vol. 9, no. 7

AMERICAN CIVIL LIBERTIES UNION-NEWS

FREE SPEECH FREE PRESS FREE ASSEMBLAGE

“Eternal is the price of liberty.”

Vol. IX SAN FRANCISCO, CALIFORNIA, JULY, 1944 No. 7

MILITARY's POWER CHALLENGED

Ninth Circuit Court Will Hear Hawaiian Martial Law Case July 1

The United States Circuit Court of Appeals in San Francisco, sitting en banc, will hear arguments on July 1 in two far-reaching war-time cases that are destined to reach the Supreme Court next fall and possibly be heard there with the Korematsu and Endo cases. These cases challenge the validity of the martial law, with its suspension of the privilege of the writ of habeas corpus, that has existed in Hawaii ever since the attack on Pearl Harbor on December 7, 1941.

The cases reached the Circuit Court on appeals by the government after the U. S. - District Court judges, Delbert E. Metzger and J. Frank McLaughlin, granted writs of habeas corpus to Lloyd C. Duncan and Harry E. White. The former was sentenced to six months on March 4, 1944, by a military court on a charge of assaulting a sentry. White was convicted on a charge of embezzlement by a Provost Court in August, 1942, and sentenced to five years in jail.

The Question

As stated in the brief submitted by Duncan’s attorney, ‘‘This case presents a single question: Did the provost court have juris diction to try and sentence petitioner, an American citizen not connected with the armed forces, for an alleged assault upon a sentry on duty at Pearl Harbor Navy Yard, at a time when the civil courts are admittedly able and are in fact discharging the duties entrusted to them by law?”

The American Civil Liberties Union, as we go to press, is preparing an amicus curiae brief to file in the case. The brief is being prepared by A. C. L. U. Attorney Wayne M. Collins of San Francisco and will be counter-signed by Arthur Garfield Hays and Osmond Fraenkel of New York and A.L. Wirin of Los Angeles.

The Honolulu Bar Association has also submitted an amicus curiae brief which has been signed by about a score of lawyers.

Noteworthy Counsel

Garner Anthony, former Attorney General for the Territory will argue the case for Duncan. White has separate attorneys. Edward J. Ennis, Director, Alien Enemy Control Unit, will come from Washington, D. C., to argue the case for the government.

ACLU P. O. BILL INTRODUCED IN THE HOUSE OF REPRES’NTATIVES

A bill drawn up by the American: Civil Liberties Union to end arbitrary Post Office censorship and transfer the power to the courts has been introduced in the House of Representatives by Rep. Edward Rowe of Ohio and referred to the Committee on the Judiciary. The bill, H.R. 4894, would amend the present law.

AUSTIN LEWIS 1S DEAD

Austin Lewis, veteran civil liberties attorney, died at his home in Oakland on June 26, at the age of 79.

For many years, Austin Lewis was regarded as the Civil Liberties Union in Northern California. In the summer of 1926 when a branch of the Union was established in San Francisco, Austin Lewis became its counsel. After a year, however, the branch was discontinued for financial reasons, carry on single-handedly.

In the fall of 1934, when the branch was reestablished in an office next door to Lewis’ and with some of his office furniture, he again became official counsel. That was at the time of the general strike and the vigilante raids on radical centers in the bay area. Lewis successfully handled various civil suits against the cities of Berkeley, Richmond and San Francisco for the property damage committed by the vigilantes. Thousands of dollars were recovered in these suits.

But Austin Lewis’ greatest activity in the civil liberties field was in defense of ‘“‘Wobblies’” who were prosecuted between 1919 and 1925 under California’s Criminal Syndicalism Act. He was attorney for the defense in the famous Ford and Suhr trials, and countless other cases. At one time he successfully represented Tom Mooney when the latter was charged with the reckless possession of dynamite.

He was a brilliant scholar, especially in the field of economics and politics, a writer of sparkling verse and free-flowing prose. He was an eloquent speaker, especially to be remembered for his ready wit and knack of summing up a situation with an apt phrase.

His contribution to the field of civil liberties is not to be measured alone by the work he did in cases that caught the headlines. Austin Lewis was a ready counsel in the smaller issues which took up considerable of his time without bringing in much money to meet his expenses.

