vol. 6, no. 12

AMERICAN CIVIL LIBERTIES UNION-NEWS

FREE SPEECH FREE PRESS FREE ASSEMBLAGE

“Eternal is the price of liberty.”

Vol. VI SAN FRANCISCO, CALIFORNIA, DECEMBER, 1941 No. 12

"ANTI-OKIE LAW" KILLED

ACLU: Test of Calif. Law Ends Successfully 1 in U.S. Supreme Court

The almost two-year effort of fic Arasrieaa Civil Liberties Union in challenging the constitutionality of California’s ‘“anti-Okie law’’, making it a misdemeanor to aid an indigent to enter the state, ended successfully on November 24 when the United States Supreme Court reversed the conviction of Fred F. Edwards of Marysville and held the statute to be unconstitutional. While the decision was unanimous, the members of the eourt differed as to why the law was invalid. Five justices, through Justice Byrnes, rested their decision on the “‘commerce clause’ of the Constitution and held that the statute infringed the powers of the Congress to regulate interstate commerce. Justice Jackson, however, contended that the Taw violated the “privileges and iminu- nities clause’, on the theory that the right of a citizen to go freely from state to state is a privilege of citizenship. Justice Douglas also rested his separate opinion on that clause and Justices Black and Murphy concurred. (The various opinions in the case are found elsewhere in this issue.)

How the Union Intervened

The case was originally called to the attention of the Civil Liberties Union through a news dispatch from Marysville that appeared in the February 10, 1940, issue of the San Francisco News under the heading, “Rare Law Hits At Indigents.” The story recited how Fred F. Edwards, 36, had been arrested and charged with bringing his indigent brother-in-law and his family to Marysville from Texas. A letter was immediately addressed to Mr. Edwards at the County Jail in Marysville offering the assistance of the A.C.L.U. in challenging the constitutionality of the statute.

Mr. Edwards fortunately received the letter and responded by coming to the A. C. L. U. office in San Francisco to discuss his case with the director. (He had secured his release on one thousand dollars bail provided by the proprietor of a local grocery store.) It was agreed that an A.C.L.U. attorney should represent Mr. Edwards at his trial in the Justice Court and Philip Adams of San Francisco duly appeared for him. Edwards was convicted and received a suspended sentence. An appeal was taken immediately to the Superior Court of Yuba county in which Attorney Wayne M. Collins collaborated with Mr. Adams.

On June 24, 1940, Judge Warren Steele affirmed the judgment, declaring that the question of constitutionality was ‘‘close’’, and “should be finally settled by the higher courts.”

Review Ordered By Supreme Court

The Union agreed with Judge Steele that the case should go up and its attorneys peti- tioned the United States Supreme Court to hear the case. In December, 1940, the Su- preme Court ordered a review of the case. Samuel Slaff of New York, A.C.L.U. attorney, submitted a brief and argued the case for Edwards on April 28 of this year. The District Attorney of Yuba county merely filed a brief in the Supreme Court. The court finally set the case for reargument at the October term and requested Attorney General Warren to appear and present evi= See

(Continued TT yy Col.

A QUESTION

Have you made your pledge or contribution to the A. C. L. U. for the current fiscal year ending October 31, 1942? About 175 supporters have thus far answered our regular appeal for funds. Naturally, we’ll have to hear from many more before we can hope to raise the following budget:

Salaries 2 $2,820.00 Printing and Stationery... 755.00 Rent 330.00 Postage 225.00 Telephone and Telegraph. 100.00 Traveling = 100.00 Publications .........-.-...........- 50.00 Miscellaneous ...............---.--50.00 Furniture and Equipment. 25.00 Waxes = 25.00 Total) $4,480.00

Our 1942 budget is $480 above our $4.000 budget of the past six years. Won’t you please ADD A DOLLAR to your usual donation in order to enable us to meet increased costs of operation?

We need an average donation of $7.50 from our members, but in order to attain that figure, we must receive many $15, $25 and $50 contributions. Therefore, please dig down and send a generous contribution, if you have not already done so. Incidentally, a lump sum payment of your pledge will save us the work and cost of future billing.

IF YOU WANT THIS IMPORTANT WORK TO CONTINUE IN THE PRESENT EMERGENCY; IF YOU WANT TO RECEIVE OUR MONTHLY PAPER, WON’T YOU PLEASE SEND YOUR CHECK OR PLEDGE NOW? R.S. V. P.

FORCED “CONFESSION” FOUGHT BY UNION IN OKLAHOMA

“A flagrant abuse of the civil rights of a person accused of crime’ is protested in a brief just filed in the Oklahoma Criminal Court of Appeals by Morris L. Ernst and Benjamin Kaplan, attorneys for the American Civil Liberties Union, seeking reversal of a conviction in a murder case. The defendant, W. D. Lyons, a 20-year-old farmer | of Fort Towson, Oklahoma, has been in the Oklahoma state penitentiary since January, 1940, on the basis of a forced —T “confession”’ of. the triple murder Of Elmar aos Rogers, his wife and young son.

Peace officers of Oklahoma, according to the National Association for the Advancement of Colored People, tortured Lyons unmercifully to extract a confession. He was rushed through a preliminary hearing in a courtroom crowded by persons worked up to a near-lynching pitch. Neither before nor during the trial did he have a lawyer to represent him. The two local lawyers assigned by the court to defend him refused to act and were excused by the court. |

The A.C.L.U.’s brief declares that “apart. from the alleged confessions, there is in- sufficient evidence in the record to base a eriminal conviction.” The brief also re- ferred to a “pan of bones” admittedly used to scare Lyons into “confessing.” Lyons, told that they were the bones of the victims, was forced to hold them in his lap during his inquisition.

HOBBS’ ALIEN BILL DITCHED BY HOUSE

By a decisive vote the House defeated the | Hobbs ‘“‘concentration camp” bill, authorizing the detention of aliens who have been ordered deported but cannot be returned to their home lands.

The opposition launched a vigorous attack against the measure, contending it would destroy the “fundamental rights of a free people.”’

Congressman John M. Coffee (Dem., Wash.), and Congressman Thomas H. Eliot (Dem., Mass.),voiced fears that “bureaucrats” might take advantage of the legislation to toss innocent persons, including members of organized labor, into concentration camps. This, they said, could be done without court hearings. Congressman Sam Hobbs (Dem., Ala.), author of the measure, denied any such purpose, and the opposition exonerated him from having that idea in mind. At the same time, they emphasized, other legislation just as innocent on its face had been misused by administrators in a manner never intended by Congress.

Page 2

Ministers Investigated for Protesting Against “Miscarriage of Justice” In C. O. Case

U. S. District Attorney William Fleet Palmer of Los Angeles has requested the FBI to investigate 20 Methodist ministers, including Bishop James C. Baker, because they protested against a “miscarriage of justice’ in the case of Henry Welty Kuhns. Kuhns, 22-year-old Methodist and graduate of Redlands University, was sentenced to two years in prison for violating the Selective Service Act. His local draft board refused to recognize his conscientious objections and the decision went against Kuhns on appeal. Instead of reporting for induction in the army, he surrendered to the FBI, was quickly indicted, tried, convicted and sentenced.

Following the sentencing, the conscientious objection committee of the Southern California Arizona Conference of the Methodist Church issued this statement:

“We are convinced that there has been a gross miscarriage of justice somewhere along the line. . . . There can be no honest question concerning ... the sincerity of his (Kuhns’) conscientious objection against military service. ... We pledge all the re- sources of the Methodist Church to the ef» fort to secure for him the right accorded by law to serve his country in some other field of national importance.”

U. S. District Attorney Palmer declared that “Publication and broadcasting of such statements generally would have a bad effect on the public morale and give the idea that if a young man had the support of a big organization he could hope to evade the draft.

“... We’ve got to put a stop to such conduct and this appears to be a model case. A group of Methodists led by a bishop is no different than any other class in the eyes of the law. This is no time to defy or ob structthe Goverment -of tre United States.’

The Southern California branch of the A. C. L. U. immediately sent a letter to At- torney General Francis. Biddle requesting an investigtaion of the statement by U.S. Attorney Palmer. Said the Union:

“We have no objection to a thoroughgoing investigation by the FBI or anyone else into acts of anyone constituting violations of the terms of the Selective Service Act. Mr. Palmer’s announcement, however, is calculated to intimidate law-abiding, and particularly religious, leaders and organizations from expressing themselves upon the administration of the Selective Service Act, and from the calling of the attention of the public to miscarriage of justice in the enforcement of that act as to conscientious objectors.”

