vol. 14, no. 6

American

~ Civil Liberties oo,

Union-News

"

Free Press

Free Speech

Free Assemblage

"Eternal vigilance is the price of liberty."

Vol. XIV

SAN FRANCISCO, JUNE, 1949

No. 6

U.S. Supreme Court Upholds

Free Speech Arousing Anger

By a five to four decision, the Supreme Court

on May 16th reversed the conviction in Chicago

in 1946 of Rev. Arthur W. Terminiello, a Roman

Catholic priest and follower of Gerald L. K. Smith,

for causing a breach of the peace at a public

meeting. The Civil Liberties Union supported the

contentions of Father Terminiello through a brief

prepared by Francis Heisler, William E. Rodri-

guez and Charles Liebman of the Illinois Bar and

Osmond K. Fraenkel of the New York Bar.

The court held in effect `that speakers cannot

be held responsible for what their opponents do.

Father Terminiello addressed a public meeting in

a private hall, outside of which hundreds of op-

ponents staged a noisy demonstration. There was

no disturbance inside the hall. Fifteen of the

demonstrators were arrested and promptly dis-

charged by a sympathetic judge. Father Termi-

niello was later arrested on complaint of Ira

Latimer, secretary of the Chicago Civil Liberties

Committee, charged with disturbing the peace.

The Chicago Civil Liberties Committee has no

connection with the Civil Liberties Union. Its po-

licy then was to oppose free speech for "Fascists."

Father Terminiello was convicted. The Illinois

Supreme Court sustained the conviction on the

ground that he was responsible for the disturb-

"ances. The Chicago Division of the ACLU, which

had condemned the prosecution, then entered the

case on appeal to the U.S. Supreme Court.

The controversy over the Illinois decision divid-

ed supporters of civil liberties, as it did the Sup-

reme Court. The American Jewish Congress filed

a brief in the Supreme Court maintaining that

provocative anti-Semitic utterances justify re-

straint. Its brief rested on a previous decision of

the Supreme Court sustaining the conviction of a

Jehovah's Witness in New Hampshire for using

intemperate language to a policeman in a public

place. The court did not get around to considering

that issue, reversing on grounds of the judge's

faulty instructions to the jury.

A number of opinions were written which, on

the whole, according to ACLU lawyers, will tend

to clear up controversy over the limits of free

speech by restraining prosecutions for speech

with "bad tendencies."

Justice William O. Douglas who delivered the

opinion of the majority said "A functiorf of free

speech under our system is to invite dispute. It

may serve its high purpose when it induces a con-

dition of unrest, creates dissatisfaction with con-

ditions as they are, or even stirs people to anger."

Justice Robert H. Jackson represented the mi-

nority saying that the ruling "substituted a

dogma of absolute freedom for irresponsible and

provocative utterance which almost completely

sterilizes the power of local authorities to keep

the peace as against this kind of tactics."

eee oe

U.S. Supreme Court to Review

Richmond Picketing Case

The U. S. Supreme Court last month agreed to

review a decision of the California Supreme Court

upholding an injunction restraining picketing to

_ secure proportional employment of Negroes.

_ The case arose when John Hughes and others

persisted in picketing the Lucky Stores in Rich-

mond despite an injunction issued by the Super-

ior Court and were held in contempt, fined and

given a jail sentence. Their signs read: "Don't

patronize Lucky Stores. Lucky won't hire Negro

workers in proportion to Negro trade.' The

pieneuing was peaceful and the statements truth-

ul.

The Union filed a brief in the State Supreme

Court contending that `"Picketing to inform the

public regarding matters of public concern is a

form of free speech ... ,"' which may not be

abridged.

Six Modified Tenney Red-Hunting

Bills Adopted

By State Senate Face Assembly Action

Six Tenney red-hunting bills, all modified since

their introduction, are pending in the State As-

sembly after favorable action by the California

Senate. Four of the measures are scheduled for

a vote in the Assembly on May 27 (too late to

be reported in this issue of the `"News'", which

goes to press early because of the Memorial Day

week-end), while the remaining two measures

are still awaiting committee action. A seventh

bill, S.B. 516, was defeated in the Assembly In-

dustrial Relations Committee, but Mr. Tenney

has threatened to move the Assembly to with-

draw the bill from committee.