Austin Lewis was a gracious gentleman who, naturally, made a host of friends. He will be remembered particularly as a courageous and unselfish fighter for civil liberties.

but Austin Lewis continued to

Pro-Nazi Wins Back : Citizenship In Calif.

The Ninth Circuit Court of Appeals in San Francisco on June 26 unanimously reversed a judgment of District Judge Yankwich of Los Angeles cancelling on grounds of fraudulent procurement the citizenship of Friederich Walter Bergmann of Long Beach, an alleged pro-Nazi. The Northern California branch of the A.C.L.U., through Attorney Wayne M. Collins of San Francisco, had filed an amicus curiae brief in the case over the objections of the national office of the A.C.L.U. which has thus far refrained from intervening in any denaturaiization suits directed against persons with alleged sympathy for the enemy.

Bergmann, 47 years of age, entered the United States in July, 1922. He was nat- uralized April 9, 1937.

According to the court, ‘‘The evidence reveals that a number of neighbors, associates and acquaintances of appellant testified to statements they say were made by appellant some three years after the issuance of his certificate of naturalization. These statements referred: in vile terms to the President of the United States and severely condemned the present national administration and the institution of democracy. The statements indicated hatred of the Jews and contempt of Americans. The witnesses further testified as to appellant’s remarks that America was a good place to make money, that Hitler and the Nazi policies were commendable, and that the Japanese were ‘nice people’ who had to make the attack on Pearl Harbor. There is testimony that appellant had been seen to give the Heil Hitler salute, that he approved of Hitler and Nazism and that he expressed delight over the sinking of the British capital ships Repulse and Prince of Wales.”

The court then proceeded to decide the case on the basis of the Supreme Court’s decision in the Schneiderman and Baum| garter cases (the latter reported elsewhere in this issue).

“The courts,” said the decision, “have been meticulous in announcing over and over again that there are not two different sets of rights to be enjoyed by two different kinds of citizens. The constitutional right of opinion together with the right to ex- press it possessed by every citizen would, in truth, become unreal and academic to the naturalized citizen if his citizenship would be cancellable because of opinions held and expressed as to current events happening after his admission to citizenship. No such condition is imposed upon native born citizens. The inference of fraud in procuring the status of citizenship can only be drawn from facts clearly, unequivocally, and convincingly shown to establish the existence of fraud in the taking of the — 7 necessary steps toward naturalization.”

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Bridges’ Deportation : Upheld In 3-2 Decision

In a 3 to 2 decision, the Ninth Circuit Court of Appeals on June 26 affirmed a decision of the District Court denying a writ of habeas corpus to Harry Bridges, which would have had the effect of cancelling the warrant for his deportation to Australia.

‘taken to the Supreme Court by Bridges attorneys.

The majority held, in effect, that the only issue before them was whether there was any evidence in the record supporting the decision of the Attorney General to deport Bridges. After reviewing Harry Lundberg’s testimony that Bridges stated to him in the ‘summer of 1935 that he was a member of the Communist Party, and quoting from some Communist literature, Presiding Justice Curtis Wilbur, writing for the majority declared, “‘The record thus shows evidence, firstly, that the appellant had been a mem- ber of the Communist Party since he entered this country, and, secondly, that the Communist Party believes in, advocates and teaches the overthrow by force and violence of the Government of the United States.”

This, the court said, was alone sufficient to sustain Biddle’s order of deportation, but, at the same time it held that. the testimony warranted the inference that Bridges was affiliated with the Marine Workers’ Industrial Union, and that that organization was a part of the Communist Party.

Finally, the court briefly disposed of the argument that Bridges had been tried twice for the same offense by declaring that “The principle of double jeopardy applies only to criminal proceedings.” And, for the same reason, the court dismissed the contention that the deportation law in question was an ex post facto law. .

“For those who cherish traditions of ' American justice,’ said dissenting Justice Healey, ‘‘it is, permissible to believe that the alien should not be deprived of his freedom to remain unless the truth of the accusation be fairly established. That it was not so proven must be patent, I think, to any candid person who takes the trouble to examine the record.”

