vol. 36, no. 1

American

Civil Liberties

Union

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Volume XXXVI

SAN FRANCISCO, JANUARY, 1971

No. 1

"Viet Nam Commencement"

Seek High Court

Review of U. C.,

Berkeley Case

In the Spring of 1968 the Campus Draft Opposition at the

Berkeley Campus of the University of California applied for

a permit to use the campus' Greek Theater for the purpose

of holding an assembly to be entitled "Viet Nam Commence-

ment." The object of the proposed assembly was to honor

those young men who had tak-

en the position that they could -

not morally participate in the

armed forces during the Viet

Nam conflict, The permit was

denied when Regents' counsel

Thomas Cunningham concluded

that such an assembly would vio-

late a Regents' resolution which

provided: :

"University facilities shall

not be used for the purpose of

organizing or carrying out un-

lawful activity."

Unlawful Purpose

Cunningham reasoned that the

assembly would be an unlawful

activity because it "might be in

violation" of a provision of the

`Selective Service Act which

makes it a crime to aid or abet

a draft evader.

The Constitution

ACLUNC brought suit in the

Federal District Court on behalf

of C.D.0, contending that the

University had exercised censor-

ship power in an unconstitution-

gl. manner. The asscmbly pro-

posed by C.D.0, would not have

violated any law and, moreover,

there was no contention that if

advocacy of unlawful conduct oc-

curred at the assembly that there

would be any "clear and present

danger" that the advocacy would

be acted upon, If unlawful acts

occurred at the assembly it

would be time enough then to'

make arrests, But by not permit-

ting the assembly to occur at all

the University was acting as a

censor in a most heavy-handed

manner.

Suit Dismissed

ACLUNC's application for a

temporary restraining order and

injunctive relief wags denied by

the United States District Court

which dismissed the suit.

ACLUNC then took the case to-

United States Court of Appeals

which, last September, upheld

the District Court decision.

High Court Action

Last month, ACLUNC staff

counsel Paul Halvonik filed a

petition requesting the United

States Supreme Court to review

aiid reverse tne decisiuns peiow.

The petition contends that the

prior restraint on the freedom

-Continued on Page 4

Butte County Charter Provision

Five-Years Residence for

Candidates Struck Down

_ The Sacramento Court of Appeal has struck down a Butte

County Charter provision limiting candidates for supervisor

to persons who have resided in the county for the previous

five years.

The decision came in the case of Jack H. Zeilenga, Jr., a

34 - year-old assistant professor

at Chico State College, who is

recognized as a spokesman for

the poor in Butte County. Zeil-

enga attempted to run in the

June primary as a candidate for

supervisor but the Board of Su-

pervisors refused to accept his

nomination papers on the ground

that he had not fulfilled the five-

year residency requirement.

Equal Protection Denied

Zeilenga, represented by

ACLUNC volunteer attorney Phil-

lip Eisenberg of Sacramento,

then brought suit in the Butte

County Superior Court contend-

ing that the five-year residency

period was unconstitutional. The

Superior Court denied-his claim

and ACLUNC then took the case

to the Sacramento District of the

State Court of Appeal. That

Court found the requirement in-

consistent with the equal pro-

tection clause of the Fourteenth

- Amendment. The Court said:

"Perhaps in the horse and

buggy days the five year re-

quirement could have been

reasonable, but in these days

of modern public transporta-

tion, the automobile, news-

Papers, radio, television and

the rapid dissemination of

news throughout all parts of

the country, the requirement

1s unreasonable. It excludes

certain citizens from public of.

fice by classification which is

unnecessary to promote com-

pelling government interest. It

is a built-in device to prevent

competition against the coun-

ty's old timers for the office

of supervisor."

One-Year Rule

Although it struck down the

five year limitation, the Court

of Appeal held that a one-year

residency requirement for can-

didates was `reasonable.' ACL-

UNC in thus not entirely satisfied

with the decision. In an ACLUNC

case, the San Francisco Dis-

trict of the Court of Appeal

struck down the one-year res-

idency requirement for voters in-

October, We can see no reason

for making the residency quali-

fications for candidacy more re-

strictive than those for a voter.

The length of one's residency

may be a factor which the voters

will want to consider in casting

their ballots among competing

candidates, but they should not

be foreclosed from voting for

someone simply because he has

not been a resident for a period

of one year. i

Appeal Indicated

Butte County has indicated it

will ask the Supreme Court of

California to review the Zeilen-

ga decision. If the State High

Court grants review, ACLUNC

will contend for a rule that

makes residency requirements

for voters and candidates co-

ferminous. ~

Distinguished

Committee Seeks

Exec. Director

Board Chairman Howard Jew-

el has named an outstanding

committee to nominate an exec-

utive director to replace Ernest

Besig, who is retiring on May 30.

Heading the Committee is Mar-

shall N, Krause, who was ACLU

staff counsel for eight years and

is now teaching at San Francisco

State and participating in

KQED's Newsroom,

The other members of the com-

mittee are Rabbi Alvin I, Fine,

former board chairman; Prof.

Van Dusen Kennedy, another

former board chairman and pres-

ently vice-chairman; Neil Hor-

ton, a board member who prac-

tices law in Oakland and who is

active with the American Friends

Service Committee. The fifth

member of the committee is Prof.

Nancy McDermid, a lawyer and a

member of the Speech Depart-

ment at San Francisco State Col-

lege, Howard Jewel and Ernest

Besig will serve ex officio but

without vote.

Announcements of the position

have been sent to ACLU branch-

es, placement offices of various

kinds and other agencies

throughout the country. The an-

nouncement says the Committee

will receive applications until

February 10, 1971 and that the

employment will commence on

May 15, 1971.

Applications should be sent to

the "Executive Director Commit-

tee", ACLU, 593 Market St., San

Francisco, Ca, 94105, "A com-

plete resume is requested, but

letters of reference are ontional

until a preliminary screening

has been completed. A_ brief

statement on an applicant's inter-

est in civil liberties is desirable

from applicants who have not

worked in this field.

"Starting salary is dependent

on qualifications and experience

and will be in a range of $17,500

to $20,000. A health plan and a

retirement plan are provided, No

special qualifications concerning

training, experience or geograph-

ical location have been estab-

lished by the Committee."

Merger Opposed:

"Yes'=-22;

"No'--128

ACLU members are voting 128

to 22 AGAINST financia] merger

of the branch with National, Six

had no opinion,

The question will be de-

termined at the January 14

branch board meeting Many let-

ters as well as brief comments

have been received. All. have

been mimeographed and sent to

the Board, Whatever your views,

please make them known to the

Board. Time is short!

The few letters in favor argue

that a merger should be tried,

that we have national responsi-

bilities and have "free-loaded,"

and that we should work to-

gether.

Opponents argue that tax de-

of America."

ment in the case.

