vol. 4, no. 7

AMERICAN CIVIL LIBERTIES UNION-NEWS

FREE SPEECH FREE PRESS FREE ASSEMBLAGE

“Eternal is the price of liberty.”

Vol. IV SAN FRANCISCO, CALIFORNIA, JULY, 1939 No. 7

CAIRNS DENIED CITIZENSHIP

Court Holds He Aided and Abetted Santa Rosa Tar and Feather Mob

Fred Cairns, Secretary of the San Rafael Chamber of Commerce and alleged leader of the Santa Rosa tar and feather party of August 21, 1935, was denied citizenship by Superior Judge Edward I. Butler of San Rafael on June 9. At the conclusion of a threehour hearing, the court granted the motion of Paul Armstrong, Assistant District Director of Immigration and Naturalization, to dismiss Cairns’ petition with prejudice, on the ground that he had not shown himself to be attached to the principles of the govern- ment of the United States.

The court’s ruling does not permanently debar Cairns from becoming a citizen, because the law merely requires that in the five years preceding admission to citizenship the applicant must show evidence of good conduct. Consequently, the earliest possibie moment that Cairns, a cilizen of the Irish Free State, may be admitted will -be August 21, 1940, or five years after the “tar and feather party occurred.

Two Charges Against Cairns

A.C.L.U. opposition to Cairns’ petition was based on two allegations: 1. That he led a mob of men to Germania Hall in Santa Rosa on August 1, 1935, and broke up an anti-fascist meeting; and, 2. That he was the leader of the tar and feather vigilantes who kidnaped five men, and beat and tarred and feathered Jack Green and Sol Nitzberg on August 21, 1935.

The familiar story of the tar and feather party, so far as it relates to Cairns, was retold by three of the vigilante victims, Jack Green, Sol Nitzberg and Charles Mayer. Vernon Healey, who was beaten in the Germania Hall raid, joined the others in testifying with reference to Cairns’ participation in that affair. Their testimony was all to the effect that Cairns was the leader of both mobs. Thereafter, Fred Cairns himself took the stand and for the first time related his version of the two incidents. It should be noted that in the criminal proceedings, as well as in the damage suit brought by Green, Cairns both times failed to take the witness stand.

Raided Meeting As a Duty

Explaining his presence at the Germania Hall affair, Cairns declared, “I came down because there had been trouble in the apples.” (As a matter of fact, the meeting had nothing to do with the apple strike, although several of the apple pickers were on hand to ask for donations.) “I stepped to the platform,” said Cairns, ‘‘and walked to the small stand. I said, ‘there shouldn’t be any trouble here, and I think the best thing is for everyone to go home.’ ”’ Cairns justified his dismissal of the meeting on the ground that when one of the speakers declared, ““We recognize no flag, no creed, no government, I thought it was somebody’s duty to do something.”

Of course, no such utterance was made. One speaker, representing the I.L.D., did remark that his organization does not discriminate against anyone by reason of race, color or creed. The real story was obviously distorted to create public sympathy and support for the vigilantes. Indeed, it seems inescapable that the vigilantes appeared at the meeting for the purpose of breaking it up, and they accomplished what they came

Mere Spectator At Tar Party

As far as the tar and feather party was concerned, Mr. Cairns sought to establish himself as a mere spectator or innocent bystander.

ing to his own story, because “Somebody said there’s something doing at the Native Sons Hall and I walked down.”’ And, just to show how casual it was, he claimed he *phoned his wife to tell her he would be home for dinner in half an hour. “There seemed to be no excitement” at the hall during his presence there, even though several men questioned Jack Green, who was guarded by “a man on each side,’”’ and who continued under escort when he was

(Continued on Page 4, Col. 1)

Academic Freedom Upheld In Keeney Case

The Montana Supreme Court in a 4 to 1 decision handed down on June 17 upheld a lower court ruling ordering the reinstatement of Professor Philip O. Keeney, ousted University of Montana librarian. Prof. Keeney was dismissed without a hearing on April 12, 1937, because of organizing a local of the American Federation of Teachers.

In ordering the dismissal, the State Board ignored its own rules and regulations re- garding tenure under which Prof. Keeney could not be dismissed except for cause after a hearing. Contributing factors in the Board’s action were Prof. Keeney’s opposition to the election of Dr. Simmons to the presidency of the University of Montana, his opposition to censorship of publications, dramatics and the library, and the undue influence exercised by the Anaconda Copper Co. in the affairs of the University.