The dissenting Justices did not place much reliance on the testimony of Harry Lundberg that Bridges admitted he was a Communist, and then went on to consider the unsigned statement of James O’Neill, that he had seen Bridges pasting dues stamps in a party membership book. This evidence, the minority claimed, was ‘“‘received and considered in violation of a regulation of the department designed to ‘insure fair hearings to safeguard the rights of aliens.”

The minority was also of the opinion that Biddle had applied incorrectly the term “‘affiliation,’’ and that Bridges could not legally be said to have been affiliated with the Marine Workers’ Industrial Union. They argued that he was no more affiliated with that Union during the ’34 strike than the United States is today affiliated with the Communist Party by reason of being allied with the Soviet Union in a common struggle.

C.O. FREED IN ‘FIRST TEST OF BILLINGS DECISION

Alfred Lloyd Saunders of Los Angeles, conscientious objector, was recently freed from military imprisonment at Fort Mac Arthur in the first successful habeas corpus case taken in line with the recent decision of the Supreme Court in the case of Arthur G. Billings. In the Billings case the court ruled that an inductee is not in the army and subject to military jurisdiction until he voluntarily takes the oath of allegiance. Saunders, classified 1-A, reported for in duction but refused to take the oath, whereupon he was arrested by military police. After the Supreme Court ruling in the Billings case, the Federal Circuit Court of Appeals at San Francisco sent the case back to the lower court with instructions to issue a writ of habeas corpus. Saunders will probably be turned over to the civil authorities for prosecution.

An appeal will, of course, be >

U. S. Supreme Court Reverses — War-Time Sedition Conviction

The U.S. Supreme Court in a five to four decision on June 12 upset the conviction of Elmer Hartzel at Chicago on charges of attempting to cause insubordination in the armed forces by the publication of antiwar mimeographed pamphlets. Justice Frank Murphy for the majority held that the government failed to prove that Hartzel had ‘‘willful’ and specific intent or that the pamphlets constituted a “clear and present danger” to the armed forces.

Hartzel, an ‘‘economist” and first World War veteran, was convicted in the Federal District Court at Chicago on evidence in three pamphlets entitled, “The British: An Inferior Breed’; ‘‘The Jew Makes a Sacrifice: Forthcoming Collapse of America’, and ‘The Diseased Spinal Cord”. They were anti-British, anti-Roosevelt and antiJewish. The pamphlets contained such items as these: “‘“Are Americans united? Yes. Externally with the corpus of a degenerate Empire (Britain), internally with the sick body of ‘our leader.’ Like a cow hit on the head by a hammer when it is led to slaughter, we follow ‘our leader’ as he moves forward on a sick spine to war.” Hartzel’s admitted motive was “‘the hope that they (the pamphlets) might tend to create sentiment against war amongst the white races, to unite the white races against what I consider to be the more dangerous enemies, the yellow races.”

Justice Murphy, in his majority opinion, held that while the ideas expressed by Hartzel were ‘‘odious,” the American citizen “has the right’? of discussion ‘‘either by temperate reasoning” or by “invective.” The opinion said there was not sufficient evidence to show that Hartzel intended by the pamphlets to bring about insubordination or other disturbances in the military services.

“No direct or affirmative appeals are made to that effect and no mention is made of military personnel or of persons registered under the selective training and service act.” Justice Murphy said: “‘They (the pamphlets) contain instead vicious and un- reasoning attacks on one of our military allies, flagrant appeals to false and sinister racial theories and gross libels of th President.”’

The dissent contended that there was ample evidence to warrant conviction.

The Supreme Court’s reversal of this first espionage act prosecution during this war will evidently become a factor in similar | trials, including the D. C. seditious con- spiracy trial under the 1940 sedition act.

ACLU BRIEF HOLDS P. O. ESQUIRE BAN UNCONSTITUTIONAL

The American Civil Liberties Union on June 15 filed a brief in the U. 8. District Court of the District of Columbia charging the Postmaster General with unconstitutional violation of the postal laws in revoking the second-class mailing privileges of “‘Es- quire’ magazine. Postmaster General Frank C. Walker last January found that “although not obscene”’ “‘Esquire”’ was not devoted to ‘“‘the arts, sciences, or literature,”’ and did not publish information of a “oublic character.’ The revocation was the first on this ground in the Department’s history, and was therefore suspended: to permit a court test.

