vol. 30, no. 9

Primary tabs

LEFT TO RIGHT: SANDRA ARCHER, LUCIA;

AND JOHN ROBB, BONIFACIO, IN "CANDELAIO"

First Amendment Victory

Professor Acquitted In

Free Speech Case

In late July both Dr. Dale

Pontius and Mr. Brian Kastama'

were acquitted in the San Fran-

cisco Municipal courtroom of

Judge Bernard Glickfeld after

a two-day trial in which Pontius

was charged -with failing to dis

perse and unlawful assembly and

Kastama was charged with the

same offense, as well as with

interfering with an officer. Pon-

tius, a professor of political sci-

ence specializing in far-Eastern

affairs at Roosevelt University

in Chicago, is in the Bay Area

on a grant to do research at the

Hoover Institute at Stanford.

He has engaged in a series of

street meetings concerning

American participation in the

war in Vietnam for motives he

explained in the June News.

Dr. Pontius takes the position

that the United States is engag-

ing in an undeclared war in

Vietnam and that the President

has exceeded his constitutional

authority and should be im-

peached. He engaged in a talka-

thon to this effect starting about

1:00 pm..on May 1, 1965 and

ending about 1:00 a.m. on May

2, 1965 when he was arrested by

the San Francisco police at the

eorner of Powell and Market.

The police charged that Pontius

failed to move on when they

wanted to break up the crowd

listening to him. They also

charged that one of the specta-

tors, Brian Kastama, (who, in

fact, disagrees with Pontius)

failed to disperse and interfered

with the officer arresting Pon-

tius. :

, At the trial the police testified

that they had observed several

service men in the crowd who

appeared to be upset by what

Pontius was saying, although

there was no testimony that any

person in the audience threat-

ened violence or that there was

any danger of a riot or any other

sort of commotion being incited.

Pontius testified that his pur-

pose was to be provocative be-

cause many times that is the

only way to make people think.

In any event, ACLUNC Staff

Counsel Marshall Krause, de-

fending the pair, pointed out

that it was the duty of the Po-

lice Department to protect the

speaker's right to address a

street meeting and that the po-

lice acted unconstitutionally if

they sought to break up a meet-

ing because some persons in the

audience were upset by the con-

tent. Speaking on the street is

protected by the First Amend-

ment, as is the right of assem-

bly.

Concerning the charge of in-

terfering with an officer, the

only testimony given was that

Mr. Kastama stood near a police

officer who was not involved in

Pontius' arrest and that he re-

fused to move on. Clearly, this

was not interference.

Even though Judge Glickfeld

acquitted the two defendants (as

"he was required to do under ap-

plicable constitutional and legal

doctrine) he felt he had to com-

pliment the police on acting as

best they could under difficult

circumstances. Thus ended a

case which never should. have

arisen but which may very well

continue to arise until the police

understand their proper duty

in matters of free speech.

Debate on HUAC

"Does the House Com-

mittee on UnAmerican Ac-

tivities pose a greater

threat to freedom than

does Communism?" will

be debated by Frank Wil-

kinson, Executive Director

of the National Committee

to Abolish HUAC, and

George N. Crocker, attor-

ney and newspaper col-

umnist, who supports the

Committee.

The debate, sponsored

by a group of ACLU mem-

bers in Livermore Valley,

will take place on Thurs-

day, September 9, starting

at 8 p.m., at the Joe Mi-

chell School in Livermore.

Tickets ($1.00) may be pur-

chased at the door or at

Books Universal, 172

South J Street, Livermore

(Telephone: 447-7733).

American

- Civil Liberties

Union

Volume XXX

SAN FRANCISCO, SEPTEMBER, 1965

First Amendment Violation

- During the past month the theatrical company known as

the San Francisco Mime Troupe learned the reality of the

maxim "a little censorship goes a long way.' For several

years the company has been presenting costumed productions

of little-known Renaissance plays in the San Francisco parks

on a portable stage, free of

charge.

Hearing

This year the San Francisco

Park and Recreation Commis-

sion decided to hold a hearing

as to whether the Mime Troupe

should continue to be granted a

---__-

permit to perform in the parks.

After reports from Park Depart-

ment employees. that the play

was "offensive' and contained

"dirty" words, the Commission

held a public hearing and heard

nothing but praise for the play

from members of the public,

many of whom said that they

would have no hesitation to take

their children to see it despite

its somewhat earthy language

and gestures, Previously, review-

ers had also praised it.

Members of the Troupe, led

by Director R. G. Davis, pleaded

with the Commission for artistic

freedom. The Troupe's lawyer,

Marvin Stender, informed the

Commission that it had no legal

power to deny a permit on cen-

-sorship grounds. ACLUNC Staff

Counsel Marshall W. Krause was

also at the hearing. He told the

Commission that it was not part

of their job to regulate the con-

tent of speech activities in the

public parks, that instead their

duties were limited to deciding

the time, place and manner. of

public park activities. Section 116

of the San Francisco Park Code,

which authorizes the Commis-

sion to issue permits for theatri-

cal events, provides no standard

for the issuance or the with-

drawal of a permit, thus con-

tains no censorship authority.

Krause also informed the Com-

mission that it should leave any

potential law violation to the

Police Department. He _ also

pointed out to the Commission

that if it censored one activity

it might find itself urged to

censor all other activities in the

public parks, including, for ex-

ample, determining whether a

particular painting in the De

Young Museum was "offensive."

The Commission, after sitting

stolidly under a barrage of ar-

guments without participating in

the discussion, calmly voted

unanimously to deny a permit

`to the Mime Troupe.

Censorship Effects

This act of censorship had at

least five effects: (1) R. G.