At this writing, Mr. Kuhns is still in prison, the Methodist ministers are still in their pulpits and Attorney General Biddle is still to be heard from. The A. C. L. U. is trying to have Mr. Kuhns paroled to a Civilian Public Service Camp.

DISMISSED TEACHER AIDED BY UNION

The New York City Civil Liberties Committee will offer its services as a friend of the court when argument is heard in the Supreme Court of New York on a motion to order the Board of Education to reinstate David Goldway, dismissed instructor at Townsend Harris Hall. Hearing on the motion is scheduled for December 5.

Goldway was discharged after refusing to sign a waiver of immunity when asked to testify before the Rapp-Coudert Committee investigating alleged subversive influ- ences in the New York school system. The Civil Liberties Committee is assisting in his court test of the dismissal on the ground that the waiver offered him was too broad, and hence violated his constitutional rights of immunity. It is claimed that the waiver he was asked to sign covered subjects outside the scope of the Rapp-Coudert Committee’s investigation.

Roger a ldseis Reports

Country Calm Despite Crisis

America is calm in the midst of the national debate on the threatening conflict, but ‘ominous tendencies” imperilling our civil liberties “‘clearly mark the scene,” Roger N. Baldwin, director of the American Civil Liberties Union, reported at a luncheon in his honor at the Town Hall Club in New York City.

Addressing members of the board and friends of the Union upon his return from a four-weeks’ coast-to-coast tour of the country in behalf of the A. C. L. U., Mr. Baldwin said that, ‘fon the whole, the processes of debate and dissent are reasonably intact. The calmness is marked, however, by a growing apprehension both as to the Administration’s policies and public intolerance in the critical days ahead.” The Rev. John HayneS Holmes, chairman of the board, presided at the luncheon, which was attended by 200 guests.

In his “Report from the Country,” Mr. Baldwin said, in part: “Coast-to-coast contacts with people in all walks of life reveal an amazing calmness in the midst of the most critical debate in American history. The national temperature has not risen. There is no excitement even on the Pacific Coast in the face of threatened conflict with Japan. The interventionists and anti-interventionists debate without bitterness. The whole climate of public opinion is free from the kind of hysteria which marked similar days in 191%.

“This extraordinary temper is to be accounted for, I think, by the fact that people feel the issues too big for control by debate and discussion. The world situation has got beyond them, resulting in the numbness induced by the long strain of recurring crises. The net effect, so far as civil liberties are concerned, is an unusual tolerance. I encountered no spirit of vigilantism anywhere. Hostility to unpopular minorities has declined. Jehovah’s Witnesses, as the most conspicuous victims on account of their refusal to salute the flag, are suffering less interference than in months. There is little anti-alien feeling and comparatively little anti-Semitism.

“But ominous tendencies clearly mark the scene. Interests hostile to civil liberties are in commanding positions in many state defense councils. A formidable public opinion favoring suspension of liberties in crisis is directed chiefly against the right of labor to strike. Hostility to Communists has not decreased since the entry of Russia into the war, and they are everywhere tending to disguise their activities under professedly non-partisan auspices. Considerable fear is expressed in liberal circles throughout the country against the activities of the F. B. I. in investigating subversive activities and opinions. Resistance to encroachments on liberties is obviously likely to be less and public attention to them comparatively slight in view of preoccupation with the international scene.”

BIDDLE REASSURES UNION ON ‘DIES’ LIST

Answering an inquiry by the Union concerning the purpose of the report submitted to him By the Dies Commiittee listing the names of 1,124 government workers as Communists and alleged fellow-travelers, Attorney General Francis Biddle pointed out that the F.B.I. must investigate, “‘by mandate of Congress,” employees on the Federal pay-roll ““who are members of subversive organizations or advocate the overthrow of the Federal Government.”’

‘“Representaties of the Federal Bureau of Investigation are examining evidence which the Committee has,’ wrote Mr. Biddle, ‘and on the basis of which the various indi- viduals enumerated were included in the list. If the evidence in respect to any in- dividual appears to be flimsy or unreliable, that ends the matter so far as such individual is concerned.”

Mr. Biddle reassured the Union that “‘in each instance in which an investigation is undertaken, such investigation is as complete as is reasonably practicable to the end that no injustice may be done to any employee.”

OKLAHOMA CRIMINAL SYNDICALISM APPEAL AIDED

A brief amicus curiae has been filed in the Oklahoma Criminal Court of Appeals by Arthur Garfield Hays, general counsel for the A.C.L.U., in connection with the appeal of Robert Wood, Communist Party state secretary, from a ten-year penitentiary term and a fine of $5,000 for selling Marxist literature.

The central issue, as viewed by Mr. Hays, is whether the state may subject the de- fendant to loss of liberty simply because he sold and displayed books dealing with eco- nomic and social problems.” Wood, who operated a book shop in Oklahoma City, was convicted under a statute making it a felony to issue, circulate, or publicly display literature advocating violence for industrial or political ends.

“By its literal construction of the language of the statute,” says the brief, “the trial court applied its provisions in a manner to abridge the defendant’s right to freedom of speech and of press and deprived him of his liberty without due process of law.” :

STEINBECK FILM PASSED BY HIGH BOARD

Lifting of the censor’s ban on “The Forgotten Village,’ following protests by =the Council-on Freedom From Censorship of the American Civil Liberties Union, is hailed by Judge Dorothy Kenyon, who * wrote the Council’s brief in the appeal to the New York State Board of Regents, as a “blow” to censorship of motion pictures. Censors of the Motion Picture Division of the State Department of Education banned the John Steinbeck-Herbert Kline picture last August, holding scenes showing a woman in labor and a nursing mother were “indecent” and “inhuman.” The regents © reversed the censors arid granted a license to the documentary film of Mexican life, © despite a sub-committee of regents who had viewed the picture previously and who had recommended sustaining the ban. Judge Kenyon commented following th regents’ action: “It is refreshing to learn that the regents have overruled the very narrow and, if I may say so, old-fashioned, viewpoint of the censor. It is to be presumed that their decision is based on the broad principle that pictures are a medium of education quite as much as of entertain- ment. I hope this decision will contribute to the finish of movie censorship in this state as well as in the six other states.”

MINNESOTA SEDITIOUS CONSPIRACY TRIAL ENTERS SECOND MONTH

The Minneapolis ‘‘sedition” trial has entered its second month. While 28 persons went to trial, the charges against five of them were dismissed by the court at the conclusion of the Government’s case.

According to the Government, the theories of Marx, Engels, Lenin and Trotsky are conspiratorial. U. S. Attorney Victor Anderson charged the Socialist Workers Party, members of which are on trial, with advocating these theories. Much of the - Government’s tangible evidence of conspiracy consists of excerpts from books which have been classics of the socialist movement for decades. The bulk of the testimony against the defendants was presented by 22 witnesses who are members of the A. F. of L. Teamsters Union, which has been in a bitter union fight with the predominant C. I. O. Union to which many of the defendants belong.

COMMONWEALTH COLLEGE | CASE CLOSED

Because no further court appeal is possible, the American Civil Liberties Union has discontinued efforts to obtain redress for a series of “gross injustices’ committed against Commonwealth College, defunct Arkansas labor college. ;

After a raid on the college by county authorities in September, 1940, charges were brought against the school as a corporation, although it had officially closed and had turned over its valuable property to another organization. Judgment was entered against the college after conviction before a Justice of the Peace in Mena, Ark., on the grounds of “‘anarchy,” displaying an emblem of a foreign government and failure to display the American flag while classes were in session. A total of $2,500 was assessed against the college.

An appeal was taken to the Arkansas Circuit Court, where a trial last January re- sulted in conviction on all three counts and a like fine was ordered. Subsequently an appeal to the Supreme Court of Arkansas failed, for highly technical reasons.

Under the Arkansas judgment, real estate belonging to the college was sold for $2,250. All the movable and personal property also has been sold. Buildings on the land are now reported in a greatly damaged condition and are said to be deteriorating rapidly. The land may be redeemed within a year by payment of the purchase price plus fifteen per cent. Such redemption, however, would restore the various claims and debts against the property.

