vol. 31, no. 5

American

~ Civil Liberties

Union

Volume XXxI

New Levering Act Test

California

SAN FRANCISCO, MAY, 1966

acl compra ensceaiiincin tk

On two occasions last month the ACLU called into ques-

tion the constitutionality of California's Levering Act loyalty

oath before San Francisco Superior Court Judge Joseph

Karesh in the case of Rita and William Mack v. The State

Board of Education. The Macks are accused of having filed

false Levering Act oaths because

they did not disclose that they

had, before taking the oath, been

members of the Communist

Party. :

Unconstitutionally Vague

ACLU staff counsel Marshall

Krause has defended the Macks'

actions by contending that the

loyalty oaths they filed were not

false and, in any event, the oath

is unconstitutionally vague and

devious concerning what infor-

mation one who takes it is re-

quired to disclose and is also

unconstitutional as an abridg-

ment of freedom of speech. Law-

yers for three other groups ap-

peared as friends of the court in

support of the Macks' constitu-

tional arguments before Judge

Karesh. They are Eugene Rosen-

berg representing. the American

Jewish Congress; Victor Van

Bourg representing the Califor-

hia Federation of Teachers, and

Albert M. Bendich representing

a group.. of. prominent, lawyers

ana law scnool protessors. `

_ Pockman Decision

Judge Karesh had indicated at

the first argument that he was

strongly disposed to follow the

California Supreme Court's 1950

ruling in Pockman v. Leonard

upholding the Levering Act

against constitutional attack. At- .

torneys for the Macks argued

that the law had changed con-

siderably in the 16 years inter-

vening after the Pockman deci-

sion and that many unconstitu-

tional arguments ignored in that

decision had furnished the basis

for declaring invalid oath stat-

utes of other states. Judge Kar-

esh allowed more time to de-

velop this argument and just two

days before the second hearing

the United States Supreme Court

decided the significant case of

Second Defeat

For Dirksen

Amendment

The Dirksen Amendment to the

Federal Constitution which

would allow one house of bica-

meral state legislatures to be ap-

portioned on factors other than

population was defeated for a

second time last month, It failed

of approval by seven votes, The

vote was 55 for the amendment

`and 38 against. Last August, the

proposal also lost by seven votes;

the vote was 57 to 39.

Senator Dirksen says he has

not given up on his proposal but

is quoted as saying he is still

undecided whether to re-offer it

this year. As time goes on, how-

ever, more State Legislatures are

being reapportioned on a popu-

lation basis and, as a result,

there will be growing opposition

to it in State Legislatures to

Which any amendment would

ultimately be referred for ap-

proval,

More recently, the amendment

has had the support of a special

committee which employed Whi-

taker and Baxter of San Francisco

to conduct a nationwide grass-

roots campaign,

Elfbrandt v. Russeli holding un-

constitutional the loyalty oath

required of public employees in

Arizona. :

Second Hearing

At the second hearing attor-

neys argued that the Elfbrandt

ease clearly required Judge Kar-

esh to rule on the constifution-

ality of the California cath and.

- to. declare

" it unconstitutional

since the standards set forth for

`protection of First Amendment

rights in that case are not met

by the California law's requiring

public employees to subscribe to

the Levering Act loyalty oath.

The Elfbrandt case is a 5-4 deci-

sion in which the majority fo-

`euses on the language that any-

one who "knowingly and wil-

fully becomes or remains a mem-

ber of the Communist Party of

the United States or its succes-

sors or any of its subordinate

organizations" or "any "ther or-

fanization" having for "sie of

its purposes" the overthrow of

the government of Arizona or

any of its political subdivisions

would be guilty of perjury if he

took the Arizona oath with

knowledge of the unlawful pur-

pose of the organization, Mrs.

Elfbrandt, who is a teacher and .

a Quaker, decided that she could

not in good conscience take the

oath since she did not know what

it meant,

Specific Infent Needed

The Arizona Supreme Court

rejected Mrs. Elfbrandt's consti-

tutional challenge but the U. S.

Supreme Court found the threat

of a perjury prosecution to un-

constitutionally inhibit First

Amendment rights. The majority

opinion states: "One who sub-

scribes to this Arizona oath and

who is, or thereafter becomes, a

knowing member of an organ-

ization which has as one of its

purposes the violent overthrow

of the government, is subject to

immediate discharge and crimi-

nal penalties. Nothing in the

oath, the statutory laws, or the

construction of the oath and

`statutes given by the Arizona

Supreme Court, purports to ex-

clude association by one who

does not_subscribe to the organ-

izations' unlawful ends. Here...

the hazard of being prosecuted

for knowing but guiltless be-

havior is a reality. People often

label as: `communist' ideas which

they oppose; and they make up

our juries .., Would a teacher

be safe and secure in going to a

Bugwash conference? Would it

be legal to join a seminar group

predominantly communist and

therefore subject to control by

those who are said to believe in

the overthrow of the government

by force .and violence? Juries

might convict though the teacher

did not subscribe to the wrong-

ful aims of the organization .. .

Those who join an organization

but do not share its unlawful

purposes and who do not partici-

pate in its unlawful - activities

surely pose no threat, either as

citizens or as public employees.

Citizenship

P elayed

18 Months |

The U:S, District Court granted

citizenship to a 21-year-old San

Francisco Chinese girl last

month after the Naturalization

Service had delayed the matter

for eighteen months. The only

reason for holding up the peti-

tion was the fact that the girl's

sister, who filed for citizenship

at the same time, was at one time

a member of the defunct Haiyan

Club which the Service suggests

was subversive. The Service ori-

ginally said it intended to pro-

cess the two petitions together

although it agreed that it had no

adverse information against the

One girl except that she associat-

ed with her sister.

The petitioner was represented

by Ernest Besig, executive direc-

tor of the ALUNC, Besig said

that the Naturalization Service

_ acted only after the ACLU indi-

cated it would file a motion to

grant citizenship in the Federal

District Court unless the Service

referred the case to the court.