Davis was arrested on Saturday,

August 7, in Lafayette Park for

performing a play without a per-

mit. After Davis was taken

away, the play continued (in

fact, Davis was not even in the

cast) and was performed in San

Francisco's parks without a per-

mit the following Sunday and

the next weekend. Davis' trial

for a violation of Sec. 116 of the

Park Code is scheduled Septem-

ber 10, before Municipal Court

Judge Donald Constine. (2)

The Mime Troupe's scheduled

appearance in Mt. Tamalpais

Amphitheater, as part of the Ma-

rin Summer Festival of Arts,

was eancelled after Gordon T.

Kishbaugh, Superintendent of

District 2, California State Divi-

sion of Beaches and Parks, de-

U. C. Extension

Fall Courses

Robert M. O'Neill, U. C.

associate professor of law

and member of the Berke-

ley-Albany Chapter board,

will give a ten-week course

on "The People, the

Courts, and the Bill of

Rights," at the Berkeley

campus on_ successive

Wednesday evenings, be-

ginning September 22.

Fee, $35. :

Participants in the

course will study several

recent court cases con-

cerned with civil liberties

and individual rights, and

analyze the decisions ren-

dered.

Free speech, freedom of

worship, private property,

equal opportunity, and

criminal justice will be

the subjects covered.

`"`Law ana Sociat

Change," another course

will be given by attorney

William M. Harriman at

the U. C. Extension Cen-

ter in San Francisco on 18

successive Tuesday after-

noons, starting September

21. Fee, $45.

Topics will include:

sources of law, the rela-

tionship of national social

values to economic and

political structure, punish-

ment, and the question so

often heard in California

during the 1964 election

campaign, "Can we legis-

late morality?"

Detailed information and

enrollment forms are avail-

able from U. C. Extension,

2223 Fulton Street, Berke-

ley, and from University

Extension Center, 55 La-

guna Street, San Fran-

cisco.

_ misdemeanor

clared the Troupe "unacceptable

for performance' in _ State

Parks. (3) A company of the

Mime Troupe performing "Civil

Rights in a Cracker Barel"' in

Berkeley found members of the

Berkeley Police Department

tape-recording the show without

the permission of the Troupe.

The Berkeley Chief later an-

nounced the tape was being

screened for "obscenity." (4)

The Mime Troupe's scheduled

appearance at the Bernal

Heights Street Fair was can-

celled for undisclosed reasons.

(5) An appearance by the

Troupe and Director R. G. Davis

on CBS television was cancelled,

also for undisclosed reasons.

ACLUNC Action

The entry of the State Divi-

sion of Beaches and Parks in

censorship turned into a victory

for anti-censorship forces after

fast action by the ACLUNC.

Staff Counsel Marshall Krause

-Continued on Page 3

Number 9

U.C. Students

FSM's Bail

Problems

Bail on appeal for convicted

FSM demonstrators was set at

either $550 or $1100 by Munici-

pal Court Judge Rupert Critten-

don after he had found the stu-

dent group guilty of trespassing

and resisting arrest (by going

limp). This amounted to more

than $400,000 in bail and to a

bail bond premium in excess of

$40,000 for the more than 600

persons convicted. Many of the

students convicted believed that

it was an unjustified financial

-drain because they had respond-

ed to all previous court orders

and had been free on much

smaller bail during the trial. The

law prevents the trial from be-

ing continued as appeal bail.

Attorneys for the students

then filed a writ of mandate in

the State Supreme Court in an

attempt to get bail lowered.

ACLUNC's view was that any

student who was financially un-

able to post the bond would

have to spend the time in jail

pending his appeal and, in many

convictions, the

sentence would expire before

the appeal could be decided. Be-

fore this position could be pre-

sented to the Supreme Court,

the writ was denied. |

Next, some of the students

who could not afford to post bail

were taken off to jail when they

posted their notices of appeal.

A writ of habeas corpus was im-

mediately applied for on their

behalf. Once again the American

Civil Liberties Union of North-

ern California, appealing amicus

curiae, pointed out that there

would be a denial of equal pro-

tection of the laws if responsible

persons were required to linger

in jail pending appeal just be-

cause they lacked sufficient.

funds to post a bond. That writ

was denied in the Alameda

County Superior Court and a

new writ will be sought in the

district court of appeal.

Academic Freedom

Katz Case

Still Undecided

The case of Dr. Eli Katz is one

of the matters awaiting the de-

cision of the new University of

California at Berkeley Chancel-

lor, Roger Heyns. Katz was de-

nied reappointment to the Ger-

man Department at the Universi-

ty despite the strong backing of

the Department because former

Chaneellor Edward Strong re-

quested him to answer questions

about his political activities,

which Katz had previously de-

clined to answer. Katz, and a spe-

cial committee which heard his

case (where Katz was repre-

sented by ACLUNC Executive Di-

rector Ernest Besig) took the po-

sition that once a professor has

answered the Levering Act oath

questions no further political in-

quiry can be made, Strong re-

fused to accept this position.

For a time the Regents of the

University had the case, but then

they referred it back to the

Chancellor's office for final de-

cision, specifying that the new

Chancellor should make the deci-

sion. It is hoped that Dr. Heyns

will make an early decision as

the case has been pending for

some time and has crucial signifi-

cance for political freedom at the

University of California. If a de

cision is not made within a rea-

sonable time (and if it is un-

favorable) ACLUNC will take the

case to court,

AMERICAN CIVIL LIBERTIES UNION NEWS

Published by the American Civil Liberties Union of Northern California

second Class Mail privileges authorized at San Francisco, California

ERNEST BESIG...

