Superior Court Judge I. L.: Harris, which granted him special permission to in_troduce into the record for impeachment purposes reports of investigations that formed the basis for the removal of Carmen Joan Dodson from the custody of her minor child. The testimony was important because Miss Dodson caused Koci’s arrest on charges that he advocated the violent over- throw of the government, and appeared as the chief witness against him.

Deportation proceedings against Koei have been pending since May 14, 1936. The immigrant inspector in charge of the case, Patrick J. Farrelly, will now send a tran- script of the lengthy proceedings, together with his recommendations, to Washington. A final decision should be handed down sometime during the next month. Koci continues at liberty on $1000 bail.

the time of his apprehension.

Page 2

(On April 26, 1937, the United States Supreme Court handed down a 5-4 decision in the case of Angelo Herndon ‘y. J...1. ‘Lowry, Sheriff, etc., holding Georgia’s infamous eden statute unconstitutional. Because the decision affects civil liberties _ questi ns,.we are printing herewith important parts. Of, “Mr. iJustice Roberts’ majority opinion.—Ed.) . The evidence on which the judgment pets consists of appellant’s admissions and certain documents found in his possession. The appellant told the state’s officers that some time prior to his arrest he joined the Communist Party in Kentucky and later came to Atlanta as a paid organizer for the . party, his duties being to call meetings, to. . educate and disseminate literature, to secure members, and to work up an organization. of the party in. Atlanta; and that he had held or attended three meetings called “by him. . He made no further admission as ot . what, he. did as an organizer or what he ‘gaid or did ‘at the meetings. When arrested he carried a box containing documents. After he was arrested he conducted the officers.to his room where additional documents and bundles of newspapers and periodicals were found, which he stated were sent him from the headquarters of the Communist Party in New York. He gave ‘the names of persons who were members “of the organization in Atlanta, and stated he had only five or six actual ‘members at The stubs -of:membership books found in the box in‘dicated he had enrolled more members than he stated.

There is no edénee the appellant dis“tributed any writing or printed matter ‘found in the box he carried when arrested, or any other advocating forcible subversion Of: ‘governmental authority. There is no ‘evidence the appellant advocated, by speech or written word, at meetings or else“where, any doctrine or action implying “such forcible ‘subversion. There is evidence _-tending to prove that the appellant held? © “meetings for. the purpose of recruiting — ‘members of the Communist Party and so- lieted contributions for the support of that ‘party and there is proof. of the doctrines ‘which that. party espouses. Appellants i in‘tent to ‘incite insurrections, if it is to be ‘found, must rest upon his procuring mem‘bers for the Communist Party and his pos‘session of that. party] s literature when he was arrested.

~The power of a state to abridge freedom ee speech and of assembly is the exception Yather than the rule and the penalizing even of utterances of a defined character ‘must find its jurisdiction in a reasonable apprehension. of danger to organized government. The judgment of the legislature ‘is not unfettered. The limitation upon in‘dividual liberty must have appropriate relation to the safety of the state. Legislation which goes beyond this need violates ‘the principle of the Constitution.

Proof of Incitement Lacking

1. «The appellant had’ a constitutional right to.address meetings and organize par- ties unless in so doing he violated some prohibition of a valid statute. The only pro- hibition he is said-to have violated is that of Sec. 56, forbidding incitement or at- tempted incitment to insurrection by violence. If the evidence fails to show that he did not incite then, as applied to him, the statute unreasonably limits freedom of speech and freedom of assembly and violates the Fourteenth Amendment. We are of ee that the requisite proof is lacking. ..... It is apparent that. the documents found “upon: the appellant’s person were certainly, as to some of the aims stated therein, innocent and consistent with peaceful action for a change in the laws or the constitution. The proof. wholly fails to show that the appellant had read these documents; that he had distributed any of them; that he believed and advocated any or all. of the principles and aims set forth in them, or that those he had procured to become members of the party knew or approved of any of these documents.