The Union’s brief was signed by George Rublee and Charles Horsky of Washington, D. C.; Arthur Garfield Hays, Whitney North Seymour and Jerome B. Sherman of New York; Arthur Dehon Hill of Boston, Luther Ely Smith of St. Louis and Gurney Edwards of Providence.

The Union’s brief contends that “if the construction of the statute relied upon by the Postmaster General is sustained, then freedom of circulation, which is essential to freedom of the press, will be seriously impaired,” adding that ‘‘second-class mailing privileges are essential to a periodical’s ability to compete on fair terms for the public’s interest.”

POST OFFICE BAN ON SEJ PAMPHLET REVIEWED BY COURT

The U.S. Circuit Court of Appeals in the District of Columbia heard an appeal last month on the ban by Postmaster General Frank Walker of a Consumers’ Union pamphlet explaining the relative merits of various contraceptives. Osmond K. Fraenkel, New York attorney, argued the three-year old case before the court, pointing out that the pamphlet was not sent generally to the Union’s 60,000 subscribers, but only to those members requesting it in writing who showed that they were married and had a phyaicans okay for the use of contracepives.

Under these conditions, Mr. Fraenkel argued, the pamphlet does not come within the scope of the law under which the postmaster banned it from the mails. Mr. Fraenkel contended that the mere fact that the court took the case for review indicates that the Postmaster General’s order is reviewable in the courts on the ground of error.

HIGH COURT AFFIRMS CONVICTION IN OKLAHOMA TORTURE CASE

In a 6 to 3 decision, the Supreme Court last month upheld the conviction in Okla-homa of W. D. Lyons, a Negro, charged with killing three persons. The majority held that although one confession was secured by force, there was sufficient evidence for the jury to conclude that the effect of the violence had worn off by the time a second confession was procured 12 hours later.

‘In a dissenting opinion, Justice Murphy argued that, ‘‘To conclude that the brutal- ity inflicted at the time of the first confession suddenly lost all of its effect in the short space of 12 hours is to Glose one’s eyes to the realities of human nature. An individual does not that easily forget the type of torture that accompanied petition- er’s previous refusal to confess, nor does a person like petitioner so quickly recover from the gruesome effects of having had a pan of human bones placed on his knees in order to force incriminating testimony from him. .. . Presumably, therefore, this deci- sion means that state officers are free to force a confession from an individual by ruthless methods, knowing full well that they dare not use such a confession at the. trial, and then, as a part of the same continuing transaction and before the effects of the coercion can fairly be said to have completely worn off, procure another con- fession without any immediate violence being inflicted.”

The National Association for the Advancement of Colored People conducted the defense with the assistance of the A.C.

“THE FIRST LADY CHATTERLY” HELD OBSCENE BY N. Y. COURT

A novel by D. H. Lawrence, ‘‘The First Lady Chatterly”’, first published in 1944, was held to be in violation of New York state law by Magistrate C. G. Keutgen of the New York Felony Court on May 29th, — and the publisher, Dial Press, has been held for trial on the grounds that “the whole novel is clearly obscene.” This marks the second recent local action against a literary work charged with obscenity. The Massachusetts Civil Liberties Union in May brought a test case on the ban-in Boston and Cambridge of Lillian Smith’s race relations novel “Strange Fruit.”

The New York case was brought on complaint of the New York Society for the Sup- pression of Vice. The New York Civil Liberties Committee is following the case with — a view to possible participation.

A.C.L.U. Director Will Confer With Evacuees at Tule Lake

Ernest Besig, local director of the A.C.L.U., will visit the Tule Lake Segregation Center during the week of July 10 in order to interview certain evacuees in connection with the preparation of test suits. The proposed suits would challenge the procedure whereby citizens of Japanese ancestry hhave been adjudged disloyal by the W.R.A. and sent to the Tule Lake center.

