vol. 32, no. 9

American

Civil Liberties

Union

Volume XXXII

SAN FRANCISCO, SEPTEMBER, 1967

Number 9

First Amendment Violations

Meeting Problems

In No. California

Communities

Throughout Northern California, in Fresno, in Pacifica,

and in Napa, ACLUNC has been faced with civil liberties

problems arising from official attempts to harass public

meetings on the subject of American policy in Vietnam. In

the name of "patriotism" or "law and order," officials have

tried to prevent the exercise of

constitutional rights and to frus-

trate the historic American tra-

dition of protest. Fortunately,

these tactics have had little suc-

cess, but they underline an abys-

mal deficiency in many citizens'

respect for constitutional rights

and in their knowledge of the

essential constitutional guaran-

tees which are the strength of

this nation.

Pacifica

Last August 6 a "Peace Rock

Fair" was scheduled in Pacifica

to protest the war in Vietnam

in speeches, songs, and music.

The sponsoring groups publicized

the meeting with leaflets, but

when members tried to distribute

them on the sidewalks of large

public shopping conters, they

were told they would have to

leave or be arrested for trespass-

ing under a recently-passed city

ordinance.

Since it is well-established law

that persons engaged in commu-

nication cannot be excluded from

the public portions of such large

shopping centers, AULUNC con-

tacted Police Chief Neil Tremain

and informed him of the law.

Chief Tremain responded that he

intended to enforce the ordinance

and arrest the leafleteers if they

refused to leave when asked. He

said that he had been advised

by the Pacifica City Attorney

that to do so was within his pow-

er. ACLUNC then contacted the

City Attorney who stated that he

had informed the Chief of Po-

lice that he could not enforce

the trespassing ordinance against

leafleteers in shopping centers.

ACLUNC then telegraphed the

Chief of Police informing him

that the leafleteers would insist

on their rights and would take

all necessary legal steps if there

were any arrests in violation of

their constitutional rights. Sub-

sequently, leafleting continued

undisturbed and the meeting was

held, although it was closely ob-

served by the Pacifica Police De-

partment which appeared to be

electronically monitoring the

meeting from a large truck

parked nearby.

Napa

The Concerned Citizens of

Napa, California, planned a meet-

ing for Saturday, August 13, to

hear speakers on the subject of -

Vietnam. One of their members

applied to the Napa Unified

School District for permission to

use the Napa High School Audi-

torium and was told that the au-

ditorium was free on that date

and that the group could use it.

After the publicity for the meet-

ing had been printed and dis-

tributed, the group learned that

the authorization for the use of

the auditorium had been with-

drawn and that the board of

trustees for the school district

would meet on the subject on

August 8. At that meeting the

school board unanimously voted

to deny the auditorium on the

ground that the Concerned Citi-

zens had not been shown to be

a group not advocating the vio-

lent overthrow of the govern-

ment. This action was taken de-

spite the presence at the meeting

of members of Concerned. Citi-

zens who informed the. school

-Continued on Page 3

Di Tullio

Case Surprise

To be declared the winner be-

fore the contest takes place

sometimes leaves a_ contestant

with mixed feelings. Such is the.

case with the sudden dropping

of all charges against former Pro-

fessor Edmond diTuilio by the

Butte County District Attorney.

This surprise move was made

July 25 in Butte County Superior

Court-the very day which diTul-

lio's ACLU counsel, Marshall W.

Krause, was scheduled to file a

petition for a writ of prohibition

in the State Sureme Court to pre-

vent the threatened criminal trial

of diTullio. The decision of the

District Attorney to drop all

charges has ended the case which

started two years ago with a

meeting in the Chico Town Plaza

on the topic of "The Communist

Issue In Vietnam Ana Berkeley."

Professor diTullio, then with

the History Departmcnt at Chico

State College, was the moderator

and managed to keep the lively

meeting under control, despite

the crowd's hostility to the point

of view expressed by the speak-

ers, most of whom were connect-

ed with Chico State College. Two

days later the first in a series of

surprises came when Professor

diTullio found himself under ar-

rest following a citizen's com-

plaint that he had disturbed the

peace by using "vulgar, profane

and indecent language in the

presence of women and _ chil-

dren," thus violating Penal Code

Section 415. ACLUNC defended

diTuilio on constitutional grounds

at a long trial which terminated

with a verdict of guilty. The trial

was held before a Justice Court

judge who was not a lawyer, and

it was personally prosecuted by

Lucian Vandegrift, District Attor-

ney of Butte County. Throughout

the trial the .atmosphere was

what one might expect at a war-

time treason trial.

Superior Court Reversal

The conviction was appealed to

the Butte County Superior Court.

Judge J. F. Good reversed the

conviction, finding many trial er-

rors, including failure to allow

vital defense witnesses to testify,

prejudicial cross-examination of

each defense witness before the

witness was allowed to give testi-.

mony for the defendant, repeated

and prejudicial misconduct of the

District Attorney, and refusal of

the trial judge to give basic in-

structions to the jury on how to

apply the law and the Constitu-

tion to the ease at hand. How-

ever, Judge Good rejected diTul-

lio's challenge to the validity of

Penal Code section 415 and or-

dered that a new trial be held

on the charge unless a higher

court ruled otherwise.

Appellate Court Reversal

The case was certified to the

Court of Appeal in Sacramento

on the question of whether the

law was valid, but the Court of

Appeal refused to accept it. Staff

counsel Marshall W. Krause then

filed a writ of prohibition with

the Court of Appeal seeking de-:

termination of the question, but

Film Censorship

Rehearing Urged

In Landau Case

The United States Supreme

Court has been urged to grant

a rehearing of its 5-4 decision

that the film "Un Chant d'-

Amour" was properly found ob-

scene by California courts. A pe-

tition for rehearing has been

filed and will be ruled upon af-

ter the Court reconvenes next

month. Prepared by volunteer

attorney Neil F, Horton and staff

counsel Marshall W. Krause, the

petition stresses that the Court's

affirmance without briefs or ar-

gument by counsel and without

opinion, leaves troublesome ques-

tions unanswered and will create

many problems of its own.

Petition Issues

The major issue stressed by the

petition is the undisputed fact

that Genet's film has importance

for many persons, even though

it may have no significance to

audiences of "average persons."

Since the Court has under con-

sideration the constitutionality of

specialized restrictions for per-

sons under 18, the Landau peti-

tion urges it to also consider the

question of specialized audiences

of persons who can appreciate

the undeniable social importance

of "Un Chant d'Amour." As of

now, the film is totally banned,

even for university professors,

art critics, film historians, and

criminologists, all of whom, it is

presumed, would wish to see it

for other than prurient reasons.

Petition Statement

The petition states: "It is not

necessary to open the door of

censorship so wide as to sup-

press even these values. The per-

sons who submitted affidavits

and testified on behalf of the

film were not shams or charla-

tans. If the total ban this court

has approved is permitted to

stand, they and others with simi-

lar interests and concerns will

be unable to see the film, The

First Amendment surely was not

designed to permit such a dimi-

nution of the ability to acquire

information and knowledge."