Supreme Court Affirms

Ban On Loyalty Oath

The United States Supreme Court has affirmed the d

cision of a three-judge federal court in San Francisco striki

down a statewide loyalty oath imposed on public school teac

ers, The suit, brought by ACLUNC a year ago on behalf

Kenneth MacKay, a teacher at San Jose State College, urged th ..

the loyalty oath was unconstitutionally vague and overbro:*

under the First Amendment, The oath, required of all app

cants for teaching credentials, requires that a teacher swea

that he will "promote respect for the flag and respect for 1:

and order and allegience to the government of the United Stat

The three-judge district court, in a two to one decisic

agreed with ACLUNC's contention and enjoined the enfor

ment of the oath, Apparently at the instigation of Max Raff

ty, the state appealed the decision directly to the United Stat__

Supreme Court, The Supreme Court decided the case on the

strength of the briefs filed, without hearing oral argument.

Eight members of the Court voted to affirm the district court

decision. Only Justice John Harlan wanted to hear oral argu-

U.S. Supreme Court

Ehlert Case

To Be Argued

This Month

On January 13th the United States Supreme Court will

hear oral argument in the case of Ehlert v. United States. In

Ehlert the highest court will, for the first time, pass on the

validity of late maturing conscientious objector claims.

Ehlert is a conscientious objector who was convicted for

failing to submit to induction

into the armed forces, His de-

fense at trial was that his local

draft board has improperly re-

fused to consider his application

for conscientious objector stat-

Membership

Meeting in

Marin Jan. 15

Prison reform will be the theme

of the Marin Chapter annual meet-

ing, to be held Friday evening,

January 15, at 8:30 o'clock. Mem-

bers are invited to gather at the

Mill Valley Community Center on

Svcamore Avenue to hear attor-

ney Salle Soladay speak on prison

reform. Miss Soladay has filed

numerous suits in behalf of pris-

oners at San Quentin prison.

Also featured will be Peter

Crysdale, director of the Austin

MacCormick Center, a project of

the American Friends Service

Committee. Mr. Crysdale_ will

speak on "Transitions: What is

being done to assist persons newly

released from prison?"

The speeches will be followed

by a discussion period and then

the election of Marin. chapter

board members. There will be a

no host bar and music will be

provided.

ductibility is the over-riding is-

sue. Some will diminish or drop

their support if the merger is

voted. Some argue that no need

has been demonstrated; that, if

desirable, money can be appro-

_priated for national; that admin-

istrative costs will rise with less'

accomplished; that merger

means centralization of power,

mere uniformity, loss of auton-

omy and without a showing that

the cause of civil liberties would

be helped.

Membership Poll

To: Board of Directors ACLUNC

593 Market St., San Francisco, Ca, 94105

CII am in favor of a financial merger with National.

CII am opposed to a financial merger with National,

L]I have no opinion on a financial merger with National.

Comments 2 =

The Board also welcomes your letters on this subject.

Name "(or anonymous, if you wish) (c)

Address

receiving his order to report for

induction.

The Federal District Court

held that the Selective Service

regulations precluded the draft

board from considering Ehlert's

"late maturing" claim, A three-

judge panel of the United States

Court of Appeals reversed Ehl-

ert's conviction, interpreting the

relevant regulations to permit a

draft board to consider. a con-

scientious objector claim after

the registrant's receipt of an or-

der to report for induction, The

three-judge panel, however, was

overruled when the case was. re-

heard by all thirteen judges of

the United States Court of Ap-

peals for the Ninth Circuit, The

Ninth Circuit, en banc, ruled, 8

to 5, that the conviction should

be affirmed. (c)

The Selective Service Regula-

tion in issue in the Ehlert case

provides that a local board may

reopen a registrant's classifica-

tion following the mailing of an

induction order when the board

finds "that there has been a

change in the registrant's. status

resulting from _ circumstances

over which the registrant had no

control." The majority of the

Ninth Circuit held that the ma-

turation of a conscientious objec-

tor claim after mailing of an or-

der to report for induction is not

a "circumstance" over which a

registrant can exercise no con- -

trol, "Presumptively," the Court

held, "every human is a rational

being, having a free will and in

complete charge of his own

thinking."

ACLUNC, on the other hand,

contends that the Ninth Circuit

majority misinterpreted the

nature of the claim of con-

science, As Judge Merril] said

in his dissent:

"One simply cannot order

his conscience be still or make

himself believe what he does

not believe . . . Conscientious

objection, in truth, is a con-

tradiction of control. Just as a

conviction honestly dictated by

the conscience cannot be ban-

ished by the will of the hold-

er, so conversely, a belief con-

veniently subject to the control

of the holder is not conscien-

tiously entertained."

Staff Counsel Pau] Halvonik

will present the argument on be-

half of Ehlert. The briefs in the

case were prepared by volunteer

attorney Stanley J, Friedman,

one of the San Francisco Bar's

most outstanding draft law ex-

perts.

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Defend Bond

Vote Decisions in

Supreme Court

Recently ACLUNC appeared

as amicus curiae in Westbrook

v. Mihaly, a case decided by the

California Supreme Court hold-

ing that the requirement of a

two-third approval by voters of

general obligation bond issyes

violated the Equal Protection

Clause of the Fourteenth Amend-

ment. In 1969 the Supreme Court

of West Virginia decided q near.

ly identical case, and reached the

same result, The West Virginia

case, Lance v. Board of Educa-

tion, was accepted for hearing

by the United States SI

Court.

Equal Protection

"ACLUNC and the national of.

fice of ACLU have jointly filed

an amicus brief in the United

States Supreme Court support-

ing the decision of the Supreme

Court of West Virginia. The

brief advances two major argu-

ments. First, it is argued that an

extraordinary majority require-

ment (60% in the West Virginia

Constitution) is a dilution of the

value of affirmative votes, and a

multiplication of the value of

negative votes, thus achieving the

same sort of imbalance as that

repeatedly condemned by the

Supreme Court in the reappor-

tionment cases, If it is a viola-

tion of Equal Protection to weigh

rural votes more heavily than

urban votes, the brief argues

that it is also a denial of equal

protection- to weigh no votes

more heavily than yes votes,

: Special Hurdles

Second, the brief relied on

Hunter v. Erickson, a 1969 Su-

preme Court decision invalidat-

ing a charter amendment of the

city of Akron, Ohio, which re.

quired a voter approval for or-

dinances related to fair housing.

The Court held that it was a de-

nial of equal protection to place

special obstacles-such as special

elections-in the way of groups

such as Negroes seeking legisla-

tion in their interest. Similarly,

it is argued, it violates equal pro-

tection to set up special hurdles

in the way of those desiring

schools and other bonded im-

provements by requiring a two.

thirds vote.

The Court should rule on the

issue this term.

Police Personnel

Complaints Rep't

Issued by B/A Ch.

The Police ee Complaint

Center, a project of the Berkeley-

Albany Chapter, has sold more

than 500 copies of its 86-page re-

port, `Police Personnel Com-

plaints and Redress Remedies,"'

published in August.

The Berkeley Public Safety

Committee, a-city council ap-

pointed body, made the report the

single topic of discussion at one

of its recent monthly meetings,

which resulted in the establish.

ment of a subcommittee to study

police complaint procedures.