Immigration

Case Reversed

On Appeal

The denial of suspension of

deportation to a 29-year-old Chi-

nese woman because she made

two over-night trips to Canada

while her husband was stationed

with the Army at Fort Lewis,

Washington, was set aside by the

Board of Immigration Appeals in

Washington, D.C, A Special In-

quiry Officer in San Francisco

had ordered her deported to

Formosa, He concluded that her

two trips to Canada broke the

continuity of the seven-year per-

iod of continuous physical pre-

sence required by the statute in

order to secure suspension of

deportation.

The ACLU argued that the

Federal Court of Appeals in San

Francisco had decided in 1964

that a five-day pleasure trip to

Canada was not "significant" and

consequently did not make the

alien ineligible for suspension of

deportation, Therefore, the AC-

LU said, two over-night pleasure

trips to Canada cannot be re-

garded as a departure from the

United States.

The Board of Immigration Ap-

peals said it disagreed with the

Federal Court but felt bound by

its 1964 decision because the

same court had just handed down

another decision in which it

relied on the rationale of the

earlier case. The case was, there-

fore, returned to the Special In-

quiry Officer to determine wheth-

er the alien would suffer `"ex-

treme hardship" if she were de-

ported and whether she is of

"good moral character."

The woman is married to a

man who is also in the country

illegally, They have two minor,

American citizen children, The

alien was represented by Ernest

Besig, executive director of the

ACLUNC,

Laws such as this which are not

restricted in scope to those who

join with the `specific intent' to

further illegal action impose, in

effect, a conclusive presumption

that the member shares the un-

lawful aims of the organization.

. -" Lhe unconstitutionality of

this act follows from Speiser v.

Randall where we held that a

state may not even place on an

applicant for a tax exemption

the burden of proving that he

-Continued on Page 2

A Hearing Officer has proposed to overturn a decision

by the Committee on Credentials of the State Department

of Education that a student who participated in the Sproul

Hall sit-in should be denied the opportunity to teach in Cali-

fornia. Although the State Board of Education may accept,

reject or modify the decision of

Hearing Officer Harold Furst at

its meeting in Logs Angeles on

May 12 and 13, his decision is

expected to vindicate 28-year-old

Mrs. Diane Kepner of Berkeley

against the charges the Commit-

tee of Credentials brought

against her last October as a

result of her participation in

the FSM controversy, .

The Charges

The Committee of Credentials

charged that Mrs. Kepner had

fraudulently sworn to the loyalty

oath required of California teach-

ers, had committed acts involving

immoral or unprofesional con-

duct, had failed to furnish evi-

dence of good moral character

and was evidently unfit for serv-

ice in the public school system.

In addition to her participation

in the Sproul Hall sit-in, the

Credentials Committee based its

charges upon the fact that Mrs.

Kepner had refused probation

and would not categorically guar-

antee that she would never again

engage in unlawful conduct, The

State Hearing Officer, Harold

Furst, found against the Commit-

tee on all charges,

Guardian of Her Conscience

The ACLUNC argued that the

Credentials Committee in effect

asked Mrs, Kepner te' permit the

State to become the guardian of

her conscience and that Mrs.

Kepner had refused because, al-

though normally law-abiding, she

cannot predict the future and she

was unwilling to give her word

to a pledge which would place

her conscience in a strait jacket.

The ACLUNC also pointed out

that the position taken by the

Credentials Committee would bar

George Washington and Thomas

Jefferson from teaching in Cali-

fornia.

In response, the Credentials

Committee argued that had the

Revolution failed, George Wash-

ington "would not only have been

denied a credential, but would

have been swinging on

the gallows along with Mr.

Jefferson ... The point is, that

one may have all the just causes

in the world, but to the estab-

lished society in which he lives

it does not make him an upright

and responsible person , . ."

Situation Unique

On this issue, the Hearing Of-

ficer upheld Mrs, Kepner's claim

to freedom of conscience in

theory by stressing the realities

of the situation. He noted that

although Mrs, Kepner could not

guarantee against engaging in an-

other demonstration, she did not

by her refusal necessarily mean

that she would, He emphasized

that the Sproul Hall situation

was unique for Mrs. Kepner, that

Mrs, Kepner entered Sproul Hall

to petition peaceably and that

she would have left willingly had

the University administration in-

dicated its willingness to nego-

tiate ifs differences with the

students.

The Hearing Officer accepted

Mrs, Kepner's explanation that

she refused probation because

she feared the potential adverse

affects the terms of probation

would have on the civil rights

movement and because she was

uncertain as to what activities

the terms of probation prohibit-

ed. He also found that Mrs, Kep-

ner did not practice any fraud

in swearing to the teachers' oath.

Second Case

A second

other teaching credential appli-

cant who participated in the -

Sproul Hall sit-in is awaiting de-

cision by a different Hearing

Officer.

Volunteer attorney Neil F.

Horton has represented the

ACLUNC in both cases.

Mistake in

Numbering April

ACLU News

We apologize for the error in

numbering last month's ACLU

News. The volume number,

XXXI was correct, but the issue

should have been numbered 4

not 5, and dated April, 1966, not

May, 1966. In any case, we got

ahead of ourselves and in con-

sequence We now have two May,

1966 issues.

Sacramento Chapter's

Annual Breakfast | ?

The Sacramento Valley Chapter's Seventh Annual Break-

fast will be held on Sunday, May 8 at 10:00 a.m, in the Mar-

tinique Room of the Sacramento Inn. The price is $2.50

Robert Treuhaft, Oakland attorney and a candidate for dis- -

trict attorney in Alameda county, will speak on the subject,

"Will Oakland Be Another Watts?" The subject is especially

timely because on April 21 Oakland's new Mayor, John Read-

ing, a staunch Republican, in a session with city officials, warned

that unless communications are improved with minority zroups 0x00B0

and the impoverished, Oakland will become "another Watts."

At the same time, he also warned city officials that "the Oak-

land Economic Development Commission - the City's anti-

poverty agency - will `fall apart' unless the City Council acts

at once to establish a police review board."