Written Opinion Needed

ACLUNC's petition also urges

the Court to write an opinion in

the case rather than to decide

it without opinion. It points out

that a decision without an opin-

ion which affirms censorship en-

courages censoring authorities to

rely on their subjective reactions

in their determination as to what

material to suppress.

the Court of Appeal refused to

entertain the petition. It was at

the point where a similar peti-

tion was to be filed with the

State Supreme Court (described

in the last issue of the ACLU

NEWS) that the District Attor-

ney suddenly decided to dismiss

all charges, which effectively pre-

vented the legal issues from be-

ing determined.

Valuable Lessons

Although the diTullio case in-

volved a long and very taxing

fight, adversaries of civil liber-

ties found that their efforts to

erode them will be fought, and

many members of the Chico com-

munity learned valuable lessons

about their community and its

strengths and weaknesses.

Free Speech,

Assembly, Guide

ACLUNC is preparing a

guide regarding First Amend-

ment rights. It will cover such

matters as: Your right to hold

in public schools,

meetings

auditoriums, and other facili-

ties; your right to distribute

leaflets; your right to speak

in parks and other public

places; and loudspeaker laws.

When it is available in a few

months, the membership will

be notified.

Free Speech

Writ Denied

In Contempt

Case Test

_ Announcing his decision from the bench, Alameda Coun-

ty Superior Court Judge Leonard Dieden ruled last month

that the order of Berkeley Municipal Court Judge George

Brunn forbidding defendants and counsel in a Berkeley sit-

in trial from commenting on the issues of their trial was

"reasonable" and therefore not

invalid under the First Amend-

ment.

The ruling denied the writ of

prohibition sought by ACLUNC

counsel on behalf of four de-

fendants charged with contempt

of court for violating Judge

Brunn's order by making a pub-

lic statement on the steps of the

Berkeley courthouse about their

pending criminal trial. ACLUNC

believes that Judge Brunn's or-

der was unconstitutional as an

abridgement of free speech and

overly broad and vague in its

prohibitions. Judge Dieden's de-

cision will be appealed to the

Court of Appeals.

Significant Appeal

The decision on the appeal will

be an extremely significant prec-

edent in the controversial area

of fair.trial for criminal de-

fendants as affected by guaran-

tees of the United States Su-

Sheppard v. Ohio provides the

basis for Judge Brunn's decision

to issue a gag order in the sit-in

case, These cases held that a fair

trial was denied the defendants

because of obtrusive television

coverage during the trial of the

Estes case and because of mas-

sive prejudicial publicity before

and during the trial in the Shep-

pard case.

Different Issues

ACLU supported attacks on the

convictions in both of these

cases, but we believe that differ-

ent issues are presented by the

Berkeley case. First, it is the de-

fendants themselves who are as-

serting the right to make state-

ments because they believed it

was in their interests to make

public certain information about

Privacy Invasion

Albany Jail

`Bugged'

Recent disclosures of electron-

ic eavesdropping in the Albany

City Jail have resulted in the

Berkeley-Albany Chapter issuing

a vigorous protest to the City

Council and to Chief Jensen of

the police department. This prac-

tice, which may be a crime under

Penal Code-653i and 653j, in-

fringes guarantees concerning

privacy, the right to a fair trial

and representation by counsel

and cannot be justified by the

police claim that "bugging"

serves as a watchman over the

cellls at night. Further protest

against those practices were pre-

sented at the City Council meet-

ing on August 7, when an appro-

priation for a tape-recorder, in-

tended to be used to facilitate

future eavesdropping, was dis-

cussed.

Council Approval

The budget item for the re-

corder was approved by the City

Council, but several members of

the council have been assured

by the Chief of Police that it will

not be used for any illegal pur-

pose, and is intended only to

tape confessions and other offi-

cial statements.

However, "bugs" remain in the

jail as we go to press, and the

Chapter's legal committee is con-

sidering what further action

should be taken. :

the case. Second, the contempt

citation is being pressed without

reference to the fact that the de-

fendants' statements did not in-

terfere with a fair trial. Third,

the gag rule was broadly and

vaguely drawn and prevented dis-

cussion of the political issues

which the defendants charged

were involved in the case.

In its briefs on appeal, AC-

LUNC will argue that any rule

forbidding pretria] publicity in

criminal cases should be very

narrowly drawn and applied to

specific matters, rather than

broadly written to prevent all

discussion of the issues. Freedom

of discussion is as necessary to

the enforcement of criminal jus-

tice as to other facets of our po-

litical system.

San Francisco

Permit Statute

Challenged

_Max Beagarie, a member of the

Progressive Labor Movement,

and a companion, Robert Ed-

mondson, have been arrested for

"sniping." Sniping is the placing

of political messages on objects

such as telephone poles. It is a

conventional mode of political ex-

pression but the message Bea-

garie and Edmondson attempted

to convey was not. Besides urg-

ing support of their choice for

Supervisor, it charged the City

police with brutality. They were

arrested under a San Francisco

ordinance prohibiting the use of

utility poles for commercial or

political messages without the

consent of the Department of

Public Works and the_ utility

company.

Guidelines Lacking

The ordinance sets no guide-

lines for the permit granting au-

thority, thus leaves discretion to

permit or disallow expression in

the unguided discretion of the

Department of Public Works and

a private company.

ACLUNC, representing Bea-

garie and Edmondson, is chal-

lenging the constitutionality of

the permit statute. In a memo-

randum of points and authorities,

prepared by assistant staff coun-

sel Paul Halvonik, Municipal

Code section 690 is attacked as

inconsistent with the free speech

and due process guarantees of

the First and Fourteenth Amend-

ments. Oral argument on the con-

stitutional issue is set for Sep-

tember 7 in San Francisco Mu;

nicipal Court.

Legislature

Adjourns

The 1967 regular session of the

California Legislature officially

concluded on August 4. At least,

the Capitol clock was stopped on

that date. By legal fiction, Au-

gust 4 was extended to August 6,

when the legislators actually

went home.

The closing days, from

ACLUNC's point of view, were

quite fruitful. Mental commit-

ment and juvenile law reform

bills were passed on the to Gov-

ernor for his signature and, de-

spite great pressure, the obscen-

ity and fair housing laws re-

mained unchanged.

A full legislative report and

evaluation will appear in the Oc-

tober NEWS.

Paul Halvonik

BY-Laws

American Civil Liberties Union

of Northern California, Inc.

At its last meeting, the Board

of Directors of ACLUNC amend-

ed the branch By-Laws to pro-

vide. for the election of chapter

area representatives and, in so

_ doing extended terms of all

board members from November

1 to March 1 in order to allow

nominations and elections at a

convenient time. The only :sub-

stantive change is a requirement

that each board member "shall

be a member of ACLUNC in

good standing at the time of his

nomination, election and service

on the board."

ARTICLE I

_ Name

The name of this organization

shall be the American Civil Lib-

erties Union of Northern ae

fornia, Inc.

ARTICLE If

Headquarters

The headquarters of the Union

shall be in San Francisco.

ARTICLE III

Affiliation

This organization shall func-

tion as an affiliate of the Amer-

ican Civil Liberties Union, Inc.,

of New York.