The A.C.L.U. filed an amicus curiae brief in the State Supreme Court as well as the lower court. He became involved, accord

Governor Urged To Pocket Veto Flag Salute Bill

In the following communication, signed by Ernest Besig, local director, the A.C.L.U. urged Governor Culbert L. Olson to pocket veto the Nielsen flag salute bill:

I am advised that S.B. 310 by Senator Nielsen, relating to flag saluting by school children was recently adopted by the Legislature and now awaits your consideration. It would allow local school boards to pass rules and regulations governing the salute, and permit the expulsion or suspension of any child who failed to abide by such rules.

This bill was adopted in the Senate on May 1 by a vote of ‘26 to 10, and it was finally passed in the Assembly on June 18 by a vote of 41 to 20. It is the only flag salute measure that wiil reach your desk, — because another bill by Assemblymen Gannon and Millington was rejected in the Senate Education Committee.

There are at least two reasons why we feel this bill should be rejected by you. 1— It is unnecessary; and, 2—-sound policy demands that the Legislature and Executive should not endorse a measure that permits local boards to institute compulsory flag saluting.

1. In the noted Gabrielli case which we carried unsuccessfully to the United States Supreme Court, the State Supreme Court upheld the right of a local board to expel a child from school for refusing to salute the flag on religious or any other grounds. The present measure, then, is unnecessary to establish the power of local school boards to adopt rules and regulations governing flag saluting.

2. Butthe court decided merely that the School Board’s action was legal. It made no effort to consider the wisdom of the Board’s action, because a question of policy is after all one for the Legislature and not the courts to determine. Therefore, if the Nielsen bill is signed by you, the Legislature will, in effect, be endorsing compulsory flag saluting, and the 100 per centers will be given encouragement to go to local school boards to demand that flag saluting be placed upon a compulsory basis.

I will not undertake to restate in detail the various arguments against compulsory flag saluting which must be quite familiar to you. To sum them up in a sentence, you don’t get patriotism by compulsion; flag saluting is now practiced generally on a vol- untary basis; the law will result in persecution of a small religious group; it will punish little children for obeying their parents; and, it is fascistic and un-American.

If you wish it, we will be glad to go to Sacramento to discuss the matter personally with you, or if it should be your desire to conduct a public hearing before taking final action, we would appreciate an opportunity to be heard against the measure.

In any event, we strongly urge you to pocket veto this un-American, Nazi flag salute bill,

Page 2

The Supreme Court Decision In The Hague Case —

Almost every informed person has heard of the United States Supreme Court decision in the celebrated I-Am-the-Law Hague case of Jersey City, but very few people know what it signifies. Five of the. seven Justices who heard the case favored the decision, while Justices Frankfurter and Douglas took no part in its consideration. Justices M’Reynolds and Butler dissented in very brief memorandum opinions. Since the decision is one of the most important in recent years, we believe it merits the following analysis:

The majority of the Court were agreed that Hague and his underlings should be restrained from interfering with the exercise of civil rights in Jersey City by the C.I.O. and certain individuals, but they reached this conclusion by different theories. So far as the injunction is concerned, justices who formed the majority were in agreement with the following statement of Justice Roberts:

“Tt remains to consider the objections to the decree. Section A deals with liberty of the person and prohibits the petitioners (Hague, et al) from excluding or removing the respondents or persons acting with them from Jersey City, exercising personal restraint over them without warrant or confining them without lawful arrest and production of them for prompt judicial hearing, having lawful search or seizure; or interfering with their free access to the streets, parks, or public places of the city. The argument is that this section of the decree is so vague in its terms as to be impractical of enforcement or obedience. We agree with the Court below that the objection is not well founded. :

Liberty of the Mind

“Section B deals with liberty of the mind. Paragraph 1 enjoins the petitioners from interfering with the right of the respondents, their agents and those acting with them, to communicate their views as individuais to others on the streets in an orderly and peaceable manner. It reserves to the petitioners full liberty to enforce law and order by lawful search and seizure or by arrest and production before a judicial officer. We think this paragraph unassailable.

“Paragraphs 2 and 3 enjoin interference with the distribution of circulars, handbills and placards. The decree attempts to formulate the conditions under which respondents and their sympathizers may distribute such literature free of interference. The or- dinance absolutely prohibiting such distribution is void under our decision in Lovell v. Griffin, supra, and petitioners so concede. We think the decree goes too far. All respondents are entitled to is a decree declaring the ordinance void and enjoining the petitioners from enforcing it.