"The "loyalty oath" bills follow a common pat-

tern. S.B. 280, for example, which provides for

loyalty oaths and checks of public employees,

has a four-part oath. The first part is substantial-

ly the same as the present federal oath of office

to support and defend the Constitution, to which

there is no objection. The second part requires

the employee to swear that he is not now a mem-

ber of "any political party or organization

pledged to support a foreign power against the

United States in event of hostilities,' and that

he does not advocate or belong to a group advo-

cating the violent overthrow of the government,

"except those specified." He must also swear

that he won't join such groups while he is a

public employee.

The third part of the oath is supposed to ferret

out Communists who belong to the party under

an assumed name by requiring the employee to

swear he has not been known by any other names

than those listed. The fourth and final part of

the oath requires the employee to check off any

organizations to which he presently belongs that

are on the subversive list of the Attorney Gen-

eral and congressional committees. The oaths

must be taken every 13 months and any person

who files an untrue affidavit is guilty of a felony.

The second bill before the Assembly is S.B. 132,

a loyalty oath for candidates for public office.

The candidate is required to swear that he will

support and defend our Constitution, and that

he is not now a member of a group pledged to

support a foreign power in the event of hostili-

ties with the U.S., and that he does not advocate

or belong to a group advocating the violent over-

throw of the government.

The third bill has been substantially amended

since its introduction. In its present form, it

permits employers engaged in work on defense

contracts to discharge or refuse to hire alleged

subversives. In order to determine whether

workers are subversive, the employer is empow-

ered to give them Mr. Tenney's four-part loyalty

oath. It is bad enough to give such powers to

the government, but to give them to employers

can only lead to much mischief.

The fourth bill that is ready for Assembly

debate is S.C.A. 14. It has now been amended

so that it is no longer objectionable. Originally,

it required the same oath of public officers that

Tenney would give to candidates. As it stands

now, it contains merely part one of Tenney's

loyalty formula, which is nothing more than the

federal oath of office.

Still pending in Assembly committees are two

highly controversial Tenney bills which are meet-

ing considerable opposition. The first of these

is S.B. 298, providing for a loyalty oath for at-

torneys. The present bill is a far cry from the

one originally introduced by Mr. Tenney which

established a loyalty proceeding to bar alleged

subversive lawyers from the practice of law. The

present bill is substantially the same as the one

requiring loyalty oaths of public employees with

its four-part oath, outlined above. -

The sixth Tenney bill, S.B. 130, also pending

in an Assembly committee, would prohibit the

teaching of Communism, Nazism and Fascism

with intent to indoctrinate any pupil with or in-

culcate a preference in the mind of any pupil for

any such system or plan. The Legislative Coun-

sel handed down an opinion that the proposal

was unconstitutional because as a penal statute

it was vague and indefinite. Mr. Tenney there-

upon undertook to define his terms and the bill

was adopted by the Senate by a 27-4 vote. The

measure now piously declares that it is not in-

tended to prevent the teaching of facts but mere-

ly to prevent indoctrination and advocation. Ob-

viously, teachers of history, economics and social

studies will teach about Communism, Nazism

and Fascism at their peril if this bill is adopted.

One measure that ought to be classed with the

threatening Tenney legislation is S.B. 1326, in- |

troduced by Sen. Dilworth, a member of the

Tenney Committee. This bill has the support of

the State Department of Education and provides

for the fingerprinting of all school teachers. It

has already been adopted by the State Senate

and is now pending in the Assembly Education

Committee.

Action on another Tenney bill, S.B. 1371, has

thus far been limited to the State Senate. That

bill provides for the fingerprinting of all public

employees. It-is now resting in the Senate Fi-

nance Committee after being approved by the .