Editor

503 Market Street, San Francisco, California 94105, EXbrook 2-4692.

ts Subscription Rates -- Two Dollars a Year

Twenty Cents Per Copy

151

ye ay rea fer

The Courts to Lighten

By TOM WICKER

Sooner or later the Federal

courts. will have to come to

grips with the delicate and com-

plex issue that District Judge

Frank M: Johnson of Alabama

touched but Lo unsettled this

week.

That is the adestion of what

civil rights demonstrators may

or may not do in staging public

protests. At what point does pro-

test cease to be legitimate and

become a public nuisance that

- ean and should be suppressed by

state and local police power? -

- Who Shall Decide?

"Judge Johnson, who refused to,

take jurisdiction of the specific

cases' of 167 demonstrators ar-

rested in Montgomery for violat-

ing local ordinances and _ state

laws, said demonstrators had no

right to decide for themselves

whether to obey the law. But he

added that "peaceful, orderly and

lawful demonstrations for pur-

poses of dramatizing grievances

or protesting discrimination"

could not justify the arrests and

prosecutions of the demonstra-

tors. |

But the question he did not

answer is precisely what consti-

tutes a "peaceful, orderly and

Jawful" demonstration. And who

decides whether demonstrators

have the legitimate purpose of

"dramatizing grievances or pro-

testing' discrimination" or are

wantonly disturbing the peace?

The courts have not yet provid-

ed the answers. Federal courts in

New. York and the Supreme

.Court itself refused to take jur-

isdiction, for instance, in the

ease of the. Rev. : Milton Galami-

son, who was convicted of violat-

ing local ordinances during sit-

ins at the World's Fair. and the

New York City Board .of Educa-

tion.

Basic Teeue Unsettled

On the other hand, the Su-

preme Court did strike down

Louisiana's conviction of the Rev.

Elton Cox on a charge of leading

a demonstration that broke the

Jaw by approaching too near a

courthouse when the court was

in session. It did so by 5-4, and

even that narrow decision was

based on the facts of the partic-

ular case and did not settle the

wider legal issues. |

In a notable dissent to the Cox

decision, Justice Hugo Black

wrote:

"Those who encourage minor-

ity groups, to believe that the

`United States Constitution and

Federal laws give them a right

to patrol] and picket in the streets

whenever they choose, in order

to advance what they think to be

a just and noble end, do no serv-

iu to those minority Sroups,

their cause or their country."

Judge , Johnson was more' ex-

`plicit. "The philosophy," he said,

`that a person may-if his cause -

is. labeled `civil rights' or `states'

_ rights' - determine for himself |

what laws and court decisions

are morally right.or wrong and

- either obey or refuse to obey

them according `to his own de-

_ termination, is a philosophy, that

ds foreign. to our `rule- of- law'

theory: of government.' es

But the: trouble: is that it is

searcely.. possible . to conduct a

sizable civil rights demonstra-

tion without. violating some. or- .

- dinance at least technically. Even -

`fo no. law -is. broken, -local . offi-

cials so inclined can almost al-

_ ways either push demonstrators

.,; ACLU NEWS

SEPTEMBER, 1965

`Page 2

into an illegal position or trump

up charges against them.

Thus, in this gray area of the

law, it is possible for demonstra-

tors in pursuit of legitimate ends

to violate the rights of others, to

bring a community's life virtu-

ally to a halt, and to make law.

breakers of themselves. It is pos-

sible, on the other hand, that

demonstrators whose protest is

"peaceful, orderly and lawful"

can be man-handled, arrested and

jailed, on pretexts or technicali- -

ties.

Still another legal question

arises from the purposes of a

demonstration. Negroes protest-

ing in a Southern city because

they had plainly been denied the

right to vote might be one thing;

demonstrators hurling garbage

in the streets and chaining them-

selves to some judge's desk in

_ general protest against the condi-

tions of life in America probably

are something else again.

The interesting question of

civil disobedience as a philoso-

phy also is raised. It may be a

perfectly justifiable belief that

one who is in profound moral

and personal disagreement with

a law should meet the require-

ments of his conscience by ig-

noring or even deliberately

breaking the law.

Civil Disobedience Cases

But what of the man who pro-

fesses a conscientious belief in

civil disobedience, and then asks

a court to absolve him of the le-

gal consequences of having acted

upon that belief? Doesn't a belief

in civil disobedience require a

willingness to suffer the penal-

ties that may follow the act of

conscience?

- The Supreme Court can hard-

ly-settle such questions as. that,

but it can provide reasonable

guidelines for demonstrators and

for state and local law enforc-

ers. As Negroes extend their pro-

tests to such matters as housing,

de facto segregation and job op-

portunities, the gray area will

become even murkier without

guidance from the courts.

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_ The foregoing article is re-

printed from the New York

Times, August 5, 1965, as

pertinent to an issue of par-

ticular timeliness in the Bay

Area.

The attempt of Edgar J. Sokol

to sue the telephone company

for damages after his telephones .

were unjustly removed and his

business destroyed on the false

allegation that he was engaged

in illegal activities continues.

The latest action is a decision

of the Public Utilities Commis-

sion, filed August 3, holding

that, the importance of controll-

ing bookmaking justifies the re-

moval of telephones from a sub-

scriber's place of business with-.

out notice or hearing or a

- chance to. make a defense, and

that the great injury to. the oc-

casional. innocent victim must be

the price paid for efficient law

enforcement.

Permission to Sue

In Sokol's case, brought with

the support of ACLUNC, even -

though he was not engaged in

illegal activity it took 14 days

to get his telephones restored -

_ after they were removed on a

Police Department complaint.