Permission for Mr. Besig to visit the Center was granted only after a previous application for the week of June 12 had been turned down. ‘Due to the recent incident at Tule Lake,” said a letter from the Project Director announcing the decision, “all visiting privileges have been restricted. ... We anticipate that this present condi- tion will continue possibly for the next thirty days.’’ Thereafter, more than fifty evacuees at the Center petitioned the W.R.A. for an opportunity to counsel with a representative of the American Civil Liberties Union concerning their legal rights.

In Los Angeles, an injunction suit in behalf of four evacuees is in preparation and may be filed by the time this edition of the “News” is received. The suit challenges the constitutionality of the continued exclusion of citizens of Japanese ancestry from the Pacific Coast. It differs from the Korematsu test case in that it asserts there is no military necessity TODAY to exclude citizens from the Coast.

Gannon Committee Granied Another $1,000 for Witch Hunt

California’s poorly behaved interim committee on “Japanese Problems,” headed by the boisterous Assemblyman Chester Gannon of Sacramento, received an additional $1,000 at the special session of the legislature in order to continue its activities until next January.

-During the discussion on the resolution, Gannon read a reply he received from Harold L. Ickes to a letter requesting that Japanese American evacuees be excluded from the Pacific Coast for the duration. Ickes’ letter said in part:

“Your courteous and restrained letter has reached me. It is the kind of communication I would expect from a man who has taken an oath to uphold and defend the Constitution ... and then forswear himself.

“I have no interest in bandying epithets with you or anyone else about loyal Japanese who are born in this country and who are just as fully citizens as you or I. You sound to me like a man with a bad conscience.”

Refusal of Eureka Busses To Carry “Witnesses” Corrected

Failure of Jehovah’s Witnesses to salute the flag recently resulted in a couple of them being ejected from busses in Eureka, California. A bus driver was quoted as saying that ‘‘any one that will not salute the flag can’t ride these busses.” One of the Witnesses, Samuel B. Sias, suffered lacerations about the face and a broken rib when the driver threw him off the bus.

The A.C.L.U. entered a complaint with the Eureka City Lines, which are controlled by the Pacific City Lines of Oakland, and, after some negotiations, received assurances that there would be no further discrimination against the Witnesses. The local manager of the company sent the following letter to the Witnesses:

“It has been brought to our attention that members of your organization have been refused the privilege, on several occasions, of riding our busses.

“The drivers have been instructed to carry any citizen, regardless of race, color or creed, unless because of misconduct serious enough to warrant eviction.

“I’m sure in the future your members will be met with the same actions shown toward the rest of our patrons.”

At the same time, the president of the company informed the Union that a provision against such discrimination had been a to its rules and posted on the bulletin oard.

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Union Clarifies Stand On San Francisco’s V. D. Quarantine Procedure

The following letter was sent to the San Francisco News during the past month and serves to clarify the Union’s position with reference to San Francisco’s quarantine procedure in venereal disease cases:

The American Civil Liberties Union is concerned about San Francisco’s venereal disease program, as Art Caylor suggests in his column of June 22, but that concern is not about the length of the treatment period in cases of infection. Our information leads us to believe that the quarantine period in such cases is not at all unreasonable.

Our chief complaint is that police officers, acting as deputies of the local health department, have quarantined innumerable girls without having any reasonable grounds for believing they are infected with a venereal disease. Such girls are held in jail for three days, WITHOUT THE RIGHT TO BAIL, while the health department determines whether they are in fact infected. Last year it was found that only one out of four girls arrested was infected.

So, in three out of four cases the chances. are that the constitutional right to bail was denied.

We recognize, of course, that there is a reasonable basis for quarantining known prostitutes, but the majority of the girls that are picked up are NOT in that class as health department records will show. We have noted, too, that the men who ‘associate with these women are not quarantined. Certainly there is no basis in law for such a discriminatory program even though it may be granted that the women are a greater source of infection.

Our second complaint is that infected persons are treated as criminals instead of patients. Unless the person has also been convicted for some criminal offense, de- tention in the county jail as at present would appear to be clearly illegal. Months ago we were led to believe that a “treatment center’? was being planned and that it would be ready in the fall. We are hopeful that the plan will be carried out.