The survey, which analyzes

complaints received by the Cen-

ter for a five-month period, de-

tails the experiences of the Center

in attempting to achieve redress

through Berkeley's official chan-

nels for those who felt their civil

liberties were violated by the po-

lice. It has received high praise

from Abraham Miller, Professor

of Sociology at Davis (and an

ACLU member): ". . . This type

of information should be com-

piled and published by every

Chapter of the ACLU .. . Revorts

such as yours not only serve as

a focal point for communitv opin-

ion against the erosion of basic

rights by the abuse of police

power but also as a catalvst for

generating constructive action to

prevent the abuse of vower."'

To order a copy of the revort.

send $1.25 to ACLU-BA, 1915

Ninth St., Berkeley 94710.

ACLU NEWS

JANUARY, 1971

Page 2

Aryeh Neier

Elected Nat'l

Exec. Director

By a vote of 34-31, Aryeh Neier

has been elected Executive Di-

rector of the American Civil Lib-

erties Union by the national board

of directors. He defeated Law-

rence Speiser, Washington Direc-

tor, who is former staff counsel

of ACLUNC. Neier succeeds John

de J. Pemberton, Jr., who re-

signed in order to return to pri-

vate practice after serving more

than eight years, Neier took of-

fice on October 1,

Neier, 33, has been Executive

Director of the New York Civil

Liberties Union since 1965. Prior

to joining NYCLU, Neier served

on the staff of the American Civil

`Liberties Union as Field Develop-

ment Officer. Prior to 1963, when

he joined the staff of the ACLU,

he was Associate Editor of Cur-

rent Magazine.

Able, But...

Neier is a very bright, articu-

late, energetic and aggressive

young man. Even his supporters

admit that he is arrogant and

ruthless. He has involved the

NYCLU in some controversial

programs that have caused

considerable dissention in that

_ branch. In the past he has im-

posed his thinking rather than

reconciled differences in the or-

ganization. Some persons hold

the view that Neier's election is

a disaster for the ACLU.

. Refugee

Neier was born in Berlin, Ger-

many in 1937 and became a refu-

gee to England shortly before the

outbreak of the war in 1939. He

came to the United States in 1947

and became a naturalized citizen

in 1955. He is a 1958 graduate of

Cornell University. Neier is mar-

ried and the father of a 10 year

old son. -

Neier is the author of articles

on civil liberties in a number of

magazines. He held a faculty ap-

pointment as a lecturer at the

New York University School of

Continuing Education for 1968-

1969 and appears regularly as a

lecturer at the New York City

Police Academy.

Critical Challenge

After his election, Neier de-

clared that `The critical chal-

lenge we face is to make civil

liberties a reality for the young,

the black and the alienated. Noth-

ing could be more damaging than

having large segments of the so-

cietv so ridden by a sense of pow-

erlessness that the only power

they have is to destroy."

$2500 Sent To

Canada To Fight

Trudeau Edicts

On November 13, the Execu-

tive Committee of the National

Board of Directors voted 5 to 4

to send $2,500 to the Canadian

Civil Liberties Union and to urge

the Board to send additional

funds to fight the War Measures

Act, curtailing civil liberties in

Canada `because of the situation

in Quebec, This action was jus-

tified on the ground that the

Canadian problem would have a

repressive effect on civil liber-

ties in the United States.

Roger Baldwin sent a letter to

the Board declaring, "This action

is without precedent in the Un-

ion's 50-year history, in which

no funds have been used for civ-

il liberties in any foreign coun-

try. The Constitution is expli-

cit in confining the Union's juris-

diction to the `United States and

its possessions.'" He suggested

that the appropriation was ille-

gal and that the courts might en-

tertain a suit by a member chal-

lenging this violation of the or-

ganization's Constitution.

At its December meeting, the

National Board ratified the Ex-

ecutive Committee's action as to

the $2,500 but voted not to send

any more funds, At this point,

no suit has been filed against the

Board to recover the $2,500,

~ "Amen"

Letters to the Editor

ACLU Effectiveness Reduced

Editor: I agree with the oppo-

sition to Board action re oppo-

sition to the war. I'm of the

opinion that the Board action

doesn't help us oppose the war

but it does reduce the effective.

ness of ACLUNC.-Alan D. Bon-

apart, San Francisco.

Strong Protest

Editor: After some delibera-

tion my wife and I have decided

to continue our membership of

ten years in ACLU. However,

we wish to register a strong pro-

test against the Board's recent

formal positions taken on polit-

ical issues. Even though the po-

sition taken is similar to our

own, we do not believe that the

ACLU is the vehicle through

which political views should be

expressed.-Mr. Mrs. Donald K.

Quayle, Jr., Petaluma,

Supports Board

Editor: Please accept my check

for $50 for the coming year. But

bear in mind that I am renewing

membership in this amount as a

result of the stand taken by the

Board against the Vietnam war.

The stand was taken, as I un-

derstand it, only because the

War has a direct bearing on the

denial of civil liberties. And I

think that is what this organiza-

tion is all about. - Ronald S.

Winkler, San Francisco.

Injecting Politics

Editor: Please add my name to

that growing list of devoted

ACLU supporters objecting to

the injection of politics into the

ACLU. I am strongly opposed to

the National making a policy

statement opposing the war in

Indochina.

Don't misunderstand. Political-

ly and philosophically, I. object

to the continuance of the war in

southeast Asia. After six years in

the U.S. Navy at the end of

World War II, it seemed to me

that War was just about the

stupidest behavior in which Man

could get involved. Subsequent

events further fortify my posi-

tion.

But I'm not resigning, I say

to the statement by

Leonard G. Homann of Davis:

"Too many poor, helpless, and

friendless people heed the ACLU

when it is doing its real job,

which it generally is."-William

D. White, Santa Clara.

Significant Departure

Editor: Because so many mem-

bers are expressing their opin-

ion concerning the decision of

the Board of Directors in rela-

tion to the Indochina War, my

conscience would not allow me

to be silent on this issue.

I am with those who believe

that the action in question rep-

resented a significant departure

from the principles of the ACLU.

In view of the disturbance which

has been caused by this issue, it

seems clear that it would be most

appropriate to have the member.

ship express their opinion through

a special ballot, as has been sug-

gested. And the results of that

ballot should, if permitted by the

By Laws, be binding on the Board

of Directors. - Berton Jacobson,

Belvedere.

Blatant Politics

Editor: I have long been a

member of the ACLU of No.

Calif. It is therefore with great

regret that I now am dropping

my membership. This is for two

reasons. First the ACLU has

taken a political position on the

war. This is not the work of the

ACLU, All great issues involve

civil liberties. War is the ulti-

mate method still used to settle

political differences. The ACLU

exists to defend the civil] liber-

ties of individuals or groups. It

decreases its effectiveness when

it becomes a political party.

The second reason is the blat-

ant politics of the Berkeley-Al-

bany Chapter. Their rule of

thumb seems to be that in any

interaction between police and

people in South and West Berke-

ley, the police are always affront-

ing someones' civil liberties, This

al don't believe.

Several weeks ago the campus

police asked two young men

tossing a frisbee in the Lower

Plaza to stop since it isn't allow-

ed there because of the traffic.