Mr, Treuhaft is the husband of Jessica Mitford Treuhaft,

the well-known writer. Chairman of the breakfast committee is

Mrs. Hugo Fisher, wife of the State Resources Director.

John A. Menz, chairman of the chapter, will preside at the

meeting. As usual, awards will be made at the Annual Break-

fast to the winners of the 1966 school essay contest on civil

liberties which is sponsored by the chapter.

Reservations should be. made through Meredith Crown, 2121

Landon Lane, Sacramento. (Phone 489-2672). Tickets may be |

purchased at the Inn at the time of the Annual Breakfast.

lay

CRESS dV OLVE SB

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

Subscription Rates -- Two Dollars a Year

Twenty Cents Per Copy

151

Ralph B. Atkinson

Dr. Alfred Azevedo

Albert M. Bendich

Leo Borregard

Rey. Richard Byfield

Prof. Robert Cole

Prof. John Edwards -

Rey. Aron S. Gilmartin

Evelio Grilfo

Mrs. Zora Cheever Gross

Albert Haas, Jr.

Howard H. Jewel

Ephraim Margolin

Honorary Treasurer:

Joseph S. Thompson

Honorary Board Member:

Sara Bard Field

Mrs. Gladys Brown

Mrs. Paul Couture

John J. Eagan

Joseph Eichler

Morse Erskine

Dr. H. H. Fisher

Mrs. Margaret C. Hayes

Prof. Ernest Hilgard

Mrs. Paul Holmer

Mrs. Mary Hutchinson

Richard Johnston

Board of Directors of the American Civil Liberties Union

of Northern California

CHAIRMAN: Prof. Van D. Kennedy

VICE-CHAIRMEN: Rabbi Alvin I. Fine

Helen Salz -

SEC`Y-TREASURER: Richard DeLancie

EXECUTIVE DIRECTOR: Ernest Besig

GENERAL COUNSEL: Wayn

STAFF COUNSEL: Marshall W. Krause

ADMINISTRATIVE ASSISTANT: Mrs. Pamela S. Ford

CHAPTER DIRECTOR: Mrs. Marcia D. Lang

Committee of Sponsors

John R. May

Prof. John Henry Merryman

Prof. Charles Muscatine

Rey. Robert J. O'Brien

Prof. Herbert Packer

Clarence E. Rust

John Brisbin Rutherford

Mrs. Alec Skolnick

Gregory S. Stout

Stephen Thiermann

Richard E. Tuttle

Donald Vial

Richard J. Werthimer

e M. Collins

Roger Kent

Mes. Ruth Kingman

Prof. Theodore Kreps _

Prof. Carlo Lastrucci

Norman Lezin0x2122

- Rey. Robert W. Moon

Dr. Marvin J. Naman

Prof Hubert Phillips

Prof. Wilson Record

Dr. Norman Reider

Prof. Wallace Stegner

Mrs. Theodosia Stewart

Rt. Rey. Sumner Walters

Anonymous Recorded Messages

tequest

pposes

for

Identification

As the result of protests filed with the Federal Commu-

nications Commission, the Pacific Telephone and Telegraph

Company has filed a proposed tariff with the California Pub-

lic Utilities Commssion which would require persons using

automatic announcement service telephone equipment to

identify by name and address the

persons responsible for the dis-

semination of telephone mes-

sages.

Right Wing Groups

For several years various

groups have arranged for a re-

eorded message to be played

when a certain number is dialed.

This service has been taken ad-

' vantage of by persons with right-

wing political philosophies who

are generally at odds with much

of today's political thinking and

use the occasion to launch strong

Page 2

attacks on government power, on

groups such as the National

Council of Churches, the Parent- |

Teachers Association, the Anti-

Defamation League and even the

ACLU. These attacks frequently

contain accusations that certain

Jeaders of these groups are "iden-

tified Communists" and that their

policies follow the Communist

line.

ACLU Intervenes

The Board of Directors of

ACLUNC voted to file a brief

with the Public Utilities Com-

mission protesting the proposed

tariff and urging that such tele-

phone messages be allowed to re-

`main. anonymous if the sponsor

of the message wishes it to be so.

The brief was prepared by volun-

teer attorney Reed H. Bement

with the assistance of staff coun-

sel Marshall W. Krause and puts

forward two reasons for the pro-

tection of anonymity.

Contents of Speech Regulatea

The first of these is that the

proposed tariff would regulate

the contents of messages by re- (c)

quiring speakers to include some-

thing they do not wish to include, |

namely, the name and address of

ACLU NEWS

MAY, 1966

the sponsor, The brief states: "If

he (the sponsor) believes that a

_ message communicated without

the source being revealed has

greater impact, he has the right

to use this advantage. It may be

that curiosity about the author

of the message may cause con-

versation, investigation and pub-

licity which in turn helps spread

the message. It may be that some

telephone dialers will find the

same force in the message as

Moses found in the voice on Mt.

Sinai (Exodus, Chap. 19), the

spell of which might be broken

by. a mortal name and address

These intangible factors should

lead us to steer clear of regula-

tion in this area where there is

an absence of compelling state

interest and where less restric-

tive alternatives are available."

Harassment or Intimidation

The second point made by the

brief is that the requirement of

identification may result in ha-

rassment or intimidation to per-

`sons sponsoring unpopular mes-

sages. A businessman may not

wish the general public to know

the minority point of view he

holds on certain political ques-

tions; a government employee

may not want his superiors to

know that he speaks out at all

on political questions. The mere

requirement of identification may

inhibit persons from expressing

their true points of view in such

messages.

Uninhibited Debate

The ACLU brief emphasizes

what the United States Supreme

Court said not long ago in the

New York Times libel case in

which it was held that a judg-

ment of libel violated the right

to freedom of expression absent

a showing of actual malice. There

. tions

The Watts Riot:

Beyond The

McCone Report

A series of five lectures on

successive Tuesday evenings, be-

ginning May 17, 1966 will be held

on the McCone Commission Re-

port, under the sponsorship of

U, C. Extension.