Committee on Governmental Efficiency and

Economy. :

There are nine more Tenney bills and resolu-

tions, but thus far none have been acted upon

in any way. At least one of these inactive meas-

ures seems certain to be adopted by the State

Senate. It provides for the continuation of the

Tenney Committee (a Senate group) for another

two-year period at an expense of $150,000 to

the taxpayers. However, the Senate is likely to

make a substantial cut in the appropriation for

the Committee.

Members of the A.C.L.U. are urged to ask

their Assemblymen to vote against the Tenney

bills. There is no necessity for this legislation.

Sen. Tenney says his purpose in introducing the

loyalty bills is to keep Communists out of the

State government, but we venture to say the bills

cannot accomplish their purpose because Com-

munists won't hesitate to take the required oath.

All the bills succeed in doing is in creating fear

of Communism and in whipping up a "Red"

hysteria. We cannot preserve our form of gov-

ernment by using the suppressive devices of

totalitarianism.

eee ge

Fed. Courts Will Review Army

Detentions in Occupied Lands

Nationals. confined in occupied countries in

custody of the U.S. Army on judgment by the

US. authorities may appeal by habeas corpus in

the appropriate Federal District Court according

to a recent decision by the Circuit Court of Ap-

peals for the District of Columbia. The case arose

when five Germans sentenced by U.S. military

courts appealed to the D. C. court through Amer-

ican counsel.

The court said: "Any person who is deprived of

his liberty by officials of the United States, acting

under purported authority of that government, |

and who can show that his confinement is in viola-

tion of a prohibition of the constitution, has a

right to the writ."

ACLU staff counsel, Herbert M. Levy, said

that this decision "gives any person, regardless of

nationality or location, the right to the writ of

habeas corpus if he is so deprived of his liberty. It

will apply equally in occupied areas for U.S. per-

sonnel and natives."

Page 2

AMERICAN CIVIL LIBERTIES UNION-NEWS

ACLU Defends Six Trenton

- Youths Sentenced fo Die

In behalf of six Trenton, N. J., youths sen-

tenced to die for murder, the ACLU recently filed

a brief as friend of the court in the Supreme Court

of New Jersey. The men are under sentence for

the murder of a second-hand furniture dealer dur-

ing a robbery in his shop last year.

The ACLU brief contends that the defendants'

constitutional rights were violated because con-

fessions used against them were illegally obtain-

_ ed. It claims that confessions, later repudiated,

were forced from the men by police during five

days of questioning without their being taken

before a judge. The ACLU also contends that the

defense was denied its right to examine the mur-

der weapon, a bottle, for finger prints. ~

The ACLU took no part in the 55-day trial last

year in Trenton, said to be the longest and most

_ expensive in New Jersey history. It has entered

the appeal independently of the defense agency

handling it as the "Northern Scottsboro case." -

Although the men are Negroes, there is no evi-

dence of racial discrimination in the record, ac-

_ cording to ACLU attorneys.

Despite testimony that there were only three

men involved in the killing, six were condemned to

die. They are Collis English, McKinley Forrest,

_ James Thorpe, Ralph Cooper, Horace Wilson and

John McKenzie. Rot

"It is undeniable that the confessions were ob-

tained after the defendants had been incarcerated

for many days without independent aid or counsel

and in an atmosphere of hostility and repression,"

the ACLU brief declares. It charges that the men

were questioned in the presence of a large num-

ber of police officials, "all bent on vindicating the

honor of their department in solving a crime

which had been given tremendous publicity."

aoe.

U.S. Court Bars Convict's

Return to Chain Gang

Leon Johnson, a Negro steel worker who has

been held six years in jail in Pittsburgh as a

fugitive from a Georgia chain gang, will go free

without being returned to Georgia, as a result of

a decision on May 18 by the U. S. Circuit Court

of Appeals at Philadelphia. His appeal was

handled by the Pittsburgh Committee of the Civil,

Liberties Union, which fought the issue through

the state and lower federal courts. The appellate

court reversed the decisions of the lower courts

which upheld Georgia's demand for extradition.

