vol. 13, no. 7

American

Civil Liberties

Union-News

Free Press

Free Speech

Free Assemblage

"Eternal vigilance is the price of liberty."

Vol. XTIT

SAN FRANCISCO, JULY, 1948

No. 7

Only Abuses of Loud-Speakers

Can Be Controlled, Says Court

In a 5-4 decision the U. S. Supreme Court on

June 7th ruled unconstitutional a Lockport, N. Y.,

ordinance forbidding the use of sound trucks to

disseminate news and opinion except with per-

mission of the Chief of Police. The case was

brought by a Jehovah's Witness, Samuel Saia,

whose original fine and jail sentence for violating

the Lockport ordinance was upheld by the `New

York Court of Appeals.

Justice Douglas in delivering the majority

opinion, said, `""Loud-speakers are today indispens- .

able instruments of effective speech. The sound

truck has become an accepted method of political

campaigning. It is the way people are reached.

Must a candidate for governor or the Congress

depend on the whim or caprice of the Chief of

Police in order to use his sound truck for cam-

paigning ? Must he prove to the satisfaction of that

official that his noise will not be annoying to

people? :

"The present ordinance would be a dangerous

weapon if it were allowed to get a hold on our

public life. Noise can be regulated by regulating

decibels. The hours and place of public discussion

can be controlled. But to allow the police to bar

the use of loud-speakers because their use can be

_ abused is like barring radio receivers because they

too make a noise. The police need not be given the

power to deny a man the use of his radio in order

to protect a neighbor against sleepless nights.

_ "Any abuses which loud-speakers create can be

controlled by narrowly drawn statutes. When a

city allows an official to ban them in his un-

controlled discretion, it sanctions a device for sup-

pression of free communication of ideas, In this

case a permit is denied because some persons were

said to have found the sound annoying. In the next

one a permit may be denied because some people

find the ideas annoying. Annoyance at ideas can

be cloaked in annoyance at sound. The power of

censorship inherent in this type of ordinance re-

veals its vice." e

Justice Frankfurter with Justices Reed and

Burton in a minority opinion stated, `Modern de-

vices for amplifying the range and volume of the

voice, or its recording, afford easy, too easy,

opportunities for aural aggression. If uncontrolled,

the result is intrusion into cherished privacy. The

refreshment of mere silence, or meditation, or

quiet conversation, may be disturbed or precluded

by noise beyond one's personal control. ...

"We are dealing with new technological devices

and with attempt to control them in order to gain

their benefits while maintaing the precious free-

dom of privacy."

Justice Jackson in a separate dissent asked,

"Can it be that society has no control of apparatus

which, when put to unregulated proselyting, pro-

paganda and commercial uses, can render life un-

bearable ?"'

While the ACLU took no part in this case, it is

concerned in a similar sound truck case originating

in Trenton, N. J., now on appeal to the U. S.

Supreme Court. Trenton banned all sound trucks

by law.

Validity of S.F. Ordinance Limiting Use of

Loud-Speakers for Street Meetings Challenged

The American Civil Liberties Union of Northern

California last month challenged the constitu-

tionality of San Francisco's ordinance regulating

the use of sound amplifiers, loud speakers and

sound trucks, and requested the Board of Super-

visors to repeal the law. After a hearing before

the Board's Police Committee, the latter requested

a legal opinion from the City Attorney.

The Union's interest in the subject arose out

of the following recent incidents:

1. On May 20, Mr. Charles R. Garry, a candi-

date for Congress applied to the Chief of Police

for a permit to use a sound amplifier in connec-

tion with a political meeting at the corner of

Embarcadero and Commercial Streets. Under

date of May 22nd, Chief Mitchell turned down

the application because, `Such permits are not

issued for the purpose stipulated." Mr. Garry,

nevertheless, used the sound truck, and was

arrested for violating the ordinance, but Judge

Cunningham dismissed the charges.

2. On June 3, 1948, the San Francisco News

reported that the Joint Action Committee of Mari-

time Unions held a meeting on the Embarcadero

near the Ferry Building at noon to discuss the

waterfront strike set for June 15. The story then

goes on to say that, "Speakers addressed the

workers through a public address system, al-

though Police Chief Michael Mitchell denied union

officials a permit to use the loud speaker set up.

Police made no attempt to interfere with the rally.

(They claimed later that the meeting place was

outside their jurisdiction and came under the con-

trol of the Board of Harbor Commissioners.)

"The Chief told Pat Tobin, Committee Chair-

man, that sound equipment could be used in public

meetings only if the meeting is in the general

public interest."

3. Under date of May 28, 1948, the American

Civil Liberties Union of Northern California

applied to the Chief for a permit "to use a sound

amplifier in connection with a meeting to be held

at the Embarcadero and Commercial Street (the

same meeting place used by Mr. Garry) at noon on

June 25, 1948, to discuss the subject of `Restraints

on Freedom of Assemblage in San Francisco.' "

Under the date of June 2, 1948, Chief Mitchell

stated in response to the Union's application "that

the location chosen is acceptable to this Depart-

ment. However, the meeting must be conducted

without the benefit of voice amplification, as your

application for a permit to operate a loud speaker

is denied."