They refused three requests and

were then cited and banned from

the campus for two weeks. Im-

mediately, the Berkeley-Albany

Chapter publicly announced they

had some 14 witnesses that the

police had behaved wrongly. I

am quite sure that in the Plaza

area and Telegraph Ave. one

can always get two dozen wit-

nesses to accuse a policeman of

wrongful behavior.

In any event, I will rejoin

when the ACLU is out of politics

and the Berkeley-Albany Chap-

ter places itself beyond the Far

Left as well as the Far Right.-

Leonard Machlis, Berkeley.

Specious Reasoning

Editor: In response to your re-

cent mailing asking for my re.

enrollment, the answer is no.

I'm resigning with Ernie.

The issue, of course, is ACLU-

NC's endorsement of the anti-

Vietnam war position taken by

the National.

I first joined the ACLU in

1953 during the McCarthy era, so

Iam not afraid of being affiliat-

ed with an organization that has

taken, and takes, unpopular posi-

tions. It's just that the ACLU

has no right to take a position

on this question, You, the Mem-

bers of the Board, either never

understood the fundamental prin-

ciples of the Union, or you have

conveniently forgotten them to

advance your own, personal polit-

ical views.

To say that the Union should

oppose the war because it has

been productive of civil liberties

issues is specious reasoning.

That's like saying that since pub-

lic meetings have given rise to

civil liberties issues, they should

be opposed or forbidden.

T'll re-join the ACLUNC (and

the ACLU) when you repudiate

the National's position-not

merely revoke your endorsement,

but repudiate the position itself.

-Richard G, Gould, eee

D.C.

Note: I took some pains in an-

nouncing my retirement to say

"that there is no one reason that

dictates my action." Such action

was based on a number of rea-

sons.-E. B.

Something Wrong With Board

Editor: In an editorial note

appended to Dr. Hoffman's letter

in the November ACLU News,

we learn that the branch board

has taken the position that it has

"ultimate responsibility for mak-

ing policy and does not, and can-

not feasibly, put its actions to

the vote of the general member-

ship."

It would appear from this

pronouncement that the board

is not overly concerned that its

policy statements should reason-

ably reflect the opinions of its

constituency. If this is the case,

there is certainly something

wrong with the board (which is

fairly obvious already).

In view of the general re-

sponse to its Indochina resolu-

tion, it should either be assumed

that such a policy is contrary to

the wishes of the general mem-

bership, or, if doubt remains,

the membership should be poll-

ed.. Then the board will be bet-

ter able to fulfill its "responsi-

bility.' - Howard Greenstein,

Palo Alto.

Comment Before Decision

Editor: We greatly regret the

Board's decision to pronounce

judgement on the Vietnam War,

Not only has this decision made

no appreciable difference in

ACLUNC policy or actions, but

it has also made no particular

moral point outside the organi-

zation. Further, it has obviously

proved a most divisive bomb-

shell within the membership, to

the organization's detriment,

The Board may be correct in

reserving for itself "the ultimate

responsibility for making pol-

icy.' However, on substantive

and controversial issues such as

this one, it would seem sensible

and more prudent if the Board

announced its intention of con-

sidering a matter, and allowed

membership comment before

rather than after its decision.

In this way, members could

fee] that their opinions had been

- taken into consideration by the

Board, rather than disregarded.

And the Board could sample not

merely the quantitative drift of

organization opinion but the po-

tential for fierce divisiveness as

well.

The Board should then judici-

ously weigh the importance of

such a resolution against the re-

sultant loss in organization ef-

fectiveness and unity.-

Susan and Danie] Steinberg,

Livermore

Mezey Case

Trial on

March 1

The long-delayed hearing in

the case of Robert Mezey, a poet

and teacher dismissed from Fres-

no State College after his first

probationary year because of

statements he made on a "panel

on pot" at the request of the

student body, will occur in the

Fresno Superior Court beginning

on March 1, 1970. The case will

be tried by Judge Gilbert Perry

of Santa Cruz, because the entire

Superior Court bench in Fresno

has disqualified itself for preju-

dice, Partly this is due to the

publicity surrounding the case

and partly due to the fact that

one of the Superior Court judges

in Fresno urged the President of

-the College to fire Mezey (a fact

later discovered by Mezey's sup- |

porters).

Assistant Staff Counsel Charles

Marson spent approximately sev-

en hours in Washington, D.C.

taking the sworn testimony of

Frederic Ness, who was Presi-

dent of Fresno State College

when Mezey was fired and who

was responsible for his firing.

Ness steadfastly maintains that

he did not fire Mezey for his

public statements, but rather for

his "lack of dedication" to the

teaching profession, One of the

main issues at the hearing will

be whether that statement is

true or whether it is mere sub-

terfuge.

Stockton Party

The Stockton Chapter of

ACLUNC will hold its annual cock-

tail party on Sunday, January 10

from 3 to 5 P.M. at the home of

Albert Culhane, 10797 Elkhorn

Drive, Stockton. Members and

friends of ACLU are cordially in-

vited.

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

593 Market Street, San Francisco, California 94105, 433-2750

Subcription Rates - Two Dollars and Fifty Cents a Year

Twenty-Five Cents Per Copy

E 151

Earl Caldwell Case

Sweeping Free

Speech Win in

Court of Appeals

The United States Court of Appeals for the Ninth Cir-

cuit has held that Earl Caldwell, a New York Times reporter,

need not appear before a federal grand jury to answer ques-

tions about the Black Panther Party unless the government

can demonstrate "a compelling need for [Caldwell's] pres-

ence ,. ." The Government will

seek a review of the decision in

the U.S, Supreme Court.

Black Journalist

Caldwell is a black journalist

who was sent to San Francisco

by the New York Times with the

specific purpose of seeking in-

formation on the Black Panther

Party which was unavailable to

white reporters. The assignment

entailed a long process in which

Mr. Caldwell won the trust of

Panther officials and developed a

relationship of confidence with

them. This relationship of confi- .

dence and trust did not depend

upon the customary "`off the rec-

ord'? communications but rather

on the understanding which Mr.

Caldwell and the Panthers had

between them. Because of this re-

lationship with the Panthers, Mr.

Caldwell was able to write a num-

ber of trenchant articles about

the Black Panther Party, its ac-

tivities and philosophies.

Subpoena Issued

The confidentiality issue arose

when the Federal grand jury in

San Francisco, on application of

the United States Department of

Justice, issued a subpoena requir-

ing Mr. Caldwell to appear and

testify before the grand jury

about Panther activities. Caldwell

resisted the subpoena and asked

that it be quashed.

Landmark Decision

Federal District Judge Alfonso.

J. Zirpoli, in a landmark decision,

refused to quash the subpoena

but did issue a protective order

which provided that in appearing

before the Federal grand jury

Caldwell need not answer ques-

tions that would require him to

divulge confidential information

unless the government could dem-

onstrate that it had a `"`compel-

ling and overriding national in-

terest'' in gathering the informa-

tion and that it could not gather

the information elsewhere.

Held in Contempt

Caldwell was not entirely satis-

`fied with Judge Zirpoli's order

' because he feared that the simple

fact of his presence before a se-

cret grand jury meeting might de-

stroy his relationship with Panth-

er officials. Therefore, Caldwell

refused to appear before the

grand jury at all and was held

in contempt of court. It is that

contempt conviction which Cald-

well appealed.