Thus; the crucial question is not the formal interpretation of the statute by the

THE HERNDON DECISION |

Supreme Court of Georgia, but the application given it. In its application the of- fense made criminal is that of soliciting members for a political party and conducting meetings of a local unit of that party when one of the doctrines of the party, es- tablished by reference to a document not shown to have been exhibited to anyone by the accused, may be said to be ultimate resort to violence at some indefinite future time against organized government. It is to be borne in mind that the legislature of Georgia has not made membership in the Communist Party unlawful by reason of its supposed dangerous tendency even in the remote future. The question is not whether Georgia might, in analogy to what other The appel-. lant induced others to become members of states have done, so declare.

the Communist Party. Did he thus incite to insurrection by reason of the fact that they agreed to abide by the tenets of the party, some of them lawful, others, as may be assumed, unlawful, in the absence of proof that he brought the unlawful aims to their notice, that he approved them, or that the fantastic program they envisaged was conceived of by anyone as more than an ultimate ideal?

Right of Freedom of Speech Invaded

Doubtless circumstantial evidence might affect the answer to the question if appel- lant had been shown to have said that the Black Belt should be organized at once as a separate state and that that objective was one of his principal aims. But here cir- cumstantial evidence is all to the opposite effect. The only objectives appellant is proved to have urged are those having to do with unemployment and emergency relief which are void of criminality. His membership in the Communist Party and his solicitation of a few members wholly fails to establish an attempt to incite others to insurrection. Indeed, so far as appears, he had but a single copy of the booklet the State claims to be objectionable; that copy he retained. The same may be said with respect to the other books and pamphlets, some of them of more innocent purport. In these circumstances, to make membership and solicitation of members for that party a criminal offense, punishable by death, in the discretion of a jury, is an unWarranted invasion of the right of freedom of speech.

No Ascertainable Standard of Guilt

2. The statute, as construed and applied in the appellant’s trial, does not furnish a sufficiently ascertainable standard of guilt. The Act does not prohibit incitement to violent interference with any given activity or operation of the state. By force of it, as construed, the judge and jury trying an alleged offender cannot appraise the cir. cumstances. and character of the defendant’s utterances or activities as begetting a clear and present danger of forcible obstruction of a particular state function. Nor is any specified conduct or utterance of the accused made an offense.

The test of guilt is thus formulated by the Supreme Court of the state. Forcible ac- tion must have been contemplated but it would be sufficient to sustain a conviction if the accused intended that an insurrection “should happen at any time within which he might reasonably expect his influence to continue to be directly operative in causing such action by those whom he sought to induce.” . If the jury conclude that the defendant should have contemplated that any act or utterance of his in opposition to the established order or advocating a change in that order might, in the distant future, eventuate in a combination to offer forcible resistance to the State, or as the State say, if the jury believe he should know that his words would have “‘a dangerous tendency” then he may be convicted.

To be guilty under the law, as construed, a defendant need not advocate resort to force. He need not teach any particular doctrine to come within its purview. Indeed, he need not be active in the formation of a combination or group if he agitate for a change in the frame of government, however peaceful his own intent. If, by the exercise of prophesy, he can forecast that, as a result of a chain of causation, following his proposed action a group may arise at some future day which will resort to force, he is bound to make the prophesy and abstain, under pain of punishment, possibly of execution.

Question for Jury Involves Pure Speculation.

Every person who attacks existing conditions, who agitates for a change in the form of government, must take the risk that if a jury should be of opinion he ought to have foreseen that his utterances might contribute in any measure to some future forcible resistance to the existing government he may be convicted of the offense of inciting insurrection. Proof that the accused in fact believed that his effort would cause a violent assault upon the state would not be necessary to conviction. It would be suf- ficient if the jury thought he reasonably might foretell that those he persuaded to join the party might, at some time in the indefinite future, resort to forcible resistance of government. The question thus proposed to a jury involves pure speculation as to future trends of thought action. Within what time might one reasonably expect that an attempted organization of the Communist Party in the United States would result in violent action by that party? If a jury returned a special verdict saying twenty years or even fifty years the verdict could not be shown to be wrong. The law, as thus construed, licenses the jury to create its own standard in each case.

"Statute a Dragnet

The statute, as construed and acted, amounts merely to a dragnet which may enmesh anyone who agitates for a change of government if a jury can be persuaded that he ought to have foreseen his words would have some effect in the future conduct of others. No reasonably ascertainable standard of guilt is prescribed. So vague and indeterminate are the boundaries thus set to the freedom of speech and assembly that the law necessarily violates the guarantee of liberty embodied in the Fourteenth Amendment.

The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. So ordered.