ARTICLE IV

Object

Its object shall be to maintain

the rights of free speech, free

press, free assemblage and other

civil rights and to take all legiti-

mate action in furtherance of

such purposes. The Union's ob-

ject shall be sought wholly with-

' out political partisanship.

ARTICLE V

Membership and Dues

All persons wishing to further

the purposes of the Union are

eligible for membership. Mem- .

bership is established by signing

.an application and paying the

annual dues. Dues shall be fixed

by the Board of Directors.

ARTICLE VI

Board of Directors and Officers'

__ la. The direction and admin-

istration of the Union (some-

times called Branch) shall be

under the control of a Board of

Directors of not less than (15)

nor more than (30) members at-

large elected pursuant to Article

VI 1f-1j, plus one representative

member, if elected, from each

chapter in good standing, char-

tered pursuant to Article VIII of

these By-Laws, subject to the

provisions of sub-paragraph e.

Each board member shall be a

member of ACLUNC in good

standing at the time of his nom-

ination, election and service on

the board. The Board of Direc-

tors shall meet once each month,

at a time and place and fixed by

the Chairman, or on request of

five or more of its members.

Nine members of the Board shall

constitute a quorum.

b. Members of the Board of (c)

Directors who fail to attend five

consecutive meetings without ex-

planation may be dropped from

membership in the Board by a

majority vote of all the mem-

bers of the Board, provided, how-

ever, that should a Chapter-

elected member fail to attend

three consecutive meetings of

the ACLUNC Board without suf-

ficient reason, or should he re-

sign during his term, the Chap-

ter Board may. appoint a replace-

ment member to fill the unex-

pired term of office. The Branch

board may also appoint persons

to fill the unexpired terms of

members at-large.

c. Chapter representative mem-

bers are subject to all of the fore-

going and in addition Chapter

representative members shall be

eligible for Branch Board mem-

bership only if: (i) the chapter

charter is in full force and effect;

(ii) the chapter representative

member has been elected by the

membership of the chapter at

ACLU NEWS

SEPTEMBER, 1967

Page 2

As Amended July 13, 1967

laree in an election held pur-

suant to By-Law provisions of the

chapters previously approved by

the Branch Board of Directors;

(iii) such chapter representative

has been elected by the member-

ship of each chapter at the same

time and by the same means used

for nominating and electing its

own Chapter Board; (iv) and that

such election of the chapter rep-

resentative has been held be-

tween October 1 and March 1 of

any year.

d. The term of office of such a

Chapter-elected member to the

ACLUNC Board shall be one to

three years at the option of each

Chapter and maximum tenure in

`office shall be no more than six

years, after which a member

shall again become eligible for

election only after at least one

year's absence from the Board.

_e. Subparagraphs f. and g. of

this Article VI shall apply only

to members who are not chapter

representative members.

f. Members at-large of the

Board of Directors shall be

elected for three-year terms,

commencing on March 1 of any

year and are eligible for two full

consecutive three year terms.

The foregoing limitation shall

not apply to an incumbent chair-

man of the board; however, nine

years shall be the maximum

served in any event. Prior elec-

tion to unexpired terms shall be

permissible in addition to the

two full terms. After having

_served two consecutive terms,

members shall again become eli-

gible for election only after at

least one year's absence from the

board, and they shall continue to

-be eligible for election for pe-

riods of two full consecutive

three-year terms, so long as such

periods of service are interrupt-

ed by at least one year's absence

from the board.

g. An exception to the forego-

ing provisions shall be made in

the cases of board members who

served on the original Board of

Directors. After the . expiration

of their present terms of office,

said board members shall hold

office for life, with full voting

rights.

h. Each year, at the Septem-

ber meeting of the Board of Di-

rectors, a committee of five per-

sons composed of two members

of the Board of Directors, and

three members of the American

Civil Liberties Union who are

not members of the Board of Di-

rectors, shall be appointed by

the Chairman to serve as a nom-

inating committee to nominate

persons to fill Board of Director

terms expring during the current

year as well as any unexpired

terms that may be vacant. The

committee shall report its recom-

mendations to the Board of Di-

rectors at the February meeting,

the proposed nominations of

which shall be subject to ap-

proval or change by the Board

of Directors at the said meeting.

i. Every year, the September

issue of the ACLU NEWS shall

carry an invitation to the Un-

ion's membership to suggest

names to the nominating com-

mittee, and such names must

reach the Union's office not later

than September 30 in order to

receive consideration. The nomi-

nating committee shall consider

such suggestions but shall not

make any nominations until af-

ter September 30.

j. In addition to the foregoing

method of proposing names to

the nominating committee, mem-

bers may make nominations di-

rectly to the Board of Directors

in the following manner: Not

later than January 2 of each

year, nominations may be sub-

mitted by the membership di-

rectly to the Board of Directors,

provided each nomination be

supported by the signatures of

15 or more members in good

standing and be accompanied by

a summary of qualifications and

the written consent of the nomi-

nee.

k. The terms of all Board of

Director members elected at-

large prior to January 1, 1968,

shall be extended from Novem-

ber 1 to March 1 of the next suc-

ceeding year. At the expiration

on November 1, 1967, of the

terms of present interim Board

members elected from the Chap-

the areas, each chapter Board

shall be authorized to designate

a member of the ACLUNC Board

for the term from November 1,

1967, to March 1, 1968.

2a. The officers of the Union

shall be: a Chairman, three Vice-

Chairmen, a Secretary-Treasurer,

and an Executive Director, who

shall be elected by and hold of-

fice at the pleasure of the Board

of Directors.

b. Officers of the Board of Di-

rectors shall be elected annually

for terms beginning March 1.

c. Each year at the January

meeting the chairman shall ap-

point three members of the

Board to act as a Nominating

Committee for officers of the

Board. The committee shall pre-

sent its nominations to the Board

at the February meeting.

3. The Chairman shall pre-

side at all meetings of the mem-

bership and the Board of Direc-

tors and act in cooperation with

the other officers and with com-

mittees as found necessary or de-

sirable.

4 The Vice-CWatrmien shall act

in lieu of the Chairman in event

of the latter's absence or inabil-

ity to serve.

5. The Secretary-Treasurer

shall perform the usual duties of

such an office.

6. The Executive Director shall

conduct the office of the Union,

issue its monthly publication,

maintain minutes of all meetings

of the Union and the Board of

Directors, keep the records of

membership and of receipts and

disbursements, handle all mat-

ters of civil liberties coming to

the attention of the Union be-

tween meetings of the Board of

Directors and report thereon at

the following meetings of the

Board, secure the services of at-

torneys, appear before public

bodies on behalf of the Union,

and perform such other duties as

may be assigned by the Board of

Directors.

7. Such other committees as

may be found necessary or de-

sirable may be elected or ap-

pointed as determined by the

Board of Directors.