Participants in the lectures

will include five of the Commis-

sion consultants, joined by Jo-

seph D. Lohman, U.C. Berkeley,

Dean of the School of Crimin-

ology, Eugene Loren, Acting As-

sistant Professor of Economics,

UCLA, and Edward Rutledge,

`Executive Director, National

Committee against Discrirnina-

tion in Housing. Sometimes sup-

porting, sometimes challenging

the McCone recommendations,

the participants will discuss law

enforcement, health and housing,

employment, education, and pub-

lic welfare.

The lectures will be followed

by panel discussions in which

prominent Bay Area leaders will

discuss the report and the speak-

ers' views, and will relate both

to local conditions.

The lectures, beginning at 7:30

p.m, will take place at the Kaiser

Center Auditorium, 300 Lake-

side Drive, Oakland. Series tick-

ets ($10 general, $7 students)

may be obtained by writing to

Dept. B, University of California

Extension, Berkeley, California.

Tickets for single evenings will

be sold only at the door, and if

space is available after series ad-

missions have been sold.

State Levering |

Act May Fall -

Continued from Page 1-.

has not engaged in criminal ad-

vocacy. . . . A law which applies

to membership without the `spe-

cific intent' to further the illegal

aims of the organization in-

fringes unnecessarily on pro-

tected freedoms. It rests on the

doctrine of `guilt by association'

which has no place here."

Knowledge of Unlawful Purposes

Under California's oath law a

person is required to disclose

whether or not he has been a

member of an organization advo-

cating the violent or unlawful

overthrow of the government, If

he declines to disclose whether

or not he has had such member-

ship then he is ineligible for.

public employment, presumably

because he is not "loyal." In ad-

dition to presuming as disloyal

all those who will not swear that

they are loyal, the oath is in ob-

vious conflict with the Elfbrandt

case in not distinguishing be-

tween those who join organiza-

without sharing in any

unlawful purposes the organiza-

tion may have and those who

join with the "specific intent" to

further whatever illegal action

the organization engages in. The

failure to distinguish these two

types of memberships will be the

main point urged before Judge

Karesh when the hearing re-

sumes in the Mack cases on May

3 at 2:00 p.m. in the City Hall of

San Francisco.

the Court said: "Thus we con-

sider this case against the back-

ground of a profound national

commitment to the principle that

debate on public issues should

be uninhibited, robust, and wide-

open, and that it may well in-

clude vehement, caustic, and

sometimes unpleasantly sharp at-

tacks on government and public

officials. Injury to official repu-

tation affords no more warrant

for repressing speech that would

otherwise be free than does fac-

tual error."

Lastly, the brief points out

that if the justification for the

proposed tariff is protection for

those who wish to bring libel

actions, the telephone company

already has this information and

could make it available on proper

request,

Flash: The Committee of Bar Examiners has voted 5-2

to deny Terrance Hallinan admission to the bar on the

ground that he lacks good moral character for five reasons,

some of which were dismissed by the Committee's own

Hearing Subcommittee. The State Supreme Court will now

decide the case based en a fresh view of the evidence. The

Committee de-emphasized the stress placed upon Hallinan's

beliefs and decided the case mainly on factual grounds.

The question of whether 28-year-old Terrance Hallinan

shall be admitted to the State Bar of Caliofrnia is now pend-

ing before the Committee of Bar Examiners of the State Bar.

Hallinan is a graduate of Hastings Law School and has passed

the bar examination but his admission was held up pending

an investigation into his moral

character and ethical responsi-

bility. During July and Septem-

ber of 1965 evidence was taken

on these matters by a three-man

subcommittee who heard the tes-

timony of 15 witnesses as well

as applicant Hallinan. The sub-

-committee in January of 1966 re-

ported its recommendation that

Hallinan not be certified to the.

Supreme Court for admission to

practice law. This recommenda-

tion is now before the seven-man

committee of bar examiners of

the State of California and the

chairman of that committee,

Samuel O. Pruitt, Jr. of Los An-

geles granted permission to the

American Civil Liberties Union

-of Northern and Southern Cali-

fornia to file a brief concerning

the recommendations of the sub-

committee.

: .Ten-Page. Brief 00...

After a study of the transcript~

and the recommendations, the

ACLU in a ten-page brief signed

by Marshall W. Krause, Lawrence

Sperber, Fred Okrand and A. L.

Wirin, has taken the position

that Hallinan should be admitted

to the State Bar and that if he is

not admitted serious constitu-

tional questions will be pre-

sented. The Committee of Bar

Examiners is expected to act on

the matter shortly as Hallinan's

attorneys already have a petition

pending in the State Supreme

Court complaining of the long de-

lay in deciding the case.

Questions as to Beliefs

The ACLU brief states that the

hearing subcommittee arrived at

its recommendations through the

use of standards inappropriate

for judging the qualifications of

an individual to be a member of

the bar and that if its reeommen-

dations should be sustained there

is a substantial risk of offend-

ing constitutional guarantees of

freedom of speech and associa-

tion and against cruel and un-

usual punishment. The hearing

subcommittee charged that Hal-

`Jinan "exhibits a disrespect for

an organized system based upon

the rule of law and reserves to

himself the right to decide when,

how and which law shall be

obeyed." This conclusion was

reached because of extensive sub--

committee questioning of Hal-

linan (son of Vincent Hallinan,

who is active in left wing poli-

tics) as to what his beliefs would

be in certain hypothetical situa-

tions where his conscience came

into conflict with the law. An |

example of the kind of question

young Hallinan was asked is

whether he would sit down on

the railroad tracks to stop a train

if it would end the war in Viet

Nam. Hallinan's attorney object-

ed to the hypothetical and. il-

lusory nature of questions of

this order but the committee re-

quired the applicant to answer

and he stated that he would sit

down on the railroad `tracks if it

would end the war in Viet Nam.