Page” 3

News Of The California Legislature

2 MEASURES PROTECTING LABOR’S CIVIL RIGHTS PASS ASSEMBLY

The Cronin bill (A.B. 934) regulating the use of injunctions in labor disputes got by the Assembly on May 20 and headed to certain death in the reactionary Senate. The bill passed by a vote of 41 to 43 after much of its strength was lost through an amendment by Jefferson Peyser of San Francisco.

As amended, the bill passed by the fol-_ lowing vote:

Ayes—Andreas, Burns, Hugh M., Burns, Michael J., Cassidy, Clark, Cronin, Crowley, Desmond, Donihue, Donnelly, Flint, Fulcher, Gilbert, Glick, Hawkins, Heisinger, Hornblower, Hunt, King, Laughlin, Levey, Lore, Maloney, Mayo, McMurray, Miller, George P., O’Donnell, Patterson, Peek, Reaves, Richie, Rosenthal, Sawallisch, Sheehan, Tenney, Thorp, Turner, Voigt, Williamson, Yorty, and Speaker Jones—41.

Noes—Beene, Breed, Call, Corwin, Cottrell, Cunningham, Dannenbrink, Dawson, Dilworth, Field, Gannon, Garibaldi, Garland, Johnson, Kepple, Kuchel, Latham, Leonard, Lyon, Martin, Miller, Eleanor; Millington, Morgan, Muldoon, Pelletier, Peyser, Redwine, Robertson, Scudder, Stream, Walker, Watson, and Weber—33.

Another measure aimed at protecting labor’s civil rights, the King measure elimi- nating anti-picketing ordinances (A.B. 55), also got by the Assembly but is likewise certain to lose in the Senate. The final vote was 42 to 30, but should have been 41 to 31 because Jefferson Peyser intended to vote no, but inadvertently pressed the wrong button. The roll call on the bill was as follows:

Ayes—Burns, Hugh M., Burns, Michael J., Cassidy, Clark, Cronin, Crowley, Daley, Dannenbrink, Donihue, Flint, Fulcher, Gannon, Gilbert, Glick, Hawkins, Heisinger, Hornblower, Hunt, King, Levey, Lore, Maloney, Mayo, McMurray, Meehan, Miller, George P., Patterson, Peek, Pelletier, Peyser, Reaves, Richie, Rosenthal, Sawallisch, Sheehan, Tenney, Turner, Voigt, Williamson, Yorty and Speaker Jones—42. Noes—Andreas, Baynham, Beene, Boyle, Breed, Call, Cottrell, Cunningham, Dawson, Dilworth, Garibaldi, Garland, Johnson, Kepple, Kuchel, Leonard, Lyon, Martin, Miller, Eleanor; Millington, Morgan, Muldoon, Redwine, Scudder, Stream, Thorp, Walker, Watson, Weber and Welsh—=30.

RESOLUTION CONDEMNING POMEROY DEFEATED |

The Patterson resolution condemning Harold E. Pomeroy, S.R.A. Administrator, for his order prohibiting S.R.A. employees from lobbying on their own time and in their private capacity, was defeated in the Assembly by avote of 21 to 40. Assemblymen Cronin, Hornblower, Levey, Maloney, Peyser, Sheehan and Williamson of San Francisco, Dannenbrink and Johnson of Berkeley and Beene of Palo Alto were gmons those who voted against the resoluion.

CONSTITUTIONAL AMENDMENT PARDONING MOONEY BEATEN IN ASSEMBLY

A proposed constitutional amendment (A.C.A. No. 64) pardoning Tom Mooney was defeated in the Assembly when that body, by a vote of 30 to 34, refused to withdraw the bill from committee. Subsequent moves by Paul Richie and Hunt to have the Assembly reconsider its action were also defeated. The bill, introduced by Messrs. Richie, Tenney and Hunt, proposed the following addition to the State Constitution: ‘An unconditional pardon is hereby granted to Thomas J. Mooney.”

Additional Funds Voted for Modesto Investigating Committee The Assembly, by a vote of 58 to 10, provided a $1200 deficiency appropriation for the Modesto Investigating Committee. The final cost of the investigation was $2700.