ARTICLE VII

Meetings

la. A general membership

meeting shall be held in San

Francisco at least once each year

for the purpose of receiving re-

ports of activities during the pre-

ceding year, and considering

such other business as the Board

of Directors may lay. before it.

b. Special meetings of the

members may be called at any

time by a majority of the Board

of Directors or shall be called by

the chairman on the written re-

quest of at least 10 per cent of

the membership. Any such peti-

tion and the notice of such meet-

ing shall state the purpose there

of; notice shall be sent 10 days

before the date set for such

meeting. No business other than

that specified in the notice of the

-meeting shall be transacted. The

presence of 15 per cent of the

membership at any special meet-

ing shall constitute a quorum.

2, Additional membership

meetings for the transaction of

Nominations

For ACLU

Br. Board

Last April members were in-

vited to make nominations for

the Branch Board of Directors.

In compliance with recently

adopted amendments to the

Branch By-Laws (printed on this

page of the NEWS), members

are again invited to submit names

to the Nominating Committee, by

September 30.

In addition, members wishing

to make nominations directly to

the Board of Directors, rather

than to the Nominating Commit-

tee, may do so by written peti-

tion, provided that each nominee

is supported by 15 or more mem-

bers in good standing, and that

each petition is accompanied by

a summary of the qualifications

of the nominee and his written

consent, Nominations by petition

must be received `by the Board of

Directors by January 2.

The Nominating Committee is

composed of two Branch Board

members, Mr.. Ephraim Margo-

lin and Mrs. Judith Balderston,

and three non-board members:

Mrs. Helen Meiklejohn, Mr. Vic-

tor Rosen, and Mr. Fred H.

Smith IV. The chairman is Mr.

Margolin.

business indicated in the preced-

ing section shall be held at the

call of the Board of Directors.

3. Luncheon, dinner, mass or

area meetings may be held or

lectures may be sponsored, as di-

rected by the Board of Directors.

ARTICLE VIII

Chapters

The Union by a majority vote

of its Board of Directors may

grant a charter to any petition-

ing local group in Northern Cali-

fornia which has given satisfac-

_ tory evidence of vitality, leader-

ship and devotion to the objec-

tives and program of the Union.

Charters may be revoked. for

cause by a two-thirds vote of the

Board of Directors, but only

after a statement of reasons has

been sent by the Board of Di-

rectors to the chapter officers

and members of the chapter

board and a full hearing accord-

`ed. Chapter By-Laws shall not

go into effect until they are ap-

proved by the Board of Direc-

tors. The ACLUNC Board of Di-

rectors reserves the right to re-

view the diverse nominating and

electing procedures presently

followed by Chapters if unfore-

seen difficulties arise in apply-

ing the foregoing By-Laws as

they relate to chapter-elected

representatives, and to require

such changes as may be neces-

sary to fulfill its proper respon-

sibility as the governing body of

the corporation. |

ARTICLE 1X

Rules of Order

Except as covered in the fore-

going, "Robert's Rules of Order,

Revised," shall govern the con-

duct of all meetings of the mem-

bership, the committees and

Board of the Union.

ARTICLE X

Amending By-Laws

Application of

Nuisance Law

Unconstitutional

Superior Court Judge Robert

Drewes, in the case of Duncan

Pain vs. Municipal. Court, has

`held sections .370 and 372 of the

California Penal Code "are un-

constitutional on their face as ap-

plied to individual persons

charged or prosecuted as public

nuisances."

The public nuisance law, de-

signed to abate such things as

excessive factory smoke, has been

used by the San Francisco Police

to arrest persons they believe to

be prostitutes or homosexuals

and other persons they consider

"nuisances," such as hippies.

ACLUNC has been challenging

the constitutionality of this appli-

cation of the law since last No-

vember when members of the

Mime Troupe were arrested as

"nuisances" for giving an im-

promptu puppet show perform- ~

ance.

The case against the Mime

Troupe was dismissed and a num-

ber of the defendants in that

case participated in an ACLUNC-

sponsored federal suit seeking a

declaration of section 370's un-

constitutionality. Federal Judge

Alfonso J. Zirpoli dismissed that

suit on the grounds that the state

courts should be given an oppor-

tunity to pass on the constitu-

tionality of the public nuisance

law.

Shortly after Judge Zirpoli's

ruling, ACLUNC board member

Ephraim Margolin, attorney for

Duncan Pain, gave the San Fran-

cisco Superior Court just such an

opportunity. Margolin, assisted

by Paul Halvonik, sought a writ.

from the Superior Court prohibit-

ing the trial of Pain for being a

public nuisance. The writ was

granted.

The District Attorney has an-

nounced that he will ask the

Court of Appeals to reverse

Judge Drewe's order. (c)

These BY-LAWS may be

amended at any meeting of the

Board of Directors by a vote of

a majority. of all the members

of the Board, provided the pro-

posed amendments are first sub-

mitted to the Pe of the

Board.

Gerald Purmal New:

Sonoma Council Chairman

The Rev. Geoffrey Selth, chair-

man of ACLUNC Sonoma Coun- |

ty Council which is laying the

foundation for a chapter in that

area, announced his resignation

at a social outing attended. by

members and friends at the War-

nick Ranch near Sebastopol on

July 30. ACLUNC Board Chair-

man Van D. Kennedy spoke at

the event and over $150 was

raised to finance Council activi-

ties by the sale of donated arts

and craft objects. Rev. Selth, who

sparked the organizing Council

in late 1966, plans to leave the

area shortly.

He is succeeded in office by

Gerald Purmal, an engineer re-

siding in Santa Rosa, who has

acted as Secretary for the Coun-

cil for several months.

Marin Chapter Meeting

September 18

Attorney Bella Aron will speak at the chapter

meeting on September 18, at 8:00, at Bank of

Marin, 5th and B Streets, San Rafael, on problems

of police harassment in Marin City, and a discus-

sion will also be featured on the legal and med-

ical aspects of marijuana by Dr. Samuel Hanzel

and Attorney Cari Shapiro.

Chapter members are urged fo attend, see

their Chapter Board in action, and Rericipere in

discussion of these vital topics. :

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, 433-2750

Subscription Rates -- Two Dollars a Year

Twenty Cents Per Copy

GB 151

. Bus Peace Ads |

Women for Peace

Lose Appellate Decision

Newly-appointed Court of Appeal Judge Norman Elking-

ton made his debut in the First Amendment area last month

with a decision reversing the judgment of the Alameda

County Superior Court that the Women for Peace were de-

`prived of constitutional rights by the refusal of the Alameda-

Contra Costa Transit District to

accept their peace advertise-

ments for display in busses. Jus-

tice Elkington's opinion, concur-

red in by Justices Molinari and

Sims, took the position that al-

though First Amendment rights

were involved in the refusal of

_ the advertisements, the District's

policy was "reasonable" and

therefore the constitutional

rights of the Women for Peace

were not violated.

District Policy

The policy of the Alameda-

Contra Costa Transit District, a

publie agency, is to refuse paid

advertisements for non-commer-

cial subjects "except that politi-

cal advertising will be accepted

in connection with and at the

time of a duly-called election

held within the boundaries of the

district." Women for Peace had

submitted an advertisement urg-

ing people to write to President

Johnson to end the war in Viet-

ham. It was rejected, since it

was neither at the time of a duly-

ealled election nor in connection

with one. ACLUNC filed suit on

their behalf, with volunteer at-

torneys Joseph Grodin and Rob-

ert O'Neil taking on the burden

of the work with the assistance

of staff counsel Marshall W.