Our third complaint was that criminal complaints in such cases were not filed until at least 72 hours after arrest, although the State law requires that a defendant must be taken before a magistrate without unnecessary delay and in any event within two days after his arrest, at which time a complaint must be laid before the magistrate. Since District Attorney Brown took office the procedure in this respect has been brought into line with the law, although it is still not unusual to find a person being held for three days without a complaint being on file.

Finally, we have suggested that attorneys ought to be able to visit clients in the jail at the Civic Center without first having to get a permit from the Chief of Police at the Hall of Justice. The matron at the jail is certainly able to check the credentials of attorneys and to take their names.

It is not our desire to discourage San Francisco’s commendable efforts at control of venereal disease. At the same time, we think the program would be improved im- measurably if due respect were shown the constitutional rights of the persons in- volved.

JAPANESE AMERICAN FREED OF SEDITION CHARGE

George 8. Fujii, a Japanese American citizen, last month was freed of charges of violating the war-time espionage act, by a Federal District Court in Arizona, in a case involving leaflets advising other Nisei to refuse induction in the army until Japanese Americans were granted their full constitutional rights. He was stationed at a War Relocation Camp at Poston, Arizona. One of the leaflets was addressed “To the gemvlemen of If yrs. to 38 Vrs. of age” another to “‘Niseis of Draftable Age.” He had written, “Those of you who have received notices for pre-induction physical.

Cooperate and refuse to go until we have reached our goal. (Fighting for our rights.) Those who do not care for their rights and are willing to be drafted, please wait until our rights are granted or until we are all branded as Pro-Axis elements.”’ Upon com- pletion of the government’s case the judge sustained a motion to dismiss without sub- mission to the jury. The ACLU followed the case closely without, however, partici- pating.

UNIV. OF PENN. DEAN — UPHOLDS RACE EQUALITY FOR NISEI STUDENTS

Assuring the Civil Liberties Union that there is “no anti-racial sentiment among the members of the administration of the University,’ Edwin B. Williams, Dean of the Graduate School of the University of Pennsylvania, in a letter dated June 15, asserts that “the situation which developed in the case of Miss Naomi Nakano was the result of a misunderstanding of the attitude of the Provost Marshal General’s office with regard to students of Japanese descent.” The “attitude” referred to a rule that students of Japanese descent are not permitted in schools working on army or navy affairs unless approved by Provost Marshall General. Miss Nakano, meanwhile, has decided to take her graduate studies at Bryn Mawr. Dean Williams expresses the “hope that Miss Nakano will take work here while she is at Bryn Mawr on the basis of our interschool courtesy exchange.”

Kenny Still Side-Stepping Homer Turner Case

Attorney General Robert W. Kenny is still neatly side-stepping the Homer Turner case. The developments last month were as follows:

After the Contra Costa county district attorney once again refused to file murder complaints against those responsible for Mr. Turner’s death, the Union again turned to Mr. Kenny to find out whether he would finally intervene in the case. In response, we received a copy of a letter Mr. Kenny had just sent to the president of the United Negroes of America.

Said Mr. Kenny in that letter, “As you know, it is not necessary for a District At- torney to file a complaint in order to have criminal proceedings initiated. Should you or any other citizen of Contra Costa county having knowledge of the facts, apply for a complaint and warrant it would be the duty of this office to handle the prosecution of such complaint if the District Attorney declined to do so.

“To date, I have not been advised that any citizen has filed a complaint and asked for the issuance of a warrant.”’

Immediately, the sister of the deceased went to the district attorney’s office and signed a complaint and the latter sent it on to the local Justices of the Peace inform- ing them that he was opposed to the issuance of a warrant. As a result, no warrant issued, because, needless to say, the District Attorney is a power in the county.

The Executive Committee of the local branch of the A.C.L.U. has suggested to Mr. Kenny that he should support the application for a warrant. If he or one of his deputies went before a magistrate with the signed complaint, we are sure the warrant would be issued. In any case, since the District Attorney is not adequately enforcing the law in Contra Costa county, “it shall be the duty of the Attorney General to prosecute any violations of law of which the superior court shall have jurisdiction.” So says the Constitution. What will Mr. Kenny do about it?