Four days after the Union received the Chief's

response, the U. S. Supreme Court handed down

its decision declaring that an ordinance granting

a Police Chief discretion in granting permits for

sound amplifiers and sound trucks is unconstitu-

tional as infringing on freedom of speech. And,

on June 16, Municipal Judge Charles B. MacCoy

decided that the Los Angeles sound truck ordi-

nance was unconstitutional.

The San Francisco ordinance provides that "It

shall be unlawful for any person to maintain ...

any loud speaker or sound amplifier . . . without

first procuring from the Chief of Police ...a

permit authorizing the same." The ordinance then

goes on to say that the Chief may issue permits

"in the following cases only:" 1. the making of

charitable appeals; 2. during, and as part of public

events; 3. in publishing affairs of interest to

the general public; 4. in connection with public

events. "Any permit issued hereunder is revocable

at the pleasure of said Chief of Police." It is inter-

esting to note that in interpreting his authority,

the Chief decided that a meeting of a candidate

for Congress, a strike meeting which would affect

not only the city, but the State and the Nation,

and a meeting to discuss restraints on freedom of

assemblage were NOT "affairs of interest to the

general public."

The Union has also challenged the constitution-

ality of Berkeley and Oakland ordinances and

urged the respective councils to repeal the laws.

"World Citizen' Denied Naturalization

Will Be Granted New Hearing

The ACLU of Northern California last month

secured the reopening of the case of an applicant

for citizenship who was turned down because he

is a "World Federalist'"' and therefore regards

himself as a "world citizen,'' as well as being

opposed to capitalism and in favor of the social

ownership of the means of production and dis-

tribution. Entering into the determination was the

fact that the applicant is a religious pacifist and,

therefore, in the words of the Naturalization Serv-

ice "unwilling to contribute to the support and

defense of the United States during the time of

war by any affirmative act." The Naturalization

Service decided the applicant was not attached to

the principles of the Constitution. A new hear-

ing in the case will be held in September.

New Scheme to Secure

M. C. Friel and Associates of Hayward, who

made a specialty of writing racial restrictive

housing covenants at a fee of $10 for each party

to such an agreement, have come up with a new

scheme as a result of the Supreme Court decision

making such covenants legally unenforceable. The

organization is now urging property owners to

incorporate and to agree not to sell, lease or rent

except with the approval of a special committee

of the corporation. Of course, the committee would

not approve of tenants or buyers with the wrong

color or religion.

The agreement would remain in effect for 25

Ea (c) e e

Race Bias in Housing

years. Members could be released from the agree-

ment only by a three-fourths vote of the entire

membership of the corporation. The law firm of

Breed, Robinson and Stewart in Oakland would

handle the details of the incorporation. Friel

would get $20 from each member of the corpora-

tion for his organizing efforts.

Thus far, the Union has not heard of any cor-

poration of this nature being formed in California.

They are not apt to become popular, because the

average property owner is loathe to hand over con-

trol of his property to a corporation or anyone

else.

Librarians Warned On Growing (c)

Censorship Of Printed Matter

A growing censorship of books and other printed

matter is endangering our intellectual freedom,

the American Library Association was warned by

Pearl Buck and other speakers during its five-day

Atlantic City conference, June 14-18.

"Censorship of books means censorship of the

mind and censorship of the mind is what every

tyrant wants," said Miss Buck, who is a vice-

chairman of the ACLU National Committee.

"Sometimes he wears the robes of a minister of

religion, sometimes he wears a business suit or a

soldier's uniform, sometimes he is a government

bureaucrat or high official... . The censorship of

books is the sign of his presence."'

Mexican-American Segregation

In Texas Schools Outlawed

Segregation of Mexican-American children in

Texas schools was outlawed on June 15th in

Austin when U. S. District Court Judge Ben Rice

ruled in a suit aided by the ACLU in behalf of

20 Mexican-American children. The court made

an exception in the case of first graders who, it (c)

decided, could receive separate instruction while

learning the English language. The suit was

brought last November on grounds that segrega-

tion of school children of Mexican descent "de-

prives them of the equal protection of the laws

and of liberty and property without due process

of law in violation of the Fourteenth Amendment."'

The decision was based on a similar ruling

handed down last year by the Circuit Court of

Appeals in San Francisco in a case also involving

children of Mexican descent.

Page 2

AMERICAN CIVIL LIBERTIES UNION-NEWS

Right te Criticize Judges

Upheld by California Court

The right to criticize judges was recently upheld

by the District Court of Appeal in San Francisco.

Speaking for a unanimous court, Presiding Judge

Peters declared:

"In a society where the courts constitute a free

and independent branch of the government, the

judges of such courts cannot expect to be free

from the perils of criticism and comment, any

more than other public officials are free from

such criticism or comment, except where such

comment directly imperils the outcome of pending

litigation. In a democracy, public officials .

cannot expect to live in a rarefied environment

where they are free of criticism. They must expect

to live in a more rugged atmosphere where their

acts and qualifications are subjected to the perils

of even pitiless publicity. Respect for the judiciary

can-never be secured in the minds and the hearts of

the people by shielding the judges from such crit-

icsm. The dignity of the bench can never be pre-.

served by muzzling those who desire to criticize.

Enforced. silence engenders suspicion and distrust,

not respect. A judge must be presumed to possess

judicial stamina, firmness and fortitude. He must

be presumed to have the backbone to withstand

the rigors of even unfair criticism. To hold, in the

instant case, that the resolution involved consti-

tuted an ` mminent? peril to the orderly adminis-

tration of justice would require us to impute to

the judge criticized a lack of the attributes we

must presume he possesses. This we are not in-

clined to do."