Krause. After a hearing, Ala-

meda County Superior Court

Judge Cecil Mosbacher granted

an injunction preventing the dis-

trict from refusing the Women

for Peace advertisement. This

injunction was the subject of the

appeal filed by the District. ......

Basis of Decision

The Appellate Court adopted

the District's statement of the is-

sue before it: "May -a-publie

transport district establish and

follow an advertising policy with

respect to political or controver-

sial subjects which provides that

available space will be allocated

equally to the candidates or is-

sues to be voted on at an official

election within the boundaries of

the district and which policy

also provides that such advertise-

ments may be displayed only in

conjunction with such an elec-

tion, without infringing plaintiffs'

rights of `free speech' or `equal

protection' of the laws?" After

this statement the Appellate

Court told the litigants that "The

right of free speech is not abso-

lute; it has its limitations and

not all restraints thereof are in-

valid." o

`The court then went on to

state. that where the govern-

ment allows the use of its facili-

ties as a means of communication

to some but not to others, the

equal protection clause of the

Fourteenth Amendment pre-

cludes the state from acting ar-

bitrarily; that the question in

such a case is whether there is

any reasonable ground for such

a distinction. Where a politicial

communication is involved, it

said; the courts will examine

carefully the restrictive classifi-

cation to insure that it is not a

disguised mode of censorship.

"It is not for the state to con-

trol the influence of the pub-

lie forum by censoring the ideas,

the proponents, or the audience."

_After stating these principles,

the court stated: "It appears that

the district's policy . . . resulted

from a belief that it was neces-

sary for the orderly, successful |

and evenhanded functioning of

its advertising operation. At no

time has the district attempted to

control or censor any political

or other views. Its policy ex-

cludes all non-election political

advertising regardless of con-

tent. All elections ads are accept-

ed ... . It is difficult to antici-

pate the requirement of non-elec-

tion political advertising in ad-

vance. If it is accepted on a first-

come, first-serve basis when

space is available, then it must

frequently be necessary either

to deny equal space to others

reasonably entitled thereto, or to

preempt commercial space with

the resultant loss of goodwill

and future income ... We be-

lieve that the complained-of poli-

cy of the district meets the per-

tinent constitutional tests. It...

bears a reasonable relation to

public welfare and to the: sub-

ject matter of the classification.

The distinction is narrowly

drawn, excluding only that which

is necessary in accomplishing its

legitimate purpose. It does not

appear that it has a tendency or

has been used to censor speech

or ideas . . . it does not impinge

upon fundamental rights; instead

the policy tends to subserve the

principles of the First and Four-

teenth Amendments by allowing

a substantial area of impartial

and open debate that would be

closed under an admittedly per-

missible policy of non-advertis-

ing."

Appeal to Supreme Court

ACLUNC attorneys will take

the case to the Supreme Court

of California on petition for hear-

ing where, it is hoped, the con-

stitutional arguments will have a

more sympathetic reception. The

petition will point out that the

District's policy seriously inhibits

the dissemination of particular

classes of constitutionally-protect-

ed messages. First, many of the

issues with which political and

social groups are vitally con-

cerned cannot become the sub-

ject of voting in an election cam-

paign, Under the District's poli-

cy, No space can ever be allowed

for messages on these subjects.

Second, even as to issues which

can appear on the ballot, publici-

ty can be obtained only at the

time of an election campaign.

This precludes advertisements,

for instance, to obtain signatures

to get an issue on the ballot.

Third, if an issue or a candidate

is not on the ballot "within the

boundaries of the district," no

publicity can be obtained even

though the message is of impor-

tance to the District's passengers.

Fourth, transit advertising is re-

latively economical and may be

the best medium available to a

group with limited funds.

The ACLUNC petition will also

show that the District has not

justified its policy by any com-

pelling reasons. The Court of

Appeal focused on a hypothetical

difficulty which has never ma-

terialized and which could easily

be handled equitably if it did.

What the Court of Appeal failed

to note is the undeniable fact

that the District exercised pow-

ers of censorship over what is-

sues shall appear in its transit

advertising. The petition with

the State Supreme Court will be

filed this month.

George Pcehner

ACLUNC Summer Intern

George R. Poehner of Albany,

California, an editor of the Cali-

fornia Law Review, was selected

`as the fourth legal intern in AC-

LUNC's summer program for

third-year law _ students. Mr.

Poehner worked in ACLUNC's

legal department during July and

August. He has returned to Boalt

Hall Law School to complete his

third year at Berkeley.

No. California

Meeting Problem

-Continued from Page 1

board of the purpose of their

meeting and also that three of

the leading ministers in Napa

would be speakers, The school

board was also not impressed by

the law in such cases which pro-

vides that school facilities are

civic centers to be made avail-

able for public meetings of any

groups on a non-discriminatory

basis.

ACLU Intervention

At this point ACLUNC entered

the case and requested that the

County Counsel immediately pro-

vide the school board with a

legal opinion on its actions. The

day before the scheduled meeting

of the Concerned Citizens the

County Counsel rendered his

Opinion that the action of the

school board was illegal and that

the board should not have denied

the use of the auditorium.

Special Board Meeting

Thereupon, at the insistence of

ACLUNC and the Concerned Cit-

izens, a special meeting of the

school board was called for Sat-

urday afternoon. At this special

meeting only three of the seven

board members were present and

the board, refused to take any ac-

tion to rescind their illegal de-

nial of the meeting facilities on

the ground that no quorum was

present. There is substantial evi-

dence that several of the board

members were, in fact, home

tending their gardens during the

meeting hours even though they

had received notice of the spe-

cial meeting. Since it was too

late to take any court action,

ACLUNC advised the Concerned

Citizens to proceed with their

meeting right outside of the high

school auditorium on a grassy

portion of the school premises.

Public Meeting Held

The meeting was held, despite

the fact that the publicity was

very confused and uncertain

about where it would take place.

Over 100 people came and sat in

the broiling sun and heard the

speeches.

Apology Demanded

The Concerned Citizens of Na-

pa has written the school board

`demanding an apology for the

aspersions cast on the group and

for denial of its legal rights. If

satisfaction is not obtained from

the school board, ACLUNC may

file a damage action against it.

Fresno

A "Peace, Joy, Love Be-In" was

held as scheduled in Fresno on

August 5 and the sponsors were

not required to post a $100 bond

for precautionary police pretec-

tion.

The threat of possible legal

action by the Fresno Chapter of

ACLUNC, plus the "lack of stand-

ards affecting such gatherings,

in the form of a city ordinance,"

caused City Manager John Tay-

lor to order the Park and Rec-

reation Department of Fresno

to issue a permit granting au-

thorization to use Roeding Park

to the Ad-Hoc Be-In Committee,

`without fee.