UNION ATTACKS “DUAL CITIZENSHIP” BILL

A vigorous protest is voiced by the American Civil Liberties Union against the “dual citizenship” bill (H.R. 5879) now before the Committee on Immigration and Nat- uralization in the House of Representatives. The bill provides that naturalized citizens -and native-born citizens of foreign parentage who also are considered subjects by foreign countries may be required to affirm or renounce allegiance to this country.

The Union’s objections are contained in a letter to Representative Samuel Dickstein, chairman of the House Committee, from the Rev. John Haynes Holmes, chairman of the board of the A.C.L.U. Dr. Holmes described the bill, which calls for loss of nationality for refusal to take the oath, as ‘a fantastic and disruptive measure out of all proportion to any legitimate aims to be accomplished.’’ Harassment of American citi- zens and an unconstitutional discrimination between natives of American and of foreign born parentage would result, Dr. Holmes | charged. The bill was also attacked as “extremely vague” and as potentially “a powerful weapon in the hands of the Immi- gration Service when directed against those deemed undesirable by the Service.

HIGH COURT DECISION DUE IN CITIZENSHIP CASE

With the granting of certiorari by the United States Supreme Court in the case of Louis Weber, whose naturalization was denied by Federal Judge Harry A. Holzer in Los Angeles, a decision is assured by the highest court in the land on the right of an indigent alien to naturalization. The petition for certiorari was filed by A. L. Wirin, attorney for the Southern California Branch of the American Civil Liberties Union.

Weber, prior to his application for naturalization, had been on county Charity. Because of a combination of old age and public relief, Judge Holzer denied his ap- plication for naturalization on the ground that he was not “attached to the principles of the Constitution.” This decision was affirmed by the Ninth Circuit Court of Ap- peals, where the Department of Justice’s “confession of error’ admitted the basis of Judge Holzer’s ruling was “without statutory authority and plainly unwise.”

Sesqui-C To

By Act of Congress, December 15 has beén set aside as Bill of Rights Day to com- memorate the sesquicentennial of the enactment of that document. The Office of Civ- ilian Defense has undertaken chief responsibility for the celebration. Local celebra- tions are in charge of representatives of the Office.

In general, the celebration involves the distribution of half a million pamphlets, an hour’s network program 10-11 E. S. T., public school celebrations, and community affairs under the auspices of local mayors and other leaders.

It is important for the members of the Civil Liberties Union to use their influence to infuse the Bill of Rights Day Celebrations with some realization of the living issues in order to avoid a mere glorification of the Bill of Rights as abstract principle. To do so we should urge upon those in charge of celebrations recognition of the following points:

1. The necessity of eternal vigilance by all defenders of the Bill of Rights against any encroachments on the right of any minority to speak, print, meet, and organize. We should make clear again that the line must be drawn between mere language and propaganda on the one hand and deeds or attempted deeds on the other.

2. Weshould counteract the tendency to suspend liberties in time of crisis, empha- sizing the opinion of the Supreme Court in a case of ex parte Milligan after the Civil aie:

“The Constitution of the United States is a law for-rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine involving more pernicious consequences was

entennial of The | Be Gelebrated Bill of Rights December 15

ever invented by wit of man than that any of its provisions can be suspended during any of the great exigencies of — government.”’

3. We should emphasize the fact that the Bill of Rights not only protects the rights of minorities to oppose governmental policies, but of the majority to hear all sides of controversy in order that public opinion may be based soundly on all arguments.

4, Weshould encourage positive steps to : promote public debate and dissent by (a) urging that public places—parks, streets and public school buildings—be made available for the discussion of public issues; (b) encouraging local radio stations to put on the forum type of debate on local as well as national issues; (c) encouraging debate in the press by presenting the varied sides of controversy; (d) emphasizing the lesson that while courts and laws do much to preserve civil liberty, they depend in the last analysis on public opinion and the pressures it brings to bear on government.

5. Specific attention may well be urged to the (a) rights of Jehovah’s Witnesses to carry on their propaganda; (b) rights of Communists and minority political parties generally to function on the ballot and in the arena of publi¢ opinion; (c) rights of labor to organize, bargain collectively, to strike and to picket; (d) rights of Negroes and other races to be free from discrimination in the public services; (e) the neces- sity of maintaining free of any governmental control the programs on the radio.

6. An effort should be made to get speakers in the Bill of Rights Celebrations who will emphasize these points. Where that is impracticable, letters should be written to local newspapers stressing these points and requesting comment on them.

The Bill Amendment I. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Amendment II. A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

Amendment III. No soldier shall in time of peace be quartered in any house without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

Amendment IV. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

Amendment V. No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentation or indictment of a grand jury, except in cases arising in the land or naval forces, or the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be de

of Rights

prived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Amendment VI. In all criminal prosecutionsg the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, ‘which district shall have been previously ascertained by law, and to be informed of the ‘nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

Amendment VII. In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

Amendment VIII. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Amendment IX. The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.

Amendment X. The powers ‘not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. oo

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study of Democracy In Trade Unions Begun

Appointment of a special committee to undertake a study of democracy in trade unions was announced last month by the board of directors of the American Civil Liberties Union. The aim of the study will be to reveal the practices, both good and bad, found in the operation of trade unions which affect the freedom and rights of individual union members.

Professor Eduard C. Lindeman is chairman of the committee, whose members include: Alfred Bingham, Mrs. Dorothy Dunbar Bromley, John Chamberlain, Professor George 8. Counts, Morris L. Ernst, Walter Frank, Arthur Garfield Hays, Eliot D. Pratt and Norman Thomas. Professor Frank Pier son, of the division of economics of Swarthmore College, is in charge of the study.

The trade union study is only one of a series of research projects into the “expand- ing contours’”’ of freedom to be undertaken by the committee. Proposals are pending before the committee for inquiries into the “narrowing” of the various channels of - communication such as radio, the press and motion pictures. Other proposals are con- cerned with questions of group libel, new devices of censorship procedure utilized by legislative investigating committees, and the manner in which individual freedom is 3eopardized by private associations. Professor Lindeman stressed the point that there is no intention to investigate organizations for the purpose of ‘‘exposing”’ . their practices. ‘The chief aim,” he said, “is to discover how to apply democratic principles in those spheres not foreshadowed by the classical concept of liberty.” Whether the American Civil Liberties will be urged to enlarge or modify the scope of. its work in the light of these studies will depend upon the nature of the facts uncovered, he added.

Safeguards Against Civil. Service Dismissals Urged

Present machinery covering the discharge of employees from the federal Civil ServIce system “is inefficient and unfair,’ according to a memorandum submitted to the board of directors of the Civil Liberties Union.

Cases of dismissals from government service, the board was informed ‘show the vagueness of the grounds on which dismissals are being based.” It was recommended that “safeguards must be strengthened to protect the innocent where proof is inadequate and prejudice rife.”’

A crop of dismissals based on claims of alleged membership in or advocacy of soealled subversive groups inspired a series of recommendations to be followed where the nature of the charges and the character of the evidence is flimsy or biased. A sevenpoint program was approved containing the following guarantees against arbitrary dis- -missals: a bill of particulars to enable the employee to prepare an adequate defense, - an interview or informal hearing within ten days thereafter, granting of a formal hear- ing with ten days’ notice, right of counsel at such hearings, copies of the record for the Civil Service Commission and the employee, review of discharges by the com- mission and no withholding of salary until final determination of the case.

The memorandum pointed out that “in times of war hysteria it is naive to believe that a person charged with being a member of an unpopular group will be fairly dealt with’ under present procedure, where judgment is rendered solely on the basis of written material. The Union admitted that a full hearing in all cases might be impractical, but added: “Once having em ployed an individual, the burden of proving the employee disloyal, in order to remove him from his position, should be on the government.” It was emphasized that the recommendations applied solely to dismissals of civil service employees, not to trans fers or suspensions pending removal.

Free Speech In The United States

FREE SPEECH IN THE UNITED STATES. By Zechariah Chafee, Jr. Cambridge. Harvard University Press. 1941. 634 pp. $4.00. Reviewed by ROGER N. BALDWIN. Professor Chafee, in this volume of 600 pages, brings up to date his text on free speech, which has been since 1920 the ehief authority for both lawyers and laymen. Though the book never had a large sale, it has long been out of print, and the need for filling it out to the present is obvious.