COMPULSORY R.0.T.C. WINS

The Assembly on May 18, by a vote of 44 to 25, passed the American Legion bill (A.B. 1238) which permits the institution -of compulsory military training in State Colleges. As finally passed, however, the measure carries an excellent amendment offered by Assemblyman Augustus Haw’ kins. The amendment provides that, ‘“‘Where courses in military science and tactics are offered in any State college, an ‘equal number of hours of instruction shall be given by nonmilitary instructors involving a basic examination of the causes of war and solutions which will obviate settlement by actual physical combat.

. “No student shall enroll or participate in any course in military science or tactics unless he also enrolls in and participates for an equal or greater number of hours in a course involving a basic examination of the causes of war and solutions as described in this section.”

_ At this writing the Senate has not yet acted on the amended measure, although a companion measure without the amendment (S.B. 508) was passed by the Senate on April 18. The latter measure awaits action by the Assembly as we go to press.

Optional Drill Amendment Defeated The Assembly by a vote of 31 to 39, refused to adopt an amendment providing that R.O.T.C. in State Colleges could only be established on an optional basis.

Efforts to kill the bill by absurd amendments also failed. One proposed amendos by Assemblyman Cecil King provided that “Teachers i in all State Colleges shall wear at all times a scabbard, sidearms and metal hats, spurs and shoes equipped with iron heels. They shall salute and click said iron heels upon approaching and passing amy and all persons whether upon the campus or elsewhere. They shall likewise sing military airs and waive (sic) flags regularly three times each day, the time to be set by popular vote of the entire student body.” The amendment lost by a vote of 14 to 45.

Amendments Disclose Bill’s Absurdness

Another proposed amendment (by Tenney) that failed of adoption provided that, “All State colleges shall simulate a state of war. Passports shall be issued to all stu- dents and patrols shall be posted twentyfour hours per day. All conscientious objec- tors shall be imprisoned in the college brig on bread and water until starved into sub- — mission. All Quakers shall be court martialed and shot.”

Still another proposed amendment by Ellis Patterson, which was also defeated, provided that ‘All State colleges shall be equipped with trench mortars and U..S. Army regulation field guns. It shall be the duty of all students to patrol the campus at stipulated periods with fixed bayonets.”

The Roll Call.

““Ayes”—Baynham, Boyle, Breed, Burns, Hugh M., Call, Cassidy, Crowley, Cunnineham, Daley, Dannenbrink, ‘Dawson, Dilworth, Donnelly, Field, Fulcher, Gannon, Garibaldi, - Garland, Glick,. Johnson, Kuchel, Latham, Laughlin, Leonard, Levey, Lyon, Martin, Mayo, McMurray, Meehan, Miller, Eleanor; Miller, George P., Morgan, Muldoon, O’ Donnell, Peyser, Redwine, Robertson, Scudder, Sheehan, Stream, Thorp, Walker, and Weber—44.

‘Noes’ ’_-Andreas, Burns, Michael. . of Clark, Cronin, Flint, Gilbert, Hawkins, Hei- singer, Hunt, Kepple, King, Lore, Maloney, Patterson, Peek, Pelletier, Richie, Rosen_ thal, Sawallisch, “Tenney, Turner, Seo Watson, Yorty, and Speaker Jones—25. |

ASSEMBLY REJECTS FREE SPEECH AMENDMENT TO CIVIC CENTER ACT

Efforts to strike out red-baiting provisions of California’s Civic Center Act, enacted at the 1935 session of the State Legislature, and to provide for use of schoolhouses as ‘public forums without discrimination, were defeated in the Assembly when that body defeated Paul Richie’s bill, A.B. 430, by a vote of. 21 to 55. Except for Dannenbrink of Berkeley, not one bay area assemblyman supported the free speech measure. The roll call was as follows:

Ayes—Burns, Michael J., Clark, Dannenbrink, Flint, Gilbert, Glick, Hawkins, Hunt, King, Lore, Miller, George P., Patterson, Peek, Pelletier, Reaves, Richie, Rosenthal, Tenney, Voigt, Welsh, and Speaker Jones Noes—Andreas, Baynham, Beene, Boyle, Breed, Burns, Hugh M., Call, Cassidy, Cottrell, Cronin, Crowley, Cunningham, Daley, Dawson, Desmond, Dilworth, Donihue, Donnelly, Field, Fulcher, Gannon, Garibaldi, Garland, Heisinger, Hornblower, Johnson, Kepple, Kuchel, Latham, Laughlin, Leonard, Levey, Lyon, Maloney, Martin, Mayo, McMurray, Meehan, Miller, Eleanor; Morgan, Muldoon, O’Donnell, Peyser, Redwine, Robertson, Sawallisch, Scudder, Sheehan, Stream, Thorp, Turner, Walker, Watson, Weber, and Williamson —bd.. .