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American Civil Liberties Union-News

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Supreme Court Refuses Negro Draft Plea

The American Civil Liberties Union through its general counsel, Arthur Garfield Hays, recently issued a statement on the refusal of the Supreme Court to review the case of Winfred William Lynn, New York Negro who claimed he was unlawfully inducted into the Army because he was taken under a “Negro quota” and not strictly in the order of his serial number.

Said Mr. Hays of the court’s refusal: “It’s beyond me. Winfred Lynn sought a writ of habeas corpus to test the legality of his induction. No writ of habeas corpus, how- ever, is possible until after an individual is inducted. A writ is then obtainable, ad- dressed to the commanding officer of the inducted man. The defendant in this case is Colonel Downer, who was Lynn’s Commanding Officer at Camp Upton. Lynn left the country and the camp when he was sent overseas. Now when an attempt is made to have the legality of the induction heard before the Supreme Court that court says, ‘The cause is moot, it appearing that the petitioner is no longer in the respondent’s custody.’ ”

The refusal of the Supreme Court is the more surprising, according to the Union, in view of the strong dissent of Judge Charles E. Clark of the Circuit Court of Appeals in New York who upheld Lynn’s contentions, saying:

“It is to be noted that in final analysis the case for the validity of the call here rests upon the policy of segregation, where equal facilities are afforded, as sanctioned by various Supreme Court decisions. But actually these precedents call for the con- trary result. It must not be overlooked that they do insist upon equal accommodations, which here must mean equal calls to service. However undesirable the colored people may regard service in segregated units, they are justified in asserting that it is less degrading than no service at all or service delayed, if not belittled, in the light of their available man power. I think the judgment should be reversed, with directions that the writ be sustained.”’

The ACLU had carried the case up from the District Court to the Circuit Court of Appeals through the voluntary services of Mr. Hays. A special independent committee, the Lynn Committee to Abolish Segregation in the armed forces, was formed to aid Lynn, and assisted in carrying the costs.

No other case testing racial discrimination in Selective Service is now pending in the courts, and according to the American Civil Liberties Union, there is no likelihood of such a case being brought due to the fact that the Army can moot any case by removing the soldier from the court’s jurisdiction.

THE UNION GETS A LETTER FROM THE AMERICANISM | EDUCATIONAL LEAGUE

In some fashion or other, the local branch of the A.C.L.U. has gotten on the mailing list of John R. Lechner’s “Americanism Educational League” of Los Angeles, which vies with the Hearst Press and the American Legion in crying about the danger to the country of the citizens of Japanese aned who were excluded from the Pacific coast.

Mr. Lechner says he has information that the Japanese “are to be allowed to return to their former homes”’ in the very near future, and he wants us to tell our member

High Court Upholds Citizenship — For Naturalized Pro-German

A unanimous Supreme Court decision on June 12 reversed a Missouri federal district court ruling which revoked the citizenship of Carl W. Baumgartner, German-American of Kansas City, on the ground of fraud in taking the oath of allegiance. The high court held through Justice Felix Frankfurter that the evidence was not “‘sufficiently compelling to require that we penalize a naturalized citizen for the expression of silly or even sinister sounding views which native-born citizens utter with impunity.”

The Missouri District Court, using evidence from Baumgartner’s own diary, charged him with favoring Germany’s foreign policy, saying Hitler would some day rule this country, opposing the United States’ entry into the war, meeting official German agents and attending meetings at which, in Baumgartner’s own words, “everyone naturally arose and assumed the usual German stance with arm extended to give the National Socialist greeting.” Almost all the Nazi propaganda arguments were at one time or another used by the defendant, according to the court, but were later retracted or denied, with protestations of loyalty.

Supreme Court Justice Frankfurter, drawing on the Schneiderman case, declared: “It was there held that proof to bring about loss of citizenship must be clear and unequivocal. ... The case made out by the Government lacks the solidity of proof which leaves no troubling doubt. One of the prerogatives of citizenship is the right to criticize public men and measures, .. and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation. .. . The expression of views which may collide with cherished American ideals does not necessarily prove want of devotion to the nation.”’