Public Meetings

“Paragraph 4 has to do with public meetings. Although the court below held the ordinance void, the decree enjoins the petitioners as to the manner in which they shall administer it. There is an initial command that the petitioners shall not place ‘any restraint’ upon the respondents in respect of holding meetings, provided they apply for a permit as required by the ordinance. This is followed by an enumeration of the conditions under which a permit may be granted or denied. We think this is wrong.

As the ordinance is void, the respondents are entitled . to a decree so declaring and an injunction against its enforcement by the petitioners. They are free to hold meetings without a permit without regard to the terms of the void ordinance. The courts cannot rewrite the ordinance and the decree, in effect, does.”

In the above fashion, then, the court restrains Hague from interfering with the exercise of civil rights by the C.I1.O. and other complainants in Jersey City. But at the outset the court’s jurisdiction or right to hear the case was challenged, and it was in the determination of this question that a conflict occurred among the majority which resulted in the ’ production of two opinions, one by Justice Roberts, concurred in by Justice Black, and another by Justice Stone, concurred in by Justice Reed. And the question of jurisdiction seriously affects the prosecution of future civil rights cases.

The suit was originally filed in the United States District Court. It could have been started in the state courts, because, as Justice Roberts stated, “Every question arising under the Constitution may, if properly raised in a State court, come ultimately to this court for decision.” But the attorneys chose to file the suit in the federal court.

Now, the federal courts have very limited original jurisdiction. Congress has given them power to consider cases under the Constitution or laws of the United States “where the matter in controversy exceeds ... the sum or value of $3000.” But Justice Roberts contended, and Justice Black agreed, that having failed to prove that the amount in controversy exceeded $3000, the court had no jurisdiction under that section of the law.

Privileges of Citizens Infringed

But Justice Roberts nevertheless finds authority for the courts to take jurisdiction in the Civil Rights Act, and a law enforcing it, which were adopted by Congress following passage of the Fourteenth Amendment. Under the Civil Rights Act, “any person who under colour of any law ... shall subject... any person... to the deprivation of any rights, privileges and immunities secured by the Constitution of the United States,’ may be sued in the federal courts. He then declares that the sole issue is whether the freedom to disseminate information about the National Labor Relations Act and to assemble to. dis

(Continued on Page 4, Col. 2)

“Billings Defense” Established; — Pardon Appeal Before Olson

A separate defense committee has been established for Warren K. Billings, to be known as the Billings Defense, with a mail address at Box 4548, San Francisco.

The Committee is sponsored by more than. 30 A. F. of L. unions in San Francisco. Hugo Ernst, of the culinary workers, has been designated as Acting Chairman of the Com-. mittee, and Miss Mary Gallagher, former secretary of the Mooney Molders Defense, as Acting Secretary.

In the meantime, attorneys for Billings have filed a new pardon application with Governor Olson. Heretofore, it was believed that the Governor, under the law, could not pardon Billings because he had a previous conviction listed against him. And, under the Constitution “‘Neither the Governor nor the Legislature shall have power to grant pardons, or commutations of sentence, in any case where the convict has been twice convicted of a felony unless upon the written recommendation of a majority of the Judges of the Supreme Court.”

The memorandum in support of the pardon application contends, however, that the law and previous cases also provides, in effect, “that a prior conviction or convictions in order to become operative to the detriment of-a defendant, must be charged, pleaded to, proven as a material fact and a verdict or judgment rendered thereon at the time of the trial of the subsequent or latest offense.” And, as far as the Billings case is concerned, the record discloses: “(1) Billings was indicted for murder on August Ist, 1916, by the grand jury of the City and County of San Francisco.

““(2) He was not indicted or charged by information at that time with any prior conviction of felony.

(83) He was subsequently tried by a jury and found guilty of murder in the first degree, but was not tried or found guilty by said jury of any prior conviction of fel- ony.”

Consequently, ‘It would be in violation of the Constitution, statutes and laws of the State of California to impose any additional burden or penalty on Billings by reason of any alleged prior conviction which the prosecution failed to establish at the time of Billings’ trial for murder in the manner provided by law.”

George T. Davis, attorney for Billings, has urged the Governor to have Billings brought to Sacramento, give him the pardon, and then if any person objects the burden would be on him to establish that he should be returned to prison. A decision by the Governor is expected in the near fuure.