Absent or Not Voting—Corwin, Millington, Waters and Yorty—4.

PATTERSON ASKS PARDONS FOR C. S. VICTIMS

Assemblyman Ellis E. Patterson on May 21 introduced a resolution “memorializing Governor Frank F. Merriam to pardon all those now under conviction under the Criminal Syndicalism Act who had not been found guilty at their trials of committing any act of force and violence.”

PERJURY O.K. IN CALIFORNIA; THE ASSEMBLY KILLS MOONEY CASE BILL

Perjury doesn’t count much to. California legislators, at least, not enough to warrant the opening of a conviction on perjured testimony after sentence has been. pronounced. If evidence is discovered to prove a person’s innocence, the Assembly insists that one should continue to ask the Governor for a pardon rather than to turn to the courts for justice,—just as Tom Mooney has done for the past twenty years.

This is the meaning of the Assembly’s refusal to pass A.B. 1028 by Assemblynian Jack B. Tenney. The bill provided for the “ssuance of a writ of error coram nobis after conviction, where it could be shown that the petitioner was convicted on perjured testimony. The measure was originally killed in Committee but final defeat came on a motion to withdraw it from Committee. It had the nominal support of organized labor, but Ed Vandeleur, Secretary of the State Federation of Labor and Jolin O’Connell of the San Francisco Central Labor Council, weren’t on hand to back the bill in Committee, and when it reached a vote on the floor of the Assembly the legislators whom Labor had endorsed forgot to support the bill. The roll call on the motion , to withdraw the measure from committee follows:

Ayes—Boyle, Burns, Michael, J., ‘Call, Clark, Donihue, Glick, Hawkins, Hunt, Johnson, King, Lore, Meehan, Morgan, Peek, Pelletier, Reaves, Richie, Robertson, Rosenthal, Sawallisch, Tenney, Voigt, . Welsh, and Speaker Jones—24,

Noes—Baynham, Beene, Breed, Beane Hugh M., Cottrell, Cronin, Crowley, Cunningham, Daley, Dannenbrink, Dawson, Desmond, Dilworth, Field, Fulcher, Gannon, Garibaldi, Hornblower, Kepple,. Kuchel, Latham, Laughlin, Leonard, Levey, | Maloney, Martin, Mayo, Miller, Eleanor; — Peyser, Redwine, Sheehan, Stream, Thorp, Walker, Watson, and Williamson—36.

Page 4

American Civil. Liberties Union “News” Published monthly at 434: Mills Building, San Fran-cisco, Calif.. by the Northern California Branch of The American Civil Liberties Union. Phone: i 1816 BRNEST BUESIG. genious PAULINE W. DAVIBS............. 22. Associate Editor Subscription Rates—Fifty Cents a Year. Five Cents per Copy.

Dismissal Upheld

(Continued from Page: 1, Cols2) pupil of being a Communist, and by a of belonging to a Communist Club, he made no denial. Other teachers in the school testified that pupils coming from the classwere mentally room of appellant, to their’s, w disturbed by his teaching. That appellant was in correspondence with the office of | the ‘Western Worker,’ a Communist publi-‘ cation, is conceded by him, as well as that he was a subscriber to, and supporter of that publication. The appellant testified as a witness on his own behalf, but much of his testimony was evasive, particularly his explanation of the purpose of the payment to him in 1934, of. certain moneys by direc-tion of the State Bank of the U.S.S8.R.°in Moscow. Nor did he satisfactorily. explain his visit with a woman representing her-— self to be an CMIRSALY of the Russian gov-: ernment.