ACLUNC Warning

Morris Futlick, chairman of

the attorneys panel of the Fres-

no Chapter, warned the city

there was in the "prohibitive

$100 fee the city proposed a seri-

ous question of violation of con-

Stitutional rights . . . such as

freedom of speech `and assem-

bly."

Unprecedented Fee

Herbert F. Bolz, chairman of

the "Be-In,' and a student at

Fresno State College, discovered

that the city had not previously

required a group to put up

money for police protection be-

fore granting a permit and com-

plained to the chapter.

Following his order the City

Manager explained that the city

was perhaps "a little sensitive"

because of civil disturbances

across the country. He also re-

quested the City Attorney to

write " a properly drawn' ordi-

nance to provide proper stand-

ards for ruling on police protec-

tion at such gatherings.

Friend of Court

ACLUNC Takes Up

Challenge in

Loyalty Oath

ALUNC has filed with the Su-

preme Court of California a brief

amicus curiae supporting a chal-

lenge to the constitutionality of

California's Levering Loyalty

Oath. The suit, Aronson v. Reg-

ents of the University of Califor-

nia, brought by 11 members and

former members of Berkeley's

University community, asks the

Court to command the U. C. Reg-

ents to eliminate the Levering

Oath as a condition of employ-

ment. If this relief is granted, it

would apply to all other state

and municipal employees, all of

whom now must take the Oath

as a condition of employment.

The brief, signed by staff coun-

sel Marsall Krause and Paul Hal-

vonik, asks the court to recon-

Group Organized

To Counteract

Role of ACLU

A Chicago-based group headed

by two Northwestern University

law professors, has recently or-

ganized with the avowed purpose

of counterbalancing the role of

ACLU in protecting the rights of

individuals in criminal cases.

The president of Americans

for Effective Law Enforcement

stated in an interview reported

in the New York Times (July 16)

that in criminal cases ACLU has

sought to advance only the cause

of individual civil liberties and

that there has been a conscious

absence of "any group represent-

ation of the law-abiding public's

concern over the present lack of

adequate protection from the

criminal element." The group

plans to battle Supreme Court

limitations on policemen and

prosecutors in obtaining criminal

convictions.

Courts Blamed

Evidently ignoring the social

conditions which lead to crime,

the group pins the blame on the

courts. In its opinion, the Su-

preme Court decisions in the Es-

cobedo and Miranda cases have

relegated public safety and wel-

fare to a position of secondary

importance, and by requiring the

police to advise suspects of their

right to legal counsel, have ham-

pered the administration of crim-

inal justice.

According to Professor Fred

Inbau, president of the group,

criminals now take risks they

would not otherwise take, and

the warnings required to be giv-

en suspects handicap the police.

In his view, many crimes can be :

solved only by pretrial confes-

sions obtained by interrogation

"under conditions of privacy and

a period of perhaps. several

hours."

The group plans to enter con-

stitutional cases before the Su-

preme Court and other courts as

a friend of the court.

_ Right-Wing Support -

Not unexpectedly, according

to the Times article, right-wing

elements constitute part of the

widespread national support

claimed by the group. However,

according to Mr. Inbau, extrem-

ists will denied voting member-

ship. Included on its board of

directors are two former assist-

ant state's attorneys for Cook

County, O. W. Wilson, former

Chicago Superintendent of Po-

lice, the president of the Board

of Commissioners of Cook Coun-

ty (a former sheriff), and Harold

A. Smith, former President of

the Chicago Bar Association and

- the Chicago Crime Commission.

sider and reverse its 1952 deci-

sion in Pockman v. Leonard sus-

taining the Oath's constitutional-

ity. ACLUNC points out that the

Pockman case is based on rea-

soning that is completely at vari-

ance with subsequent develop-

ments in constitutional law and

maintains that the Levering Oath

is indistinguishable from oaths of

non-disloyality struck down by

the Supreme Court as unconsti-

tutional infringements on the

rights of free speech and associa-

tion. The brief also asserts that

the Oath violates the privilege

against self-incrimination and is

a bill of attainder.

Other Challenges

The Levering Oath has recent-

ly been the source of much litiga-

tion. In Los Angeles, Superior

Court Judge Robert Kenney

found it unconstitutional, a deci-

sion presently being appealed. In

San Francisco, Judge Joseph

Karesh was reluctant, in light of

the Pockman decision, to find

the Oath unconstitutional and in-

stead found a non-constitutional .

_ ground that resulted in a deci-

sion favorable to the ACLUNC

represented challenger. Also in

San Francisco in another

_ACLUNC-sponsored case, Glick-

man v. Swett School District, a

three-judge Federal Court has

been convened to consider the

Oath's constitutionality. It is like-

ly that other courts will await.

the outcome of the Aronson case

before taking any action.

Additional Brief

The petitioners in the Califor-

nia Supreme Court action are

represented by attorneys Albert

Bendich and Coleman Blease. An

amicus curiae brief has also been

filed by the Academic Freedom

Committee of Berkeley's Aca-

demic Senate. It was prepared by

Boalt Hall law professors Richard

W. Jennings and Robert O'Neil.

Suicide Symposium |

"Suicide and Problems of

the Young" a symposium tof

be presented by the Faculty

Program Center of San Fran-|

cisco State College, October

13-15 will include ACLUNC

Branch Board members Eph-

raim Margolin and John Ed-;

wards among the speakers.

Designed especially for

teachers, counselors, school

and college administrators,

the symposium will focus on

medical-social aspects of the}

problem, but it can be ex-

pected that the ACLU speak-

ers will raise questions re-

specting various civil liberties

aspects, particularly the right 4

to privacy.

Mr. Margolin will be a pan-|

elist on "the Right to;

Choose," and Mr. Edwards

will participate in a panel en-

titled "Why Not?" :

Participants may qualify |

for one semester unit of upper

division Psychology credit. In- |

quiries should be made di-|

rectly to the Faculty Program

Center, San Francisco State

College, 1600 Holloway Ave-

nue, San Francisco, telephone

| 469-1205.

ACLU NEWS

SEPTEMBER, 1967

Page 3

The Computerized Man

By JUSTICE WILLIAM O. DOUGLAS

The computer has taken its

place alongside the A-Bomb to

mark the second phenomenal

revolution of this generation. An

idea can now be _ transmitted

around the world in one-seventh

of a second. And so the recur-

ring question is, what ideas will

be disseminated? If they con-

cern people, what data will go

into the machine, how will peo-

ple be evaluated, whose names

will come out if the subversive

button is pressed, the lazy button

is pressed, the unreliable button

is pressed, and the like?

If a centralized data center is

established, as proposed, and all

the contents of personnel files

are poured into it, privacy in

this nation will be drastically

diluted.

What is this privacy?

There is an area of privacy not

expressly mentioned in the Con-

stitution but within the penum-

bra shaped by emanations of its

provisions - an area that has

been held to be protected against

state as well as federal action.

... The right to "belong," the

right to "associate" is in the

penumbra of the First Amend-

ment which guarantees `"Free-

dom of speech" and "Freedom

of assembly." But it also extends

where there is no "speech" or no

"assembly." Otherwise . those

rights would suffer, especially

freedom of speech, as joining a

group, whether Communist or

non-Communist, is a _ subtle

though indirect method of ex-

pression.