On March 1, 1946, Judge Twain Michelsen, who

was then presiding over the traffic department of

the Municipal Court of San Francisco, found 20

members of the Street and Highway Committee of

the Chamber of Commerce of San Francisco guilty

of contempt of court, and fined them each $25, for

publishing on February 23, 1946, a resolution de-

manding his ouster as traffic judge. The resolution

claimed the judge "by his public utterances and

conduct brought disrespect, confusion, non-

enforcement, violation, a worsened parking and:

traffic situation. . S

The American Civil Liberties Union of Northern.

California filed an amicus curiae brief in the case

supporting the right of the Chamber of Commerce

members to critize the judge as an exercise of .

freedom of speech.

Mundt Bill Dies in

Adjournment Rush

Under attack from leading liberals since its

inception, the Mundt-Nixon "Communist-control"'

bill died in the Senate Judiciary Committee in the

Congressional log-jam before adjournment on

June 20th. Senator Alexander Wiley, the commit-

tee's chairman, officially sealed the controversial

measure's doom on June 17th when he announced

that the Senate would not have enough time to

act on the bill. Senator Wiley also disclosed that

Attorney General Clark had advised the commit-

tee that in his opinion ``some sections" of the

House measure were unconstitutional.

Despite opposition to the Bill from authorita-

tive sources such as Prof. Zechariah Chafee, Jr.

of Harvard Law School, Senator Wiley announced

that similar legislation would be presented in new

form at the next session of Congress.

Executive Committee

Amerlean Givil Liberties Union

of Northern California

Sara Bard Field

Henorary Member

Rt. Rev. Edw. L. Parsons

Chairman.

Dr. Alexander Meiklejohn

Helen Salz

Vice-Chairman

Joseph S. Thompson

Secretary-Treasurer

Ernest Besig

Director

Philip Adams

- John H. Brill

Prof. James R. Caldwell

H, C. Carrasco

Wayne M. Collins

Rev. Oscar F. Green

Margaret C. Hayes

Ruth Kins

Jalph N. Kleps

Seaton W. Manning

Mrs. Bruce Zorter

Clarence E. Rust

Rabbi Irving F. Reichert

Prof. Laurence Sears

Dr. Howard Thurman

Kathleen Drew Tolman

(ele Dima

roc

n

Shale in Procedure Sought After Unlawful

Following conferences between representatives

of the Board of Trustees of the California Insti-

tute for Women, the Adult Authority and the

ACLU of Northern California, the State prison

authorities have agreed to consider a change in

their practices to correct what the Union regards

as unlawful imprisonments of parolees.

The Union's complaint was based on the case of

a colored woman whose parole from Tehachapi

expires next December. On February 9 last this

parolee was convicted and sentenced in San Fran-

cisco on a vagrancy charge. The Board of Trustees

of Tehachapi received a report about the matter,

but, on February 26, decided to continue the pris-

oner on parole despite the vagrancy conviction.

Nevertheless, on April 28, when the woman was

scheduled for release from the City Prison, the

parole officer, Frances Sullivan, advised the jailer

to holdsher ``en route to the parole officer.'"' Nine-

teen days after the local sentence expired, Miss

Sullivan finally ordered the prisoner's release.

The same day, the prisoner was required to

report to the parole officer, and, upon appearing,

a heated argument ensued. The parole officer

admits she took away the prisoner's cigarettes

and locked her in an office for a few hours "for

her own good" because she was drunk. The pris-

oner denies she was drunk and it must be admitted

that she didn't have much opportunity to get

drunk in the couple of hours from the time she

was released from jail and reported to the parole

office.

Censorship Foes Meet,

Ferm Committee

Meeting to help establish an effective group to

fight against all kinds of censorship, representa-

tives of some 25 organizations and firms in the

publishing, radio, theater, movie and press fields

gathered in New York on June 22nd under the

auspices of the ACLU's National Council on Free-

dom from Censorship. Elmer Rice, who presided,

explained, as announced at a previous meeting in

May, the need for a strong organization to co-

ordinate activities to combat a rising tide of public

and private censorship efforts. Discussion of speci-

3 fic plans,

._ name of the new organization and the choice of

budget problems, fund-raising, the

its executive director led to formation of a steer-

ing committee which will meet during the sum-

mer and decide on these questions. During its

formative stage the new group will use the physi-

cal facilities of the ACLU but will act autono-

mously.

New Procedure Protects Petitioners

For Citizenship In Right To Counsel

Complaints of the ACLU to the San Francisco

office of the Immigration and Naturalization

Service that applicants for citizenship were being

denied the right to counsel were answered last

month by a promise "that to obviate any possible

misunderstanding in the future we propose to

advise the petitioners of their right to counsel

both in the notice of hearing and orally before the

hearing is commenced. We also propose where

formal notice of appearance is on file to furnish

the attorney a copy of the notice of the designated

examiner's hearing."

The Investigation Section of the Service. in the

past, has sent notices to petitioners for citizen-

ship to appear for interviews. Once they appeared,

lengthy statements would be taken. If the aliens

requested the advise of counsel it would be denied.

The Union also had evidence that the Natural-

ization Service in other ways either failed to dis-

close an alien's right to counsel or sought to dis-

courage representatioin by counsel. If the new

procedure is followed, it should entirely eliminate

complaints about the denial of counsel.