PRESS GAINS ADMISSION TO BRIDGES’ HEARINGS WHICH OPEN JULY 10

Upsetting precedent, James Houghtelling, Commissioner of Immigration, has decided to allow a limited number of representatives of the press to attend the Harry Bridges’ deportation hearings that open at Angel Island in San Francisco bay on July 10. The ruling comes at the request of Bridges himself. The public, however, will continue to be excluded, although Bridges has asked that the hearings-be conducted in San Francisco at a place where the public can attend.

James M. Landis, dean of the Harvard Law School, who has been designated as special trial examiner, will issue the press passes.

Bridges will be represented by Gladstein, Grossman and Margolies, local C. I. O. at- torneys, as well as Carol King of New York City, Secretary of the International Juri- dical Association and an expert on deportation matters. Lee Pressman, national coun- sel for the C. I. O., may also be on hand to represent Bridges.

COMMUNIST PARTY SUES FOR USE OF S. F. AUDITORIUM

A Superior court action was filed by the Communist Party on June 27 to compel city officials to rent them the Civic auditorium. The Custodian of Property has con- sistently refused a lease because he was opposed to “‘reds.”’

This is the third suit to be filed in the last couple years. Two previous suits were dismissed on technicalities. The first time, the court decided the issue was moot, be- cause the date requested for a meeting had already passed by the time the case was heard, and the court would not consider such an academic question. The second time, it was found that the Communist Party of San Francisco could not maintain the suit because it had not been legally constituted. The present action was filed by Anita Whitney as chairman of the State Committee of the Communist Party.

MARCUS GRAHAM ONCE AGAIN ” APPEALS CONTEMPT RULING

Marcus Graham has again been sentenced to six months in jail for refusing to answer questions of immigration officials who want to know where he was born in order that he may be deported. Graham was immediately released on $1000 bail pending an appeal.

A. C. L. U. Intervenes In Court Test Of Oregon Anti-Labor Law

Characterizing the Oregon anti-picket-. ing law as violative of the Fourteenth Amendment “because it is too vague te he > s enforced, deprives laboring men of liberty without due process of law and denies them the equal protection of the laws,” the Amer- ican Civil Liberties Union has filed a brief as friend of the court in behalf of the C.1.0O. in a test of the statute’s constitutionality. Hearings on the action were held recently in the Oregon Circuit Court. Osmond K. Fraenkel, of the New York Bar, prepared the Union’s brief.

The statute was enacted as an initiative proposal in last November’s election. It forbids picketing in labor disputes not defined in the measure; excludes all indus- trial controversies except those relating to wages, hours and working conditions and those in which the parties are in the direct relation of employer and employees. Unions are prohibited from collecting dues beyond the “legitimate requirements” of the or- ganizations.

Analyzing the various sections of the measure to show its vagueness, the A.C.L.U. contends that ‘“‘a statute which prescribes a standard of guilt so indefinite as not to be susceptible of reasonable ascertainment and application in the determination of the guilt or innocence of the accused is invalid under the due process clause of the Four- teenth Amendment.”

Alluding to the limitations on peaceful picketing and primary boycotts, the brief holds that unless they are accompanied by violence or intimidation or are conducted | for an unlawful purpose, they may not be outlawed.

“The right peaceably to picket and boycott in the course of a labor dispute is in- cluded in the guaranty of free speech protected in the due process clause of the 14th Amendment .. . Picketing is a method of publication of facts and an invocation of public opinion as a moral force in the determination of labor disputes . . . Walking along the street, expounding on one’s views, and publishing one’s thoughts become, under this Act, the privilege of all but the laborer.”

“Eternal vigilance is the price of liberty.”

LET FREEDOM /AING

Four Lynchings Thus Far In 1939

Four lynchings have occurred in the United States during the first six months of the current year. This compares with a figure of 8 lynchings for 1939. All of the lynchings this year took place in the South, and all of the victims were Negroes. Two lynchings occurred in Florida, one in Georgia and the other in Arkansas.

Two Anti-Fascist Bills Defeated

Two anti-fascist bills were defeated in the State Senate shortly before the Legis- lature adjourned on June 22nd. One bill was A.B. 1436, endorsed by the A.C.L.U., which provided that ‘‘No group or organization of persons... shall be armed,” and limited drilling and parading while armed.

