vol. 11, no. 8
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AMERICAN
CIVIL LIBERTIES
UNION - NEWS |
oy,
"Eternal vigilance is the price of liberty."
- PREE SPEECH
FREE PRESS
FREE ASSEMBLAG
Vol. XI.
SAN FRANCISCO, AUGUST, 1946
No. 8
Citizenship for Resident
Filipinos and East Indians
Passage by Congress on June 28 of bills per-
mitting resident Filipinos and East Indians to
become U.S. citizens and granting India an an-
nual quota of 100, was hailed by the American
Civil Liberties Union as a "welcome step to-
ward abolishing the injustices of the Oriental
Exclusion Act of 1924". All Asiatic groups ex-
cept these and the Chinese are excluded under
the act, and may not become citizens. The Philip-
pines were given an annual quota of 100 in the
independence act. - :
Some 84,000 Filipino residents of the United
States and Hawaii will have the right to be-
come citizens under the terms of the act, which
provides that any Filipino who entered the
country prior to 1934 on the quota of 50 per
year granted in the Philippine Independence Act
of 1934 will also be eligible. But those who en-
' tered outside the quota after that date are not
eligible unless they leave the country and come
back in the new quota of 100 per year.
It is estimated that about 3,000 East Indians,
former citizens of British India, who came to
this country before passage of the Oriental Ex-
clusion Act in 1924 will be eligible for citizen-
ship under the new law. Another 1,000 who came |
~ here after 1924 are not eligible for citizenship un-
less they leave the country and come back in
the quota of 100 per year allowed India. The law
cuts even this alternative down by specifically
providing that only 25 out of the 100 per year
allewed can be residents of countries other than
India itself.
The new law will also benefit those Filipinos
and Indians who have been prevented from own-
ing land in west coast states with laws denying
that right to those ineligible to citizenship.
State Dept. Requests Justice Dept. Not
To Litigate Peruvian-Jap. Test Cases
The Justice Department has indicated that it
can no longer litigate the two test suits filed on
behalf of the Peruvian Japanese who were kid-
napped and brought to this country only to face
deportation to Japan as illegal entrants into the
United States, because the State Department has
"now informed it that the Peruvian Japanese will
probably be accepted by Peru. Consequently,
hearings in the test suits scheduled before the
U.S. District Judge Louis Goodman on August
5 will be postponed until the situation is clarified.
In the meantime, eleven of the Peruvians have
received word from their relatives and friends in
Peru that they will be allowed to return to Peru.
If there is no prospect of sending the Peruvians
back in the next few months, they may be re-
leased from confinement at Crystal City, Texas,
to go to work as a group at Seabrook Farms in
New Jersey. The matter is now under considera-
tion by the Immigration Service.
LEGAL SKIRMISHING TAKES PLACE IN
NISEI RENUNCIATION TEST SUITS
Legal skirmishing in the Nisei citizenship re-
nunciation test suits resulted last month in the
filmg of amended petitions substantially the
same as those filed originally in November, 1945.
Federal Judge St. Sure, in the hope of prevailing
upon counsel to agree to the facts and to clarify
the issues, instead of undertaking trials that
might conceivably last two years, granted mo-
tions by the Government's counsel that led to a
re-writing of the petitions, but, so far, no stipula-
tions as to the facts. The Government's principal
bone of contention is a letter written by Under
Secretary of the Interior Abe Fortas in which he
admits that the renunciations were the result of
duress. The Government must now come in and
answer the petitions or file further motions. In
the meantime, the number of detained renunci-
ants held at the Crystal City, Texas, Internment
Camp has been reduced to about 400.
Court Rules Use of Civic Centers May Not Be Denied
Because of Applicant's Opinions and Affiliations
_ Almost unnoticed by the daily press, the Cali-
fornia Supreme Court on last June 26 handed
down an historic decision holding that once pub-
lic schools are opened as meeting places, school
boards may not refuse their use to persons whose
_convictions and affiliations they do not tolerate.
Consequently, the so-called Tenney amendments
to the Civic Center Act, prohibiting use of
schools as meeting places by persons or groups
advocating the violent overthrow of the govern-
ment or by `subversive elements", was held to
be in violation of the guarantee of free speech
under the 14th Amendment. And, the further
provision permitting school boards to require
affidavits of applicants declarmg whether or not
they are "subversive elements", was likewise
held to be repugnant to the Constitution.
said the court, in a brilliant opinion by Justice
Traynor, "The convictions or affiliations of one
who requests the use of a school as a forum is
of no more concern to the school administrator
than to a superintendent of parks or streets if
the forum is the green or the market place. The
ancient right to free speech in public parks and
streets cannot be made conditional upon the
permission of a public official, if that permission
is used as an `instrument of arbitrary suppres-
sion of free expression.' It is true that the state
need not open the doors of a school building as
a forum and may at any time choose to close
them. Once it opens the doors, however, it can-
not demand tickets of admission in the form of
convictions and affiliations that it deems accept-
able. Censorship of those who would use the
school building as a forum cannot be rationalized
by reference to its setting. School desks and
blackboards, like trees or street lights, are but
the trappings of the forum; what imports is
the meeting of minds and not the meeting place."
Justice Traynor's opinion was concurred in by
Chief Justice Gibson and Justices Edmonds and
Schauer. Justice Carter wrote a separate con-
curring opinion in which he declared the effect
of the Tenney amendments "is to permit a prior
censorship on the right of assembly and ex-
pression." He agreed with the views expressed
in the opinion by Justice Traynor except that
portion which reiterates the holding in the Pay-
roll case last year in which the threat of picket-
ing was found to be a sufficient ground to bar
a meeting on an evening when classes were in
session. |
Justice Spence wrote a dissenting opinion con-
curred in by Justice Shenk.