Contempt Conviction Reversed

The Court of Appeals has now

agreed with Caldwell's contention

and reversed his contempt con-

viction. Judge Zirpoli, the Court

held, was correct in his prece-

dent-setting ruling but did not go

_ far enough. The Court said:

"Tf the Grand Jury may re-

quire appellant to make avail-

able to it information obtained

by him in his capacity as a

news gatherer, then the Grand

Jury and the Department of

Justice have the power to ap-

propriate appellant's investi-

gative efforts to their own be-

half-to convert him after the

fact into an _ investigative

agent of the Government. The

very concept of a free press

requires that the news media

be accorded a measure of au-

tonomy; that they should be

free to pursue their own in-

vestigations to their own ends

without fear of governmental

interference, and that they

should be able to protect their

investigative processes. To

convert news gatherers into

Department of Justice investi-

gators is to invade the au-

tonomy of the press by impos-

ing a governmental function

upon them. To do so where

the result is to diminish their

future capacity as news gath-

erers is destructive of their

public function. To accomplish

this where it has not been

shown to be essential to the

Grand Jury inquiry simply

cannot be justified in the pub-

lic interest.

' "Further it is not unreason-

able to expect journalists

everywhere to temper their

reporting so as to reduce the

probability that they will be

required to submit to inter-

rogation. The First Amend-

ment guards against govern-

mental action that induces

such self-censorship."

Tenuous Relationship

The confidential relationship be-

tween a reporter and his news

source, the Court noted, is a ``ten-

uous and unstable one"':

"The relationship depends

upon a trust and confidence

that is constantly subject to

. re-examination and that de-

pends in turn on _ actual

knowledge of how news and

information imparted have

been handled and on contin-

uing reassurance that the

handling has been discreet.

"This reassurance disappears

when the reporter is called

_to testify behind closed doors.

The secrecy that surrounds

Grand Jury testimony neces-

sarily introduces uncertainty

in the minds of those who

fear a betrayal of their confi-

dences. These uncertainties

are compounded by the sub-

tle nature of the journalist-in-

former relation. The demar-

cation between what is con-

fidential and what is for pub-

lication is not sharply drawn

and often depends upon the

particular context or timing

of the use of the information.

Militant groups might very

understandably fear that, un-

der the pressure of examina-

tion before a Grand Jury, the

witness may fail to protect

their confidences with quite

the same sure judgment he

invokes in the normal course

of his professional work."'

Amicus Appearance By ACLU

Caldwell is represented by An-

thony G. Amsterdam, a Stanford

Law School professor and AC-

LUNC Board member. ACLUNC

and National ACLU, as they did

in the District Court, supported

Caldwell in the Court of Appeals

in an amicus curiae capacity.

Letters

Schroeder's Restaurant

Editor, -

I was delighted to see that Paul

Halvonik and Caro] Weintraub of

ACLUNC's staff have staged a

challenge to the right of Schroe-

der's Restaurant to restrict pat-

ronage to men only during the

noon hour (Chronicle, October 8,

page 3) because I presume that

it means that what one has be-

lieved to be our primary civil

liberties questions (freedom of

speech, religion and assembly

and racial justice) are now so

completely settled to our satis-

Prisoner Rights

Cases in State

Courts of Appeal

Staff counsel Paul Halvonik,

. participating as a friend-of-the-

court, has filed briefs in two state

Courts of Appeal cases involving

prisoner-First Amendment rights.

One case deals with the freedom

to read, the other with the free-

dom to write.

Freedom to Read

The freedom to read case is an

attempt to extend an ACLUNC

State Supreme Court victory of

last June. In that case the Court

struck down an ``index'' of disap-

proved periodicals that San Quen-

tin officials prohibited inmates

from seeing. The "`index'' is now

gone but officials still disapprove

the receipt by inmates of many

publications on the ground that

they are ``obscene.'' -

ACLU Contentious

ACLUNC takes the position that

prison officials are not qualified

to act as censors and may not,

in their unguided judgment, pro-

hibit prisoners from receiving

publications. If officials feel a

publication is indeed obscene the

burden should be on them to go

`to court and establish the ob-

scenity of the matter rather than

stopping it at the mailroom and

forcing the inmate to bring legal

action.

Freedom to Write

The freedom to write case chal-

lenges a Department of Correc-

tions rule which requires inmates,

before they submit a manuscript

to a publisher, to sign a contract

giving 25% of any royalties they

may receive to the prison system.

That rule suffers from two in-

firmities. In the first place, it is

an assertion of state ownership -

of prisoners' manuscripts. There

is a specific penal code section

that provides that an inmate

"owns" his manuscripts, In the

second place, the rule is a tax on

the exercise of a constitutional

right. It is as if the prison sys-

tem were to tax a minister for

each sermon he gave, It is not

only the First Amendment rights

of the prisoners which are affec-

ted by this rule but also the First

Amendment right of the public at

large to receive and read informa-

tion of interest to the entire com-

munity.

Review Of

Obscenity Case

Turned Down

The California Supreme Court

has declined to review the con-

viction of Robert Garner, propri-

etor of a bottomless bar in the

San Jose area, Garner's predica-

ment was described at length in

the December 1970 issue of the

ALCU NEWS, Garner was con-

victed of soliciting lewd conduct

for staging a bottomless dance

and his conviction was confirmed

on direct appeal. In his habeas

corpus petition he pointed out

that the trial court had excused

the prosecution from proving

any of the elements of obscenity,

even though the State Supreme

Court in 1968 applied First

Amendment standards to a top-

less dance, The trial judge did

so on the theory that the dance

was so "hard core" that its ob-

scenity was indisputable.

Garner's attorney, Ephraim

Margolin, is considering further

action in the federal courts,

faction that we can turn to such

issues as Miss Weintraub's free-

dom to eat sauer-braten and po-

tato pancakes at noon.

You can be certain that this

long-time member of ACLU will

think on our new set of priorities

the next time he receives an

emergency request for funds to

pursue litigation.

When Mr. Halvonik is finished

with his staged case against

Schroeder's, I trust he will break

down the barriers which keep

men out of the YWCA shower

rooms.-Jerry A. Burns, San

Francisco.

,

Unsupported Allegations

Informers Word'

Insufficient for

Search Warrant

The Fourth Amendment to the United State Constitution

prohibits government agents from making "unreasonable"

searches and seizures. In determining whether a search has

been lawful the central question is usually whether the search

was "reasonable." Reasonableness, of course, is a rather fluid

concept but, through the years,

it has usually meant this: that a

policeman could not enter one's

house for the purposes of search-

ing for contraband on the basis

of nothing more than an allega-

tion by someone else that con-

traband was to be found there.

Private Citizen

Paul Legard, Jr., however, was

found guilty in Napa County Su-

perior Court of possessing mari-

juana on evidence that was the

product of just such a search.

The Superior Court upheld the

validity of a search warrant that

Was supported by an affidavit

that merely recited that a "pri-

vate citizen" had informed the

police that Legard possessed

marijuana in his home, The af-

fidavit did not give any reasons

for believing that the informer's

word was reliable, but the Su-

perior Court ruled that the po-

lice affidavit need not show that

the informer was "reliable" as

long as it contained a recitation

that he was a "private citizen."