The long delay forced Sokol out

DIRKSEN AMENDMENT

Gentlemen:

I find that I must take issue

with your stand against the Dirk-

sen Amendment to the Federal

Constitution as expressed in the

August NEWS. Of your three

conditions. for approval of such

an amendment, conditions A and

C are more or less embodied in

the present Dirksen proposal.

That is, non-discrimination and

judicial review are not explicitly

proscribed; therefore, they are

implicitly allowed.

I disagree principally with con-

dition B, which provides for peri-

odic voter referendum. Such pe-

riodic review is not characteristic

of any of our other laws, includ-

ing the Constitution of the

United States. I see no reason

why this particular subject

should be singled out for such"

treatment.

If periodic popular referendum

is a good idea of government, it

should be included as part of our

basic law to apply. to all consti-

tutional. matters, not merely to

upper -house legislative appor-

tionment.

Charles Robbins Arnold

Dear Mr. Arnold:

There is some doubt that con-_

dition A is met by the Dirksen

Amendment proposal since it

may override the Equal Protec-

tion Clause of the Fourteenth

Amendment. The theory of the

periodic voter referendum is

that, if a majority of voters are

to give up their right to equal

representation in favor of some

other kind of representation, this

must be done periodically rather

than just once since the voters

must be given the opportunity to

change their minds and new vot-

ers must be given an opportunity

to have their voice in this deci-

sion.

Marshall W. Krause

Staff Counsel

PROP. 14

Dear Mr. Besig:

Tardiness in sending the en-

closed dues is partly on account

of my having been away from

the area. But also, this year, for

the first time since I joined 15

years ago, it was not easy to de-

cide whether to continue support

of the ACLU.

I joined because ACLU was

the only organization effectively

defending individuals against ar-

bitrary and tyrannical violation

by government of the rights

guaranteed by the Constitution. I

shall continue because that is

Still true; but with reluctance,

because it is no longer the whole

truth about the ACLU. A New

Policy is in effect.

`To judge from the ACLU

News, the ACLU is becoming

more and more just another ap-

pendage of the so-called Civil

Rights movement. Much in this

program, for instance the secur-

ing of voting rights for Negroes,

properly concerns an organiza-

tion devoted to defending civil

of business. When he brought suit

for damages the Supreme Court

of California held that he had

first to get permission from the

Public Utilities Commission to _

bring a suit, since regulation of

telephone companies is within

the exclusive jurisdiction of that

Commission. .The Commission

has denied such permission and

Sokel will again take his case to

the Supreme Court of California

to get this decision overturned

if possible.

Dissent

The Commission's . decision

was concurred in by three Com-

missioners, one Commissioner

did not participate. Commission-

er William M. Bennett filed a

dissenting opinion in which he

said: "Reviewing the majority

opinion herein, I can only con-

clude that it perpetuates a pro- -

cedure which is unconstitutional

on its face, which is lacking in

any proper deference to the -

Standards of due process and

which is sought to be justified -

Correspondence

But many more de-

liberties.

mands, for instance imposition

of racial quotas in employment

and bussing of school children,

have nothing to do with the civil

liberties spelled out in the Con-

stitution, however legitimate and

even desirable they may `be as

political goals. There is no ert:

age of organizations devoted sto

their achievement. The TB As-

sociation and March of Dimes

have had to look for new diseases

to conquer, now that TB and pol-

io `have been substantially lick- |

ed. But one could hardly contend

that the Bill of Rights is now so -

safe that no one need spend full

time defending it. be

`One of many cases in point is

ACLU's support of the lawsuits

seeking to overthrow Proposition .

14. I do not think Prop. 14 is

wise, and I voted against it. But

it has nothing to do with civil

liberties. The Constitution says

nothing and implies nothing

about who shall sell or rent what

to whom.

Nor do Messrs. Krause and

Margolin, representing ACLU in

Grogan v. Meyer, maintain the

contrary. Instead they rely on

two arguments, of which one is

dangerous and the other despica-

ble.

First they argue that "no state

may constitutionally abdicate all

police power in a major area of

the state's traditional concern"

(ACLU News, Aug. 1965). If this

doctrine is upheld, the ACLU is

done for. Freedom of speech, of

the press, of worship, every right

in the Bill of Rights is precisely

an abdication of police power in

a major area of the state's tradi-

tional concern. The spectacle of

ACLU lawyers appealing to un-

alienable police rights is omi-

nous indeed.

Next they raise the "complete-

ly novel argument" that ``Section

26 should be interpreted... . to

leave in effect existing statutes

regulating discrimination in

housing (ie., Rumford and Un-

ruh Acts) but prevent expansion

of these statutes or the enact-

ment of new statutes." This is a

piece of exegesis that would

make a Jesuit blush. Such legal-

istic perversion might. be some-

what humorous in a Jack Lem-

mon film, but one would not ex-

pect ACLU lawyers to don

straight faces and tell it to the

judge.

I read in the same issue of the

ACLU News that northern Cali-

fornia membership now stands

at a "record 6675." Obviously the

New Policy is popular. In the

past, ACLU did. not strive for

popularity, but pereres that was

a mistake.

Wallace T. Matson

(Professor of Philosophy,

- University of California) -

2CISE

`only upon the startling premise

that .a public utility service ...

may be summarily removed

without notice, without hearing

and without demonstrated valid

cause simply because such a

procedure in some unspecified

way constitutes `an aid to effec-

tive law enforcement.' "

Commissioner Bennet t also

pointed out that the decision to

leave the removal of telephone

service in the hands of law en-

forcement officers in effect. con-

stitutes these officials as judicial

officers who have the' power to

take away property without no-

tice or hearing: He also strongly

attacked the power of the Com-

mission. to make a utility im-

mune to private damage actions.

A petition for rehearing is

now on file with the Commission

and ACLUNC : attorneys Leo

Borregard and Marshall W.