The other bill, A.B. 2851, by Assemblyman Yorty, made it unlawful for a person to appear in a public place wearing a uniform similar to that worn by any foreign official or semi-official military group or any association of persons, and prohibited persons so attired from assembling in any public hall. Because the measure was intro- duced on May 30, shortly before the Legislature adjourned, the A.C.L.U. had not yet taken a position on it. *

California already has a law, adopted in 1895, which prohibits persons from asso- ciating themselves together “as a military company, or organization, or drill or pa- rade with arms, except such a are authorized so to do.”’

Minority Parties

As we go to press we have not yet determined the fate of the Miller bill, A.B. 880, which admittedly eliminates all except the Republican and Democratic parties from the ballot in both State and National elections. This matter will be reported in our next issue.

What a Life!

One of our subscribers, a printer by trade, has taken us to task for ‘advertising’ Life Magazine in our editorial columns. His complaint grows out of our recent stories (meant to be amusing) of the strange way Ye Editor received a year’s subscription to Life from the Managing Editor of that publication. He believes Life had a sinister purpose in giving away the company profits.

. That charge is based on the notoriously anti-union character of The Lakeside Press of Chicago, owned by R. R. Donnelley and Sons Company, where Life is printed. Since a boycott has been placed on The Lakeside Press, Life has become one of the untouchables in the Labor movement. And, it is charged, the gift we accepted so innocently, can only have the effect of giving aid and comfort to a. scab publisher.

Time, Inc., which publishes Life, does not deny that its printer operates an open shop plant, but in its own defense it points out that two of its publications are printed in Union plants, that its printing plates and foundry work are also Union made, that it signed a contract with the New York Newspaper Guild, and that 75% of the paper used in Time and Life come from a 100% model-union mill.

There’s the story, and we’ll let you figure out the answer. Next time, however, we’d

Page 3

A. C. L.U. Asks I nvestigation Of California “Secret Fascist Army”

The American Civil Liberties Union on June 23 requested District Attorney Matthew Brady of San Francisco to conduct a “prompt and full investigation of the United States Police Reserve Association and its leaders’ to determine whether it is violating a state law prohibiting private military organizations. The request is the result of an article in the June 29 issue of Ken Magazine which charges Major R. L. Dineley of San Francisco with organizing a secret fascist army. If any violation of the law is shown, the letter asks the District Attorney “‘to prosecute the responsible persons to the full extent of the law.’’.

The letter of Ernest Besig, Northern California Director of the A.C.L.U. to District Attorney Matthew Brady follows:

“According to a story appearing in the June 29 issue of Ken Magazine, a so-called United States Police Reserve Association is operating in San Francisco under the lead- ership of one Major R. L. Dineley, Commandant, and C. L. Tilden, Jr., State Com- mander. The headquarters of the organization is said to be located at Room 1910, 703 Market St., San Francisco, the purported offices of the ‘Consolidated Industries.’

“A photostatic copy of a letter reproduced in said magazine, signed by one R. L. Dineley, refers to the establishment of ‘an armed, uniformed body, to be called the United States Police Reserve Association.’ The article likewise discloses that Chief of Police Quinn investigated this organization and discovered that its ‘Constitution and By-Laws... provided for the establishment in every state in the Union and its territories ‘regiments, battalions and companies’. . .” “May I also call your attention to Section 557 of the Military and Veterans’ Code of the State of California which provides: a as follows:

Private Military Groups Illegal

“**No body of men, other than the National Guard and Naval Militia, the troops and Naval forces of the United States, and peace officers shall associate themselves together as a military company or organization, or drill or parade with arms, except such organizations are authorized so to do by this code.’

“In the light of the above information, we respectfully request your office to conduct a prompt and full investigation of the United States Police Reserve Association and its leaders, to determine whether this organization is operating in violation of the law, and, if so, to prosecute the responsible persons to the full extent of the law.”

Claims 6000 Membership In So. Cal.

Major Dineley claims a membership of 6000 men in Southern California, with an asserted 1200 ‘‘on call’ in the Bay Area. Following demands for an investigation, Dineley told reporters that, ‘We are recruiting middle-class property owning citizens and offering their services to the local chiefs of police during emergencies. We recommend that the arms they use be those with which they are most familiar in daily life. If a man owns a shotgun, or a rifle, or a pistol, that’s what he would use if the police asked his help.

“The chiefs can put brown derbies or steel helmets on these recruits if they want to, but we ourselves have adopted no uniform.”

Dineley insists that 3 no organization activity is in progress in San Francisco be- cause “Chief Quinn told us the city did not need two chiefs of police.”