The earlier book was written in the dis- ‘couraging days after the World War, when the Supreme Court had found specious grounds for sustaining the wartime regulations, and had embarked upon a policy of judicial repression. The new volume appears at a time when the Court has pretty much reversed all the concepts of those years, yet when the country again faces a comparable crisis. Professor Chafee was induced to undertake the formidable task | of adding to it the record of the last twenty years, by his desire to contribute to an avoidance of the tragic mistakes of the last war. He feels that the restraints on opinion at that time precluded support of Wilson’s internationalism, and the consequent withdrawal of the United States from any responsibility toward world democracy, with the second world war as the inevitable catastrophe.

Professor Chafee is no mere compiler of laws and decisions. He is a man with a philosophy and a program. He insists again and again on freedom of speech, not for the minorities endangered but for the majority to whom debate is essential for hammering out enduring policies. He is not content with mere defense. He repeatedly insists upon positive encouragements of free speech through every possible medium. He has no illusions that court decisions guarantee tolerance or protect liberties. He rests his case on building a popular faith through debate and dissent, maintaining that a nation has about as much free speech as it wants. “‘Open discussion of the issues,” he holds, ‘‘depends on all the great body of unofficial citizens. If a community does not respect liberty for unpopular ideas we

TEXAS ANTI-STRIKE LAW UNDER FIRE

Constitutionality of the Texas anti-strike law is challenged by the American Civil Liberties Union ina brief filed last month by Percy S. Straus, Jr., of Houston, Union at-' torney, with the Texas Court of Criminal Appeals at Austin. The brief, submitted bv Mr. Straus as a friend of the court, supports the habeas corpus proceedings instituted by counsel for Jack Frye, arrested labor unien leader. Frye, regional director of the United Mine Workers, District 50, in the Houston area, was indicted under a statute which decrees a one-to-two-year sentence for preventing workers from engaging in their lawful occupation and for unlawful assemblage near the place of a “labor disute.”

E The statute, passed during the gubernatorial regime of Senator O’Daniel, was at- tacked in the brief as unconstitutional, null and void. The statute violates Frye’s constitutional rights and privileges, both Federal and state, the brief argues. The following constitutional guarantees, among others, are denied by the anti-strike law, according to the brief: equal protection of the laws, due process of law, free speech and press and freedom of assemblage. Mr. Straus contends that the statute violates the civil liberties of the people of Texas “in that it is class legislation and is so indefinite and uncertain and vague as to set no standard by which a reasonable man can guide his conduct, nor does it apprise the ordinary and reasonable man what is prohibited.”

can easily drive such ideas underground.’ And he warns against present tendencies by urging that, “It would be folly in our anxiety to protect ourselves from foreign tyrants to sacrifice in the process of national defense the very liberties which we are defending.”’

The book reprints, with fairly complete revision and in language deliberately made clear to laymen, Professor Chafee’s discussion of free speech up to 1920; treats “The First Decade of Peace’’ through the cases brought chiefly against Communists and I, W. W.’s; then discusses the more liberal Supreme Court interpretations under Chief Justice Hughes. A biting chapter excoriates the federal ‘‘alien and sedition act of 1940,” and the recent epidemic of state statutes excluding Communists from the ballot. Professor Chafee examines the methods of controlling free speech in peacetime, and winds up with a compact chapter of his personal philosophy.

It is to be regretted that the book ignores what would reasonably appear to be the two greatest issues of free speech today—. radio and the trade unions. No reference is made to the National Labor Relations Act and its guarantees of civil liberty. Since its restraints operate against private employers, not the government, Professor Chafee may have regarded it as outside his field. Yet the effects of the act on freedom of speech have been epochal. And freedom of the radio is obviously so vastly more important to public debate and dissent than the right to hire halls, speak on street corners, or publish free from prosecution, that its omission is difficult to explain, save that | there are few court cases.

Professor Chafee’s style is so free of tech oe nicalities as to be almost journalistic, andis —s—| often spicy and witty. It is charged with sufficient emotion to give life to legal cases.

“I am incapable,” he says, “of speaking calmly about what I believe to be injustice.” - The volume is not only an indispensable reference book on free speech, but a tract for the times. (Reprinted from The Saturday Review, Nov. 8, 1941. If you desire to secure a copy of this book, mail your check to the A. C. L. U. and we will have it sent to you.)

UNION SEES FREE SPEECH THREAT IN LIBEL CASE AGAINST COLUMNISTS

“Curtailment of freedom of speech and of the press” is contained in the seventy-odd libel suits filed by Martin L. Sweeney, Ohio Representative, against publishers of a “Washington Merry-Go-Round” column written by Drew Pearson and Robert S. Allen, according to the American Civil Liberties Union. The Union will file a brief amicus curiae in one of the cases now pending in the courts.

The series of suits is based on Sweeney’s allegation that his reputation as a Con- gressman and as a lawyer was damaged by publication of a ““Merry-Go-Round” article which charged him with opposing appoint-. ment of a Cleveland judge because he was a Jew and not born in this country. The columnists also said Sweeney is “known as the chief congressional spokesman of Father Coughlin.”

The Union takes the position that it is not libelous per se to say of a public official or — of a person who engages in public discussion that he holds a certain opinion on a public issue. An opinion of the Circuit Court of Appeals for the Second Circuit in | a suit involving the Schenectady Union Publishing Company, reversing a decision of the lower Federal Court which ruled against Sweeney, was characterized by the Union as “so far extending the libel law as to present a dangerous curtailment of freedom of speech and of the press.” 2 day interval he had no. employment.

U.S. SUPREME COURT SUPREME COURT OF THE UNITED STATES

No. 17.—October Term, 1941. Fred F. Edwards, Appellant, vs. The People of the State of California.

Appeal from the Superior Court of the State of California in and for the County of Yuba.

November 24, 1941.

Mr. Justice Byrnes delivered the opinion of the Court.

The facts of this case are simple and are not disputed. Appellant is a citizen of the United States and a resident of California. In December, Marysville, California, for Spur, Texas, with the intention of bringing back to Marysville his wife’s brother, Frank Dunean, a citizen of the United States and a resident of Texas. When he arrived in Texas, appellant learned that Duncan had last been employed by the Works Progress Administration. Appellant thus became aware of the fact that Duncan was an indigent person and he continued to be aware of it throughout the period involved in this ease. The two men agreed that appellant should transport Duncan from Texas to Marysville in appellant’s automobile. Accordingly, they left Spur on January l, 1940, entered California by way of Arizona on January 3, and reached Marysville on January 5. When he left Texas, Duncan had about $20. It had all been spent by the time he reached Marysville. He lived with appellant for about ten days until he obtained financial assistance from the Farm Security Administration. During the ten

Convicted Under “Anti-Okie Law”

In Justice Court a complaint was filed against appellant under Section 2615 of the Welfare and Institutions Code of California, which provides: “‘Every person, firm or corporation, or officer or agent thereof that brings or assists in bringing into the State any indigent person who is not a resident of the State, knowing him to be an indigent person, is guilty of a misdemeanor.” On demurrer to the complaint, appellant urged that this Section violated several provisions of the Federal Constitution.. The demurrer was overruled, the cause was tried, appellant was convicted and sentenced to six months’ imprisonment in the county jail, and sentence was suspended.

On appeal to the Superior Court of Yuba County, the facts as stated were stipulated. The Superior Court, although regarding as “close” the question of the validity of the Section, felt ‘‘constrained to uphold the statute as a valid exercise of the police power of the State of California’. Consequently, the conviction was affirmed. No appeal to a higher state court was open to appellant. We noted probable jurisdiction early last term, and later ordered reargument (313 U.S. 545) which has been held.

Who Is An Indigent?

At the threshold of our inquiry a question arises with respect to the interpretation of Section 2615. On reargument, the Attorney General of California has submitted an exposition of the history of the Section, which reveals that statutes similar, though not identical to it have been in effect in California since 1860. (see Cal. Stat. (1860) 213; Cal. Stat. (1901) 636; Cal. Stat. (1933) 2005). Neither under these forerunners nor under Section 2615 itself does the term “indigent person’? seem to have been accorded an authoritative interpretation by the California courts. The appellee claims for the Section a very limited scope. It urges that the term “indigent. person” must be taken to include only persons who are presently destitute of property and without resources to obtain the necessities 1939, he left his home in of life, and who have no relatives or friends able and willing to support them. It is conceded, however, that the term is not confined to those who are physically or mentally incapacitated. While the generality of the language of the Section contains no hint of these limitations, we are content to ‘assign to the term this narrow meaning.