The court, in a five to one decision, said "that

a state cannot extradite prisoners it has treated

cruelly and inhumanly."

Johnson was serving a life sentence for the

murder of his wife when he escaped in 1943 in a

jail-break. He was arrested in Pittsburgh and

held for Georgia authorities. The Pittsburgh

civil liberties group took up the case not only on

grounds of the "cruel and inhuman treatment" of

prisoners in Georgia, but on evidence that the

conviction had been obtained by coercion of wit-

- nesses.

`It seems unlikely that Georgia will appeal to

the Supreme Court. The decision will thus stand

as law against extraditions to states practising

"atrocities" only in the area covered by the third

circuit-Pennsylvania, New Jersey, Delaware and

the Virgin Islands.

Ku Klux Klan Unmasked

By Atlanta Ordinance

Wearing of masks was banned May 2 by the

city council of Atlanta, Ga., home of the Ku Klux

Klan, by a vote of 17-0. A person wearing a mask

in public, except on festive occasions such as

Hallowe'en, may be fined $200 and sentenced to

30 days in jail.

Councilman Archie Lindsey said that prior to

the meeting, a piece of plywood shaped like a Klan

hood bearing the initials K.K.K. and a cross had

been placed on his doorstep. He also said that he

had received an anonymous telephone warning,

"for your sake and safety, the Klan must not be

unmasked." Mr. Lindsey told the Council, "There

is no place in this country for such an organiza-

tion. In the name of public decency we should

approve this ordinance."

Last month the Association of Georgia Klans

Se

and. the Original Southern Klans were placed on a.

"subversive" list made public by the United

States Civil Service Commission.

MOVING?

Around this time of the year and again in

the fall, we have difficulty keeping track of

many of our members, especially students and

teachers. If you are changing your address for

the summer, PLEASE notify the Union of

| your change of address.

Majority Opinion of U.S. Supreme Court in

The Father Terminiello

Mr. Justice Douglas delivered the opinion of the

Court.

Petitioner after jury trial was found guilty of

disorderly conduct in violation of a city ordinance

of Chicago' and fined. The case grew out of an ad-

dress he delivered in an auditorium in Chicago

under the auspices of the Christian Veterans of

America. The meeting commanded considerable

public attention. The auditorium was filled to ca-

pacity with over eight hundred persons present.

Others were turned away. Outside of the audi-

torium a crowd of about one thousand persons

gathered to protest against the meeting. A cordon

of policemen was assigned to the meeting to main-

tain order; but they were not able to prevent sev-

eral disturbances. The crowd outside was angry

and turbulent.

Petitioner in his speech condemned the conduct

of the crowd outside and vigorously, if not vicious-.

ly, criticized various political and racial groups

whose activities he denounced as inimical to the

nation's welfare.

The trial court charged that "breach of the

peace" consists of any "misbehavior which vio-

lates the public peace and decorum"; and that the

"misbehavior may constitute a breach of the peace

if it stirs the public to anger, invites dispute,

brings about a condition of unrest, or creates a

disturbance, or if it molests the inhabitants in the

enjoyment of peace and quiet by arousing alarm."

Petitioner did not take exception to that instruc-

tion. But he maintained at all times that the ordi-

nance as applied to his conduct violated his right

of free speech under the Federal Constitution. The

judgment of conviction was affirmed by the Illi-

nois Appellate Court (332 Ill. App. 17, 74 N.E. 2d

45) and by the Illinois Supreme Court. 396 IIl. 41,

71 N.E. 2d 2, 400 Ill. 23, 79 N.E. 2d 39. The case is

here on a petition for certiorari which we granted .

because of the importance of the question pre-

sented.

The argument here has been focused on the

issue of whether the content of petitioner's

_ speech was composed of derisive, fighting words,

which carried it outside the scope of the constitu-

tional guarantees. See Chaplinsky v. New Ham-

shire, 315 U.S. 568; Cantwell v. Connecticut, 310

U.S. 296, 310. We do not reach that question, for

there is a preliminary question that is dispositive

of the case.