San Bruno, Calif., Discontinues

Released Schecl Time Program

The San Bruno, Calif., Board of Education

recently voted to discontinue released school

time for religious instruction, which has been

permitted in the Fourth, Fifth, Sixth and

Seventh grades for the past four years. The

decision takes effect when school reopens in

the Fall.

The School Board rested its determination on

the recent Supreme Court decision in the Cham-

paign, Illinois, case. The San Mateo County

Superintendent of Schools, on the other hand,

took issue with the Board and said he had an

opinion from Attorney General Fred Howser

holding that the Supreme Court decision did not (c)

affect California's system of released school

time.

In announcing its decision, the Board com-

isonmeni of Parolee by Parole Officer

The prison authorities contend that where a

parolee is serving a local jail sentence, it is neces-

sary to make employment arrangements before

releasing the parolee. On the other hand, the pres-

ent practice can lead to protracted detentions of

parolees in city jails at the will of the parole

officer and without the knowledge of or authority

from the prison authorities who alone hold the

legal responsibility to revoke or suspend paroles

of prisoners. As matters stand now, the prisoner

doesn't know when he is going to be released, and

the local communities are charged with the care

of such prisoners. In the particular case, the pris-

oner claims the parole officer called the colored

girls "Niggers", and that she was told she was

being held to make her a better parolee. Miss Sulli-

van denied these charges. Two weeks after she was

finally released, the parolee got her own job.

A proposed regulation is now being considered

under which, in proper cases, a State parole offi-

cer, upon an Order by the proper prison authori-

ties, could hold a parolee serving a local jail sen-

tence no longer than 30 days after the expiration

of the sentence, in order to allow employment

arrangements to be made.

No agreement was reached on the question of a

parole officer's disciplinary powers. While it was

more or less agreed that a parole officer has no

disciplinary powers, the State representatives

were not prepared to admit that the parole officer

acted unreasonably when she locked the prisoner

in the office.

New Draft Laws Fail to

Protect Rights of CO's

The draft law which finally became law last

month contains provisions for the conscripting of

men 19 through 25 years of age for a period of

21 months, a "voluntary" UMT program for 18-

year-olds which exempts them from the 21 month

draft when they become 19, exemptions and de-

ferments modeled on the war-time Selective Serv-

ice Act, and the handling of conscientious objec-

tors much as they were treated during the war. .

Prior to its passage the ACLU, while condemn- 7

ing the proposed bill on general principle, urged

the inclusion of adequate provisions for the rights

of conscience and guarantees against racial dis-

crimination and segregation. Citing defects in the

1940 draft act which sent 6,000 men to prison, the

Union requested that all forms of conscientious

objection be recognized, not only religious. De-

manding total exemption for those opposed to both

military and civilian service, the ACLU also asked

for special boards to pass on conscientious objec-

tors and for civilian control of objectors rendering

civilian service.

ACLU Board chairman John Haynes Holmes

urged that Jim Crow practices be eliminated com-

pletely in all branches of the armed services. While

anti-discrimination amendments were proposed

during debate in the Senate and House, the bill as

finally adopted makes no mention of changing

current segregation policies.

ACLU Brief Asks Franchise

For Arizona Indians

Pressing the fight for the right of American

Indians to vote, the ACLU on June 9th joined with

the National Congress of American Indians in

filing a brief in the Arizona Supreme Court charg-

ing that denial of the franchise to Indians violates

the Fifteenth Amendment, which forbids voting

restrictions based on race. The case grew out of a

suit instituted by two Arizona Indians, Frank

Harrison and Harry Austin, who had been pre-

vented from voting in their home state. Serving

as their counsel is Rep. Richard F. Harless (Dem.,

Ariz.)

The Union's brief held invalid the claim that

Indians are not eligible to vote because of pro-

visions in the state constitution denying the fran-

chise to persons "under guardianship of the fed-

eral government." It pointed out that all Indians

have been citizens since 1924 and as such, subject

to all the rights and obligations of citizenship,

including compulsory military service in war-time.

The Union noted that the Supreme Court has con-

sistently struck down racially discriminatory elec-

tion laws.

plained that releasing a portion of the pupils

disrupted classroom work. Only 150 of the 1500

students took part in the program. Next Fall

students will be dismissed early one day a week

to allow them to attend church schools, if they

wish.

AMERICAN CIVIL LIBERTIES UNION-NEWS

Page 3

Immigration Service Moves to

End Protracted Detentions

The United States Immigration and Naturaliza-

tion Service has finally taken measures to end the |

protracted detentions of Chinese and others seek-

ing entry into this country. The San Francisco

office last month informed the Union it had re-

ceived authority from its Central Office to release

applicants for admission under bond after hear-

ings have been completed, ``where that action is

necessary to alleviate the detention problem."

That still leaves a lot to be desired, since the local

Service has not gained a reputation for being in-

fluenced by the humanitarian aspects of its re-

sponsibilities.

Relaxation of the detention regulations resulted

from the case of 41-year-old Wong Loy, who, on

June 1, perched herself on the wind swept four-

teenth floor parapet of the Appraisers Building

in San Francisco for almost four hours while she

threatened to jump if anyone interfered with her.

She was finally dragged to safety and released on

parole pending a final decision in her case.