The decision ends a civil liberties fight that
has been going on ever since 1933, and which was
particularly sharp between the years 1933 to
1941. Of course, the Communist Party, the Young
Communist League and such Communist front
organizations as the Friends of the Soviet Union,
the Workers Alliance and the American League
Against War and Fascism were frequently de-
nied the use of the schools as meeting places.
Invariably, the Veterans organizations spear-
headed the drive in barring these and other
groups fom the use of the schools.
Also discriminated against at one time or an-
other were Upton Sinclair and the Epic move-
ment, Tom Mooney, the Socialist Party, and
Mankind United. During the sharp public de-
bates in 1941 concerning issues of war and peace, .
the America First Committee was barred from.
many public meeting places throughout the State, |
including San Francisco, where the subject of its (c)
meeting was held to be "highly controversial."
In March and April of 1940, Harry Bridges was
not permitted to speak in a Vallejo school audi-
torium. Last fall, the Payroll Guarantee Asso-
ciation in most cities was permitted to hold
school meetings addressed by the notorious
Gerald L. K. Smith, but in San Diego such use
was denied.
The present. issue also arose in San Diego
where the Board of Education declined to permit
the San Diego Civil Liberties Committee affi-
liated with the American Civil Liberties Union
from using a public school for a series of meet-
ings unless those signing the application signed ~
an oath declaring they did not advocate and
were not affiliated with any organization ad-
vocating the violent overthrow of the govern-
ment.
Unfortunately, we do not have space available
to reprint Judge Traynor's outstanding opinion
in full, but we are reprinting almost one-half of.
the opinion on page 2 of this issue of the News.
Please read this important decision and call it to
the attention of your local school board,
Injunction Against Printing "Untrue"
Statements Argued in Appellate Court
Appeal from an injunction forbidding "Spot-
light", Chicago CIO paper, to publish "untrue"
statements about Montgomery Ward and Co. was
argued in the Illinois Appellate Court in Chicago
on June 26. Attorney Russell Whitman repre-
senting the American Civil Liberties Union joined
attorneys for the Retail, Wholesale and Depart-
. ment Store Employees Union CIO, publishers of
"Spotlight", in urging that the injunction be
thrown out as an unconstitutional interference
with freedom of the press.
JAPANESE DEPORTATION TEST CASES
WILL NOT BE HEARD UNTIL SEPTEMBER
Hearings in the Japanese deportation test cases
filed by attorney Wayne M. Collins in the USS.
District Court in San Francisco on May 29, and |
presently scheduled for hearings on August 5,
will be put over until some time in September.
By agreement with the Justice Department, pend
ing final decisions in these cases by the U.S.
Supreme Court, which would require a year or
two, no hardship or treaty trader cases would
be deported to Japan. Hearings in the cases of
single men will also be postponed.
Remedial legislation pending in the House Im-
migration Committee will not be acted upon at
the current session of Congress, but will be held |
for further study.
K. K. K. REWARD OFFER
In recognition of well-founded reports that
there has been a resurgence of the Ku Klux
Klan, and in order to protect and uphold the
constitutional rights of all persons in the
United States not to be put in fear of their
lives or limbs on account of their race,
color, creed, religion, or ancestry, the Amer-
ican Civil Liberties Union will pay five-_
hundred dollars ($500.00) reward for in-
formation leading to the arrest, final con-
_ tiction, fine and/or imprisonment of any
person or persons burning a cross or
crosses, for the purpose of intimidation, on
the property of another without the ex-
pressed consent voluntarily given of the
owner .of said property. oy
Such information may be given to the
Union at its New York office, or to the
American Civil Liberties Union, Southern
`California branch, 256 South Spring Street,
Los Angeles 12, or to the American Civil
Liberties Union of Northern California, 461
Market Street, San Francisco 5.
Dated June, 1946
: THE AMERICAN CIVIL
LIBERTIES UNION
170 Fifth Avenue
New York 10, New York
AMERICAN CIVLL LIBERTIES UNION-NEWS
Following is a substantial portion of the Cali-
fornia Supreme Court's prevailing opinion in the
case of Kenneth L. Danskin et al vs. San Diego Uni-
fied School District, et al, handed down on June 26,
1946. The court voted 5-2. Justice Carter wrote a
short concurring opinion. The main opinion was
written by Justice Traynor, and it was concurred in
by Chief Justice Gibson, and Justices Edmonds and
Schauer. Justices Spence and Shenk dissented.
Petitioners are members and officers of the
San Diego Civil Liberties Committee affiliated
with the American Civil Liberties Union. On
January 10, 1946, they filed an application with
respondent board for the use of the Roosevelt
Junior High School.Auditorium for a series of
meetings on the general theme of the "Bill of
Rights in Postwar America.' . . . In December.
1945, the board had adopted rules and _ regula-
tions to govern the use of school property for
public purposes and as a civic center... . On
January 15, 1946, the board adopted a resolu-
tion granting permission to petitioners to use
the auditorium upon the sole condition that the
persons who signed the application subscribe to
and file with the board the following oath:
yl ..., being first duly sworn, on oath say:
`TJ am a member of the San Diego Civil Liber-
ties Committee affiliated with the Southern Cali-
fornia Branch of the American Civil Liberties
Union and one of the applicants for the use of
Roosevelt Junior High School auditorium for a
series of meetings on January 25th, February
22nd, March 22nd, April 26th, May 24th, and
June 28, 1946.