An application to solicit funds as a patriotic organization was at one time sub- mitted to Chief Quinn, but later withdrawn, because “we felt it would be denied, and we'll go ahead with it when we get stronger politically,’’ Dineley stated.

A Racket

Chief Quinn has informed California police authorities that he considers the asso- ‘ciation a “racket.”

Major Richard L. Dineley, is a former Major in the Marine Corps. He isa dealer in war materials—gas masks, steel helmets, machine guns, rifles and pistols, and is reputed to sell principally to Spanish and Mexican customers.

Present State Commander of the Reserves is said to be Clark Coe of Los Angeles. Founders of the organization include Walter Walsh, Navy reserve officer and secretary of the Navy League in San Francisco, and Capt. Phillip H. Crimmins, who is a lieutenant of police at the Fair grounds on Treasure Island.

Assembly Vote On the Nielsen Flag Salute Bill

Following is the Assembly vote on the Nielsen Flag Salute bill, S.B. 310, which was adopted by the Legislature and is now . before the Governor for consideration:

Ayes—Allen, Bashore, Burns, Hugh M., Burson, Call, Carlson, Cassidy, Daley, Del Mutolo, Dills, Dilworth, Donnelly, Doyle, Field, Fulcher, Gallagher, Gannon, Garland, Gilmore, Houser, Johnson, Kepple, Kuchel, Leonard, Maloney, Meehan, Miller, Eleanor; Millington, O’Day, O’Donnell, Redwine, Salsman, Scudder, Thorp, Thurman, Walker, Waters, Watson, Weber, Weybret, and Wollenberg—41;

Noes—Atkinson, Bennett, Clarke, Collins, Cronin, Heisinger, Kilpatrick, King, Knight, Lore, Massion, Phillips, Reaves, Richie, Robertson, Rosenthal, Tenney, Voigt, Yorty, and Speaker Peek—20.

better stick to comments on civil liberties. What a Life!

565

The Union’s paid-up membership has increased to 565, the highest figure in our history. Please note that the reference is to paid-up memberships, and does not in- clude some of the backsliders who are receiving this issue of the paper. Which all leads us to what we intended to say in the first place, namely, if you’re one of the blacksliders, how about sending us your renewal?

FEDERAL JUDGE RESTRAINS ENFORCEMENT OF L. A. HANDBILL ORDINANCE

A victory for free speech and free press was secured in Los Angeles on June 19th when Leon R. Yankwich, Judge of the United States District Court, in effect declared the Los Angeles handbill ordinance unconstitutional. He issued a preliminary restraining order preventing David A. Davidson, Chief of Police of Los Angeles, from arresting LaRue McCormick of the International Labor Defense, and Dr. Clinton J. Taft of the Civil Liberties Union, when they would distribute handbills on the streets of Los Angeles, calling upon the public to demand that there be no amendments by Congress to the National Labor Relations Act.

During the argument of the case, Judge Yankwich stated that judicial notice could be taken of the fact that the handbill ordinance was used primarily to prevent distribution of leaflets, the contents of which the Police Department did not approve.

When this case is further heard on i merits the ordinance will undoubtedly be | ruled null and void.

In a companion case, Judge Yankwich enjoined the Municipal Court from further hearing of a complaint against Carroll Pierce, who had been arrested for distributing handbills.

The American Civil Liberties Union and the I. L. D. were represented by Attorneys Gallagher, Wirin and Johnson.

Page 4

American Civil Liberties Union News Published monthly at 216 Pine St, San Fran cisco, Calif.. by the Northern California Branch of The American Civil Liberties Union.

Phone: EXbrook 1816 : ERNEST BESIG. Editor PAULINE W. DAVIES................. Associate Editor Subscription Rates—Fifty Cents a Year. Five Cents per Copy.

Cairns Denied Citizenship

(Continued from Page 1, Col. 2)

taken into a side room and upon leaving the building. And, as far as the questioning of Green was concerned, ‘I think one of the questions asked was whether he was a Communist,”’ declared Cairns.

“Had No Idea What Was Going to Happen”’

Ignoring his dinner appointment at home, Cairns stayed at the hall more than a half hour and joined the others in going to the hop warehouse where the tar and feather episode occurred, because ‘‘someone mentioned this hop warehouse,” and “I went down because others were going down. I had no idea what was going to happen.” At the warehouse men were playing cards and Cairns just stayed around. It was only after he had been there a little while that he claims he learned what was going to happen. ‘They said they were bringing some of these Communists. I remained till they brought them in.” He admitted he saw Green, Nitzberg and Woolf brought in, and that he saw Green and Nitzberg tarred and feathered, but “I had no part in it except as a looker on.”’

