vol. 11, no. 8

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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American Civil Liberties. Union ;

of Northern California :

461 Market Street,

San Francisco 5, Calif.

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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