`T do not advocate and I am not affiliated
with any organization which advocates or has
as its object or one of its objects the overthrow
of the present Government of the United States
or of any State by force or violence, or other
unlawful means." : :
Petitioners refused to comply with this condi-
tion on the grounds that it violates not only the
Civic Center Act but the Constitution of the
United States and the Constitution of California.
`Respondent board refuses to grant the use of
the auditorium to petitioners except upon this
- gondition. By this proceeding in mandamus peti-
~ tioners seek to compel respondent board to grant
them permission to use the auditorium free of
this condition.
Under the Civic Center Act (secs. 19431-19439
of the Education Code) the governing boards of
school district must grant the free use of school
auditoriums for the purposes specified in section
19431 of the Education Code. ACLUN_1946 ACLUN_1946.MODS ACLUN_1946.batch ACLUN_1947 ACLUN_1947.MODS ACLUN_ladd ACLUN_ladd.MODS ACLUN_ladd.bags ACLUN_ladd.batch ACLUN_test_batch ACLUN_testyear ACLUN_testyear.MODS ACLUN_testyear.bags ACLUN_testyear.batch add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log
Pursuant to this section the board has pro-
vided in its rules and regulations that `No use
or occupancy of school property will be permitted
ACLUN_1946 ACLUN_1946.MODS ACLUN_1946.batch ACLUN_1947 ACLUN_1947.MODS ACLUN_ladd ACLUN_ladd.MODS ACLUN_ladd.bags ACLUN_ladd.batch ACLUN_test_batch ACLUN_testyear ACLUN_testyear.MODS ACLUN_testyear.bags ACLUN_testyear.batch add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log There is a civic center at each and every public
school building and grounds within the State where the
citizens, parent-teacher associations, Campfire Girls, Boy
Scout troops, farmers' organizations, clubs, and asso-
ciations formed for recreational, educational, political,
economic, artistic, or moral activities of the public school
districts may engage in supervised recreational activi-
_ ties, and where they may meet and discuss, from time
to time, as they may desire, any subjects and questions
which in their judgment appertain to the educational
political, economic, artistic and moral interests of the
citizens of the communities in which they reside. :
Section 19432 (as amended by Stats. 1945, ch. 1213)
provides: Any use, by any individual, society, group, or
organization which has as its object or as one of its
objects, or is affiliated with any group, society, or or-
_ ganization which has as its object or as one of its ob-
jects the overthrow or the advocacy of the overthrow of
the present form of government of the United States or
of the State by force, violence, or other unlawful means
shall not be granted, permitted, or suffered. |
Any person who is affiliated with any organization,
which advocates or has for its object or one of its ob-
_ jects the overthrow of the present government of the
_ United States or any State, Territory, or Possession
thereof, by force or violence or other unlawful means, or
any organization of persons which advocates or has for
its object or one of its objects the overthrow of the
present government of the United States or any State,
Territory, or Possession thereof, by force or violence or
other unlawful means, is hereby declared to be and is
characterized, a subversive element.
Nothwistanding any of the other terms of this
chapter, no such governing board shall grant the use
of any school property to any person or organization
who or which is a subversive element as herein defined.
`For the purpose of determination by such governing
board whether or not such person or such organization
of persons applying for the use of such school-property,
is a subversive element as herein defined, such govern-
ing board may require the making and delivery to such
governing board, by. such person or any members of:
such organization, of affidavits in form prescribed by
such governing board, stating facts showing whether or
not such person or organization is a subversive element
as herein defined.
Reference is hereby made to the provision of law
relating to perjury and the punishment therefore shall
_. be applicable to persons making and delivering affida-
_ vits provided for under the provisions of this chapter.
by any subversive element as defined in section
19432 Education Code. For the purpose of aiding
in the determination of whether or not any
person or organization applying for use of school
property is a subversive element, the Governing
Board may in its discretion require the making
and delivery to it, by such person or any member
of such organization, or any speaker, of affida-
vits in form approved by the District Attorney
and County Counsel, stating facts showing
whether or not such person or organization or
speaker is a subversive element as defined in said
section."
Petitioners contend that Section 19432 on its
face violates freedom of speech and of peaceable
assembly as guaranteed by the Constitution of
the United States and the Constitution of Cali-
fornia.
Freedom of speech and of peaceable assembly
are protected by the First Amendment of the
Constitution of the United States against in-
fringement by Congress. They are likewise pro-
tected by the Fourteenth Amendment against
infringement by state legislatures." However,
reprehensible a legislature may regard certain
convictions or affiliations, it cannot forbid them
if they present "no clear and present danger that
they will bring about the substantive evils" that
the Legislature has a right to prevent. "It is a
question of proximity and degree.'"' The United
States Supreme Court has been alive to the dif-
ference between negligible dangers and substan-
tial ones, between remote dangers and immediate
ones. In Bridges vs. California, it declared: `As
Mr. Justice Brandeis said in his concurring opin-
ion in Whitney v. California: `This court has not
yet fixed the standard by which to determine
when a danger shall be deemed clear; how remote
the danger may be and yet be deemed present'.
Nevertheless the `clear and present danger'
language of the Schenck case has afforded prac-
tical guidance in a great variety. of cases in |
which the scope of constitutional protections of
freedom of expression was in issue. It has been
utilized by either a majority or minority of this
Court in passing upon the constitutionality of
convictions under espionage `acts, Schenck v.
United States; Abrams v. United States; under
a criminal syndicalism act, Whitney v. California;
under an `anti-insurrection' act, Herndon v.