Law Violates ‘“Commerce Clause”

Article I, Section 8 of the Constitution delegates to the Congress the authority to regulate interstate commerce. And it is settled beyond question that the transporta- tion of persons. is “commerce”, within the meaning of that provision.! It is neverthe- less true that the States are not wholly precluded from exercising their police power in matters of local concern even though they may thereby affect interstate commerce. California v. Thompson, 313 U. S. 109, 113. The issue presented in this case, therefore, is whether the prohibition embodied in Section 2615 against the “‘bringing’ or transportation of indigent persons into California is within the police power of that State. We think that it is not, and hold that it is an unconstitutional barrier to interstate commerce.

Not Concerned With Wisdom of Laws

The gravity and perplexity of the social and economic dislocation which this statute reflects is a matter of common knowledge and concern. We are not unmindful of it. We appreciate that the spectacle of large segments of our population constantly on the move has given rise to urgent demands upon the ingenuity of government. Both the brief of the Attorney General of California and that of the Chairman of the Se-. lect Committee of the House of Representatives of the United States as amicus curiae have sharpened this appreciation. The State asserts that the huge influx of migrants into California in recent years has resulted in problems of health, morals, and especially finance, the proportions of which are staggering. not true. We have repeatedly and recently affirmed, and we now reaffirm, that we do not conceive it our function to pass upon “the wisdom, need, or appropriateness’ of the legislative efforts of the States to solve such difficulties. See Olsen v. Nebraska, 313 6 256, ZAG.

States Must Sink or Swim Together

But this does not mean that there are no boundaries to the permissible area of State legislative activity. There are. And none is more certain than the prohibition against attempts on the part of any single State to isolate itself from difficulties common to all of them by restraining the transportation of persons and property across its borders. It is frequently the case that a State might gain a momentary respite from the pressure of events by the simple expedient of shutting its gates to the outside world. But, in the words of Mr. Justice Cardozo: “The Constitution was framed under the domin- jon of a political philosophy less parochial in range. It was framed upon the theory that the peoples of the several States must sink or swim together, and that in the long run prosperity and salvation are in union and not division.”’ Baldwin v. Seelia, 294 U.S, 6H, 5238.

It is difficult to conceive of a statute more squarely in conflict with this theory than the Section challenged here. Its express purpose and inevitable effect is to prohibit the transportation of indigent persons across the California border. The burden upon interstate commerce is intended and immediate; it is the plain and sole function 1 Gloucester Ferry Co. v. Pennsylvania, 114 U. S. 196, 203; Leisy v. Hardin, 185 U. S. 100, 112; Covington Bridge Co. v. Kentucky, 154 U. S. 204, 218; Hoke v. United States, 227 U. S. 308, 320;Caminetti v. United States, 242 U. S. 470, 491; United ‘States v. Hill, 248 U. S. 420, 423; Mitchell v. United States, 313 U. S. 80. Cf. The Federal Kidnaping Act of 19382, U.S. C., Title 18, §§ 408a-408c. It is immaterial whether or not the transportation is commercial in character. See Caminetti v. United States, supra.

Tt is not for us to say that this is.

of the statute. Moreover, the indigent nonresidents who are the real victims of the statute are deprived of the opportunity to exert political pressure upon the California legislature in order to obtain a change in policy. South Carolina Highway Department v. Barnwell Bros., 303 U.S. 177, 185, n.2. We think this statute must fail under any known test of the validity of State interference with interstate commerce.

Problem Not Local in Character

It is urged, however, that the concept which underlies Section 2615 enjoys a firm basis in English and American history.2 — This is the notion that each community should care for its own indigent, that relief is solely the responsibility of local government. Of this it must first be said that we are not now called upon to determine anything other than the propriety of an attempt by a State to prohibit the transportation of indigent non-residents into its territory. The nature and extent of its obliga-. tion to afford relief to newcomers is not here involved. We do, however, suggest that the theory of the Elizabethan poor laws no longer fits the facts. Recent years, and particularly the past decade, have been marked by a growing recognition that in an industrial society the task of providing assistance to the needy has ceased to be local in character. The duty to share the burden, if not wholly to assume it, has been recognized not only by State governments, but by the Federal government as well. The changed attitude is reflected in the Social Security laws under which the Federal and State governments cooperate for the care of the aged, the blind and dependent children. U.S. C., Title 42, Secs. 301-1307, esp. Sees: 301. 501, 601, 70l, 721, 801, 1201. It is reflected in the works programs under which work is furnished the unemployed, with the States supplying approximately 25 per cent and the Federal government approximately 75 per cent of the cost. See, e. g., Joint Resolution of June 26, 1940, c. 482, Sec. 1(d), 76th Cong., 3rd Sess., 54 Stat. 611, 613. It is further reflected in the Farm Security laws, under which the entire cost of the relief provisions is borne by the Federal government. Id., at Secs. 2(a), 2(b),2(d).

Relief of Needy a National Problem

Indeed the record in this very case illustrates the inadequate basis in fact for the theory that relief is presently a local matter. ceived assistance from the Works Progress Administration. After arriving in California he was aided by the Farm Security Administration, which, as we have said, is wholly financed by the Federal government. This is not to say that our judgment would be different if Duncan had received relief from local agencies in Texas or California. Nor is it to suggest that the financial burden of assistance to indigent persons does not continue to fall heavily upon local and State governments. It is only to illustrate that in not inconsiderable measure the relief of the needy has become the com| mon responsibility and concern of the | whole nation.

Problem Needs Regulation by Single Authority

What has been said with -respect to financing relief is not without its bearing upon the regulation of the transportation of indigent persons. For the social phenomenon of large-scale interstate migration is as certainly a matter of national concern as the provision of assistance to those who have found a permanent or temporary abode. Moreover, and unlike the relief problem, this phenomenon does not admit of diverse treatment by the several States. The prohibition against. transporting indigent non-residents into one State is an open invitation to retaliatory measures, and the burdens upon the transportation of such 2See Hirsch, H. M., Our Settlement Laws (N. Y. Dept. of Social Welfare, 1933), passim.

Before leaving Texas, Duncan had re

Page 6

persons becomes cumulative. Moreover, it would be a virtual impossibility for mi- grants and those who transport them to acquaint themselves with the peculiar rules of admission of many states. “This Court has repeatedly declared that the grant (the commerce clause) established the immunity of interstate commerce from the control of the States respecting all those subjects embraced within the grant which are of such 2. nature as to demand that, if regulated at all, their regulation must be prescribed by a Single authority.”” Milk Control Board v. Eisenberg Farm Products, 306 U. S. 346, 351. We are of the opinion that the transportation of indigent persons from State to State clearly falls within this class of subjects. The scope of Congressional power to deal with this problem we are not now : called upon to decide.

No Exception in Case of Paupers

There remains to be noticed only the contention that the limitation upon State power to interfere with the interstate transportation of persons is subject to an exception in the case of ‘“‘paupers’”’. It is true that support for this contention may be found in early decisions of this Court. In City of New York v. Miln, 11 Pet. 103, at 148, it was said that it is “as competent and as necessary for a State to provide precaution- ary measures against the moral pestilence of paupers, vagabonds, and possibly con- victs, as it is to guard against the physical pestilence which may arise from unsound and infectious articles imported . . . .” = This language has been casually repeated in numerous later cases up to the turn of the century. See, e. g., Passenger Cases, 7 How. 288, 426 and 466-467; Railway Company v. Husen, 95 U.S. 465, 471; Plumley v. Massachusetts, 155 U. S. 461, 478; Missouri, Kansas and Topeka Ry. v. Haber, 169 U.S. 618, 629. In none of these cases, however, was the power of a State to exclude “paupers” actually involved.

Previous Decisions Overruled

Whether an able-bodied but unemployed person like Duncan is a “‘pauper’’ within the historical meaning of the term is open to considerable doubt. See 53 Harvard L. Rev. 1031, 1032. But assuming that the term is applicable to him and to persons similarly situated, we do not consider ourselves bound by the language referred to. City of New York v. Miln was decided in 1836. Whatever may have been the notion ' then prevailing, we do not think that it will now be seriously contended that because a person is without employment and without funds he constitutes a ‘‘moral pestilence’’. Poverty and immorality are. not synonymous.