Basis for Rule

The "private citizen" rule is

an exception to the "reliable in-

former" rule that usually gov-

erns the law of search and sei-

zure, Under the "reliable inform-

er rule" some objective facts

must be established to demon-

strate that there is reason to be-

lieve the informer's word. The

informer himself is usually an

"underworld" figure, The "citi-

zen informer" exception has de-

veloped in cases of hot pursuit

where a victim of a crime, or a

neutral citizen who has no in-

terest in the case, has informed

the police that a particular per-

son is guilty of a crime and pos-

sesses contraband or the fruits

of his crime, The Superior Court

ruling in Legard's case carried

the "exception" to an extreme

and, if confirmed on appeal,

would have swallowed the gen-

eral rule of "reliability" in the

exception, The danger to privacy

in the Superior Court's ruling

was manifest and, on appeal,

ACLUNC filed a friend of the ACLUN_1946 ACLUN_1946.MODS ACLUN_1947 ACLUN_1947.MODS ACLUN_1948 ACLUN_1948.MODS ACLUN_1949 ACLUN_1949.MODS ACLUN_1950 ACLUN_1950.MODS ACLUN_1951 ACLUN_1951.MODS ACLUN_1952 ACLUN_1952.MODS ACLUN_1953 ACLUN_1953.MODS ACLUN_1954 ACLUN_1954.MODS ACLUN_1955 ACLUN_1955.MODS ACLUN_1956 ACLUN_1956.MODS ACLUN_1957 ACLUN_1957.MODS ACLUN_1958 ACLUN_1958.MODS ACLUN_1959 ACLUN_1959.MODS ACLUN_1960 ACLUN_1960.MODS ACLUN_1961 ACLUN_1961.MODS ACLUN_1962 ACLUN_1962.MODS ACLUN_1963 ACLUN_1963.MODS ACLUN_1964 ACLUN_1964.MODS ACLUN_1965 ACLUN_1965.MODS ACLUN_1966 ACLUN_1966.MODS ACLUN_1967 ACLUN_1967.MODS ACLUN_1968 ACLUN_1968.MODS ACLUN_1968.batch ACLUN_1969 ACLUN_1969.MODS ACLUN_1969.batch ACLUN_1970 ACLUN_1970.MODS ACLUN_1970.batch ACLUN_1971 ACLUN_1971.MODS ACLUN_1971.batch ACLUN_1972 ACLUN_1972.MODS ACLUN_1973 ACLUN_1973.MODS ACLUN_1974 ACLUN_1974.MODS ACLUN_1975 ACLUN_1975.MODS ACLUN_1976 ACLUN_1976.MODS ACLUN_1977 ACLUN_1977.MODS ACLUN_1978 ACLUN_1978.MODS ACLUN_1979 ACLUN_1979.MODS ACLUN_1980 ACLUN_1980.MODS ACLUN_1981 ACLUN_1981.MODS ACLUN_1982 ACLUN_1982.MODS ACLUN_1983 ACLUN_1983.MODS ACLUN_1984 ACLUN_1984.MODS ACLUN_1985 ACLUN_1985.MODS ACLUN_1986 ACLUN_1986.MODS ACLUN_1987 ACLUN_1987.MODS ACLUN_1988 ACLUN_1988.MODS ACLUN_1989 ACLUN_1989.MODS ACLUN_1990 ACLUN_1990.MODS ACLUN_1991 ACLUN_1991.MODS ACLUN_1992 ACLUN_1992.MODS ACLUN_1993 ACLUN_1993.MODS ACLUN_1994 ACLUN_1994.MODS ACLUN_1995 ACLUN_1995.MODS ACLUN_1996 ACLUN_1996.MODS ACLUN_1997 ACLUN_1997.MODS ACLUN_1998 ACLUN_1998.MODS ACLUN_1999 ACLUN_1999.MODS ACLUN_ladd ACLUN_ladd.MODS ACLUN_ladd.bags ACLUN_ladd.batch add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log

court brief and participated in

oral argument in support of

Legard's attorney, Mrs. Barbara

Clark of Vacaville,

Reliability Must Be Shown

ACLUNC's volunteer attorney,

Demetrios P. Agretelis of Berke-

ley, contended that since the

police, when obtaining a search

warrant on the strength of a re-

liable informant, must set forth

the reasons why they believe the

informant to be reliable, a simi-

lar rule is necessary if warrants

are to issue on the basis of the

word of a "citizen informer." In

the Legard affidavit the police

baldly stated that they got their

information from a "private citi-_

zen." But everyone, including

the most unreliable of informers,

Agretelis pointed out, is a "pri-

vate citizen." The Court of Ap-

peal agreed and reversed Le-

gard's conviction,

Allegation Insufficient

Writing for a unanimous three-

judge panel, Justice Harold

Brown found that the Court

could not "accept a bare allega-

tion of citizenship as a sufficient

circumstance from which the (c)

magistrate could conclude that

the information was reliable ,. .

all citizens are obviously not re-

liable as informers. Any facts

which bear on the reliability of

a citizen who has furnished the

information should also be re-

vealed in the affidavit [filed by

the police in their attempt to se-

cure a search warrant] ,. . Only

by consideration of facts rele-

vant to reliability can the magis-

trate make the independent de-

termination of reliability re-

quired [by the Fourth Amend-

ment]."

Decision's Meaning

The upshot of the decision is

this: the courts will not permit

the police to search one's home

on the unsupported allegations

of a "citizen" that there is con-

traband or illegal activity being

conducted in the home,

Dismiss S.F. Charges

Against Robt. H. Simpson

Robert H. Simpson, 90-year-

old picketer who has had the

distinction of having a state law

enacted to inhibit his picketing

last month brought his campaign

to San Francisco, The targets of

his sharp criticism were two: the

ACLU and Governor Ronald

Reagan. :

Attack on ACLU

It was not clear to us how we

incurred Mr, Simpson's displea-

sure but he appeared at our of-

fices with a brand new sign read-

ing: "Shocking! ACLU in con-

spiracy against Bill of Rights.

Besig a fraud!" Simpson also

had the gall to store his picket

sign in our office while he went

about his other business,

"Blocking A Street"

The other business included

picketing that more traditional

target, Governor Ronald Reagan.

While Reagan was attending a

Regents' meeting at the Palace,

and calling fellow Regents "ly-

ing sons of bitches,' Simpson

was standing outside with a sign

that proclaimed the Governor a

"bastard." The San Francisco

Police proved less tolerant of

criticism directed at the Governor

than we had been of criticism di-

rected at us, Simpson was. ar-

rested for disturbing the peace

and blocking a street, Simpson

disturbed the peace, according

to the police, by carrying an "`of-

fensive" sign. How a 90-year-old

man was able to block the inter-

section of New Montgomery and

Market by standing on the side-

walk was never explained by the

police.