Only once did Cairns admit he took an active part in the mob proceedings, and then it was to bolster his own case. “I was at least 30 or 35 feet away, when suddenly apparently the crowd began to develop into a mob. Iheard lynch. I stepped in between. The crowd moved forward and I felt their spittle on my face and I leaned back against Nitzberg and Green. When I heard of the rope I said this kind of thing can’t go on. I can’t remember what I said because I was working under a strain.” This, he testified, was the only contact he had with Nitzberg and Green on that date.

Vigilante Suit Boomerangs

This last testimony proved rather embarrassing to Mr. Cairns because Mr. Armstrong immediately read into the record a copy of the ridiculous complaint filed in a damage suit brought by Cairns and one Campbell against Green and Nitzberg charging that while they were on a highway AT THE TIME THE TAR AND FEATHER PARTY TOOK PLACE, the latter ‘‘did pull, push, jerk, jostle and strike plaintiffs ... and with the intent of killing and murdering Plaintiffs did then and there shoot at Plaintiffs with a double-barreled shotgun.”’ Cairns excused this vicious suit on the ground that he had not read the com- plaint, but “I knew it was filed and authorized the filing of it.”

Cairns had seven witnesses on hand prepared to testify that “he was present but not a leader’ at the tar and feather party. The court was spared the recitation of these stories when it was stipulated that the witnesses would testify substantially as Mr. Cairns had done.

Government Opposes Petition

Mr. Armstrong then moved the dismissal of the petition with prejudice, ‘‘because it is unthinkable that Mr. Cairns did not have an important part in the meeting at Germania Hall and the hop warehouse. If he did have an important part, he did not show attachment to the Constitution and happiness of the people of the United States.”’ On the other hand, Mr. Cairns’ attorney, C. J. Tauzer, insisted that “If America were filled with men like Fred Cairns this would be a desirable place to live.”

Following the three-hour hearing and arguments, Judge Butler immediately gave his decision. He declared that Cairns “should not have been part of a mob. It was unthinkable that he did not know what was going on.” The court thought Mr. Cairns played a ‘‘more commendable part in the Germania Hall incident, because, “I

The Supreme Court Decision In The Hague Case... ..

(Continued from Page 2, Col. 1)

cuss national legislation is a privilege or immunity of a citizen. He concludes that such right is inherent in citizenship, because “citizenship of the United States would be little better than a name if it did not carry with it the right to discuss national legislation and the benefits, advantages and opportunities to accrue to citizens therefrom. The respondents’ proscribed activities had this single end and aim.”

Privilege of Using Parks and Streets

Having found that privileges and immunities of citizens of the United States had been invaded by local authoritigs under power of law, Justice Roberts then went on to decide that such infringement cannot be excused as a valid exercise of the police power; “For,’’ said he, “wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens and dis- cussing public questions.

“Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights and liberties of citizens. The priviléqe of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise if regulation, be abridged or denied.

“We think the court below was right in holding the ordinance quoted in Note 1 void upon its face.

“It does not make comfort or convenience in the use of streets or parks the standard of official action. It enables the Director of Safety to refuse a permit on his mere opinion that such refusal will prevent ‘riots, disturbances, or disorderly assemblage.’ It can thus, as the record discloses, be made the instrument of arbitrary suppression of free expression of views on national affairs for the prohibition of all speaking will undoubtedly ‘prevent’ such eventualities. But uncontrolled official suppression of the privilege cannot be made a substitute for the duty to maintain order in connection with the exercise of the right.”

No Question of Citizenship, Says Stone

Mr. Justice Stone refused to rest the court’s decision on the narrow ground of infringement of privileges and immunities of citizenship. He pointed out that the complainants had made no such contention; that the record disclosed that the purpose of complainants in holding meetings was to secure to workers in Jersey City the rights of collective bargaining in industries that may or may not have been subject to the Wagner Act; and that the decree herein affirmed guarantees to all persons, not only citizens, freedom of speech and of assembly for all lawful purposes.

“No more grave and important issue can be brought to this court,” says Justice Stone, “than that of freedom of speech and assembly, which the due process clause guarantees to all persons regardless of their citizenship, but which privileges our immunities clause secure only to citizens, and then only to the limited extent that their relationship to the National Government is affected. I am unable to rest decision here on the assertion, which I think the record fails to support, that respondents must depend upon their limited privileges as citizens of the United States in order to sustain their cause, or upon so palpable an avoidance of the real issue in the case, which respondents have raised by their pleadings and sustained by their proof.