Krause will carry the ease to the

Supreme Court of California and

necessary.

Dear Professor Matson: -

We appreciate the fact that

you renewed your membership

despite your disagreement with

some of our recent positions. We

realize that very few of our mem-

bers would go along with every

position of the ACLU and so we

have to count on the fact that

most of our members are in

agreement with our positions

most: of. the time and therefore

find us an organization worthy.

of supportin g.

It is true that there is a con- -

siderable pressure from our

members and from other organi-

zations to make the ACLU a-

more activist organization in the'

civil rights movement. We in

Northern California are' some- '

what conservative in this respect, |

at least as compared with the:

ACLU in Southern California

which operates a joint program

with the NAACP, CORE and

other civil rights groups. I must;

protest, however, at your cita-.

tion of the imposition of racial

quotas in employment and the:

bussing of school children. as.

positions of ACLU in Northern

California. Racial quotas in em-

ployment: (and in housing, for

that matter) would not be sup-:

ported by the Civil Liberties Un-

ion nor is bussing of school chil-:

dren supported by the Civil Lib-.

erties Union. It is my view that

school districts have a constitu-

tional obligation to recognize de

facto segregation and to try to do

something about it, since the fail-

ure to correct the educational

harm caused by this situation de-

prives Negroes of the equal pro-

tection of the laws.

We are in disagreement con: .

cerning whether Proposition 14

is in violation of the Federal

Constitution. Certainly this is not

an easy question, but our Board

of Directors felt `that there was

a constitutional violation and we

have hopes that the courts will

agree with our position. The spe-

`cific arguments used in Grogan

v. Meyer need some special ex-

planation... The procedural pos-

`ture of this case is that a brief

could be filed with the Supreme

Court only at the sufferance of

that court. That court required

that we (1) not repeat arguments

made in other briefs, and (2) file

a consolidated brief.with another

ease. In this circumstance we

adopted by reference the major

constitutional arguments under

the Fourteenth Amendment and

argued at length only two periph-

eral points. The first of these

is the police power of the State

which, if it did not exist, would

make `the guarantees of the Bill

of Rights a mockery. under pres-

ent conditions in our country. If

a speaker on an unpopular sub-

ject. at a public. meeting could

not be protected against physical

assault by members of the audi-

ence, how much free sp eech

would we have?.

`The second argument' is one

of interpretation and does not

involve constitutional principles -

"except to the extent that one can

say that if this argument: is

adopted, the constitutional ques-

tions would: not have to be reach-

`ed. In representing clients for

the ACLU, I do not: and could

not limit myself to constitutional

questions since my clients are

entitled to have their cases ar-

gued on any legitimate basis

which will win their cases. It

frequently happens that the

`courts do not reach the constitu-

tional questions argued in ACLU

`eases but decide them on other

grounds.

Marshall w. Krause

Dear Mr. Krause:

`Since in. commenting on. my

letter I am sure you will not

`wish to misrepresent what I

`wrote, I think I had better point

out that contrary to. what you

wrote in your letter of August

2, I made no "citation of the im-

position of racial quotas in em-

`ployment and the bussing of

school children `as. positions `of

`the ACLU in Northern: Califor-

to the U.S. Supreme: cau a 7p

ia." I cited these only as. de-

= "Continued on Paye:4

Legislative Apportionment

irks

iat month the U. S. Senate defeated the amendment to

the U. S. Constitution proposed by Senator Dirksen which

would have permitted one house of bicameral state legis-

latures to be apportioned on factors other than population.

The Dirksen amendment failed of approval by 7 votes. The

final decision of Senator Javits

- to oppose it, and the decisive re-

jection that same day of his sub-

stitute version, was instrumental |

in eroding the support needed to

pass his fellow- Republican' s

amendment.

Other Courses

While the House has not acted

on a reapportionment amend-

ment, the Senate's action appears

to have killed efforts to reverse

or impair the Supreme Court's

one-man, one-vote ruling of June

15, 1964, Although it has not

stopped further plans by Sen-

ator Dirksen who continues to.

devise substitute measures. In

- fact, he has assured this Branch,

by letter, that he will continue

his efforts. It is still possible,

however, that such amendment

to the U. S.. Constitution could

be made through a constitutional

convention called by. Congress

on petition of 34 state legisla-

tures. Twenty-three legislatures

have petitioned for such a con-

vention. This method has never

been used to amend the Consti-

tution.

Outcome of Defeat

The long-range result of the

Senate's. defeat of the Dirksen

amendment:and of the probable

. failure of any such proposal, will

be the final removal of the domi-

Tutt

nance exercised over state legis-

latures by farm and small- town

interests. -

Provisions' of the Dirksen

amendment, both as originally

proposed and as _ subsequently

modified several times, have

been described in previous issues

of the NEWS, together with rea-:

sons for ACLU's opposition, and

space does not permit their repe-

tition.

`Support for `the Dirksen

amendment reached a peak in

February and March, when it was

widely believed that Senator

Dirksen had the necessary two-

thirds votes in the Senate. Con-

tributing to the gradual ebbing

of .support were: time, and the

fact that an increasing number

of legislatures continued to re-

apportion in compliance with

court orders, with the consequent

reluctance on their part to un-

dergo the second upheaval of

reversing their actions. Also, la-

bor, civil rights, and civil liber-

ties organizations actively cam-

paigned against the amendment.