As we have noted, the statutory words "breach

of the peace" were defined in instructions to the

jury to include speech which "stirs the public to

anger, invites dispute, brings about a condition of

unrest, or creates a disturbance. ...' That con-

struction of the ordinance is a ruling on a question

of state law that is as binding on us as though

the precise words had been written into the or-

dinance. See Hebert v. Louisiana, 272 U.S. 312,

317; Winters v. New York, 333 U.S. 507, 514.

0x2122 The vitality of civil and political institutions in

our society depends on free discussion. As Chief

Justice Hughes wrote in De Jonge v. Oregon, 299

U.S. 353, 365, it is only through free debate and

free exchange of ideas that government remains

responsive to the will of the people and peaceful

change is effected. The right to speak freely and

to promote diversity of ideas and programs is

therefore one of the chief distinctions that sets us

apart from totalitarian regimes.

Accordingly a function of free speech under our

system of government is to invite dispute. It may

indeed best serve its high purpose when it induces

a condition of unrest, creates dissatisfaction with

conditions as they are, or even stirs people to

anger. Speech is often provocative and challeng-

ing. It may strike at prejudices and preconcep-

tions and have profound unsettling effects as it

presses for acceptance of an idea. That is why

freedom of speech, though not absolute, Chap-

linsky v. New Hampshire, supra, pp. 571-572, is

nevertheless protected against censorship or pun-

ishment, unless shown likely to produce a clear

and present danger of a serious substantive evil

that rises far above public inconvenience, annoy-

ance, or unrest. See Bridges v. California, 314 U.

S. 367, 373. There is no room under our Constitu-

tion for a more restrictive view. For the alterna-

tive would lead to standardization of ideas either

by legislatures, courts or dominant political or

community groups.

_ The ordinance as construed by the trial court

`"All persons who shall make, aid, countenance, or

assist in making any improper noise, riot, disturbance,

breach of the peace, or diversion tending to a breach

of the peace, within the limits of the city . . .shall be

severally fined not less than one dollar nor more than

two hundred dollars for each offense." Sec. 1 (1), ch.

193, Rev. Code 1939, City of Chicago.

Free Speech Case

seriously invaded this province. It permitted con-

viction of petitioner if his speech stirred pedple to

anger, invited public dispute, or brought about a

condition of unrest. A conviction resting on any

of those grounds may not stand.

The fact that petitioner took no exception to

the instruction is immaterial. No exception to the

instructions was taken in Stromberg v. California,

283 U.S. 359. But a judgment of conviction based -

on a general verdict under a state statute was set

aside in that case, because one part of the statute

was unconstitutional. The statute had been chal-

lenged as unconstitutional and the instruction was

framed in its language. The Court held that the

attack on the statute as a whole was equally an

attack on each of its individual parts. Since the (c)

verdict was a general one and did not specify the

ground upon which it rested, it could not be

sustained. For one part of the statute was uncon-

stitutional and it could not be determined that the

defendant was not convicted under that part.

The principle of that case controls this one. As

we have said, the gloss which Illinois placed on

the ordinance gives it a meaning and application

which are conclusive on us. We need not consider

whether as construed it is defective in its entirety.

As construed and applied it at least contains parts

that are unconstitutional. The verdict was a gen-

eral one; and we do not know on this record but

what it may rest on the invalid clauses.

The statute as construed in the charge to the

jury was passed on by the Illinois courts and sus-

tained by them over the objection that as so read

it violated the Fourteenth Amendment. The fact

that the parties did not dispute its construction

makes the adjudication no less ripe for our review,

as the Stromberg decision indicates. We can only

take the statute as the state courts read it. From

our point of view it is immaterial whether the

state law question as to its meaning was contro-

verted or accepted. The pinch of the statute is in

its application. It is that question which the peti-

tioner has brought here. To say therefore that

the question of this phase of the case is whether

the trial judge gave a wrong charge is wholly to

misconceive the issue. _

But it is said that throughout the appellate pro-

ceedings the Illinois courts assumed that the only

conduct punishable and punished under the ordi-

nance was conduct constituting "fighting words."