Lowry; and for breach of the peace at common
law, Cantwell v. Connecticut. And very recently
we have also suggested that `clear and present
danger' is an appropriate guide in determining
the constitutionality of restrictions upon expres-
sion where the substantive evil sought to be
prevented by the restriction is `destruction of life
or property' or invasion of the right of privacy',
Thornhill v. Alabama. Moreover, the likelihood,
however great, that a substantive evil will result
cannot alone justify a restriction upon freedom
of speech or the press. The evil itself must be
`substantial', Brandeis, J., concurring in Whitney
v. California; it must be `serious', And even the
expression of `legislative preferences or beliefs'
cannot transform minor matters of public incon-
venience or annoyance into substantive evils of
sufficient weight to warrant the curtailment of
liberty of expression. What finally emerges from
the `clear and present danger' cases is a working
principle that the substantive evil must he ex-
tremely serious and; the degree of imminence
extremely high before utterance can be
punished." ;
When the United States Supreme Court held
in Bridges v. California, that the suppression of
freedom of speech in the absence of a clear and
present danger of. substantive evils is a violation
of the constitutional guaranty of free speech, it
adopted the views of Mr. Justice Holmes and Mr.
Justice Brandeis in their minority opinions in
Gitlow v. New York; Whitney v. California,
and other cases. These opinions were based on the
reasoning that doctrines advocating the over-
throw of the government by force do not of
themselves constitute a substantial danger, and
that the state is therefore not justified in sup-
pressing the freedom of speech of those who
happen to be members of an organization com-
mitted to such doctrines. In the Bridges case
the court referred to language in the opinions
of those justices to amplify its statements as
follcws: "Restatement of the phrase `clear and
present danger' in other terms has been infre-
quent. Compare, however: `the test to be applied
oh is not the remote or possible effect'.
Brandeis, J., dissenting in Schaefer v. United
States: `we should be eternally vigilant against
attempts to check the expression of opinions that
we loathe and believe to be fraught with death,
unless they so imminently threaten immediate
interference with the lawful and pressing pur-
poses of the law that an immediate check is
required to save the country'. Holmes, J., dis-
senting in Abrams v. United States, 250 U. S..
616, 630: `To justify suppression of free speech
there must be reasonable ground to fear that
serious evil will result if free speech is practiced.
There must be reasonable ground to believe that
the danger apprehended is imminent'. Brandeis,
J. concurring in Whitney v. California. The
italics are ours." ... It follows from this prin-
ciple that a legislature that makes convictions
and affiliations a condition of free speech is
striking at something less than clear and present
danger. ...
One must inquire why the measure in question
seeks to prohibit "subversive elements" from
holding meetings in a school building, when pre-
sumably they can hold them elsewhere without
arousing fears of baneful consequences. Is it
reasonable to suppose that meetings that would
be harmless elsewhere would take on a sinister
quality in a school building? When one searches
deeper for the reason that motivates the pro-
hibition of such meetings, there is no escaping
the conclusion that the Legislature denies access
to a forum in a school building to `subversive
elements', not because it believes that their public
meetings would create a clear and present danger
to the community, but because it believes the
privilege of free assembly in a school building
should be denied to those whose convictions and
affiliations it does not tolerate. What it does not
tolerate it seeks to censor.
The state is under no duty to make school
buildings available for public meetings. . . . If it
elects to do so, however, it cannot arbitrarily
prevent any members of the public from holding
such meetings. ... Nor can it make the privilege
of holding them dependent on conditions that
_ would deprive any members of the public of their
constitutional rights. A state is without power
to impose an unconstitutional requirement as a
condition for granting a privilege even though
the privilege is the use of state property... .
Since the state cannot compel "subversive ele-
ments" directly to renounce their convictions and
affiliations, it cannot make such a renunciation
a condition of receiving the privilege of free
assembly in a school building. Such a condition |
is as unconstitutional as the condition that a
foreign corporation pay a tax for the privilege
of doing business that could not otherwise be
constitutionally imposed on it... . or agree to
abstain from resort to the federal courts ...
or the condition that a public carrier obtain a
certificate of public convenience and necessity
before using the public roads... .
The convictions or affiliations of one who re-
quests the use of a school building as a forum
is of no more concern to the school administra-
tors than to a superintendent of parks or streets
if the forum is the green or the market place.
The ancient right to free speech in public parks
and streets cannot be made conditional upon
the permission of a public official, if that per-
mission is used as an "instrument of arbitrary
suppression of free expression." . . . It is true
that the state need not open the doors of a
schoo] building as a forum and may at any time
choose to close them. Once it opens the doors,
however, it cannot demand tickets of admission
in the form of convictions and affiliations that
it deems acceptable. Censorship of those who
would use the school building as a forum cannot
be rationalized by reference to its setting.
School desks and blackboards, like trees or
street lights, are but the trappings of the
forum; what imports is the meeting of minds
and not the meeting place.
The very purpose of a forum is the inter-
change of ideas, and that purpose cannot be
`frustrated by a censorship that would label cer-
-tain convictions and affiliations suspect, denying
the privilege of assembly to those who held
them, but granting it to those whose convictions
and affiliations happened to be acceptable and
in effect amplifying their privilege by making
it a special one. In the competitive struggle of
ideas for acceptance they would have a great
strategic advantage in making themselves known
and heard in a forum where the competition
had been' diminshed by censorship, and their
very freedom would intensify the suppression
of those condemned to silence. It is not for the
state to control the influence of a public forum
by censoring the ideas, the proponents, or the
audience; if it could, that freedom which is the
life of democratic assembly would be stilled. And
the dulling effects of censorship on a commu-
nity are more to be feared than the quickening
influence of a live interchange of ideas.