' Rights of Citizen

The ACLU brief takes the sub-

committee to task for asking

hypothetical questions about be-

liefs as beyond the scope of the

duty of the bar examiners and

irrelevant to the question of

whether Hallinan could carry out

States:

- would surpass normal expecta-

tions of our day and would fail

the ethical and moral responsi-

bilities of a member of the bar.

The brief states that a person's

- viewpoints held as a citizen must

be distinguished from a person's

conduct and activities as an at-

torney and that unorthodox be-

liefs do not justify an assumption

that ethical and moral standards

at the bar will be violated.

Civil Rights Demonstrations

The hearing subcommittee also

rested on the fact that young

Hallinan had been cenvicted of

several misdemeanors arising out

of civil rights demonstrations in

San Francisco at the Palace Hotel

"and at the showrooms of Van

Ness Avenue automobile dealers.

These convictions, reasoned the

subcommittee, show that the ap-

plicant is not prepared to sup-

port the laws of the United

States or of the State of Cali-

fornia~as: required. of a-member

of the State Bar of California.

Hallinan testified that he did not

believe that the law was being

violated on these occasions and

believed-: that - -his. -cconvictions

would be reversed in pending ap-

peals. On this facet of the case

the ACLU takes the position that

First Amendment rights are di-

rectly involved even if the

demonstrators in the particular

arrests were not protected by

the First Amendment. Demon-

strations for purposes of social

protest frequently result in mis-

demeanor arrests and the ques-

tion of constitutional protection

under free speech and assembly

clauses becomes a litigated issue

in the criminal case. Each case

depends on its particular facts

as to whether constitutional pro-

tection will be accorded and it.is

-extremely difficult to predict in

advance whether `the particular

demonstration will be protected

by the First Amendment. In this

state of affairs the ACLU argues

that many students and others

preparing for professional _li-

censes would be inhibited in the

exercise of their First Amend-

ment rights if they were to be

denied admission to their pro-

fessions in the event that they

were convicted of some viclation

of law. These persons would na-

turally steer clear of any demon-

strations for fear of the heavy

consequences. To compel a per-

son to be ultra-safe in the exer-

cise of his constitutional rights

is itself a violation of the Con-

stitution. If an offense has been

committed during a protest, pun-

ishment for that offense should

be sufficient without jeopardiz-

ing, in addition, a person's pro-

fessional livelihood.

Punishment Deesn't Fit Offense

Lastly the ACLU brief argues

that the severe consequences Mr.

Hallinan would suffer because of

relatively minor violations of the

law (if his convictions are up-

held on appeal) are so grossly

disproportionate as to raise ques-

tions under the Eighth Amend-

ment's prohibition of cruel and

unusual punishment. The brief

"These consequences

to take into account the strong

feelings and enthusiasm of those

who wish to right admitted

wrongs in our society."

me

Political Asylum...

The ACLU was successful last month in its attempt to

obtain political asylum for Chai-ming Liu, a 16-year-old boy

who entered the United States as a stowaway aboard the

S. S. President Wilson on March 21. The boy claimed to be

a political refugee from Communist China and Federal Dis-

trict Court Judge Alfonso Zirpoli

issued an order to show cause

preventing the Immigration Serv-

ice from immediately requiring

him to leave the country until'

his request for political asylum

could be acted upon. The next

hearing before Judge Zirpoli was

scheduled for April 4 and right

down to the wire the Immigra-

tion Service appeared to be fol-

lowing a very hard line.

Immig. Service Opposition

Telegrams to Immigration Dis-

trict Director Cecil Fullilove and

to Attorney General Katzenbach

requesting parole status for Chai-

ming Liu similar to that granted

Cuban refugees arriving in this

country without any visa or other

immigration papers were not an-

swered. Forms for other discre-

tionary relief filed with the Im-

migration Service were refused

filing and sent back to ACLU

staff counsel Marshali W. Krause

with the notation that such an

application could be made only

outside of the continental United

States. :

An About Face

These factors were set forth in

affidavits and pleadings filed

with the Federal District Court

in preparation for the April 4

hearing along with a memoran-

dum of legal authorities which

.showed that the Immigration

Service had no authority to re-

fuse to accept papers not filed

outside of the continental United

States in this matter. However,

on Saturday, April 2, the Immi-

gration Service finally changed

its mind and agreed to allow

' Chai-ming Liu to remain in this

country and to be released to

the custody of the family asso-

ciation which promised him work

and shelter. This quick about-

face enabled the Immigration

Service to appear magnanimous

and te be a friend of the op-

pressed. Actually, it is certain

that Chai-ming Liu would have

been returned to Hong Kong and

then to Mainland China had not

the. Federal Court order pre-

vented his forced departure.

Thanks are due to the large

group of persons who called this

case to the attention of the

ACLU and urged that we inter-

vene on behalf of the boy to

protect the right of political asy-

lum which has been a traditional

part of this country's history,

Refugee Has Problems .

Meanwhile, even after his re-

lease things are not going well

for Chai-ming Liu. He was given

work in a restaurant and a place

to live in the YMCA but evi-

dently he remained frustrated

and lonely and emotionally up-

set. Now San Francisco's Human

Rights Commission an@ Frank

CHAI-MING LIU, who was granted political asylum.

Berkeley Chapt.

Nominating

Meeting May 12

The Berkeley-Albany-Kensing-

ton Chapter of ACLUNC will

hold its annual nominating meet-

ing of the general membership

on Thursday evening, May 12th,

8 p.m., at the Washington School

Cafeteria, Grove and Bancroft

Way, Berkeley.

Twelve incumbents, and 18

members selected by the nomi-

nating committee of the Board

of Directors are presently can-

didates for the 2i-man Board.

Additional nominations may be

made from the floor at the meet-

ing.

Each nominee will deliver a

brief statement on his views con-

cerning ACLU; general discus-

sion will follow. Refreshments

- will be served.

The election committee wishes

to remind Berkeley Chapter

members that "Mr. and Mrs."

memberships qualify only for a

single ballot, unless two mem-

berships have been `paid (ie.,

$14 for non-students, $9 for one

student spouse and one non-stu-

dent, or $4 for husband and wife

student membership.)