Wong Loy had arrived in the United States to

join her alleged husband, Gin Hop Lok of Aber-

deen, Washington. The local Immigration Service

ruled she had failed to establish the relationship

and for 314 months kept her in the Immigration

Service `detention quarters,' which is no more

than a glorified jail. Her case is pending on appeal

to the Board of Immigration Appeals in Wash-

ington. Locked in jail and not knowing what was

going to happen to her, Wong Loy became de-

' gspondent and apparently intended suicide.

A twenty-two-year-old Chinese girl has been

held in the Immigration Service jail for fourteen

months. The Board of Immigration Appeals has

just ruled against her so the new policy will not

affect her case, although her attorneys intend to

petition the federal court for a writ of habeas

corpus.

The Immigration Service believes the new regu-

lations "should alleviate the problem insofar as

length of detention is concerned, since the major

part of the problem has grown out of the time

necessarily consumed in disposing of appeals to

the Central Office and the Board of Immigration

Appeals in the cases of applicants who have been

excluded by Board of Special Inquiry."

Incidentally, while the alien is detained, the

shipping company pays the Government $3 a day

for the alien's care.

High Court Upholds Thomas

Comm. Contempt Convictions

By refusing to review the convictions for con-

tempt of Congress of Dr. Edward Barsky and ten

members of the Joint Anti-Fascist Refugee Com-

mittee the Supreme Court on June 14th in effect

refused to rule on the constitutionality of the

Thomas Committee authority as challenged by the

ACLU in a brief filed early in June. The Union

contended that the resolution creating the Con-

gressional committee is invalid by assigning to it a

field of opinion in which Congress is barred by the

constitution from legislating.

Barsky faces a prison term of six months, his

ten associates three months each. All were fined

also $500 each when convicted by the U. S. District

Court in Washington for withholding books and

records subpoenaed by the House Committee on

Un-American Activities.

Still concerned solely with the constitutionality

of the Thomas Committee's mandate, the ACLU

will take part in the Supreme Court appeals of the

Hollywood writers, John Howard Lawson and

Dalton Trumbo, also convicted of contempt of the

Thomas Committee. Trials of eight other Holly-

wood men have been postponed until the Trumbo-

Lawson appeals have been decided.

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Japanese

Alien Japanese may own or lease commercial

property in California. That is the effect of the

unanimous decision of the California Supreme

Court in the important Stockton Theatres case

that went almost unnoticed in the public press.

At the same time, a majority of the Court re-

fused to reconsider the question of the constitu-

tionality of the Alien Land Law.

Under the decision of the trial court in this

case, alien Japanese would have been excluded

from this State, because the court declared that

the abrogation of the Treaty of Trade and Com-

merce between Japan and the United States in

1940 ended the right of alien Japanese to own,

use or enjoy commercial and residential pro-

perty, and, of course, it was always held that

they were barred from holding agricultural pro-

perty under California's Alien Land Law. That

law provides that alien Japanese may own, use

or enjoy real property in California only as

provided by the Treaty. The Treaty allowed alien

Japanese to own commercial and residential pro-

perty but not agricultural property. Therefore,

since the Treaty was no longer in operation, the

Alien Land Law barred alien Japanese from

owning, using or enjoying any real property.

-The District Court of Appeal in Sacramento,

however, reversed the decision of the lower court

and held that the Alien Land Law incorporated

provisions of the Treaty of Trade and Commerce

as they existed on April 5, 1911, and the abroga-

tion of the Treaty had no effect on the opera-

tion of the Act. An appeal was then taken to

the State Supreme Court.

That court adopted the opinion of the district

court. It also decided that California's use of the

Treaty did not interfere with the exclusive

treaty making power of the federal government.

Finally, the Court refused to reconsider the

alifornia Supreme Couri Rules That Alien

May Hold Commercial Property

question of the constitutionality of the Alien

Land Law. Since the case could be disposed of

on other grounds, the Court said it was contrary

to its policy to examine constitutional issues.

In a very brief concurring opinion, Chief

Justice Gibson agreed that it was not necessary

to face constitutional issues, but expressed his

agreement with the content of the courageous

concurring opinion of Justices Carter and Tray- |

nor. That opinion declared that in view of the

fact that the Court had passed on the constitu-

tional issue in other cases, it was proper to re-

consider the matter now. The two Justices then

went on to say that the Alien Land Law was

unconstitutional under the Fourteenth Amend-

ment to the U.S. Constitution and that their

dissenting opinion in the Takahashi Alien Jap-

anese fishing case (recently endorsed by the

U. S. Supreme Court) disposed of the issue pre-

sented here.

They pointed out that to work in one's own

business it is necessary to lease or to own real

property. But, under the Alien Land Law, an

alien may not work the way others do because

he is barred from owning agricultural property.

"The effect of such legislation," said the two

Justices, "is to impose upon the alien ineligible

to citizenship an economic status inferior to all

others earning a living in this state. Such a dis-

crimination cannot be sustained under the

Fourteenth Amendment to the Constitution of

the United States."

California's Alien Land Law still stands, but it

is not likely to withstand another legal assault.

In the meantime, however, it is not unlikely it

will be repealed by the next California Legis-

lature.

The Stockton Theatres case was handled pri-

vately by the San Francisco law firm of Freed,

Gebauer and Freed.