If it is unconstitutional for the state to pro-
(Continued on Page 4, Col. 2)
AMERICAN CIVIL LIBERTIES UNION-NEWS
Page 3
Attorney General Considers
Amnesty for War Objectors
An amnesty for all imprisoned conscientious
objectors now over 26 years of age is being
considered by the government according to a
statement by Attorney General Tom Clark on
_ July 3. The Attorney General made the state-
ment to a delegation of churchmen led by Rev.
Clarence T. R. Nelson of St. Paul, which had
urged such action especially in view of recently
announced amnesties for Germans and others
"who participated in the shooting war against
Americans." According to members of the dele-
gation a press report that the amnesty would
apply only to men over 44 and exclude Jehovah's
_ Witnesses was in error,
f
If granted, the amnesty will affect most of
the 2,500 conscientious objectors still in federal
prisons, of whom three fourths are Jehovah's
Witnesses. It may also restore the right to vote
and other civil rights to most of the 4,500 more
conscientious objectors who have served out their
terms and been released. Those under 26 will
presumably not be affected; nor will the am-
-nesty stop further committments to prison of
the few men refusing to be drafted. -
The delegation to the Attorney General in ad-
dition to the Rev. Nelson, whose brother, Wallace
Nelson, is one of ten imprisoned objectors now
on a hunger strike for amnesty, included Mrs.
Mary McLeod Bethune, President of the National
Council of Colored Women, Dr, Frederick Reissig
of the Washington Federation of Churches, and
om M. R. Zigler of the Brethern Service Commit-
_ Steps Taken to Prevent Recurrence
of Vallejo Racial Incident
Langdon W. Post, Regional Director of the
Federal Public Housing Authority, last month
furnished the Union with a copy of his instruc-
tions to local housing authorities concerning the
issuance of pass keys to homes of tenants. The
instructions grew out of the incident at the
Chabot Terrace housing project in Vallejo on
' May 17, when pass keys to the homes of Negroes
were given to the Sheriff's office, who proceeded
to make lawless searches and mass arrests.
The instructions are as follows: "I want to
take this opportunity to inform you that great
care must be exercised in the issuance of pass
keys to homes of tenants in developments under
your jurisdiction. The abuse of the issuance of
pass keys may well result in the actual violation
of the civil rights of tenants and create extremely
embarrassing as well as illegal situations.
"Pass keys should be given out only to desig-
nated officers and employees of the Authority
Where essential in the performance of their
duties, but in no other case except pursuant to
judicial process."
At the same time, Mr. Post informed the
Union that his office could not accept responsibil-
ity for what occurred, because Chabot Terrace is
leased to the Vallejo Housing `Authority, but he
assured the Union that he had reviewed the in-
cident with Mr. Richardson, the director of the
Vallejo Housing Authority, and "I am satisfied
that there will be no recurrence of the master
key incident."
The national office of the F.P.H.A. has ad-
vised the Union that the entire matter is under
investigation and that its protest will be an-
swered as soon as it receives Mr. Post's report.
The Justice Department which was asked to
prosecute those responsible for denying the civil
rights of the Vallejo Negroes, informed the Union
_ last month that "Investigation and consideration
of the matter ne not been concluded at this
time."
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City and Zone
mn Fee
Government's Right to Impose `No Sirike Oath'
cent Jeral Employees May Be Tested in
Cc ourt
Riders qn Congressional appropriation bills for
U.S. government departments forbidding employ-
ment of members of unions that claim the right
to strike are scored as "depriving federal work-
ers of their civil rights" by the American Civil
Libeties Union in a recent letter to President
Truman. The Union also criticized the tactic of
enacting far-reaching policies through riders
which do not permit "adequate debate."
A possible test case has arisen in San Fran-
cisco. The national board of the Union voted to
support the case in principle and referred it to
counsel for advice on procedure.
The Union's letter to President Truman says
there is no question of workers "striking against
the government", but only against specific em-
ployer administrators, and continues, "federal
workers should not be deprived of their one
effective ultimate means of improving their
wages and working conditions, a means which
all experience shows they can be counted on to
use with great restraint." The whole method of
legislating by riders is condemned because they
"do not permit adequate debate, and however
objectionable may not be separately vetoed. If
this is to be government policy it should be
established by the usual legislative methods."
The riders were aimed against the United
Public Workers (CIO) organized last April by
the merger of two other unions of Government
employees. A clause in the union's constitution
was widely interpreted as leaving the way open
for possible strikes against the Federal Govern-
ment. After such interpretations had been pub-
lished, Congress inserted in a number of appro-
priations bills a clause that none of the money
could be paid to members of unions which as-
serted the right to strike against the Govern-
ment. The union denied any intention to strike
against the Government, and the constitution
was changed to eliminate any possible interpre-
tation that the union stood for such strikes.
As a result of such a rider, Senator Glen H.
Taylor of Idaho has failed to collect his salary
since June 30. Senator Taylor says he can't sign |
the required affidavit because he is a member
of the Sheet Metal Workers International Asso-
ciation. It is associated with building trades un-
ions which often have struck against private con-
tractors on Government projects. "I have no
more intention to drop that membership than any
of my colleagues have to drop their membership
in the American Bar Association," Senator
Taylor is quoted as saying.
In San Francisco on July 1, an employee of
the Production and Marketing Administration
of the United States Department of Agriculture
was suspended from her position for refusing to
sign an affidavit reading as follows:
iT Do swear (or affirm) that I am
not a member of an organization of Government
employees that asserts the right to strike against
the Government of the United States; and that
during such time as I am an employee of the
U. S. Department of Agriculture I will not be-
come a member of an organization of Govern-
ment employees that asserts the right to strike
against the government of the United States, nor
will E engage in a strike against the ee
of the United States."