The privacy of the individual

has ... other roots in the Con-

stitution. His religous beliefs are

irrelevant when it comes to gov-

ernment employment. ...

The government. ... may not

invade the individual's right of

privacy nor abridge his liberty

of speech, press, religion or as-

sembly. "What church do you

belong to?," "Are you an athe-

ist?,' "What are your views on

the United Nations?" These and

like inquiries are irrelevant to

government. A man's beliefs are

his own; he is the keeper of his

conscience; Big Brother has no

rightful concern with these mat-

ters.

Yet government agencies still

exact information from em-

ployees concerning their religion,

color, race, and nationality... .

All federal employees are

asked, "Have you ever been ar-

rested, taken into custody, held

for investigation or questioning,

or charged by any law enforce-

ment authority?" Traffic viola-

tions and juvenile transgressions

prior to age 16 are excepted. But

false arrests are common; _ar-

_rests for assertion of civil rights

are frequent; many arrests never

reach the test of judicial scru-

tiny. Yet all arrests go into mie

federal file.

~ Intra-personal family relation:

ships have also been probed.

Department of Labor

A Department of Labor ques-

tionnaire included ...

"Just before your teens, how

did you let off steam when you

got angry: (A) By fighting; (B)

By kicking or throwing some-

thing; (C) By cursing; (D) By

- talking it over with someone;

(E) I didn't. I tried to hide my

feelings."

Personal

deeply:

"Do you have any serious mari-

tal or domestic problems? .

"It there anything in your past

life that you would not want your

wife to know?" .. .

Other Federal Agencies

Apart from the Civil Service

Commission, a number of federal

agencies use personality tests.

Those personality tests have

been common, including ques-

tions pertaining to one's sex life

and his beliefs on a wide range

of subjects. In 1965 the Civil

Service Commission abandoned

them "except in connection with

`medical determinations for em-

Page 4

questions probe

ACLU NEWS

SEPTEMBER, 1967

ployment or fitness for duty."

Yet the exception apparently em--

braces a large group ... One

Civil Service medical examina-

tion on an application for a dis-

ability retirement demanded

"true" or "false" answers to ...:

"T love my father," "I hate my

father," "I would like to be a

florist," "I love my mother," "My

sex life is satisfactory," "I am

attracted to members of my own

sex," "I believe there is just one

true religion,' "I am an imple-

ment of God."

Non-Government Tests

Popular tests used in industry

include: "Do you often feel just

miserable?" "Is your sex life sat-

isfactory?" "About how many

people have you disliked (or

hated) very much?" (A) None,

(B) One to three, (C) Four to

ten, (D) Eleven to fifty, (E) Over

fit

One who hates four or more

people is in trouble.

Another popular test calling

for a true or _false answer in-

cludes:

"I believe I'm being plotted

against."

"T dream frequently about

things that are best kept to my-

self."

"T am a special agent of God."

About half of the large corpo-

rations use personality tests.

School children, ministers,

pilots, salesmen, executives, are

often given these personality

tests.

When the employees of one

federal agency objected to ,

personality tests as "highly em-

barrassing," it replied that no

one was required to answer...

But when they failed to answer

. they got a letter from

the chief medical officer .. .

that . .. "no more than four

questions could be ignored .. .

Search for Mentally Tl

The experts are at odds about

these personality tests. These

tests commonly grade a person

by 8, 9; or 10 traits while 25,000

might approximate an accurate

personality portrayal. Moreover,

the creator of the test fashions

his own neurotic world .. . for

example, that to daydream is neu-

rotic. A premise of another

test is that belief in God is nor-

mal but being very religious is

bad. (Some psychiatrists affirm

that "excessive religiosity" may

be a sympton of mental illness.)

Another is based on the theory

that if one cheats on an exami-

nation it proves he is smart...

Thus the search for the men-

tally ill is well-organized. So are

the psychologists who clamor for

a permanent place in the screen-

ing and selection of employees.

And their appeal is great, for

the trend to conformity has made

laymen less and less critical of

these massive inroads on their

privacy....

Dangers of Labeling

In addition, the lure of "scien-

tific' analysis is so great that

many people actually believe a

personality can be put into a

computer. Personality testing is

held in awe by many people be-

cause its scales sound so defi-

nitely scientific and certain. . .

Moreover, it is pointed out that

intelligence, aptitude, and skill

are not enough for employment,

that more people lose jobs be-

cause they cannot adjust to their

fellows than because they cannot

do the required tasks. And so the

search for the ``misfit" gains mo-

mentum. The psychiatrists join

forces as they work on the peri-

phery of what is "normal" and

are interested in people who

show "pathology." It may be

that some assignments, for ex-

ample, overseas, may produce

psychiatric casualties, among

technicaliy qualified people who

are good security risks .. . The

layman ventures into the un-

known when he tries an evalua-

tion of these various tests. But I

risk the view that if used

they should cover only cases

which observation and interviews

and case histories suggest are

marginal; that if given at all

they should be administered on-

ly by eminently qualified people;

and that the data collected should

never enter the personnel file.

Someone's label "schizophrenic"

"neurotic" `extrovert' `catalep-

tic" "psychopathic" can give a

person a lifetime brand, ruinous

_to his career. The label may have

been improperly attached to be-

gin with; even if valid then, the

condition may have been com-

pletely cleared up....

Almost any personality test

may result in severe damage to

the individual. For many people

will see the results of the test

and there are ways for the un-

scrupulous or for the informer

or a political foe to get almost

anything out of the sieve known

as Washington, D.C.

Some supervisors must supply

the names of employees who at-

tend integrated PTA meetings

and engage in the Great Books

discussion. Employees are often

requested to promote anti-pov-

erty,. beautification, and equal

employment programs. They are

told to lobby in local city coun-

cils for fair housing ordinances.

Some agencies either prohibit

employees from having any con-

tact with members of congress

or require them to report all

such contacts, social or other-

wise.

Disciplinary measures have

been used against recalcitrants,

and ... instituted without the

suspected employee having any

right to counsel.

Federal Data Bank

This is the kind of data being

collected on employees. Think

what damage can be done once

it is fed into a computer. The

threat is accentuated by the pro-

posal to create a federal data

center.

Some 20 federal agencies col-

lect data on individuals. All for-

mer employees or agency heads

get questionnaires to fill out con-

cerning their former employees.

Professors and other university

officials get inquiries concerning

their former students ... What

is collected is highly subjective

data. Is the applicant "reliable,"

"cooperative," "aggressive," `"`sta-

ble," "loyal," and the like! The

answer may reflect an emotional

or ideological rift between the

applicant and the: person being

interviewed or filling out a ques-

tionnaire. It may be motivated

by an old grudge, by a casual en-

counter that has no significance.

The applicant may have out-

grown the defect which the in-

terviewer once observed. A trait

that seemed to mark a perma-

nent condition may have been

wholly transitory. One youthful

transgression may never be re-

peated. Even a prior criminal

conviction may be utterly irrele-

vant to the present-day needs of

a prospective employer.