Alien Japanese Fishermen

- Win Right to Calif. Licenses

California may not constitutionally bar alien

Japanese from commercial fishing the U. S.

Supreme Court ruled on June 7th in a historic

decision in the Takahashi test case. California

denied commercial fishing licenses to alien Jap-

anese under a 1943 law (even though they had

been evacuated from the Pacific Coast), and to

"aliens ineligible to citizenship,' under a 1945

amendment of that law.

Justice Black's majority opinion declared that

"The Fourteenth Amendment and the laws

adopted under its authority .. . embody a general

policy that all persons lawfully in this country

shall abide `in any state' on an equality of legal

privileges with all citizens under non-discrimina-

tory laws."

The court rejected the argument that California

has a "special public interest" in commercial fish-

ing, because its citizens are the collective owners

of fish swimming in the three-mile belt. "To what-

ever extent the fish in the three-mile belt off Cali-

fornia may be `capable of ownership' by Cali-

fornia," said Justice Black. `we think that `owner-

ship' is inadequate to justify California in exclud-

ing any or all aliens who are lawful residents of

the State from making a living by fishing in the

ocean off its shores while permitting all others

to do so." .

Justices Murphy and Rutledge in a concurring

opinion condemned the statute as "one more mani-

festation of the anti-Japanese fever which has

been evident in California in varying degrees since

the turn of the century. That fever, of course, is

traceable to the refusal or the inability of certain

groups to adjust themselves economically and

socially relative to residents of Japanese ancestry."

Supreme Court Upholds Taft-Hartley

Non-Communist Affidavit

Provisions of the Taft-Hartley Act requiring

labor leaders to certify they are not Communists

before their union can make use of NLRB ma-

chinery were upheld on June 21 when the Supreme

Court declined to upset a lower-court ruling which

sustained the constitutionality of the non-Com-

munist affidavit. A special federal court in Wash-

ington held on April 13th that no union has the

right to be exclusive bargaining agent except by

grant of Congress, and that Congress decided to

condition the privilege of being such an agent with

which the employer must deal. The National Mari-

time Union brought the case. If the Supreme Court

had agreed to review, the ACLU would have filed

a brief contending that the non-Communist oath

requirement is unconstitutional.

Right to Held Street Meetings

Threatened by "Move on' Laws

The District Court of Appeal in San Francisco

on June 15 unanimously upheld the constitutional-

ity of the Emeryville `move on"' ordinance, which

is typical of ordinances in many California com-

munities aimed at preventing street meetings.

The Emeryville ordinance reads as follows:

"Whenever the free passage of any street or

sidewalk in the Town of Emeryville shall be ob-

structed by a crowd, the persons composing such

crowd shall disperse or move on when directed to

do so by a police officer. It shall be unlawful for

any person to refuse to so disperse or move on

when so directed to do so by a police officer as

herein provided."

In this case, one Wesley Bodkin, labor secre-

tary of the Communist Party of Alameda County,

"was standing on Peladeau Street, a small, lightly

traveled street in the industrial part of Emery-

ville, addressing between one hundred and one

hundred fifty workers on the Taft-Hartley Act

then pending before Congress. He was directed to

move on by a police officer and refused to do so.

The court found there had been an `obstruction'

of the street by the crowd."

Said Judge Dooling, speaking for the unanimous

Court: "It was established in this case that the

passage of some members of the public along the

street was in fact obstructed. If nobody had de-

sired to use this street at the time another ques-

tion would be presented. Whether the obstruction

merely impaired the progress of one member of

the general public, or a thousand, does not alter

the case. If one member of the public attempts to

pass along a sidewalk obstructed by a crowd, no

matter how heavy the normal traffic is or is not,

and is unable to do so, he must resort. to walking

around the obstruction into the street where he is

immediately endangered by vehicular traffic."'

Most people will agree with Judge Dooling that

a pedestrian should not be compelled to go into

the street because an assemblage blocks free pas-

sage on the sidewalk. The vice of this ordinance,

however, is that it permits the police to disperse

an assemblage even if for one moment the free

passage of a street or sidewalk is obstructed.

Instead of dispersing the assemblage, the proper

course would seem to be for the police to main-

tain a passage way for traffic and to arrest per-

sons who persist in blocking a passage way for

pedestrians.

Bodkin faces a sentence of 90 days in jail or a

fine of $180. It is expected, however, that the case

will now be taken to the California Supreme Court.

At its next meeting, the Union's Executive Com-

mittee will consider the question of filing an

amicus curiae brief challenging the constitutional-

ity of the ordinance. Bodkin is represented by

private counsel.

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.

Phone: EXbrook 2-3255

ERNEST BESIG Se ..Editor

Entered as second-class matter, July 31, 1941, at the

Post Office at San Francisco, California,

under the Act of March 8, 1879

Subscription Rates-One Dollar a Year.

Ten Cents per Copy

-151 SB

OPEN FORUM

"Release Time" Opinion Criticized

Editor: In the May issue of the ACLU-News

I read that Attorney General Fred N. Howser,

on April 21, handed down an opinion upholding

the constitutionality of Section 8286 of the Calif-

ornia Education Code permitting pupils to be

released from public school classes to attend

religious classes away from public school build-

ings.