In refusing to take the oath the employee
stated, "J belong to no organization, but believ-.
ing in the reality of the claim that the American
government is an organization `of the people,
for the people and by the people', and in the
inalienable right of all people to `freedom of (c)
speech, freedom of press arid freedom of assem-
bly', i find it impossible to sign an oath about
a hypothetical action which I may or may not be
called upon to take." The employee was quite
willing to declare under oath or otherwise that -
she does not presently belong to an organization
of government employees asserting the right to
strike against the government.
The law in question is directed merely against
present membership in an organization asserting -
the right to strike against the Government of the
United States, whereas the affidavit covers "such
time as I am an employee of the..... Depart-
ment", The appropriation Act is of a year's dura-
tion, and expires June 30, 1947.
The local office of the Union pointed out to the
Department of Agriculture that its affidavit goes
beyond the terms of the law in that it covers a
period longer than the life of the law, but the
Department ignoring this fact insisted that as
a practical matter it could not accept the affi-
davit the employee was willing to furnish. Such
an affidavit, the Department stated, "might pro-
vide an ample safeguard for the pay period dur-
ing which she executed the affidavit, but there- _
after we would be confronted with the necessity
of obtaining a similar affidavit from her during
each pay period so long as the provisions of
Section 5 are retained in our Appropriation Acts.
If we followed this procedure for one employee,
we would of necessity be obliged to follow the
same procedure for all employees, and the time
and expense involved in doing so would be pro-
hibitive. . If she fails to execute the affi-
davit within a reasonable period of time. it will
be necessary to prefer charges against her with
a view to her removal from the service, unless
she elects to submit her resignation. In the mean-
time, she will be continued in a suspension status."
It has been reported to the Union that several
employees at Hunters Point refused to sign the
affidavit, and a representative of San Francisco
postal employees conferred with the Union's local
director concerning the matter. The local office
has also had an inquiry from State Department
employees, |
Gov. Dewey Orders Probe of
Freeport, L.I. Negro Slayings
The slaying of two Negro brothers by a police-
man in Freeport, Long Island, last February and
the subsequent exoneration of the officer by
a grand jury will be studied by a special in-
vestigator appointed by Governor Thomas E.
Dewey on July 5. The Governor designated
Lawrence S. Greenbaum of New York City,
chairman of the State Board of Social Welfare,
to make the inquiry. He acted after receiving
requests for an investigation not only from nu-
merous individuals and organizations, including
the American Civil Liberties Union, but also from
District Attorney James N. Gehrig, who made
the original presentment to the Nassau County
grand jury. The exoneration of the policeman has
been widely criticized as a "white-wash."
The case arose when officer Joseph Romeika of
reeport shot and killed Charles and Alfonso
Ferguson on the night of February 4 while at-
tempting to arrest them and two other brothers,
Joseph and Richard Ferguson for disorderly
conduct. Joseph was wounded by the bullet that
killed Alfonso. Charles who was in army uniform
at the time he was slain was exonerated of any
misconduct by an army board, and Joseph who
was in the navy was cleared of any responsibility
by a navy board. The only brother to escape
unharmed, Richard, was convicted and sentenced
to 100 days for disorderly conduct, but later won
a reversal on appeal. The Nassau County grand
jury subsequently refused to indict policeman
Romeika after hearing evidence presented by
District Attorney Gehrig. The Dept. of Justice,
which was urged to intervene, found no federal
question. e
Vice Society Attacks
"Memoirs of Hecate
County' As Obscene
Aid for court defense of Edmund Wilson's
"Memoirs of Hecate County" seized on com-
plaint of the New York Society for the Suppres- _
sion of Vice on July 8 was offered by the Amer-
ican Civil Liberties Union in telegrams to the
author and publishers of the book. The Union
wired Mr. Wilson and Doubleday Doran and Co. in
New York City that its advisers had read the
book and "did not regard it as violating state
obscenity laws,'' but added that the determina- -
tion of obscenity is so dependent on prejudice
that the outcome of any legal action is "always
problematical." The telegrams were signed for
the Union by Elmer Rice, chairman of its Na-
tional Council on Freedom from Censorship.
More than a hundred copies of the book were
seized at four of the Doubleday Book Shops in
New York City on July 8 and summonses issued
for two officials of the publishing firm and two
executives of the book shops. The four executives
`are charged with criminal violation of the state
obscenity law, and will probably get a jury trial.
Many book-shops in New York promptly with-
drew the book from sale, while others including
the Doubleday Shops, continued to handle it. The
New York Public Library announced it would
continue to circulate it since it was "not con-
cerned with censorship organizations."'
Earlier this year the Boston branch of the
Civil Liberties Union issued a blast against the
publishers, Doubleday Doran and Co. for "self-
censorship" after it was learned that the com-
pany had refused to send copies to Boston for
sales. About 50,000 copies have been sold since
publication this year.
Page 4.
AMERICAN CiVIL LIBERTIES UNION-NEWS
American Civil Liberties Union-News
Published monthly at 461 Market St., San Francisco, 5
Calif., by the American Civil Liberties Union
_ of Northern California.
2 , Phone: EXbrook 1816
ERNEST BESIG ....... Editor
Entered as second-class matter, July 31, 1941, at the
Post Office at San Francisco, California,
under the Act of March 3, 1879.
Subscription Rates-One Dollar a Year.
Ten Cents per Copy.
151- a.
Circuit Court Hands Down
Decisions in 4 Draft Cases
Four important draft cases were recently de-
cided by the Federal Circuit Court of Appeals in
San Francisco. Three cases involve conscientious
objectors, while the fourth case concerns three
Japanese detained in a relocation center.