We are of the opinion that Section 2615 is not a valid exercise of the police power of California, that it imposes an unconstitutional burden upon interstate commerce, * and that the conviction under it cannot be sustained. In the view we have taken it is unnecessary to decide whether the Section is repugnant to other provisions of the Con- stitution. é

Reversed.

Mr. Justice Douglas, concurring.

I express no view on whether or not the statute here in question runs afoul of Art. I, Sec. 8 of the Constitution granting to Congress the power “to regulate Commerce with foreign Nations, and among the several States.”’ But I am of the opinion that the right of persons to move freely from State to State occupies a more protected position in our constitutional system than does the movement of cattle, fruit, steel and coal across state lines. While the opinion of the Court expresses no view on that issue, the right involved is so fundamental that I deem it appropriate to indicate the reach of the constitutional question which is present.

Privileges and Immunities Clause Invoked

The right to move freely from State to State is an incident of national citizenship protected by the privileges and immunities clause of the Fourteenth Amendment against State interference. Mr. Justice Moody in Twining v. New Jersey, 211 U.S. 78, 97, stated, “Privileges and immunities of citizens of the United States are only such as arise out of the nature and essential character of the National Government, or are specifically granted or secured to all citizens or persons by the Constitution of the United States.’’ And he went on ‘to state that one of those rights of national citizenship was “‘the right to pass freely from State to State’’. apparent that this right is not specifically granted by the Constitution. Yet before the Fourteenth Amendment it was recognized as a right fundamental to the national character of our Federal government. It was so decided in 1867 by Crandall v. Nevada, 6 Wall. 35. In that case this Court struck down a Nevada tax “‘upon -every person leaving the State” by common carrier. Mr. Justide Miller writing for the Court held that the right to move freely throughout the nation was a right of national citizenship. That the right was implied did not make it any the less “guaranteed” by the Constitution. Id., p. 47. To be sure, he emphasized that the Nevada statute would obstruct the right of a citizen to travel to the seat of his national government or its offices throughout the country. And see United States v. Wheeler, 254 U.S. 281, 299. But there is not a shred of evidence in the record of the Crandall case that the persons there involved were en route on any such mission any more than it appears in this case that Duncan entered California to interview some federal agency. The point which Mr. Justice Miller made was merely in illustration of the damage and havoe which would ensue if the States had the power to prevent the free movement of citizens from one State to another. This is emphasized by his quotation from Chief Justice Taney’s dissenting opinion in the Passenger Cases, 7 How. 283, 492: “We are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.” Hence the dictum in United States v. Wheeler, supra, p. 299, which attempts to limit the Crandall case to a holding that the statute in question directly burdened “the performance by the United States of its governmental functions,” does not bear analysis.

A Right of National Citizenship

So, when the Fourteenth Amendment was adopted in 1868 it had been squarely and authoritatively settled that the right to move freely from State to State was a right of national citizenship. As such it was protected by the privileges and immunities clause of the Fourteenth Amendment against state interference. Slaughter House Cases, 16 Wall. 36, 74, 79. In the latter case Mr. Justice Miller recognized that it was so “‘protected by implied guarantees” of the Constitution. Id., p. 79. That was also acknowledged in Twining v. New Jersey, supra. And Chief Justice Fuller in Williams v. Fears, 179 U. S. 270, 274, stated: “Undoubtedly the right of locomotion, the right to remove from one place to another according to inclination, is an attribute of personal liberty, and the right, ordinarily, of free transit from or through the territory of any State is a right secured by the Fourteenth Amendment and by other provisions of the Constitution.”

In the face of this history I cannot accede to the suggestion (Helson v. Kentucky, 279 U.S. 245, 251; Colgate v. Harvey, 296 U. Se 404, 444) that the commerce clause is the appropriate explanation of Crandall v. Nevada, supra. Two of the Justices in that case expressly put the decision on the commerce clause; the others put it on the broader ground of rights of national citizenship, Mr. Justice Miller stating that “we do not concede that the question before us is to be determined” by the commerce clause. Id., p. 43. On that broader ground it should continue to rest.

Not State Right

To be sure, there are expressions in the cases that this right of free movement of

Id., p. 97. Now it is.

persons is an incident of state citizenship protected against discriminatory state ac- tion by Art. IV, Sec. 2 of the Constitution. Corfield v. Coryell, 4 Wash. C. C. 371, 381; Paul v. Virginia, 8 Wall. 168, 180; Ward v. Maryland, 12 Wall. 418, 430; United States v. Wheeler, supra, pp. 298-299. Under the dicta of those cases the statute in the instant case would not survive, since California is curtailing only the free move- ment of indigents who are non-residents of that State. But the thrust of the Crandall case is deeper. Mr. Justice Miller adverted to Corfield v. Coryell, Paul v. Virginia, and Ward v. Maryland, when he stated in the Slaughter House Cases that the right pro- tected by the Crandall case was a right of national citizenship arising from the ‘“‘im- plied guarantees” of the Constitution. 16. Wall. at pp. 75-79. But his failure to class- ify that right as one of state citizenship protected solely by Art. IV, sec. 2, underscores his view that the free movement of persons throughout this nation was a right of national citizenship. It likewise emphasizes that Art. IV, Sec. 2, whatever its reach, is primarily concerned with the incidents of residence (the matter involved in United States v. Wheeler, supra) and the exercise of rights within a State, so that a citizen of one State is not in a “condition of alienage when he is within or when he removes to another State.” Blake v. McClung, 172 U.S. 239, 256. Furthermore, Art. IV, Sec. 2, cannot explain the Crandall decision. The statute in that case applied to, citizens of Nevada as well as to citizens of other States. That is to say Nevada was not “discriminating against citizens of other States in favor of its own.” Hague v. Committee for Industrial Organization, 307 U.S. 496, 511 and cases cited. Thus it is plain that the right of free ingress and egress rises to a higher constitutional dignity than that afforded by state citizenship.

Right Stands On Firm Historical Ground

The conclusion that the right of free movement is a right of national citizenship stands on firm historical ground. If a state tax on that movement, as in the Crandall case, is invalid, a fortiori a state statute which obstructs or in substance prevents that movement must fall. That result necessarily follows unless perchance a State can curtail the right of free movement of those who are poor or destitute. But to allow such an exception to be engrafted on the rights of national citizenship would be to contravene every conception of national unity. It would also introduce a caste system utterly incompatible with the spirit of our system of government. It would permit those who were stigmatized by a State as indigents, paupers, or vagabonds to be relegated to an inferior class of citizenship. It would prevent a citizen because he was poor from seeking new horizons in other States. It might thus withhold from large segments of our people that mobility which is basic to any guarantee of freedom of opportunity. The result would be a substantial dilution of the rights of national citizenship, a serious impairment of the principles of equality. Since the state statute | here challenged involves such consequences, it runs afoul of the privileges and immunities clause of the Fourteenth Amendment.

Mr. Justice Black and Mr. Justice Murphy join in this opinion.

Mr. Justice Jackson, concurring.

I-coneur in the result reached by the Court, and I agree that the grounds of its decision are permissible ones under applicable authorities. But the migrations of a human being, of whom it is charged that he possesses nothing that can be sold and has no wherewithal to buy, do not fit easily into my notions as to what is commerce. To hold that the measure of his rights is the commerce clause is likely to result eventusally either in distorting the commercial law or in denaturing human rights. I turn, therefore, away from principles by which commerce is regulated to that, clause of the Constitution by virtue of which Duncan is a citizen of the United States and which for

the United States,

Page 7

bids any state to abridge his privileges or immunities as such.

The Privileges and Immunities Clause

This clause was adopted to make United States citizenship the dominant and paramount allegiance among us. The return which the law has long associated with allegiance was protection. The power of citizenship as a shield against oppression was widely known from the example of Paul’s Roman citizenship, which sent the centurion scurrying to his higher-ups with the message: “‘Take heed what thou doest: for this man is a Roman.” I suppose none of us doubts that the hope of imparting to American citizenship some of this vitality was the purpose of declaring in the Fourteenth Amendment: ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or en force any law which shall abridge the-privileges or immunities of citizens of the United States)... fe

But the hope proclaimed in such generality soon shriveled in the process of judi- cial interpretation. For nearly three-quarters of a century this Court rejected every plea to the privileges and immunities clause. The judicial history of this clause and the very real difficulties in the way of its practical application to specific cases have been too well and recently reviewed to warrant repetition.