An especial issue was made of

the point that the Dirksen

amendment could be used by the

white-dominated Southern legis-

latures to check the newly won

voting power of urban Negroes.

le Takes Civil |

ights Posi in South

Richard E. Tuttle, a director of the branch board of

ACLUNC since last September, and Chief Counsel of the

State Public Utilities Commission, recently resigned both

posts in order to assume direction of the southern legal aid

office in Jackson, eee of the Lawyers' Committee for

Prisoner Loses

Appeal |

~ Robert Pate is a prisoner at

San. Quentin State Prison as the

result of a conviction of kidnap-

ing in the State of Nevada. He isa

"boarder" in the California State

Prison System because Nevada

has no facility able: to take care

`of him. It is clear from the tran-

script of Pate's Nevada trial that

he was denied the effective as-

sistance of counsel and probably

was mentally ill when he went

`through vital stages of the pro-

ceedings, For `these. reasons,

' ACLUNE with the assistance of

volunteer attorney Arthur Brun-

wasser, is supporting his habeas

corpus case. :

Because the State of | Nevada

does not allow: a person outside

of its borders to proceed under

`habeas corpus, and since the

-State of California.denies it, has

habeas corpus jurisdiction over

Pate, ACLUNC filed its petition

in Federal District Court. How-

ever, Judge Albert C. Wollen-

berg threw the case out on the

basis that Pate first had to try (c)

Nevada remedies before the fed-

eral courts could take jurisdic-

tion. Now the Ninth Circuit on

appeal has affirmed Judge Wol-

lenberg's disposition: Brunwasser

`intends to proceed with what the

`federal courts ha ve: stipulated,

that is, request the Nevada courts

`to overrule `their previous: deci-

sions and consider Pate's petition,

even though he is not within the -

State of Nevada. If.they refuse -

to do so, then the federal courts

have said: they: will consider the

"merits `of -the case. The ACLUNC

believes: that: this: is: an. unfor- -

.tunate burden for habeas corpus

"applicants; but that. the case is

Civil Rights. Under Law.

Public Service

Tuttle, who has already taken

up his. duties, directs a legal staff

of salaried: and volunteered law-

yers. drawn from. prominent law

firms across the United States.

A former professor of law and

Deputy District. Attorney of Plac-

er County, Tuttle served as a

pilot in World War II, and later

became a prisoner of war,. AS

Chief Counsel for the California

Public Utilities Commission, last

year he successfully defended

before the State Supreme Court ~

the largest cut in telephone rates ~

ever ordered by the Commission.

Committee's Background

The Lawyers' Committee was

formed. in 1963 at the request -

of President Kennedy and is

headquartered in Washington,

D.C. It opened the Jackson of-

fice on June 2 to provide defense

counsel for civil rights advocates.

Mississippi has few. Negro law-

yers, and white lawyers have

rarely been willing to accept civil

rights cases. The Jackson office

has already represented hun-

dreds of defendants. Its lawyers

briefed and argued motions that

resulted on June 29 in an in-

junction by the U. S. Court of |

Appeals for the Fifth Circuit

forbidding enforcement of three

Jackson ordinances that banned .

marches, demonstrations and dis-

.tribution. of pamphlets.

The Board of Commissioners

of the Mississippi State Bar has

endorsed the. Lawyers' Commit-

tee program. It has also appoint-

ed a liaison officer who, works

with the Jackson office.

not sufficiently important, `to take

`to the United States Supreme

- Court, and. so the decision -will

stand.

~ ACLUNC

us Driver

Case Decided

In a most unusual case

volunteer attorney

Henry Saunders has represented

a bus driver, Olen Hollon, in a

Shasta County Superior Court

- action to attempt to get Hollon

reinstated after he was fired by

the Board of Trustees of Shasta

`Union High School District. Hol-

lon, a non-tenure employee, was

- dismissed when his name_ap-

peared as co-author of a reli-

gious tract entitled "The `Upper

Room' of Babylon." After read-

ing this tract the School District

became concerned about Hol-

lon's mental balance and did not

offer him a renewal contract.

_ Psychiatric Exams

After the Board fired Hollon -

he submitted to psychiatric ex-

amination by a local psychiatrist

who concluded: "Whereas these

tests indicate some very minor

areas of guilt feelings and minor

areas of conflict, there is no evi-

dence in the clinical interview

nor from these tests to indicate

that he has a. neurotic or psy-

chotic or psychopathic or psy-

chosomatic, paranoid or depres-

sive disease." The report also re-

vealed that Hollon had not writ-

ten the religious tract but only

put his name to it because he

subscribed to its views. The

Board received the psychiatrist's

report but took no action.

Hollon then complained to the

State Fair Employment Prac-

tices Commission which had him

examined by another psychia-

trist who reported, "It is diffi-

cult to put any specific psycho-

pathological diagnosis on this

man... his religious views re-

flect his personality, to be sure,

but these are also views shared

by some groups and, although

this may represent a minority of

people, it cannot be considered

psychotic or dangerous."

FEPC took no action, evidently

being unsure of its authority.

The trial judge, Richard B.

Eaton, read the religious tract

and concluded: "The theological

opinions stated, startling though

they may be to the average ear,

are not new, nor are they. pecu-

liar to the author of this work.

The book shares certain ideas

with various present-day sects

which. shall be nameless, as well

as with the Millerites (flour-

ished 1843), with the Ember Day

Bryanites (founded 1717), and

even with John Knox (died

1572),.whom the author of the

present work seems to _ think

well of. Apocalyptic opinions

and religious zealotry often

The

Proposition 14 Briefs

Available

The Summer 1965 issue

of Law Commentary en-

titled "Three Briefs on

Proposition 14 in the Cali-

fornia Supreme Court," is

available from the ACLU-

NC office. The price is

$3.00.

It contains three briefs

discussing the constitu-

tionality of Proposition 14.

seem to go together, but they do

not generally lead to suicide or

homicide in anticipation of

Judgment Day; nor are they to

be taken as proof of dementia (c)

on the part of the average be-

liever therein."