When is a conscientious objection "religious"
so as to entitle a person to exemption from mili-
tary service, is the question posed in the case of
Socialist Herman Berman of Los Angeles. In a
6 to 1 decision, the court took a narrow view of
the matter and decided that Berman was "sincere
in the belief which he professed, but it is clear
that such belief was based entirely upon a philo-
sophical, social or political policy and does not
entitle him to exemption from military duty."
The Civil Liberties Union is supporting an appeal
to the U.S. Supreme Court.
In the case of Daniel B. Dingman, who walked
out of the Minersville C.O. camp, after serving
more than a year, a 3-man.court rejected conten-
tions that the draft act does not authorize C.O.
camps, and that Dingman had served the re-
quired time, because he had served a year as pro-
vided in the original draft act, and subsequent
acts extending this period apply only to members
of the armed services. In rejecting these con-
tentions, the court sought no authority in the
draft acts, but relied on regulations adopted by
Selective Service. The case was handled by Clar-
ence E. Rust of Oakland. An appeal is under con-
sideration.
In the case of Raymond E. Yost, a Jehovah's
Witness, the court, by a vote of 5 to 2, found
there was sufficient evidence that Yost had not
consented to induction by the Army, and, conse-
_ quently, that he was unlawfully held by it. When
the oath of induction was administered, Yost,
who claims he should have been classified as a
minister, remained silent.
In a fourth case, a unanimous court upheld
the conviction of three Japanese, Hideichi Take-
guma, Yasuto Fujioka and Kingo Tajii, who
failed to report for induction. All three were
evacuees detained against their will at the Posten
- Relocation Center, and two of them had re-
nounced their citizenship. In a concurring opin-
ion, Judge William Denman urged executive
clemency. "They were United States citizens,"
said he, "and only attempted to give up their citi-
zenship after a continued illegal imprisonment by
the Federal Government in barbed wire enclo-
sures, guarded by armed soldiers, under condi-
tions of great oppression and humiliation.
"Had any of us been so wrongfully impris- -
oned in our youth because our parents had emi-
grated to this country from, say, Germany, Eng-
land, or Ireland, with which there might be a war,
it cannot be said that our exasperation and shame
would not have caused us to prefer the citizen-
ship of our parents' homeland. It was because
the United States first cruelly wronged us by an
illegal if not criminal imprisonment that our re-
nunciation came. Even if, in our justifiable re-
sentment, we committed acts adverse to the con-
tinuance of the war against our fatherland, it is
for the United States, the first and greater
wrongdoer, to be merciful.
"Because our skins are white and our origin is
European, is no ground for a distinction between
our youth and that of these appellants."
Counsel has announced his intention to re-
quest the trial judge to grant probation not only
- to the three, but to all other Postenites affected
by the decision. ;
ASYLUM FOR POLITICAL STOWAWAYS
URGED BEFORE HOUSE IMMIG, COMM.
_Asylum for stowaways who enter the U.S. to
escape political, religious or racial persecution -
was urged by the American Civil Liberties Union
at special hearings before a subcommittee of the
House Immigration Committee in New York City
on June 29.
Speaking for the ACLU, Edward J. Ennis,
chairman of the committee on Alien Civil Rights
and former Chief of the Enemy Alien Control
unit of the Department of Justice, urged that the
American tradition of asylum for political refu-
gees should be extended to include stowaways.
Pointing out that the Immigration Act of 1917
already waives literacy requirements for poli-
tical refugees, Mr. Ennis said that visa and other
legal requirements should also be waived to
_ permit stowaways who are political refugees to
remain.
Partial Text of Justice Traynor's Opinion
in San Diego Civic
Center Act Case
(Continued from Page 2, Col. 3)
hibit certain persons or groups classified as
"subversive elements" from exercising their
rights of free speech and assembly at, places
where others are allowed to speak and assemble,
it is a fortiori unconstitutional to require proof
from any persons or groups that they are not
subversive elements. "If the exercise of the
rights of free speech and free assembly cannot
be made a crime, we do not think this can be
accomplished by the device of requiring pre-
vious registration as a condition for exercising
them and making such a condition the founda-
tion for restraining in advance their exercise
and for imposing a penalty for violating such
a restraining order. So long as no more is in- .
volved than the exercise of the rights of free
speech and free assembly, it is immune to such
a restriction."' .. . In the present case registra-
tion would be a reasonable requirement, facilitat-
ing the administration of meetings and imposing
no censorship on the proponents. Requirement of
proof of one's convictions and affiliations, how-
ever, aS a condition of exercising the rights of
free speech and free assembly, would compel a
forfeiture of those rights by those who were un-
abie or unwilling to submit proof that was ac-
ceptable.
-The state can of course safeguard the primary
purposes of public property from interference
by other uses that it permits. Under the Civic
Center Act "the educational activities of schools
shall at all times take precedence aver permiss-
ive but secondary uses of school buildings" and
a school board must "consider the probable ef-
fect of the proposed use on the regular school
program and must deny one that would lead
to an interference with that program." This
consideration is not relevant here, however, for
the vrovisions in question relate, not to the edu-
cational program of the schools, but to the pro-
tection of the community from "subversive
elements." They purport to protect the commu-
nity, not by preventing outright the use of
school buildings for meetings for the dissemma-
tion of subversive doctrines, but by denying
the privilege of holding a public meeting at a
civic center to "subversive elements" or to any
one who refuses to prove that he is not sub-
versive, even though they would devote their
meetings to the purposes designated in the Civic
Center Act, and even though there is no reason
to suppose that any one at such meetings would
advocate the overthrow of the government.