“Krom the cee recital of. acts and conduct of appellant, his unfitness to be the teacher of children of impressionable age sufficiently appears without further. state- ment of other similar acts and conduct on his part which are disclosed by the evi- dence. Waiving all other circumstances, his demeanor in the class room was. in: viola- tion of the oath assumed by him to obtain his credentials entitling him to teach. ‘In Allied Architects Association vs. Payne, 192 Cal. 431,. the court said, ‘It is settled beyond question that the: promotion of patriotism, involving As it does, the sense of self-preservation, mental institutions is dependant in a large measure on the perpetuation .of,a. patriotic :. impulse which is but the willingness to sac-. rifice all for the ideas and ideals which form the foundation stones of our’public.”’ By Section 5.544 of the School Code, the people of California, speaking: through the . legislature, make it the duty of all teachers. to endeavor to impress upon the minds of. the pupils the principles of. patriotism, and. to train them up to a true comprehension of. the duties and dignity of American citizenship. Throughout the School Code is mani-, . fest an intent on the part of the people of. California to instill in school children a respect and reverence for our institutions.

This purpose cannot be accomplished. by ” -acts and conduct such as those manifested by appellant. The liberality of our institutions is such as to permit a teacher in our schools to teach the nature of’other forms of government, but there is a wide. distinc-. tion between teaching and advocating. Sought to Impress Ante American Views “The preservation of our nation depends : on the patriotism of its people. ‘Our School Code gives recognition to the principle that _ patriotism is to be instilled in the pupils attending our public schools. This purpose is not accomplished by the retention on our teaching staffs of instructors who entertain the beliefs held by appellant, and who seek to impress those beliefs upon their pupils. Appellant’s offense is not his attitude to- ward our institutions, but rather his: persistent efforts to enlist support for his antiAmerican views from his pupils.

“Appellant seeks to justify his statements, acts and conduct in the class room by the contention that the same were in accord with certain text books furnished him by the school authorities as guides for instruction of his pupils. While it may be conceded that the respondent Board may, on a further examination of those text books, believe itself warranted.in discontinuing their use, nevertheless, the misbehavior of appellant exceeded anything that might reasonably be justified by those “Puides....” Baitor‘present danger.” fendants could only be convicted if the facts indicated a clear and present danger is not only a public purpose, but the most elemental of public — The continuity | of our govern: —

~A.C.L.U. FILES ‘FRIEND OF THE COURT’ BRIEF IN SACRAMENTO C.S. CASE

The A.C.L.U. filed a second amicus curiae . (friend of the court) brief in the Sacra- -mento criminal syndicalism case on May 27. ‘Signed by outstanding attorneys through- out the country, the brief prepared by Osmond K. Fraenkel, eminent constitutional lawyer of the New York bar who carried 2 ‘on the successful appeal in the de Jonge | case, considers the Supreme Court’s recent _ decisions in the de Jonge and Herndon ‘cases, The brief contends. that the defendants’ constitutional rights of freedom of speech and of assemblage have been denied be-. cause of the refusal of the trial court to submit to the jury the issue of ‘‘clear and That is to say, the dethat the words complained of might produce the substantive evils against which the state has the right to legislate. The brief points out that ‘California is — now the only state in the Union in which persons charged with a violation of a criminal syndicalism law are in jail. With. the exception of a charge pending against one | Communist for a violation of the Indiana: sedition law, upon dismissal of the charges in Georgia, there will be no prosecution pending against any person anywhere in the United States under charges of violating any law, state or federal, which penalizes the utterance or publication of words, or membership in any organization, eee in California in the case at bar.” Oral arguments before the Third District Court of Appeal in Sacramento are scheduled: for June 9.

_ Among those signing the brief were two former chairmen of the National Labor Re- lations Board, Francis Biddle of Philadelphia and Lloyd K. Garrison, Dean of the . University of Wisconsin Law School, Professor George W. Kirchwey, former warden of Sing Sing prison, Prof. Fred Rodell of. the Yale Law School, Prof. Alexander’ Frey of the University of Pennsylvania Law — School, Judge Jackson H. Ralston of Palo ‘Alto, and Arthur Garfield Hayes, General Counsel of the A:C.L.U.

UNJUST CRITICISM

anent the latitude permitted speakers who recently, appeared before an assembly com- mittee in support of a proposal to do away with the criminal syndicalism law. The‘ charge is made that certain speakers went far beyond the ordinary ‘right of free -speech.

As a matter of fact; there i is a grave question as to whether or not, in this country, we have maintained . inviolate, liberty ef conscience, of speech and of the press. Though I6ve for such liberty i is still avowed, it some“times is denied in practice.