All current members in the

Berkeley area are urged to par-

ticipate in the Chapter election.

Delinquent members should re-

new at once in order to receive

a ballot. :

Quinn and Ernest Woo of that

Commission have taken an in-

terest in his case and are en-

deavoring to find a Mandarin-

speaking family who will take

Chai-ming Liu under its wing and

give him the schooling and train-

ing he desires. At last report,

Chai-ming Liu was undergoing a

psychiatric evaluation at San

Francisco General Hospital since

the severe emotional distress he

has gone through for the past

six weeks and the fact that he

is a pleasant fisherman trying to

adjust to a. 20th century urban

civilization have caused concern

for his mental stability.

open to all chapter

May 16, 1966, starting at 8

current cases.

An informal meeting, primarily for prospects, but

members, will be held on Monday,

p.m. at the home of Mr. and

"Mrs. Alfred Barauck, 856 Southampton Drive, Palo Alto.

Ernest Besig, Executive Director of ACLUNC, will

speak about the organization's aims, activities and

As part of its membership drive the Mid-Peninsula

Chapter is attempting to reactivate dormant and dead

members, and the meeting provides an excellent oppor-

tunity for inactive members in the area to re-acquaint

themselves with ACLUNC and to catch up with its cur-

rent activities in defense of civil liberties.

Punishing Sick People

uC

Goes to U.S. (c)

Su

The legal fight to prohibit the punishment of chronic

alcoholics for being drunk in public received a strong boost

from the Court of Appeals for the District of Columbia which

unanimously held that a man named Dewitt Easter could

not be punished as a criminal for exhibiting his drunkenness

in public when it was proven that

he was a chronic alcoholic. Now

there is a good chance that the

ACLUNC's local case involving

Thomas F. Budd will be reviewed

by the United States Supreme

Court to decide the issue on a

national basis.

Chronic Alcoholic

Budd, it will be remembered,

is a chronic alcoholic who was

convicted of a violation of the

California Penal Code even

though the undisputed medical

testimony was that he could not

stop himself from engaging in

drinking alcoholic beverages and

that the very fact of taking the

first drink when his psychologi-

cal tensions built up to a certain

point was completely involun-

tary. Despite this record he was

convicted in the Municipal Court

and his conviction was upheld

by the Appellate Department of

the Alameda County Superior

Court. The California Supreme

Court refused to grant a writ of

habeas corpus for Mr, Budd.

Review Sought

Now the United States Su-

preme Court has been urged to

review the decision of the Cali-

fornia Supreme Court by grant-

ing a writ of certiorari in a peti-

tion prepared with the aid of

volunteer attorney George F.

Duke. The petition was filed with

the U.S. Supreme Court on April

11 but it is doubtful that that

court will act on it until the fall.

By this move the ACLU hopes

to get a definitive ruling from

the nation's highest court that

chronic alcoholism is a disease,

not a crime, and that it is un-

constitutional to jail a chronic

alcoholic for appearing drunk in

a public place.

Alcoholism Is A Disease .

The petition declares that

Budd raises this constitutional

issue "not as an isolated indivi-

dual but as a proxy for hundreds

of thousands of men.and women

who, year after year are marched

as dumb brutes from gutter to

paddy wagon to drunk tank to

mass trial to short, useless jail

sentences and then to the bleak

hopelessness of the gutter again.

The public authorities pursue

`them as relentlessly as once they

pursued witches and the insane.

This cyele is based on the mis-

apprehension that alcoholism and

its chief symptom, drunkenness,

are voluntary vices, Alcoholism

is a disease characterized by in-

voluntary intoxication."

Cruel and Unusual Punishment

There are two main constitu-

tional points urged. The first is

`that the punishment of a sick

person for exhibiting the symp-

toms of his illness in public is

cruel and unusual punishment

prohibited by the 8th and 14th

Amendments to the United States

Constitution just as in Rebinsen

vy. California where, in 1962, the

U.S. Supreme Court held it un-

constitutional to punish a person

merely for being addicted to

narcotics, The petition argues:

"To say in this case that the

State may not punish alcoholism

but that it may punish public

drunkenness is like saying that

it may not punish one for having

a cold but that it may punish

him for sneezing in public." It

is also relevant to this argument

that the expert medical evidence

in the Budd case as well as the (c)

literature on the subject show

that jailing alcoholics is actually

anti-therapeutic because it adds

to their feeling of worthlessness

and increases their dependence

on alcohol. ; :

No Guilty Mind

The second constitutional argu-

ment is that it is beyond the

power of the State under the

14th Amendment to punish ac-

tions performed involuntarily

and without a guilty mind. The

brief quotes some clasic language

from Morissette v. United States:

"The contention that an injury

can amount te a crime only when

inflicted by intention is no pro-

vincialor transient notion. It is

as universal and persistent in

mature systems of law as beliefs

in freedom of the human will

and the consequent ability and

duty of the normal individual

to choose between good and

evil." The brief also argues that

California Penal Code Sec. 647(f)

is an invalid use of the- police

power and _ unconstitutionally

vague.

Favorable Court Decisions -

Perhaps the strongest technical

point made by the brief is that ,

United States Court of Appeal

for the District of Columbia Cir-

cuit and the Fourth Circuit have

stated. that chronic alcoholics

may not be punished for public

drunkenness. The ACLU petition

urges the Supreme Court to make

this the national rule and not

just leave a checkerboard en-

forcement of this humanitarian

view of the disease of alcoholism

throughout the United States.