ACLU Intervenes

Simpson decided to let by-

gones be bygones and came to

ACLU for representation, Staff

counsel Paul Halvonik appeared

at the arraignment on Simpson's

behalf and suggested to the

Court that it had better things

to do than try a 90-year-old man

for bearing signs "offensive to

the Governor." The Court agreed

and strongly suggested to the

District Attorney that the

charges be dismissed. The Dis-

trict Attorney took the hint, the

charges were dismissed and

Simpson's signs returned,

ACLU NEWS

JANUARY, 1971

Page 3

5 Charges Lack Specificity

Due Process Victory in

Sacramento Federal Court |

In March of 1968 George Choung was an EOA organizer

in Sacramento. Black and Chicano students at Sacramento

High School informed Choung that they intended a walk-out

of classes in protest of discriminatory teaching methods.

Choung went to the campus and talked to the students.

Choung was credited by many

with forestalling violence on the

campus, but his presence was not

appreciated by the school prin-

cipal, Ulrick Morley. Morley,

contending that Choung had re-

fused to obey his command to

leave the campus, signed a crim-

inal complaint charging Choung

with a violation of California

Penal Code Section 602.9. That

' section prohibits any person

from entering school grounds,

with an unlawful purpose, if his

presence interfered with the

peaceful conduct of the school,

and if he remained after being

asked to leave by the chief ad-

ministrative official.

Charges Vague

Choung's lawyer, Sacramento

volunteer attorney Lawrence K.

Karlton, contended in the Sacra-

mento Municipal Court that the

charges against his client were

unconstitutionally vague. One of

the elements of the crime is be-

ing present with an unlawful

purpose and Karlton maintained

that he was entitled to know, be-

fore trial, what "unlawful busi-

ness" Choung was accused of

pursuing. But the Municipal

Court overruled Karlton's objec-

tions and the case went to trial.

After all the evidence was in,

and it became time for the judge

to instruct the jury on the law,

the prosecution for the first

time informed Karlton and the

Court that the "unlawful" acti-

vity with which Choung was

charged was contributing to the

delinquency of a minor. Choung

was found guilty, sentenced to

90 days in jail and a $600 fine.

The Appellate Department of

the Superior Court upheld the

conviction and the Court of Ap-

peal and Supreme Court of Cali-

fornia refused to review the

matter.

Due Process Denial

Karlton then filed a petition

for a writ of habeas corpus in

the Federal District Court con-

tending that the failure properly

to apprise Choung of the charges

against him violated the Four-

teenth Amendment's due process

clause. United States District

Judge Thomas McBride issued a

stay of execution of sentence on

Choung and required the State

Attorney General to respond to

the petition. The Attorney Gen-

eral took the position that

Choung's petition raised no fed.

eral issues and that the manner

of pleading a criminal complaint

was a question of "State law"

that could not be reviewed in the

federal courts.

Lack of Specificity

But Judge McBride, in a sig-

nificant and far-reaching case of

first impression, decided to the

contrary. Choung, he said, had

been denied due process because

of the lack of specificity in the

complaint.

: "This. case readily exempli-

fies the evil sought to be pre-

vented by the rule fof due

process], Although the purpose |

for which the petitioner enter-

ed the campus was a crucial

element of the offense, the

complaint did not aver which

statute or regulation, among a

potentially infinite number,

the petitioner intended to vio-

late . . - Notwithstanding peti-

tioner's repeated demands for

the statutes upon which the

Prosecution hoped to prove en-

try `without lawful business'

the state did not reveal its

`theory' that petitioner enter-

ed the campus for the purpose

of causing, or tending to cause,

minors to become habitual

ACLU NEWS

JANUARY, 1971

Page

truants until the close of its

case, Certainly, none but the.

clairvoyant could have known

before trial that such a theory

would become a key issue on

which the jury would be in-

structed at length .. . Peti-

tioner's conviction failed to

measure up to due process.

Accordingly, a writ of habeas

corpus must issue."

Typical Case .

Choung's case is not an un-

usual one. Prosecutors consist-

ently charge criminal defendants

with "unlawfully" blocking a

street, or "wandering from place

to place without lawful business"

without revealing until the con-

clusion of the case just what the

"unlawful" `business was sup-

posed to be. In those cases the

defense is given the almost im-

possible task of trying to guess

what laws the court will suggest

to the jury that a defendant may

have violated, The Choung deci-

sion should spell an end to this

"dragnet" prosecution practice.

Teachers'

Credentials

Problems

In recent months, ACLUNC

has represented three more

of the continuing series of

teachers arrested for acts of

civil disobedience and_ subse-

quently acted against by the

State's Committee of Creden-

tials, The result has been gen-

erally favorable, as usual, with

two credentials granted and an-

other in limbo.

S.F. State Arrests

John Hansen, now teaching in

Maryland, was arrested twice at

San Francisco State during the

strike-once for serving liquor

illegally at a fundraiser, and

once in 1963 for stealing civil de-

fense signs as a gesture of po-

litical protest, After a thorough

interrogation by the Committee,

-at which Hansen was represent-

ed by Assistant Staff Counsel

Charles Marson, the Committee

voted to grant his credential.

Sproul Hall Sit-In

`Richard Cowan, of Berkeley,

had similar success, Cowan was

arrested in 1964 at the Sproul

Hall sit-in connected with the

Free Speech Movement. The

Committee, seemingly getting

very bored with the repetitious

accounts of this event, voted

quite quickly to grant Mr. Co-

wan's credential,

Further Investigation

The case of David Kotz posed

more controversy. Kotz had suf-

fered one arrest in Mississippi

in. 1964 while working for the

Congress of Racial Equality, and

another during the Moses Hail

sit-in at U.C. Berkeley that

arose out of the controversy con-

cerning Eldridge Cleaver and

the course called Social Analysis

139X. The case was complicated

by the fact that the Committee

seemed to possess intelligence

information that it did not share

with the applicant before the

hearing (a clear violation not

only of statutory law but of its

own rules), Apparently the Oak-

land Police Department has

made some very uncompliment-

ary entries into Kotz's file, After

a heated discussion both of the

propriety of these charges and

of accusations that Kotz had

taught a course in guerilla war-

fare, and perhaps was a mem-

ber of SDS, the Committee voted

to conduct further investigation.

Whether they will grant Kotz's

credential without a fight is not

yet known,

Naturalization

Case Goes to U.S.

Supreme Court

Staff counsel Paul Halvonik

has petitioned the United States

Supreme Court to review and re-

verse decisions of the Northern

California Federal District Court

and United States Court of Ap-

peals denying citizenship to Ib

Otto Astrup. The lower courts

have held that Astrup, a native

of Denmark, is forever ineligible

for United States citizenship be-

cause he executed a request for

exemption from military service

twenty years ago.

The exemption that Astrup

signed stated that he was ex-

changing his right to citizenship

for relief from "liability" for

military training, Shortly after

Astrup executed the exemption,

however, the law was changed

and he was in fact ordered to

report for induction into the

military service, He was rejected

for service because of a physical

disability.

The -Federal District Court

of Appeals decided against As-

trup on the basis of a prior de-

cision holding that an alien who

applies for exemption from mili-

tary service forever forfeits his

right to become a citizen even

though he is later ordered to

report for induction and would

have served in the armed forces

but for his physical disability.