The legislature and the people of California are to be commended for broad tol. erance in matters of this kind. Robert Hall, more than’a century ago, wrote:

“When public discontents are allowed to vent themselves in reasoning and discourse, they subside into a calm; but their confinement in the bosom is apt to give them a fierce and deadly tincture.”

Wendell. Phillips likewise said: “The community which dares not protect ‘its humblest and most hated member in the free utterance of his opinions, is only a gang of slaves.”

Liberty of speech and liberty of the press should contemplate the right of every man not intending to mislead, but seeking to enlighten others with what his own reason and conscience, however erroneously, has dictated to him as truth, to address himself to the intelligence of the people.— (Editorial, Sacramento Union, April 22, 1937. )

A MOONEY: BILLINGS MASS MEETING CS JULY 25

ae Mooney-Billings mass meeting and rally will be held at the San Francisco Civic Auditorium, at Grove and Larkin streets, en Sunday, July 25, 1987, at 2:30 P. M. The meeting will mark the 21st year of imprisonment for Mooney and Billings.

adopt such regulations. .

" PENNSYLVANIA. JUDGES’ DISAGREE -ON COMPULSORY FLAG SALUTING

‘In a: ‘majority decision the Court of Com‘mon: Pleas of Washington County, Penn- ‘sylvania on April 24th, 1937, upheld the expulsion from the public schools of Murray Estep of:Canonsburg, whose parents are members of a religious sect known as “Jehovah’s Witnesses,” because of the refusal of this thirteen-year-old pupil to salute the flag.:.The Board of Directors of the school district had adopted a. resolution which made it mandatory upon every teacher to lead his pupils in a salute to the flag. Pennsylvania has no statute requiring such. compulsory saluting, but the Attorney General of the State has ruled that Boards of Education have authority to . The Board of the Canonsburg School District, while making a salute compulsory, permitted every teach- er to make a. selection of any | one of three formulas. These are:

(a) ] pledge allegiance to the flag of the United States of America and to. the republic for which it stands; one nation indivisable, with liberty and justice forall.” °°

(b) “I give my head, my: heart and my hands to God and my country, one country, one language, and one flag.”

(c) “I give my head, my heart and my hands to God and my country, one ‘country, one people, one language, one flag.’’

The court consisted of three Hidges. each one wrote a separate opinion; one decided - that compulsory saluting was not a denial of réligious liberty; another ruled against the petitioner on technical grounds, declaring that a writ of mandamus would not lie to require public officials to perform a discretionary act; the third .and_ presiding judge dissented and ruled that upon the admitted facts the child should be rein- stated .in the public schools without re‘quirement of participation in the compul- sory salute to the flag, saying:

“Tam myself unable to eomnre rend the rationale of the belief, asserted by the re— lator, that giving an unconditional pledge of allegiance to the United States, in any one of the forms hereinafter set out, with 7 a mention of its flag as a symbol of the reSome slight criticism has been voiced public.is a violation of ‘the laws of God.’ ‘‘Nevertheless, I would say that if any of the children should honestly and sincerely entertain religious scruples against taking such a pledge, I question whether they ought to be compeHed:thus to violate their consciences, even if such scruples be deem, -ed to’ be unreasonable. No good purpose ' is subserved thereby. To compel them to utter: a personal pledge which. they cannot give from the heart, because they conscientiously believe it a violation of their duty to God is to inculcate hypocrisy, and weaken the: conception and sense of the supremacy of conscience. Not only in themselves but among, others. There.are, it is true, some things ‘which the law may properly command a man to do, or refrain from doing, even against the dictates of his conscience; but those are things touching and involving the safety and welfare of society or the rights of his fellow citizens, and they come under the doctrine, Salu. populi suprema lex. I am unable to see that the safety and welfare of the country and its people will be endangered by the fact that a few school children may be unwilling, in consequence of thus conscien- tiously held religious tenets, to join with others in uttering a prescribed form of an express pledge of allegiance, or that forcing them thus to play the hypocrite will in any way benefit the country. Speaking as a private person, I would say-that, even if the requirement of a pledge of that kind should be held to be within the authority of the school board, the sensible thing would be to respect religious scruples by exempting such children from the requirement and allowing them to stand mute, when others are repeating the. pledge, (provided, of course, that they do so in a decorous manner and create no interference of any kind with what is going on). This, to quote the words of a Canadian newspaper, ‘Wouldn't hurt the flag.’ ”’