This opinion by Attorney General Howser

clearly is contrary to the spirit if not the letter

of the U. S. Supreme Court decision of March

8 in the case of Vashti McCollum vs. the

Champaign, Illinois, Board of Education. Even

Justice Stanley F. Reed, the sole dissenter,

stated that the majority opinion of the High

Court threw doubt over any form of religious

instruction connected in any way with public

school systems. It is highly significant that in

Illinois itself the state in which Mrs. McCollum

initiated her fight to drive religious instruction

from the public school, the State Superintendent

of Public Instruction, on April 10, officially ac-

cepted the Court's decision in full by entirely

ending, both in the classroom and on released

time, religious instruction by way of the Illinois

public school system. In a five-point pronounce-

ment he said:

1. Religious education classes may not be

taught in school buildings during the time school

is in session or when the building is being used

for school purposes.

2. A school board may not release pupils from

school on condition they attend religious classes.

3. A school board may not help to provide

pupils for religious education classes in any

manner or take an active part through its ~

teachers or superintendents in the supervision

of or provision for classes in religious instruc-

tion.

4. The teaching of factual information of the

history and the tenets of religious bodies in

regular curriculum may continue.

5. School boards probably may continue to

grant the temporary use of school buildings for

religious meetings and Sunday schools if it

furnishes no funds and is required to pay no

expense in connection with the usage. ACLUN_1946 ACLUN_1946.MODS ACLUN_1946.batch ACLUN_1947 ACLUN_1947.MODS ACLUN_1947.batch ACLUN_1948 ACLUN_1948.MODS ACLUN_1948.batch ACLUN_1949 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

That last provision doubtless means that the

school buildings may be used for the purposes

designated therein provided that such use is not

made on school time.

These five points leave no doubt that Illinois

has completely put_an end to disruption of public

school classes in that state.

The religious diehards who are making a

distinction between religious instruction in the

public school classroom during school hours and

religious teaching away from the public school

buildings during school hours are making a

distinction without a difference. The crux of

the U. S. Supreme Court's momentous decision

is that it is unconstitutional to make use of the

public school system in any way to support

religious beliefs or sects. In the next to the

closing paragraph of the majority opinion,

written by Justice Black, it is written: `The

State (of Illinois) affords sectarian groups an

invaluable aid in that it helps to provide pupils

for their religious classes through the use of the

State's compulsory public school machinery.

This is not separation of Church and State."

No impartial reader of those words will have

the least doubt that the writer of those words

had in mind released time religious instruction

as well as religious instruction in the classroom

during regular school hours. In the light of the

text of the High Court's decision, and in view

of the prompt and unequivocal action of the

State of Illinois, Attorney General Howser's

opinion upholding the constitutionality of Section

8286 of the California Education Code is either

a timorous or self-interested truckling to organ-

ized religious bigotry or, less likely, to the

characteristic reaction of a mind impaired in

certain directions by religious prejudices.

I hope that the ACLU will do all it can to

prevent the would-be destroyers of the Constitu-

tional wall of separation of Church and State

from successfully defying the U. S. Supreme

Court by entering our public schools by the back

Released School Time

Voided by St. Louis Court

Acting upon a taxpayer's petition, instituted

by the St. Louis Civil Liberties Committee, Circuit

Court Judge William K. Koerner on May 25th

enjoined continuance of the released time system

in the St. Louis public schools. The Board of Edu-

cation had refused to abolish the system on advice

of its counsel. The court's decision is significant

because the St. Louis system, unlike that con-

demned by the Supreme Court in Illinois, did not

involve use of the public school buildings. The

Judge on that point said: "Our St. Louis system

as now conducted differs from the Champaign,

Ill. system in that classes in religious instruction

are not held in school buildings, school authorities

neither exercise supervision over the teachers nor

require them to keep attendance records and the

school keeps none, and there is no limitation on

sects entitled to participate in this program.

"These differences are inconsequential. The con-

trolling fact in both cases is that the public. schools

are used to aid sectarian groups to disseminate

their doctrines. Whether these sectarian classes -

are conducted. in the school buildings or elsewhere

can make no difference, since attendance upon

them during compulsory school hours is deemed

attendance at school, Failure to exercise super-

vision over the instructor of religion and to require

the keeping of proper attendance records does not

make the school program legal; it merely indicates

laxity on the part of the school authorities. The

fact that any sect may participate in this program

is immaterial; the public schools can not be used

to aid one religion or to aid all religions."

The Civil Liberties Union has queried all state

departments of education as to their position on

released time in view of the Supreme Court de-

cision, the order of -the Illinois superintendent of

schools in outlawing all forms of it, and the St.

Louis decision. Suit has been brought in New

York state against the system by the Freethinkers

of America. Further suits are being prepared

jointly under the auspices of the ACLU, the

United Parents Association and the American

Jewish Congress.

"Police Blockades' Banned By

So. Calif. Appellate Court

In a far-reaching decision affecting "lawless"

- law enforcement, the California District Court of

Appeals recently ruled that "police blockades" are

illegal. The case was instituted by the Southern

California Branch of the ACLU as a taxpayer's

suit to enjoin the city of Los Angeles from spend-

ing public funds to conduct `police blockades'

in hunts for alleged criminals. Police made a prac-

tice of "blocking off areas of the city of Los

Angeles and stopping all persons and automobiles

entering or leaving such areas and searching them

without first obtaining search warrants."