ACLU NEWS

MAY, 1966

Page 3

"Tititlating Advertising

(c)

The U. S. Supreme Court decided last month that. in

determining a question of obscenity a court `may include

consideration of the setting in which the publications were

presented as an aid to determining the question of obscen-

ity." The court insisted it was not abandoning its obscenity

test announced in 1957 in the

Roth case, "Whether to the aver-

age person, applying contempo-

rary community standards, the

dominant theme of the material

taken as a whole appeals to pru-

rient interest." In addition, the -

material must be "patently of-

fensive" and "utterly without re-

deeming social value." However,

in a close case, the court said it

will now allow an inquiry into

the intentions of an accused as

disclosed by his advertising. The

_ decision was handed down in the

ease of Ralph Ginzburg, publish-

ec of Eros, Liaison and The

Housewife's Handbook on Selec-

tive Promiscuity, who was sen-

tenced to imprisonment for five

years and fined $28,000 for send-

ing obscene matter through the

mails,

Sordid Business

The prevailing opinion by

Justice Brennan declared that

"there was abundant evidence to

show that each of the accused

publications was originated or

sold as stock in trade of the sor-

did business of pandering-`The

business of purveying textual or

graphic matter openly advertised

to appeal to the erotic interest

of their customers."

At another point the opinion

states that "The `leer of the sen-

sualist' also permeates the ad-

vertising for the three publica--

tions, The circulars sent for Eros

and Liaison stressed the sexual

eandor of the respective publica-

tions, and openly boasted that

the publishers would take full

advantage of what they regarded

as unrestricted license allowed

by law in the expression of sex

and sexual matters.

The Advertising

"Tho advertising for the hand-

book consisted almost entirely of

a reproduction of the introduc-

tion of the book, written by one

Dr, Albert Ellis. Although he

alludes to the book's information-

al value and its putative thera-

peutic usefulness, his remarks

are preoccupied with the book's

sexual imagery. The solicitation

was indiscriminate, not limited

to those, such as physicians or

psychiatrists, who might inde-

pendently discern the book's

therapeutic worth. Inserted in

each advertisement was a slip

labeled `guarantee' and reading,

`Documentary Books, Inc., un-

conditionally guarantees full re-

fund of the price of The House-

wife's Handbook on Selective

Promiscuity if the book fails to

reach you because of U.S, Post

Office censorship interference.'

"Similar slips appeared in the

advertising for Eros and Liaison;

they highlighted the gloss peti-

tioners put on the publications,

eliminating any doubt what the

purchaser was being asked to

buy.

Reader Looks for Titillation

"This evidence, in our view,

"was relevant in determining the

ultimate question of `obscenity'

and, in-the context of this rec-

ord, serves to resolve all ambig-

uity and doubt. The deliberate

representation of petitioners'

publications as erotically arous-

ing, for example, stimulated the

reader to accept them as pruri-

ent; he looks for titillation, not

for saving intellectual content.

"Where the purveyor's sole

ACLU NEWS

MAY, 1966

Page 4

emphasis is on the sexually pro-

vocative aspects of his publica-

tions, that fact may be decisive

in the determination of obscen-

ity.

Such Evidence Relevant

"Where an exploitation of in-

terests in titillation by pornog-

raphy is shown with respect to

material lending itself to such

- exploitation through pervasive

treatment or description of_sex-

ual matters, such evidence may

support the determination that

the material is obscene even

though in other contexts the ma-

terial would escape such con-

demnation."

Justice Brennan was joined in

the Ginzburg opinion by Chief

Justice Earl Warren and Justices

Tom C. Clark, Abe Fortas, and

Byron R. White. Dissenting opin-

ions were filed by Justices Wil-

liam O. Douglas, Hugo L. Black,

John M. Harlan and Potter Stew-

art.

Justice Douglas' Dissent

"The use of sex symbols to

sell literature, today condemned

by the Court," said Justice Doug-

las, "engrafts another exception

on First Amendment rights that

is as unwarranted as the judge-

made. exception concerning ob-

scenity. This new exception con-

demns an advertising technique

as old as history. The advertise-

ments of our best magazines are

chock-full of thighs, ankles,

calves, bosoms, eyes, and hair, to

draw the potential buyers' at-

tention to lotions, tires, food,

liquor, clothing, autos, and even

insurance policies.

"The sexy advertisement

neither adds to nor detracts

from the quality of the merchan-

dise being offered for sale, And

I do not see how it adds to or

detracts one whit from the legal-

ity of the book being distributed.

A book should stand on its own,

irrespective of the reasons why

it was written or the wiles used _

in selling it."

Justice Black's Opinion -

Justice Black declared "the

Federal Government is without

power whatever under the Con-

stitution to put any type of

burden on speech and expression

of ideas of any kind (as distin-

guished from conduct)... . It is

obvious that the effect of the

Court's decision , . . is to make

it exceedingly dangerous for

people to discuss either orally

or in writing anything about sex.

... I find it difficult to see how

talk about sex can be placed

under the kind of censorship the

Court here approves without

subjecting our society to more

dangers than we can anticipate

at the moment. It was to avoid

exactly such dangers that the

First Amendment was written

and adopted."

Fanny Hill Case

While the Supreme Court in

another decision ruled by a vote

of 6 to 3 that the Memoirs of

a Woman of Pleasure, commonly

known as Fanny Hill, is not ob-

scene under its test in the Roth

case because it has "a minimum

of social value," a different. re-

sult would be reached by the

court if it were being exploited

by "panderers." Said Justice

Douglas in a concurring opinion,

"Publications and utterances

were made immune from ma-

joritarian control by the First

Amendment, applicable te the

Union

Political

Test Voided

When Arthur Elliott took a

job as warehouse helper in Oak-

land he did not expect that his

political beliefs would play a

part in whether he qualified for

the required membership in the

union which had organized the

plant, Elliott worked a little

more than three weeks when he

was visited by a shop steward for

Local 2565 of the Industrial Car-

penters' Union, an AFL-CIO af-

filiate. The steward asked him a

series of questions, the last of

which was whether he was a

communist. Elliott, who is 20

years old, married, and a former

Cal student, thought this ques-

tion was a joke until he was in-

formed that he could not get into

the union unless he answered the

question. When Elliott persisted

in refusing to answer the union

informed his employer that he

would have to be fired and, re-

luctantly the employer complied.