The “Almost Forgotten” Clause

* While instances of valid “privileges or immunities’? must be but few, I am con- vinced that this is one. I do not ignore or belittle the difficulties of what has been characterized by this Court as an ‘‘almost forgotten’ clause. But the difficulty of the task does not excuse us from giving these general and abstract words whatever of Specific content and concreteness they will bear as we mark out their application, case by case. That is the method of the com‘mon law, and it has been the method of this Court with other no less general statements in our fundamental law. This Court has not been timorous about giving concrete meaning to such obscure and vagrant phrases as “due process,” “‘general welfare,” ‘‘equal protection,” or even “commeree among the several States.”’ But it has always hesitated to. give any real meaning to the privileges and immunities clause lest it improvidently give too much.

This Court should, however, hold squarely that it is the privilege of citizenship of protected from state abridgment, to enter any state of the Union, either for temporary sojourn or for the establishment of permanent residence therein and for gaining resultant citizenship thereof. If national citizenship means less than this, it means nothing.

State Citizenship Ephemeral

The language of the Fourteenth Amendment declaring two kinds of citizenship is discriminating. It is: “‘All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”’ While it thus establishes national citizenship from the mere circumstance of birth within the territory and jurisdiction of the United States, birth within a state does not establish citizenship thereof. State citizenship is ephemeral. It results only from residence and is gained or lost therewith. That choice of residence was subject to local approval is contrary to the inescapable implications of the westward movement of our civilization.

Even as to an alien who had “been admitted to the United States under the Federal law,’ this Court, through Mr. Justice Hughes, declared that ‘““He was thus admitted with the privilege of entering and abiding in the United States, and hence of entering and abiding in any State in the Union.” Truax v. Raich, 239 U.S. 33, 39. Why we should hesitate to hold that federal citizenship implies rights to enter and abide in any state of the Union at least 1 See dissenting opinion of Mr. Justice Stone in Colgate v. Harvey, 296 UL S. 404, 436, et seq.

equal to those possessed by aliens passes my understanding. The world is even more up- side down than I had supposed it to be, if California must accept aliens in deference to their federal privileges but is free to turn back citizens of the United States unless we treat them as subjects of commerce.

The right of the citizen to migrate from state to state which, I agree with Mr. Jus- tice Douglas, is shown by our precedents to be one of national citizenship, is not, how- ever, an unlimited one. In addition to being subject to all constitutional limitations imposed by the federal government, such citizen is subject to some control by state governments. He may not, if a fugitive from justice, claim freedom to migrate unmo- lested, nor may he endanger others by carrying contagion about. These causes and perhaps others that do not occur to me now, warrant any public authority in stopping a man where it finds him and arresting his progress across a state line quite as much as from place to place within the state.

Indigence No Basis For Denying Rights

It is here that we meet the real crux of this case. Does “‘indigence”’ as defined by the application of the California statute constitute a basis for restricting the free- dom of a citizen, as crime or contagion warrants its restriction? We should say now, and in no uncertain terms,that a man’s mere property status, without more, cannot be used by a state to test, qualify, or limit his rights as a citizen of the United States. ‘‘Indigence”’ in itself is neither a source of rights nor a basis for denying them. The mere state of being without funds is. a neutral fact—constitutionally an irrelevance, like race, creed, or color. I agree with what I understand to be the holding of the Court that cases which may indicate the contrary are overruled.

Any measure which would divide our citizenry on the basis of property into one class free to move from state to state and another class that.is poverty-bound to the place where it has suffered misfortune is not only at war with the habit and custom by which our country has expanded, but is also a short-sighted blow at the security of property itself. Property can have no more dangerous, even if unwitting, enemy than one who would make its possession a pretext for unequal or exclusive civil rights. Where those rights are derived from national citizenship no state may impose such a test, and whether the Congress could do so we are not called upon to inquire.

I think California had no right to make ‘the condition of Duncan’s purse, with no evidence of violation by him of any law or social policy which caused it, the basis of excluding him or of punishing one who extended him aid.

Obligations of Citizenship

If I doubted whether his federal citizenship alone were enough to open the gates of California to Duncan, my doubt would disappear on consideration of the obligations of such citizenship. Duncan owes a -duty to render military service, and this Court has said that this duty is the result of his citizenship. Mr. Chief Justice White declared in the Selective Draft Law Cases, 245 U.S. 366, 378: “It may not be doubted that the very conception of a just government and its duty to the citizen includes the reciprocal obligation of the citizen to render military service in case of need and the right to compel it.”’” A contenticn thata citizen’s duty to render military service is suspended by “‘indigence”’ would meet with little favor. Rich or penniless, Duncan’s citizenship under the Constitution pledges his strength to the defense of California as a part of the United States, and his right to migrate to any part of the land he must defend is something she must respect under the same instrument. Unless this Court is willing to say that citizenship of the United States means at least this much to the citizen, then our heritage of constitutional privileges and immunities is only a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper’s will.

“Anti-Okie Law” Killed — By U. S. Supreme Court

(Continued from Page 1, Col. 2)

dence of the legal and administrative interpretation of the law. After the reargument, the decision came down in exactly a month.

Fred F. Edwards is not the only person who has been prosecuted under the statute. While the law, or one similar to it, has been in effect since 1860, the only known prose- cutions under it are those that arose between November and January, 1939-1940, and the Edwards case in February, 1940, when the law was invoked in Tulare and Kings counties against migratory workers. For that reason the statute became known as the “anti-Okie law.” In all, thirteen cases arose under the statute. In most of them, the person convicted received a suspended jail sentence conditioned on his returning the indigents to their home states. The action was so summary that it was impossible to secure a test case until the Edwards case arose.

Indigent Man Now Defense Worker

Today, Fred F. Edwards is a fruit and vegetable inspector for the State of Cali- fornia. The indigent brother-in-law Edwards brought from Texas, Frank Duncan, is now a defense worker in a chemical plant at Pittsburg, California, where he is earning $36.00 a week.

The effect of the decision ig not only to invalidate California’s anti-migrant statute but similar statutes in 27 other states.

POSTAL CLERK LOSES JOB IN TURLOCK FOR “OBJECTIONABLE ACTIVITIES”

As we go to press, oUr attention has just been called to the case of Helge C. Peter- son of Turlock, who has just been removed as a substitute clerk because of ‘‘objection- able activities.” dismissal resulted from protests by the American Legion against Peterson’s activities as a Jehovah’s Witness. The A.C. L. U. is investigating.

FACTS AND FIGURES ABOUT CONSCIENTIOUS OBJECTORS.

As of November 15, there were 1376 men enrolled at 19 Civilian Public Service Camps, including 18 parolees. By the first of the year, the camps are expected to reach an enrollment of 2000 men.

Up to June 30, 1941, 204 men had refused to register for the draft, of whom 44 were religious objectors and 24 political objectors. The remainder were actual draft evaders.

Executive Committee Northern California Branch American Givil Liberties Union |

Rt. Rev. Edw. L. Parsons, Chairman Ernest Besig, Director Philip Adams Gladys Brown H. C. Carrasco Wayne M. Collins James J. Cronin, Jr. Ralph N. Eckert Charles R. Garry Rev. Oscar F. Green Morris M. Grupp Prof. Ernest R. Hilgard Prof. Glenn Hoover Dr. Edgar A. Lowther Dr. Alexander Meiklejohn | Dr. J. R. Oppenheimer Mrs. Bruce Porter Judge Jackson H. Ralston Clarence E. Rust Helen Salz Joseph S. Thompson Kathleen Drew Tolman Marie de L. Welch Col. Chas. Erskine Scott Wood

According to reports, the

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American Civil Liberties Union-News Published monthly at 216 Pine Street, San Fran- cisco, Calif., by the Northern California Branch of The American Civil Liberties Union. Phone: EXbrook 1816 ERNEST BESIG Editor Entered as second-class matter, July 31, 1941, at the Post Office at San Francisco, California, — under the Act of March 8, 1879. Subscription Rates—Seventy-five Cents a Yea Ten Cents per Copy.