Amendment IV of the Constitution of the United |

States provides: "The right of the people to be

secure in their persons, houses, papers, and effects,

against unreasonable searches and seizures, shall

not be violated, and no warrants shall issue, but

upon probable cause, supported by oath or affir-

mation, and particularly describing the place to

be searched, and the persons or things to be

seized." Applying this Amendment, the court

unanimously reaffirmed the U. S. Supreme Court

decision in the case of Carroll vs. U. S., holding,

that `Persons lawfully within the U. S. of America

are entitled to use the public highways and have a

right to free passage thereon without interruption

or search, unless a public officer authorized to

search knows of probable cause for believing that

the vehicle is carrying contraband, or that the

occupants have violated some law."

In San Francisco a few months ago the police

inconvenienced automobile drivers by setting up

"blockades." The purpose of these blockades was

to inspect automobiles to determine whether their

brakes, lights, horns, etc., met the requirements

of the Vehicle Code. No doubt the State could

require inspection, but it would have to be con-.

ducted in a reasonable manner. Certainly, police

are not justified in stopping and detaining motor-

ists while they ascertain whether there has-been

a violation of the Vehicle Code.

door of released time and giving the pupils

religious instruction. Not to do this would be a

grave mistake.

Yours for democracy

Robert H. Scott

ACLUN_1946 ACLUN_1946.MODS ACLUN_1946.batch ACLUN_1947 ACLUN_1947.MODS ACLUN_1947.batch ACLUN_1948 ACLUN_1948.MODS ACLUN_1948.batch ACLUN_1949 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 Editor's Note: The use of school buildings

for religious meetings and Sunday School may

be permissible under Illinois law, but California's

Constitution forbids any aid, direct or indirect,

to sectarian and denominational groups.

Lease of Public Property by

Church for $1 a Year Scored

The ACLU of Northern California is presently

investigating the action of the Housing Authority

of the City and County and San Francisco in leas-

ing property at the Hunters Point project for

religious purposes. The lease was signed for a

period of five years at only $1 a year, and the

property is now being used for church purposes.

The Union pointed out to the Authority that

under the State Constitution "Neither the legis-

lature, nor any county, city, ... or other munici-

pal corporation shall ever ... grant anything to

or in aid of any religious sect, church, creed, or

sectarian purpose . ...; nor shall any grant, or

donation of personal property or real estate ever

be made by the State, etc." The Union also con-

tended that the lease was in violation of the First

Amendment to the U. S. Constitution, providing |

for separation of Church and State. Under a recent

Supreme Court decision, that section was inter-

preted to mean that "Neither a state nor the

Federal Government can set up a church. Neither

can pass laws which aid one religion, aid all re-

ligions, or prefer one religion over another."

In answer to the Union's complaint, John W.

Beard, Executive Director of the Authority

pointed to the fact that a House Sub-Committee

had recently approved a bill to allow the govern-

ment to lease space in a San Francisco federal

office building to the Temple Methodist Church

for a term of ninety-nine years. Mr. Beard failed

to mention, however, that that lease was at the

market value of the property, whereas the lease

in the present case at a $1 a year is really a

donation.

The Union is also inquiring into the refusal of

the Housing Authority to allow tenants to use

auditoriums or meeting places for the discussion

of public questions. Mr. Beard has answered that

"where space is available a policy is maintained

that its use is for social, recreational and educa-

tional activities."

Taft-Hartley `No Politics' Ban

Upset in Partial ClO Victory

In a partial victory for the CIO and the ACLU

position in the case, the Supreme Court in a unani-

mous decision June 21st dismissed the indictment

of the CIO for spending money for political pur-

poses, but refused to rule on the constitutionality

of the Taft-Hartley Act section under which the

prosecution was started. The action was brought

by the government against the CIO for having

published in the CIO News a statement by Philip

Murray endorsing a Maryland candidate for Con-

gress.

"We are unwilling," wrote Justice Reed for the

court, "to say that Congress by its prohibition

against corporations or labor organizations mak-

ing an expenditure in connection with any elec-

tion for Federal office intended to outlaw such a

publication. .. . We express no opinion as to the

. . constitutionality of the section" outlawing

such political expenditure.

In support of Philip Murray and the CIO, the

ACLU in April filed a brief stating that while the

ACLU opposes "special assessments on individual

members for political purposes they do not sup-

port," such opposition "does not justify denying

to a majority of union members the right to use

general union funds for such a purpose."

UN Commission Approves

Human Rights Declaration

By twelve votes to none the UN Commission on

Human Rights approved on June 1 at Lake Suc-

cess a draft declaration of human rights that is

intended to serve as a standard of minimum free-

doms for all people. Four nations abstained from

voting: the USSR, Byelorussia, the Urkraine and

Yugoslavia. The Soviet Union also denounced the

declaration as ``an unsatisfactory document which

can insure neither human rights nor respect for

human rights."

Among the rights covered are those specifying

equality before the law. freedom from arbitrary

arrest or detention, freedom of movement and resi-

dence, including the right to leave any country, the ~

right to own property, and the right of every one

"of access of public employment in his country."

The Human Rights Declaration has been re-

ferred to the UN Economic and Social Council

which will discuss and perhaps amend it. If ap-

proved, the draft will go to the UN General Assem-

bly, probably in time for the Paris meeting in

September, for final UN adoption. It will then be

put up to individual UN members for their signa-

ture. Since it is a declaration and not a covenant,

formal ratification by the signatory states will be

unnecessary.