ACLU Volunteer Attorney

Elliott reported these events

to the ACLUNC which voted to

take up his case on the ground

that the union exceeded its au-

thority in seeking to punish the

refusal to answer a question

about political affiliation. Vol-

unteer attorney Henry Krivetsky

agreed to take Elliott's case and

a complaint was filed with the

National Labor Relations Board.

The Board has determined that

the union was in violation of the

Labor Relations Act and will

shortly schedule a hearing in the

case. Meanwhile, Elliott is back

in his job and is seeking to re-

cover his lost wages from the

union and his employer,

Control of Employment

Many unions evidently feel im-

pelled to examine into whether

any of their members have ``sub-

versive" associations. This may

be within the authority of a pri-

vate social group, but when a

union controls all employment in

a certain field or even at a cer-

tain plant, it may not condition

membership on disclosure of any

unorthodox political associations.

state . -by reason of the Four-

teenth. No exceptions were

made, not even for obscenity."

Material Designed for Deviant

In a third case the court af-

firmed, by a 6 to 3 vote, the con-

viction of Edward Mishkin of

Yonkers, N.Y., on charges of

publishing material admitted to

be "sadistic and masochistic."

The court ruled that when ma-

terial was designed for a deviant

sexual group, it was obscene if it

appealed to the prurient interest

of members of that group.

Society's Lack of Confidence

Dissenting in the Ginzburg

case, Justice Stewart declared,

"Censorship reflects a society's

lack of confidence in itself. It is

a hallmark of an authoritarian

regime. Long ago those who

wrote our First Amendment

charted a different course. They

believed a society can be truly

strong only when it is truly free.

In the realm of expression they

put their faith, for better or for

worse, in the enlightened choice

of the people, free from interfer-

ence of a policeman's intrusive

thumb or a judge's heavy hand.

So it is that the Constitution pro-

tects coarse expression as well as

refined, and vulgarity no less

than elegance, A book worthless

to me may convey something of

value to my neighbor. In the free

society to which our Constitution

has committed us, it is for each

of us to choose for himself."

Nevertheless, Justice Stewart be-

lieves the First Amendment al-

lows what he calls "hard core

pornography" to be prohibited.

Polish Refugee

in `H ostage'

Security Case

Following a ee last November, a Federal agency

with a cumbersome name (the Office of Industrial Personutl

Access Authorization Review), granted a security clearatice

at the confidential level in a so-called "hostage" case involv-

ing an employee of Kaiser Aerospace and Electronics in Palo

Alto. An application had been

made for a clearance at the

secret level, but before the hear-

ing the company withdrew the

request. Now, however, the em-

ployee again requires a secret

clearance and a new application

must be filed.

"Coercion or Pressure"

The employee and his wife,

`both U-S. citizens, are refugees

from Poland, where they still

have relatives with whom they

communicate and occasionally

assist. In its "Statement of Rea-

sons" for denying a clearance,

dated last June 14, the Govern-

ment declared that "Information

available to the Screening Board

indicates the presence of close

relatives in a nation whose inter-

ests may be inimical to the in-

terests of the United States un-

der circumstances permitting

coercion or pressure to be

brought on you through such

relatives which may be likely to

cause you (the applicant) to act

contrary to the national interest.

Four Elderly Sisters

The information was that the

applicant had four elderly sisters

residing in Poland; that "You

have for a number of years pro-

vided and continue at the pres-

ent time to provide substantial

financial support to your afore-

said relatives in amounts current-

ly exceeding $1200 a year;" that

"You and your wife correspond

frequently and regularly with

your relatives and send num-

berous packages of clothing and

medicine to them;" and that

"You visited your relatives in

Poland for 10 days in April 1963."

The trip to Poland was made

only after consultations with and

approval of the Security Officer

at Kaiser's.

Correspondence and Packages

With respect to his wife's rela-

tives, it was alleged that her

mother and brother reside in

Poland; and that "Your wife cor-

responds frequently and regular-

ly with her aforesaid relatives

and sends them packages of

clothing and medicine."

The applicant was also charged

with haying manifested "a strong

and continuing interest in Poland

and Polish events, as evidenced

by:

"(1) the fact that you main-

tain extensive correspondence

with friends and acquaintances

living in Poland." The applicant

answered that his correspondence

"consists of Christmas and birth-

day greetings to a few aunts

and two or three old friends."

Banned Newspapers

"(2) You subscribe to two

Polish newspapers .. ." The

newspapers are published in Lon-

don and Paris and both are

banned in Poland.

"(3) During 1963 you received

the Polish magazine `Prezekroj',

published. in and sent to you

from Warsaw, Poland.' The ap-

plicant answered. that the maga-

zine had been unsolicited by him

and that he "had it discontinued

as soon as I discovered who the

sender was. It is a weekly review

covering everything from short

stories to postage stamps and the

theatre. Political information

seems to be soft-pedaled.

Association with Poles |

Finally, it was charged that

"Your social and organizational

interests in the United States

have been largely limited to as-

sociation with persons of Polish

origin or background." The ap-

plicant answered, "I am a loyal

United States citizen, but, typic-

ally, I tend to associate with per-

sons of siimlar origin and back-

ground. None of them are sym-

pathetic , with the Communist

regime in Poland."

The applicant served with the (c) 0x00B0

Polish forces in Poland, France

and England during World War

II. One of his sisters was im-

`prisoned and tortured by the

Gestapo in the concentration

camp at Auschwitz. Another sis-

ter was imprisoned in Poland at

the height of the Stalin period

because she had a brother in the

United States.

The applicant was represented

by Ernest Besig, executive direc-

tor of the ACLUNC.

Save the Fourth

For the

Big Picnic!

It's not too early to mark

your calendar on July 4th,

Monday, date of the Berkeley

Chapter's 2nd Annual BIG

Picnic. a

Over 1000 members, fami-

lies and friends enjoyed last

year's picnic and entertain-

ment at Redwood Regional -

Park in the Oakland hills; an.

area twice at large has been,

reserved for 1966. e

A unique prize drawing will

be added this year - details.

will reach all ACLUNC mem-

bers later this month.

The first right of a citizen

Is the right

To be responsible

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