COMPULSORY SCHOOL ATTENDANCE LAW MAY BE INVOKED AGAINST | NON-SALUTING CHILDREN

Parents of non-saluting school children may be jailed and the children themselves -made wards of the court, according to a ruling by Attorney General Earl Warren handed down last month. Where a parent acquiesces in an expelled child’s refusal to salute the flag and fails “‘to correct his child by demanding that he attend school and salute the flag,’ or fails to provide schooling, the parent may be prosecuted under California’s compulsory school attendance law.

At the same time, the Attorney General expressed the opinion that under such cir- cumstances sufficient grounds would exist for making the child a ward of the juvenile court “fas a child neglected by his parent ... and custody could be taken from the parent by the court upon a finding that the parent has failed or neglected to provide proper education for the child.”

The Attorney General’s opinion sprang from the flag salute cases in Turlock, Stan- islaus county, where a recently adopted compulsory flag salute regulation resulted in the expulsion of three children, all members of Jehovah’s Witnesses, from Grammar school. The parents of two of the children, Francis and Esther Sweeney, are not financially able to provide private schooling for them. Thus far no effort has been made to arrest either parents or children.

A couple of years ago, in Modesto, California, a father was arrested for failing to send his children to school after they had been sent home repeatedly for refusing to salute the flag. The case was dropped, however, when the authorities discovered that the children had finally been sent to another school where the salute was not required.

The highest courts of New York and Massachusetts ruled last summer that refusal of children to salute the flag does not import such misbehavior as to warrant their commitment to a State school for delinguent children. The precise questions raised in the Attorney General’s opinion apparently have not been determined by any court in the land.

VERMONT HIGH COURT RULES FOR JEHOVAH’S WITNESSES |

‘A local licensing ordinance applied against Jehovah’s Witnesses in Vermont was upset by the Supreme Court of Vermont last month on the ground that its application to members of the minority religious sect abridged their rights to a free press. Enforcement of the ordinance with respect to Witnesses, the court declared, would require them to pay a fee to exercise a constitutional privilege.

Four Witnesses, Mrs. A. E.-Clemons, Charles Clemons, Henry Johnson and Elva Greaves, were convicted in Rutland Municipal Court of violating an ordinance prohibiting itinerant peddling. Waldo C. Holden, Civil Liberties Union attorney, argued in his brief that the ordinance contravened the interstate commerce clause and impaired the defendants’ constitutional rights of freedom of speech, press and religion.

The Supreme Court held, in a decision handed down by Judge Sturtevant, that freedom of the press involves not only ‘printed matter circulated without charge to the recipients but it also applies when a charge is made for it.”” The case under consideration was based on the defendants’ Sales of religious literature.

“Liberty in the Shadow of War,” As Seen by Roger Baldwin

The prevalent assumption that our accustomed liberties cannot stand the pressures of crisis and must be suspended, in part at least,\is embedded in distrust and fear of democracy. Those who yield so easily to the notion that wars cannot be fought nor great emergencies met without sacrificing the process of debate and the right of dissent forget the very purposes for which democracy exists. They forget that national unity 1s sound only so far as it represents voluntary support, not enforced conformity.

Democracies even when engaged in a life and death struggle can, like England, tol- erate dissenting opinion and profit from it. No reasonable man now approves the sweeping restraints imposed in the United States in the World War, most dramatically evident in the hundreds of prosecutions of pacifists, Socialists and I. W. W.’s solely for utterances or publications opposing the war. Their dissenting opinions did not ob- struct the national effort. They were merely. symbols of what the authorities and public intolerance feared in their passion for an outward conformity.

The Demand for a New Conformity

But we have evidently learned little from either the British experience or our own. Responsible voices, from the American Bar Association to our leading columnists, de- mand a new conformity now at the price of sacrificing other people’s freedom of speech, press and association. not agreed upon measures nor on whom to suppress. The Soviet Union’s entry into the war has thrown them into confusion on the issue of what to do with the Communists. They have begun to comprehend that labor cannot be coerced into uninterrupted production by denying the right to strike.

stricted liberty of agitation in a crisis and they are in a mood to support any restraints the government imposes. Even liberals who have long championed civil liberties, yield to what they have lately come to regard as superior claims — national defense and unity against totalitarianism.

We Fight the Enemies of Fascism at Home

This temper has already greatly diminished public resistance to inroads on civil liberty allegedly justified by the emergency. While the casualties have as yet been few, their tendency is ominous. For it is a tendency which strikes at the very process of democratic change by attacking the forces from which change chiefly comes —labor and the Left. It is a striking para-dox that while we are engaged in a world struggle against international fascism our hostilities at home are almost exclusively directed against fascism’s chief opponents, labor and the political Left, including their liberal and progressive allies.

Resistance to Democratic Change

The paradox is to be explained only on the ground of defense of the status quo, whether against international fascism or the threats of labor and the Left at home. At heart the attack on labor represents the resistance of capitalism to democratic change. It therefore takes on aspects of fascism and should be resisted by every liberal force in the country aware of its implications for the future of democracy. Yet the liberal forces on the whole acquiesce or remain silent under the hypnosis of national defense. Almost wholly ignored in the drive for conformity are the obvious fascist forces, native and foreign. Only the German-American Bund comes in for occasional attention or proscriptions in law, while the identical elements among the Italian, Spanish and other foreign populations are ignored. Our native totalitarians are unmolested.

Nor is the administration itself, despite its clearly democratic purposes, free of pre- cisely the same discriminations. The State Department in examining the credentials of alien refugees commonly scrutinize with minute care the past connections of all ap- totalitarian

They are.

But they are uneasy over unreplicants with any Communist or Popular Front, even maintaining that connections with the Spanish Loyalist government are ground for suspicion of Communism. The popular front government of Leon Blum in France falls under the same conception. But fascist connections are quite another matter. No such assumption governs them. ’ Govt. Discriminates Against Labor and Left When the Department of Justice staged its spectacular raids of alien gatheringplaces in the spring of 1941 the fascist clubs were almost entirely ignored while the working-class social clubs of Italians, | Spaniards and other nationalities were — raided. FBI investigations of subversive — activities are generally aimed at workers and radicals, not at the well-to-do or the reactionaries. The Post Office Department in excluding foreign propaganda from the countries has come down heavily on matter from Russia, even scientific and cultural journals, while dealing lightly with propaganda from Spain, Italy and other dictatorships. German and Japanese propaganda has been subject to some restraint, but not nearly to the same degree as the Russian.

The only extenuating consideration for any aspect of this discrimination lies in laws and court decisions which make advocacy of Communism equivalent to advocacy of the overthrow of government by force and violence. While no court of last resort has so held, the assumption prevails.

The Onslaught On Labor

But more important to democratic survival is the use to which the Communist menace has been put in the onslaught on labor. Granting the truth of active Communist leadership of a few key unions, it is equally true that without substantial | grievances no Communist faction could impose a political line on a single union. Yet the Communist influence has justified in the eyes of the government and of liberals generally—and indeed of sections of labor —the use of federal troops to break a strike for the first time in two generations 5 it has come perilously close to embodying in law, restraints on the right to strike; and it has given the enemies of collective bargaining a new source of strength in their campaign to destroy the power of the new unions. The drive on Communists thus becomes a drive on the rights and power of labor at its growing points, and indirectly a drive on |. the whole process of democratic advance. For it must be clear by now, even to conservatives, that democracy demands for its survival the extension of its principles to industry and our entire economy—and that the power of organized labor is the chief dynamic to that end.

Free Press and Radio

But quite as much we must count upon the maintenance of freedom in those two great channels of communication — the press and radio. Our radio, despite its commercial control, is on the whole freer than any in the world in the arena of public opinion. Our press, biased and conservative, still constitutes an effective forum of public debate, probably freer than the daily press in any democracy; and our minority periodical press is unrestrained.

A program of civil liberties demands not only the maintenance of these specific free- doms. It demands even more the unification of every force in American life around the struggle to hold these freedoms and to use them for the peaceful solution of the vast and unpredictable conflicts ahead. Only in the spirit of those freedoms can the world achieve that democratic regulation of our economy, and its international organization, on which the utlimate hope of mankind for peace and security rests.— (The foregoing is an abstract of a speech delivered by Roger Baldwin, national director of — the A. C. L. U., on his recent visit to California.)