Those who are under the ban of the statute
could not hold a meeting to pronounce their views
with regard to pending legislation, constitutional
amendments, election of political candidates, or
even artistic or educational matters. It is a
drastic censorship that would not tolerate the
presentation in a public forum of the views on
any subject of those whose convictions and af-
filiations it disapproves. Its principal effect is
not to prevent abuses of free speech, but to dis-
courage certain convictions and affiliations and
to stiffle the freedom of speech on any sub-
ject of those who hold them. "The power of the
licensor against which John Milton directed his
licensed Printing' is pernicious not merely by
reason of the censure of particular comments
but by reason of the threat to censure comments
on matters of public concern. It is not merely
the sporadic abuse of power by the censor but
the pervasive threat inherent in its very ex-
istence that constitutes the danger to freedom
of discussion." ...
The privilege of using a school building as a
public forum is one too valuable to be given
lightly or lightly taken away. It is also too val-
uable lightly to be received. It can be lost to the
whole community if some persons or groups
abuse it frivolously, maliciously, or dangerously.
The state must be on the alert for any clear
and present danger to the community, sensitive
to the warning signals, the ambiance in which a
forum is planned, the atmosphere that envelops
it. It cannot look with equanimity upon those
whose words or actions have already left in their
wake a trail of violence.
Always it must distinguish, however, between
' speech, no matter how unorthodox, that remains
on a theoretical plane, and speech, no matter
how skilfully intoned, that creates a clear and
present danger to the community. `"`There is a
material difference between agitation and ex-
hortation calling for present violent action which
creates a clear and present danger of public dis-
order or other substantive evil, and mere doc-
trinal justification or prediction of the use of -
force under hypothetical conditions at some in-
definite future time-prediction that is not cal-
culated or intended to be presently acted upon,
thus leaving opportunity for general discussion
and the calm processess of thought and rea-
SOM, .2..
There is no sign that any danger, would arise
from the proposed meetings in the present case.
The "Bill of Rights in Postwar America" is not
only a legitimate subject of discussion but one |
of great public interest. The proposed speakers
include men well qualified to discuss the subject
and there is no likelihood that any substantive
evil would arise out of their discussion. The
proponents of the meetings, officers of the San
Diego Civil Liberties Committee affiliated with
the American Civil Liberties Union, have made it
clear that they refuse to comply with the re-
quirement of respondent board that they file
affidavits as to their convictions and affiliations
because that requirement violates their consti-
tutional rights of free speech and free assembly.
They take their stand on q constitutional prin-
ciple that does not commit them to an approval
of those who believe in the overthrow of govern-
ment by violence, It may seem ironic that others
who hold such beliefs may seek from the state
the privilege of a public forum. But when the
principles of free speech and peaceable assembly
are at stake, the state has more to gain than
to lose by a generous tolerance of the con-
victions and affiliations of its many citizens so
long as they present no clear and present danger
to the community. -
The unconstitutionality of section 19432 does
not invalidate the rest of the Civic Center Act,
contained in sections 19431 and 19433-19439 of
the Education Code. .. .
assault by his `Appeal for the Liberty of Un-
Pardon for Akron Trade Union
`Frame Up' Victims Asked
Pardon for the three Akron, Ohio men, one a
university professor, now serving one year sen-
tences for stealing a ballot-box in a trade-union
election was asked of Governor Frank J. Lausche
of Ohio by the American Civil Liberties Union
on June 10. A reply from the Governor states
that two of the men were scheduled to come be-
fore the Ohio Pardon and Parole Commission in
the immediate future, and that their cases will
get "earnest consideration." The twe coming up
for pardon after serving four months are Rich-
ard L.,Schanck, former professor of social psy-
chology at Akron University, and Ray Black-
burne, former medical student at Ohio State.
Scheduled to come up later is the case of John
B. Phillips, who started serving his sentence
after Schanck and Blackburne.
All three were convicted of `unarmed robbery"
in 1943 in connection with the theft of a ballot-
box during a union election in local 856 of the
United Automobile Workers in Akron, The three
were supporters of an anti-Communist faction
in the union which maintained the election was
fraudulent. After investigation the ACLU char-
acterized their conviction as "a frame-up grow-
ing eut of local union and political fights." An
appeal on their behalf to the U.S. Supreme Court
failed last spring when the court declined to
hear the case.
INDICTMENT OF REV. ILLSLEY BOONE,
LEADING NUDIST, DROPPED
An indictment against Rev. Illsley Boone, lead-
ing American nudist, for circulating an "inde-
cent magazine" was dismissed .by the U.S. At-
torney in Newark, New Jersey last month. Rev.
Mr. Boone was indicted by a federal grand jury
in September last year after the FBI had seized
copies of his nudist magazine "Sunshine and
Health" from a trucking company. The proceed- (c)
ings against Mr. Boone were several times pro-
tested to Attorney General Clark by the Amer-
ican Civil Liberties Union, which held they ought
to be dropped since they were based on the un-
tenable assumption that "nudism per se is ob-
_ scene."
New attacks on the magazine by Philadelphia.
police, who have been arresting distributors,
were met by an ACLU offer of aid. Local postal
officials in various parts of the country have
been confiscating single copies of "Sunshine and
Health" when received by third class mail. The
ACLU is also investigating complaints that
postal officials have been threatening with pro-
secution contributors of nude photographs to the
magazine. The magazine runs photographic con-
tests for nudists. `Sunshine and Health" is pub-
lished by the Rev. Mr. Boone at Mays' Landing,
New Jersey, and is the official journal of the
American Sunbathing Association Inc. of which
he is secretary.
e