Sanity, Not Theology

The trial court recognized that

it would be unconstitutional to

fire Hollon for his religious ~

views even though he had no

tenure. However, the court con-

cluded that Hollon was fired not

for his theology but because of

doubt as to his sanity. Judge

Eaton wrote: "The Board, with

the safety of whole busloads of

children weighing heavily upon

its conscience, was entitled to

resolve its doubts about peti-

tioner by failing to rehire a non-

tenure employee . . . The Board

has reasonable cause to believe,

and honestly did believe, that

petitioner might be mentally un-

balanced." For this reason the

court sustained the Board's ac-

tion in failing to rehire Mr.

: Hollon.

ACLUNC has supported Hol-

lon because it believes that re-

ligious views should not be taken

into account in the hiring or fir-

ing of a government employee.

ACLUNC does not quarrel with

the decision to remove a person

from a job involving the lives of

others where..there is some

doubt about his mental stability.

However, when such doubts are

resolved in favor of the em-

ployee's sanity and reports of

two independent ' psychiatrists

have not turned up anything

which might indicate that the

person involved has any danger-

ous tendencies, then there is no

longer any ground for eon

ing his sanity.

Appeal Possible

. Judge Eaton appears to have

held that since at one time there

was reasonable doubt as to Hol-

lon's sanity, his firing was valid,

even though this doubt was later

removed. Consideration is now

being given to appealing Judge

Eaton's decision to the District

Court of Appetit to resolve this

question.

The American Civil Liberties

Union is supporting the attack

on the right of five Mississippi

Congressmen -to hold their posi-

tions in view' of `the deliberate

and widespread denial of the

vote to Negroes in` Mississippi.

In a remarkable turnout of

legal manpower, volunteer at-

torneys from all over the coun-

try collected depositions in: Mis- _

sissippi from Negro voters who

had been prevented from voting,

and from white government offi-

cials who prevented the Negroes

from voting. `The depositions

have been printed by the Clerk

of the House of. Representatives

`and it is expected. that a com-_

mittee of the House will con-

sider the challenge soon.

-ACLUNC Action

- Last month ACLU's Mt. Diab- .

`Io Chapter, with financial assist- .

ance. from `the | Branch | Office, .

sent attorney Harry Lohstrouh

`insisting -

`elected

seated.

to Sa carla: D.C., to. speak .to

Congressmen concerning the

challenge. Lohstrouh was one of

the attorneys who took deposi-

tions in Mississippi and has per- -

sonal knowledge of the facts. He

estimates that at least 80 percent

of the Congressmen were per-

sonally visited by members of

the team that went to Washing-

ton and that a large proportion

of the Congressmen reacted

favorably. Soon each: Congress-

man will have to face the per-

sonal decision as to whether he

will support the challenge or

will endorse the right of Con-

_ gressmen. elected by intimida-

tion of Negroes to hold their

Seats. |

ACLU members can. make

their voices heard by writing to

their Congressmen, no matter of .

what political. persuasion, and

that the illegally

representatives "not be

; promptly answered:

Continued from Page 1-. .

contacted Mr. Kishbaugh, dis-

covered that Kishbaugh had not

seen the play and had acted on

information received by teles.

phone from the San Francisco |

Park and Reccentreation Commis-

sion. He claimed authority for

his action under Section 4315 of

the Administrative Code which

provides in part "No person |

shall use... . indecent language

or make indecent gestures. in the .

state park system ...."

Both Hugo Fisher, Adminis.

trator of the State .Resources

Agency, and Acting Governor

Glenn _

Fred L. Jones, Director of the

California Department of Parks:

and Recreation, rescinded Kish-

baugh's ban on the Mime Troupe

on the basis that he had acted

information..

without adequate

Jones asked the sponsoring or-

ganization, the Athenium Arts

Foundation, to screen the Mime

Troupe's script to see that it

contained nothing indecent.

However, that organization.

bravely refused to act as a

censor.

Representatives of "fhe State

Parks and Recreation Depart

ment were present at the Sun-

day performance. They taped

and filmed the show with the

evident intention of determining

whether or not an indecent per-

formance had been put on.

Meantime, the ACLU had writ-

ten Jones, requesting him to re-

fer the question of the interpre-*

tation of Sec. 4315 to the At-

torney General for an opinion

and had informed Jones that the

regulation appeared to apply

only to the senseless. profanity

and crudeness in which young

people sometimes indulge and

which has no pretension to be

anything other than vulgar

conduct. "It would be very sur-

prising . .. if this regulation

were interpreted to apply to

musical `events; theatrical per-

formances, speakers and other

such organized events at the

state parks. If it were so in-

terpreted, a special board would.

have to be set up within the De-

partment to evaluate each in-

tended activity in the parks to

determine whether it did or did

not contain indecent language

or gestures," it wrote. It was

further noted that "This Board

might find some difficulty in ap-

proving much of the more mod-

ern artistic activity as well as

many of the plays of Shake-*

speare and the Greek /drama-

tists."

Attorney General's Opinion.

_ Jones submitted the question

to the Attorney General who

"It is our

opinion that the above provi-

sions of Section 4315 were not

intended to establish any cen-

sorship of musical events, the-

atrical performances, speakers

and other such organized events

presented in the state parks un-

der special events permits." This

seems to end the censorship' ad-

ventures of the State of Califor-

nia.

No doubt the Mime `Troupe

will `suffer' further indignities

because of `the narrow-minded _

activities of the San' Francisco

Park and. Recreation Commis-

sion acting under an ordinance

which we are certain will be

held unconstitutional: It `is re-

grettable that volunteer boards

of citizens believe that their

tastes and sensibilities must gov-

ern the availability of artistic

performances to: the - Pune ae

large.