Inconsistent Decision

That decision it is pointed out,

is inconsistent with another deci-

sion which granted citizenship to

an alien who had applied for ex-

emption from service, had the

exemption removed and later

served in the armed forces; the

relevant statute makes no dis-

tinction between persons who

have served in the armed forces

and persons who have no serv-

ice in the armed forces, The

statute, the petition urges, only

forecloses citizenship to persons

who apply for exemption from

the armed forces, and because of

their alienage, receive a perma-

nent exemption from the armed

forces. Noting that if Astrup had

passed his physica] examination

and served in the armed forces

he would be a citizen today, Hal-

vonik maintains that Astrup is

really being denied citizenship

because of a physical disability

and contends that denying a per-

son citizenship because of his ill-

ness is cruel and unusual punish-

ment prohibited by the Highth

Amendment to the United States

Constitution,

Review of U.C.

Berkeley Case

Continued from Page 1-

of assembly approved by the low-

er courts is virtually boundless.

Any time the university does not

`approve of what is to be said at

an assembly it can characterize

the meeting as "unlawful" and

deny a permit, This violates the

general principle of First Amend-

ment law that governmental offi-

cials are not to censor the con-

tent of speech, Additionally, the

United States Supreme Court has

held that any censorship scheme

is unconstitutional unless it con-

tains provisions for judicial re-

view of the censor's decision,

The Court of Appeals, in up-

holding the University rule, said

that cases requiring ``judicia] su-

perintendence" of a censor's de-

cision are only applicable to `"ob-

scenity' cases where one's pri-

vate home or private business is

involved, That distinction makes

no sense, Why should allegedly

obscene motion pictures on pri-

vate business premises receive a

higher degree of First Amend-

ment protection than an assem-

bly dealing with current politicai

questions?

dentiality of student records.

postage, or enclose 83 cents.

New ACLU Publication on

College Student Rights

An entirely new issue of ACADEMIC FREEDOM AND

CIVIL LIBERTIES OF STUDENTS IN COLLEGES AND UNI-

VERSITIES is now available. Dated April 1970, this publication

supersedes the 1965 revision of a 1961 pamphlet.

Seven broad topics are covered: The student as a member

of the academic community; extracurricular activities; stu-

dents' political freedom; personal freedom; regulation and dis-

ciplinary procedures; students and the military; and confi-

The 47-page booklet sells for 75 cents and may be ordered

from ACLUNC, 593 Market Street, San Francisco. In or-

dering, please enclose payment plus an 8 cent stamp to cover

Richard Perlman Again -

Fornication With

The War Is Obscene

Richard Perlman, known to readers of ACLUNC NEWS

due to an earlier scrape with the trustees of Shasta Junior

College, has returned to these pages because of an arrest in

Tehama County. Perlman was arrested for exhibiting ob-

scene material because he was caught on Interstate 5 driving

a car displaying a sign reading

"Fuck the War." Although the

prosecution could have proceed-

ed under the disturbing the

peace theory sanctioned in the

very similar case of People vs.

Cohen (decided last year by a

California Court of Appeal and

now accepted for hearing by the

United States Supreme Court),

the prosecution chose instead to

claim that the sign was obscene.

Perlman argued to no avail in

the justice court of the Corning

Judicial District that it was im-

possible that such a sign could

arouse anybody's prurient inter-

est, even that of a highway pa-

trolman, The justice court, un-

interested in that argument,

found him guilty and sentenced

him to 30 days.

ACLUNC has taken over the

case for the purposes of appeal,

and filed. a brief in the Appel-

late Department of the Superior

Teaching

Credentials

Won and Lost

ACLUNC has successfully per-

suaded the Committee of Cre-

dentials that yet another teacher

is qualified to teach in the pub-

lic schools, The sin committed

by Marcia Martindale was that

she was arrested for sunbathing

in the nude in a remote rural

part of Marin County, Although

the charges against her were

dismissed the next day, the Com-

mittee of Credentials notified

her that they were considering

revoking her credential. After

ACLUNC intervention on her be-

half, the Committee decided to

cease its investigation.

Bernardo Garcia-Pandavenes

did not fare as well at the hands

of the Committee of Credentials.

Garcia - Pandavenes' case was

heard several months ago but no

decision was rendered, Garcia-

Pandavenes heads the Chicano

and Mexican-American Studies

Department at Merritt College

and is well-known for political

activism in the East Bay, He has

suffered various misdemeanor ar-

rests, and received a not guilty

verdict from a jury on a charge

of felony assault on a policeman

in connection with the February

1969 disturbances at the Berke-

ley campus of the University of

California, The Committee of

Credentials has decided to deny

his application for a credential,

not only on those grounds but on

the new and added ground that

he has engaged "in conduct to

close down the University of Cal-

ifornia so as to stop its normal

functions."

A formal administrative hear-

ing will be held in February to

appeal the Committee's decision.

If unsuccessful at that hearing,

ACLUNC will file an action in

the courts.

Court of Tehama County which

argues that it is not too much to

ask that the prosecution pro-

ceed under the right Code. sec-

tion if it wants a criminal] con-

viction. Since the only arguably

applicable Code section is the

disturbing the peace law, and

since its application to this sort

of conduct may be ruled invalid

by the Supreme Court, the brief

argues that if Perlman had been

prosecuted under the correct

Code section he might well get

the benefit of a favorable decis-

ion in Cohen.

At any rate, the brief contin-

ues, it is a basic violation of due

process to convict somebody of a

criminal charge for which there

is absolutely no evidence, The

prosecution did not attempt in

the trial to produce any evidence

that the elements of obscenity

were met.

18-Year-Old Vote

Suit Filed and

Promptly Lost

Last June, as an amendment to

the Voting Rights Act, Congress

provided that no person, other-

wise qualified to vote, could be

excluded from an election on ac-

count of age if he had attained

his eighteenth year. The effective

date of the law is January 1, 1971.

Under California law, a person

who is presently unqualified to

vote may register to vote if, on

the day of the next election, he

will have the requisite qualifica-

tions. Santa Clara County is hold-

ing a local bond issue election in

January and, under the federal

law, eighteen year olds should

have been allowed to register to

`vote during November and De-

cember. The Santa Clara County

Clerk, however, refused to regis-

ter anyone who was not twenty-

one years of age. The County

Clerk contended that the federal

law was unconstitutional, a po-

sition held by a great many peo-

ple, but ACLUNC felt that vexing -

questions of constitutional law

ought not to be resolved by Coun-

ty Clerks especially when their

effect is to limit the franchise.

Accordingly, staff counsel Paul

Halvonik brought a class action

suit on behalf of potential voters

between the ages of eighteen and

twenty-one in Santa Clara County.

On the day when suit was filed

Federal District Judge Samuel

Conti set an expedited hearing

December 21. Three hours before

the time of the hearing the United

States Supreme Court upheld the -

18-year-old vote where national

elections are concerned but, by

5-4 vote, held that Congress did

nct have the power to grant 18

year olds the right to participate

in local elections. Since the Santa

Clara election is a loca] one the

Court's opinion settled the issue

against ACLUNC, It was one of

the fastest and most decisive

losses in ACLUNC's history.