That emphasizes, however, the importance of the

Stromberg case. Petitioner was not convicted

under a statute so narrowly construed. For all

anyone knows he was convicted under the parts of

the ordinance (as construed) which, for example,

makes it an offense merely to invite dispute or to

bring about a condition of unrest. We cannot

avoid that issue by saying that all Illinois did was

to measure petitioner's conduct, not the ordinance,

against the Constitution. Petitioner raised both

points-that his speech was protected by the Con-

stitution; that the inclusion of his speech within -

the ordinance was a violation of the Constitution.

We would, therefore, strain at technicalities to

conclude that the constitutionality of the ordi-

nance as construed and applied to petitioner was

not before the Illinois court. The record makes

clear that petitioner at all times challenged the

constitutionality of the ordinance as construed -

and applied to him. ;

ge

Richmond, Calif., Adopts

FEP Ordinance

The city of Richmond, Calif., last month

adopted a FEP ordinance which forbids discrim-

ination on the part of the city government in em-

ployment because of "race, color, creed, national (c)

origin or ancestry." The ordinance also prohibits

such discrimination in the hiring of employees by

contractors working for the city. Finally, it also

makes it unlawful for the city to seek information

from job applicants as to their race, color, creed,

national origin or ancestry.

Violations of the law are punishable by a $500 |

fine or six months in jail.

o .

FILM NOTE

"The Home of the Brave," a feature film re-

leased by United Artists last month, is a gripping

story of race prejudice in a little group of army

men engaged in a dangerous war mission in the

South Pacific. Without any effort at propa-

ganda, the story unfolds the tragedy of race dis- .

crimination in more effective form than any film

yet presented. Its wide distribution should be

encouraged. The film is scheduled to open at the

United Artists Theatre in San Francisco about

June 15. a

$

AMERICAN CIVIL LIBERTIES UNION-NEWS

Aid Pacifists Who Advised

cent

Draftees Not to Register

A father and a teacher convicted for having

"knowingly aided or abetted another to refuse or

evade registration or service in the armed forces,"

will be aided by ACLU in appeals to the U. S.

Circuit Court of Appeals.

The father, Dr. Wirt A. Warren of Philadel-

_phia, was convicted for advising his stepson not

to register for the draft. The boy registered. Dr.

Warren gave the boy this counsel because of re-

ligious pacifist views and a desire to challenge the

`Selective Service Act. Dr. Warren wrote the At-

torney General telling what he had done and was

' thereupon prosecuted. ;

Although the ACLU has refrained from de-

fending persons advising specific non-registration,

the case is exceptional because at the time the

advice was given there was no duty to register,

and no refusal later..

The teacher's case aided by the ACLU involves

Larry Gara, dean of men at a Mennonite college,

who was given a prison sentence of 18 months last

month by a federal district court in Toledo, Ohio,

for advising Charles Rickert, a senior studying

for the ministry, to `stand by his principles" in

refusing to register for the draft. Rickert, later

convicted and imprisoned, notified his draft board

of his refusal to register three months before he

met Gara. .

Gara was sentenced for having "aided and

abetted'? Rickert's violation in telling Rickert to

_ be true to his own conscience, on the theory that

registration is a ues obligation.

ACLU Backs Father's

Claim to His Children

The "natural right of a father" to preserve his

family was upheld May 20 by the ACLU in an

appeal to the New York State Court of Appeals

to have three children of Hamportzoon Choolo-

kian released from Roman Catholic institutions

and restored to him in Soviet Armenia.

A brief signed by Raymond L. Wise and Mar-

garet K. Udell, ACLU attorneys, was filed with

the court, contending that `"`the family is the na-

tural and fundamental group unit of society and

is entitled to protection by society and the state."