Yet all these statements go in

as. facts: =, 22

In the cases of which I speak

the interview between the _ in-

vestigator and the former teach-

er or employer are "in camera."

Or in the case of a questionnaire,

it is filled out glibly and care -

lessly or with meticulous effort

.. The applicant has no chance

to see it, challenge it, correct it.

... there will be no account of re-

habilitation that has been suc-

cessful; there will be no place for

redemption and forgiveness. The

"fact" that a person is not wor-

thy because he was opposed to

our military venture in Viet Nam

may over the years become well-

night conclusive proof of a trea-

sonable attitude... .

Computers can handle items

such as age, years in high school,

college degrees . .. with pre-

cision. And those who brag over

what the computer has done to

improve operations . . .have a

point when information in no

way subjective is fed into the

machine. ...

A data center that puts into

a computer the random apprais-

als of an individual and allows

those appraisals to be used

against him, without full oppor-

tunity of confrontation and cross-

examination, would indeed en-

sconce Big Brother. ....

We know from the chairman of

the U.S. Civil Service Commis-

sion that the computer' plays. a

large role in government; . ..

"A computerized file contains

_ the names and employment data

of some 25,000 persons, all con-

sidered likely prospects for fed-

eral appointive positions, is

searched electronically. This tal-

ent bank, with its automated re-

trieval system, broadens the field

of consideration for the. Presi-

dent in critical decisions of lead-

ership selection. .. ."

To rely on the computer for

these delicate choices is to search

for certainty where there can be

none. Most of our choices are

value choices that involve im-

ponderables that no machine can

reflect.

As the Bureau of the Budget

admits ". ... it'is not possible .

to have a data center that is

meaningful'... in which the

identity of the individuals for

which there is information is

erased." Ae Fs

Possible Leakage

Some data centers receive

tapes by hand delivery. What

safeguards are there against

leaks during the transportation?

If electronic methods are used

to transmit the data to the...

center, what protection. against

"bugging" can there be?

The experts seem to agree that

even though no people's names

are on the tape, date ... can be

manipulated . . . to pick out

individual names. The risks of

improper use multiply when

names and social security num-

bers are included. ...

Laws help and act as deter-

rents. But . . . laws on wiretap-

ping have had no appreciable ef-

fect on the use of that device.

Making a crime out of the use

of electronic devices to find out

what a person's private life is

like is one proposal. But since

the police themselves are ad-

dicted to the practice, it is diffi-

cult to imagine them becoming

effective law enforcement offi-

cials at that level. Laws directed

against improper computer use

may create a sense of security

but they will afford no protec-

tion against Big Brother once

everyone's ideology, reading hab-

its, sex life, and various idiosyn-

cracies get in the tape.

Leakage of information is only

a collateral matter. Why Big

Brother should be allowed in the

first place to put into a data

bank personality and ideological

data about anyone is the initial

question. If we get a police state

without a data center, the po-

lice state will be the first to cre-

ate one. If we get a data center

first we are well on our way to

subordinating everyone to bu-

reaucratic surveillance, to police

surveillance, to political surveil-

lance. ....

Inevitable Network

Today there are in the federal

government, in the states, and in

industry, numerous data centers.

Hooking them up in time into a

national electronic system seems

inevitable. For the demands

mount annually and the costs of

collecting "facts" through push-

ing a button are lower than turn-

ing agents or private detectives

loose.

Those who are proposing the

new data center are well-inten-

tioned. They see much value in

centralized data. But if traffic...

military ...census . revenue

. and Loyalty Security Board

statistics, statistics on the poli-

tics and reading habits of the in-

dividual, his ideological bent,

his youthful trangressions, his

membership in a

organization, that may have been

nominal, fleeting, or thoughtless,

and all the other facets of his

life and his family's are retriev-

able if one only presses a but-

ton, what temptation there will

be to use it! Our revenue statis-

tics were confidential in the be-

ginning; yet now they are avail-

able to the states and to numer-

ous other federal agencies. The.

reasons for using collected and

stored information increase in

"subversive"

periods of mounting tensions or

where political or' popular. pres-

sures are great. The very' exist:

ence of a pool "of data on every

facet of a man's life makes the

temptation irresistible when a

party or a people are: `out to de-

stroy him." -

- Alexis de Tocqueville wrote

that in a Democracy people are

"only ~ led to revolution wna-

wares.' They can also un-

wittingly Becotue enmeshed in

repressive `systems whose ap-

proaches are as noiseless as time.

We have not hada plan but we

have gone far to invade the pri-

vacy of the individual and to

fasten on ourselves a regime of

repressive practices.

`The Nature of Privacy

But what is this privacy that

we purport to cherish?

Every individual needs both

to communicate with others and

to-keep his thoughts and heliefs

from others. This dual aspect of

privacy means that a person

should have the freedom to se-

lect for himself the time and cir-

cumstances when he will share

his thoughts and attitudes with

others and the extent of that

sharing, This privacy has been

increasingly invaded in modern

times and science is one of the

chief culprits. The excuses for

the invasion are national secur-

ity, protection against crime, ef-

ficiency, and the like.

If we are to maintain the bar-

riers that make for strong in-

dependent people, we must draw

the line between action for which

the individual may be exposed

and thoughts for which he never

may be.

Impermissible Information

What a person has done dur-

ing his life should be available -

to prospective employers, to in-

vestigating committees, and to

others in positions of lawful au-

thority. What he believes, like

the art or the music that he likes,

should be beyond anyone's reach,

unless a person in a knowledge-

able way freely consents to make

the disclosures. ...

"Were you ever arrested?" needs

special protection unless a sys-

tem for erasing "arrests" where

the person was later vindicated

is designed and unless "arrests"

made in the guise say of "dis-

orderly conduct" where the real -

charge was assertion of a First

Amendment right are excluded.

One person's appraisal of an-

other should likewise never be

fed into a computer, for that ap-

praisal though highly prejudiced,

is quickly turned into a "fact"

by the machine.

Psychologists, psychiatrists, SO-

ciologists, and others press for

recognition and ask for privileges

to study and explore mankind.

Anyone who in a knowledgeable

way freely consents to collabor-

ate with them is of course privi-

leged to do so. But social and or-

ganizational pressures should not

be given sanctions to compel

this collaboration, no matter how

sincere the promises that all in-.

formation received will be treat-

ed as "confidential."

Legislatures and Courts

As Barriers

These are the issues around

which great. debates are begin-

ning to take shape. Big Brother

in the form of an increasingly

powerful government and an in-

creasingly powerful private sec-

tor will pile the records high

with reasons why privacy should

give way to national security, to

law and order, to efficiency of op-

erations, to scientific advance-

`ment, and the like. The cause of

privacy will be won or lost en-

sentially in legislative halls, in

constitutional assemblies and in

the courts. If it is won, this plu-

ralistic society of ours will ex-

perience a spiritual renewal. If

it is lost we will have written our -

own prescription for mediocrity

and conformity.

Excerpts from speech de-

livered at ACLU/S.F. State

Faculty Program Center

Conference on "Privacy in a

Crowding World," May 20,

1967. Copies of full.. text

available from ACLU office.