ACLU NEWS

SEPTEMBER, 1965

, Page 3

M. Anderson were con-'.

taeted and they agreed to find.

out how and why the state was'

censoring plays. Later that day'

By MICHAEL TIGAR

The 1964 Term of the U. S.

Supreme Court produced many

important decisions in the fields

of civil liberties, civil rights, and

criminal proceedure. This is a

necessarily abridged review of

the more important of those

cases, a number of which were

supported by ACLU affiliates.

Freedom of Expression

In Garrison v. Louisiana, a

unanimous Court held a district

attorney's criticism of local

criminal court judges as lazy, in-

efficient and dishonest to be pro-

tected by the First Amendment.

The DA had been tried and con-

victed of criminal libel for his

remarks. Six members of the

Court held that the doctrine of

New York Times v. Sullivan

(that libel of public officials is

protected by the First Amend-

ment from civil suit unless ac-

tual malice is shown) applied.

Justices Black, Douglas, and

Goldberg stated that all criti-

cisms of public officials' per-

formance of their duties should

be protected by the First Amend-

ment.

Freedom to criticize was also

upheld in Holt v. Virginia. Eight

members of the Court voted to

reverse the contempt of court

convictions of two Negro attor-

neys who, in a written motion,

alleged during a trial that the

trial judge was biased. The Vir-

ginia Court of Appeals called

the motion "a studied attempt to

smear the judge." The Supreme

Court held that the contempt

citation, on the basis of the lan-

guage used, threatened the right

of counsel to defend his client

and violated due process. Justice

Harlan dissented.

In two picketing cases a sharp-

ly divided Court found. that Lou-

isiana had abridged the First

Amendment rights of civil rights

leader Rev. B. Elton Cox by con-

victing him of breach of the

peace and obstructing public pas-

sages, and, in addition, had vio-

lated due process by convicting

him of picketing near a court-

house. Justice Goldberg, for the

majority in the two cases,. said

that the Louisiana breach of the

peace statute was unconstitu-

tional under the First Amend-

ment as it could be used to pun-

ish peaceful expression of un-

popular views. The. "obstructing

public passages" conviction was

held barred by the First Amend-

ment because city authorities

could and did permit or prohibit

parades in their uncontrolled

discretion.

Justice Black concurred espe-

cially on the grounds that: (1)

the breach of the peace statute

was unconstitutionally vague;

and, (2) since the "obstructing

public passages" statute express-

ly permitted labor union picket-

ing, it was unconstitutional cen-

sorship and denied equal protec-

tion of the laws. Justice Clark

coneurred on equal. protection

grounds. Justices White and Har-

lan concurred in reversing the

breach of the peace conviction

on First Amendment grounds,

put dissented from the reversal

of the obstructing conviction on

the ground that the statute had

not been used an an "open-end"'

licensing statute, as the majority

contended. :

Five members of the Court

held that because the state of-

ficials had given Cox permission

to demonstrate, his conviction

for picketing near a courthouse

was invalid; that to convict him

of a crime for doing so was a

form of entrapment forbidden by

- the due process clause of the

Fourteenth Amendment. Justices

Black, Harlan and White dis-

sented on the ground that offi-

cials cannot authorize illegal

ACLU NEWS

SEPTEMBER, 1965

Page 4

conduct, and that the evidence

showed any permission given

was later revoked. Justice Clark,

in dissenting stated that the evi-

dence supported the conviction.

In Freedman v: Maryland, the

whole Court joined in striking

down Maryland's movie censor-

ship law.

Freedman was convicted of

showing a movie without first

obtaining a license from the

State Board of Censors. Seven

Justices held that while movies

may: not be protected by the

First Amendment to the same

degree as other forms of expres-

sion, the Maryland statute was

unconstitutional because: (1) if

the censor disapproved of a film,

the exhibitor had to initiate

court proceedings and prove the

film was protected. expression;

(2) once the censor had acted,

the film could not be shown un-

til all judicial review had taken

place; and, (3) there was no as-

surance of prompt judicial re-

view. Justices Douglas and Black

concurred, saying that movies

are entitled to the same First

Amendment protection as any

other form of expression and

should therefore be free from

all censorship.

In another important case, the

Court struck down a mail cen-

sorship statute in an ACLUNC.-

In collections

ACLU-NC News: 1965

Details

Title: vol. 30, no. 9 (September, 1965)
Creator: American Civil Liberties Union of Northern California
Date: 1965 September
Identifier: ACLUN_0351
Genre: newspapers
Physical description: 40.5 x 28 cm
Publisher: San Francisco (Calif.): American Civil Liberties Union of Northern California
Preferred citation: ACLU of Northern California News vol. 30, no. 9, 1965 September; PER ACLUN; California Historical Society.
Rights statement: In Copyright
Publication rights: Copyright (or related rights to publicity and privacy) for materials in this collection, created by the American Civil Liberties Union of Northern California, was not transferred to the California Historical Society (CHS). Permission for reproduction or publication of materials in this collection beyond that allowed by fair use must be secured from the copyright holder.
Topical subject(s): Bail
Vietnam War, 1961-1975
Veterans
Searches and seizures
Privacy, Right of
Voting rights
Freedom of expression
Discrimination in housing
Criminal justice
Contempt of court
Reproductive rights
Academic freedom
Prisons and jails
Named subject(s): Besig, Ernest
Knox, John
Krause, Marshall
Rumford, William
Stender, Marvin
National Association for the Advancement of Colored People
Geographical subject(s): Berkeley (Calif.)
Collection identifier: PER ACLUN