Choolokian placed his six children in institu-

tions in 1942 when his wife was hospitalized. Four

years later the three oldest children were re-

leased when Choolokian renounced his U. S. na-

turalized citizenship to return to his native Ar-

_ menia. The younger three were retained.

Choolokian, his wife and three elder children

_ sailed, retaining counsel to appeal for the return

of the three remaining children. The lower courts

denied relief. The Appellate Division of the N. Y..

Supreme Court ruled that the three young Choo-.

lokians would fare better in the New York insti-

tutions than with their parents in Soviet Armenia.

The ACLU brief contends that Choolokian was

deprived of his "natural, inherent and legal right

to maintain the integrity of his family, to change

the place of his abode which includes expatria-

tion, and his freedom of religious worship which

includes the right to determine the religion of his

minor children."

(R)@

Brief Upholds Comment on

Criminal Cases Before Trial

Freedom of speech and press to publicize news

in criminal cases before trial was upheld by the

ACLU in a brief filed May 10 in the Maryland

Court of Appeals urging reversal of a decision of

the Baltimore city court holding three Baltimore

ee stations in contempt for violating a court

rule.

The stations were convicted in February for

violating a nine-year-old court ruling banning

press and radio comment on criminal cases before

trial. The city court charged contempt because

the stations had broadcast evidence against a

Negro, later convicted for murder of a young girl.

The ACLU brief contends that the unique city

ruling "abridges freedom of speech and of the

_ press by declaring all instances of certain types

of publications to be contempts of court." The

brief holds that the only clear fact in the case is

that, "speech and press were suppressed."'

. Citing the contrary view of its affiliate, the

Maryland Civil Liberties Committee, the ACLU

brief includes an appendix in which the' Commit-

tee conceded that the ruling restricts freedom of

speech and of the press, but holds the restriction

_warranted to protect fair trials.

The Maryland committee and the national or-

ganization appeared on opposite sides in the ori-"

ginal contempt proceedings. The Maryland com-

mittee was represented by Joseph I. Paper, Jr.,

and the Civil Liberties Union by James Lawrence

Fly, former chairman of the Federal Communica-

tions Commission.

WE MUST NOT

BE AFRAID OF CHANt

By RAYMOND B. FOSDICK,

Former President, The Rockefeller Foundation

When the last glacier retreated northward from

what is now Connecticut, it left behind, as me-

mentos of its visit, great boulders of rock strewn

lavishly across the state. Several of them, larger

than corncribs and many tons in weight, were de-

posited on my farm, and for fifteen years I have

watched one of them fight a losing battle with an

ash tree. The tree evidently `started in a seed

lodged in a tiny pocket in the top of the rock.

When I first saw it, it was a sturdy sapling that

had made for itself a comfortable crevice for its ,

roots. Today its irresistible growth has torn the

massive rock into fragments.

This is the law of life. The future belongs not to

rigid absolutes, whether they are primal rocks or

unyielding social arrangements, but to the thing

that can grow, whether it is a tree or a democracy.

It is strange that a principle as familiar as this

should today need underscoring, but we are living

in years of uncertainty and fear, and fear induces

a kind of spiritual astigmatism. To be sure, in our

generation we have reason for our fears, and

every justification to resist the threat that creates

them. But I am thinking of fear as an evil in itself

and what it does to human emotions and reac-

tions.

For one thing, fear breeds an instinctive hosti-

lity to growth, because growth means change, and

in anxious hours men tend to cling to the shelter

of the present or to put their faith in nostalgia for

the past. But history's current is sweeping us into

the future and we cannot stand still, nor is there

now any place left to go back to. The illusion that

security can be found in immobility, or that safety

is dependent upon the absence of change, is per-

haps the most dangerous form of imbalance which

plagues the minds of men.

Nothing is static in this world, least of all our

ideas. Values change from age to age and the in-

terpretation of one generation is seldom the inter-

pretation of the next. Social conceptions must con-

stantly be retranslated and re-expressed in con-

temporary idiom to accord with contemporary

conditions. Even our conceptions of freedom and

democracy are not static principles. The Declara-

tion of Independence was a broader definition of

freedom than that, which came.out of the Revolu-

tion of 1688, just as 1688 widened the freedom

of Magna Carta.