The Real Issue

“That issue is whether the present proceedings can be maintained under Sec. 24 (14) of the Judicial Code as a suit for the protection of rights and privileges guaranteed by the due process clause. | think respondents’ right to maintain it does not depend on their citizenship and cannot rightly be made to turn on the existence or non-existence of a purpose to disseminate information about the National Labor Relations Act. It is enough that petitioners have prevented respondents from holding meetings and disseminating information whether for the organization of labor unions or for any other lawful purpose.”

Justice Stone then concludes that under the Civil Rights Act, which protects “any person” against a deprivation of rights or immunities secured by the Constitution (in this case, freedom of speech and assembly secured by the due process clause of the Fourteenth Amendment), the present suit to restrain infringement of their rights is authorized. And, that suit may be entertained without proof that the amount in controversy exceeds $3000, whether the right or privilege asserted is secured by the privileges ‘and immunities clause, due process clause, or any other clause. ‘

Civil Rights Incapable of Money Valuation

“There are many rights and immunities secured by the Constitution,” says Justice Stone, “of which freedom of speech and assembly are conspicuous know it would be difficult to restrain myself if something were said against the government.” Consequently, because in the court’s opinion, Cairns had aided and abetted the mob, his petition for citizenship was denied.

examples, which are not capable of money valuation, and in many instances, like the present, no suit in equity could be maintained for their protection if the jurisdictional amount were prerequisite. We can hardly suppose that Congress, having in the broad terms of the Civil Rights Act of 1871 vested in all persons within the jurisdiction of the United States a right of action in equity for the deprivation of constitutional immunities, cognizable only in the Federal courts, intended by the Act of 1875 to destroy those rights of action by withholding from the courts of the United States jurisdiction to entertain them.”

Mr. Justice Reed agreed with Justice Stone. Chief Justice Hughes submitted the following brief memorandum:

Chief Justice Hughes’ Opinion

“With respect to the merits I agree with the opinion of Mr. Justice Roberts and in the affirmance of the judgment as modified. With respect to the point as to jurisdiction I agree with what is said in the opinion of Mr. Justice Roberts as to the right to discuss the National Labor Relations Act being a privilege of a citizen of the United States, but I am not satisfied that the record adequately supports the resting of jurisdiction upon that ground. As to that matter, I concur in the opinion of Mr. Justice Stone.”

F.C.C. Hearing On Radio Censorship Rule To Be I Held July 12th

In response to a protest petition filed by the National Council on Freedom from Cen- sorship, affiliate of the Civil Liberties Union, the Federal Communications Commission has ordered a public hearing to be held on July 12 on its rule requiring international broadcast stations to transmit only programs which promote international good will and reflect the culture of this country.

Following the promulgation of the F.C.C. order on May 238, the National Council, in a letter to Chairman McNinch of the Com© mission, charged that the regulation opened the door to outright censorship of all broadcasts. The Council held that the regu- lation conflicts with the Federal Communications Act explicitly providing that there shall be no interference by the Commission with “the right of free speech.’ Recon- sideration of the rule and a public hearing at which representatives of the radio indus- try and of the listening public may be heard were suggested by the Council.

In announcing the hearing, the F.C.C. declared: ‘“‘The Commission is of the opinion that an open Public Hearing to discuss the merit of the new regulations is desirable, particularly in view of the fact that the application of the rules has been misunder- stood in some quarters.”

A letter from the National Association of Broadcasters protesting the rule was ignored by the F.C.C. in its announcement.

The new rules, which became effective May 28rd, will remain in force for the present.

Approval of another F.C.C. rule, requiring radio stations to make available for public inspection records of all requests for broadcast time by candidates for public office has been voiced by the National — Council on Freedom from Censorship. The rule also requires that “an appropriate notation showing the disposition made by the licensee of such request and the charges made, if any, if the request is granted” shall be made available.

Writing to Chairman McNinch, Quincy Howe, chairman of the National Council, noted the opposition of the Columbia Broadcasting System to the rule. “But we cannot conceive of any argument which can successfully be brought against it. Indeed, we would prefer to see the rule so written as to. apply to all requests for time for whatever purpose as a basis for public appraisal of editorial selection by station program directors.”

“Eternal vigilance is the price of liberty.”