A concurring opinion by Justice Murphy, — joined in by Justices Black, Douglas and Rutledge, declared:

“American. citizenship is not a right granted ‘on a condition subsequent that the naturalized citizen refrain in the future from uttering any remark or adopting an attitude favorable to his original homeland or those there in power, no matter how dis- tasteful such conduct may be to most of us. He is not required to imprison himself in an intellectual or spiritual straight-jacket; nor is he obliged to retain a static mental attitude. Moreover, he does not lose the precious right of citizenship because he subsequently dares to criticize his adopted government in vituperative or defamatory terms. It obviously is more difficult to conform to the standard set forth in the Schneiderman case by mere proof of a state of mind subsequent to naturalization than by proof of facts existing prior to or at the © time of naturalization. But that does not excuse a failure to meet that standard. The naturalized citizen has as much right as the natural born citizen to exercise the cherished freedoms of speech, press and religion, and without ‘clear, unequivocal, and convincing’ proof that he did not bear or swear true allegiance to the United ‘States at the time of naturalization he cannot be denaturalized.”’

UNIONIST ASKS COURT FOR DEMOCRATIC RIGHTS IN A. F. OF L. LOCAL .

The ACLU in a brief filed recently in Media, Pa., challenged the constitutionality of the procedure of Local 516 of the Motion Picture Operators, A. F. of L., in reinstat- ing a worker, Philip Trainer, to membership only after he had been forced to sign a stipulation waiving both voice and vote in union affairs. by counsel Marion Ames and T. Henry Walnut of Philadelphia and Osmond Fraenkel and Nathan Greene of New York, holds that this agreement ‘“‘violates one of the inalienable personal liberties,’ freedom of speech and thought ‘without hindrance by state, group, or individual.”

Pointing out that the Union ‘‘adopts solely the point of view of the general pub- lic’ the brief contends that while “‘gener‘ally a voluntary membership association may restrict and condition its membership as it chooses, such argument is of little validity in a union which controls the job market in a given industry, and it is essential to the worker to participate in forming union policies and programs.”

The brief thus contends that Trainer was forced to waive his rights by ‘‘economic coercion since without signing he could secure no employment in his occupation.” The ACLU holds the local’s action to be against public policy since “‘today increasing numbers of workers must earn their living in industries which are governed by closed shop contracts. If membership in these unions is restricted so as to deprive workers of their voice and vote, the control and direction of union policies become centered in the hands of a very small minority group.”

ship of the contemplated move by the WRA in order that they may express their wishes to their congressman.

We’re glad to oblige Mr. Lechner. We hope our members will write their Congressmen, the War Department and the WRA suggesting that it is about time that the discriminatory treatment of citizens of Japanese ancestry was ended.

The Union brief, signed

SOUTH CAROLINA GOVERNOR BANS OUTSIDE LABOR AGENTS

Governor Olin D. Johnston of South Carolina, in an unusual wartime order, has in- structed local law enforcement officers to arrest anyone found recruiting labor in South Carolina for jobs outside the state. The governor stated that agents from northern states were “‘luring’’ South Carolinians from their work by paying their transpor- tation to northern industrial centers. Warning labor solicitors to stay clear of South Carolina, Governor Johnston said the State law prohibited such a practice, and that violators are subject to fines of from $500 to $5,000 or a maximum jail sentence of two years.

“There has been enough trouble from outsiders already and I intend to put a stop to this soliciting of our labor,” the governor declared. Prohibitions of inter-state labor solicitation have been in practical abeyance during recent years, and no test of the legality of state laws has been brought. Counsel for the ACLU are examining the law with a view to a court case.

HIGH COURT ORDERS REARGUMENT OF TEXAS LABOR LAW TEST

The Supreme Court on June 12 ordered reargument in the fall of the case in which R. J. Thomas, president of the U.A.W., C.I.0., challenges the constitutionality of the Texas law requiring registration of labor organizers before they solicit members. Mr. Thomas was arrested in Texas for making a speech in which he asked a man in the audience named O’Sullivan to join the CIO. Mr. Thomas had gone to Texas especially to test the constitutionality of the law.

The court suggested that the Department of Justice file a brief in the case clarifying the implications and applicability of the Texas law, and specified six questions on which it desired comment. The ACLU, which declined to enter the case on the ground that a mere registration law does not violate civil liberties, is considering participation in view of the new questions raised by the Court.