Today the conception of freedom is once again

taking on a larger meaning. Our generation is

thinking of the threat to freedom which comes

from poverty and insecurity, from sickness and

the slum, from social and economic conditions in

which human beings cannot be free. In many

countries, including our own, this new conception

of freedom is struggling to make itself articulate,

and irresistible change in older points of view is

taking place before our eyes.

Democracy is another conception which must

also be reinterpreted from generation to genera-

tion. It is government by the people and for the

people, but its limits were not finally determined

by the political concepts of the eighteenth century.

Rather it is a growing, dynamic faith, a perpetual-

ly evolving adjustment between freedom and

justice, between individual rights and the demands

of society. This adjustment, however, is never per-

fectly and finally attained; it remains a problem

which mankind must solve again and again. "It is

provided in the very essence of things," said Walt

Whitman, "that from any fruition of success, no

matter what, shall come forth something to make

a greater struggle necessary."

Here again we have a familiar concept to which

most of us would doubtless subscribe. But it needs

to be underscored today because our current fear

of communism is driving some of us to believe

that change is somehow subversive, and that any-

one who advocates new ideas is probably a fellow-

traveler who should be watched. Not only the

House Un-American Activities Committee but

`similar state committees and various self-appoint-

ed groups are creating a climate of opinion defi-

nitely hostile to those who fail to conform to pre-

determined standards, and suspicion is thrown on

individuals and organizations who dare to think

in unorthodox or non-conformist terms.

With the possible exception of John Adams' ad-

ministration, there is a risk today in being a lib-

eral that has never existed before in the history

of this republic. If you sign a petition to admit

colored people to public housing developments, if

you favor fair employment practices or are con-

cerned about civil liberties, if you fight for the

protection of the rights of the foreign born, if

you oppose religious prejudice and Jim Crowism,

if you sanction cultural exchange with foreign

countries, if you align yourself with those who

are working for more effective labor unions or

more adequate medical care, if you take any point

of view which involves the implementation of the

Declaration of Independence that all men are

created equal, you are apt to be suspected in some

circles as a knowing participant in the Commun-

ist Front, or at the very least, as a witless dupe

of Moscow's hypnotic influences.

There is hardly a progressive organization or

undertaking in the country to which the adjective

"communistic" has not been applied in the last

few years-from the Tennessee Valley Authority

and water power developments generally, all the -

way to farmers' and consumers' cooperatives and

plans for rural electrification. Fingers are even

pointed at organizations like the YMCA, the

YWCA, and the defunct Epworth League. In

many states, teachers and college professors have

been frightened into sterile silence, and even the

pulpit has not been free from fear. |

The tragedy of this business is that it plays into

the hands of the Communists. It identifies Russia

with the process of social change at the same time

that it limits us to a bleak and hopeless status

quo. It concedes the Soviet claim of concern for

the underprivileged while it stigmatizes the

achievement and promise of democracy toward

this same goal. A prominent doctor, head of a

state medical society, recently condemned the idea

of the broader distribution of medical care on the

grounds that it was being pushed "by Soviet

agents in this country."

That is the kind of reckless statement which

creates an atmosphere favorable to communism.

If the idea of making available to all the people

of our country the curative techniques of modern

medicine is communism, if communism has a pat-

ent on the idea, then communism has something

for us which we very much want. But it isn't com-

munism. It is democracy. Its roots go back to the

Declaration of Independence, long before Karl

Marx was born. It is a translation in social terms

of a concept that was first conceived as a political

idea. It is part of our developing spiritual testa-.

ment. It is in line with all that is best in our tradi-

tion and hope. It is democracy facing the responsi-

bilities of its maturity.

Those frightened people who use the word com-

munism so easily had better reckon with its impli- |

cations. There are plenty of arguments against

communism, It is a facade for a ruthless tyranny.

It is a brutal hoax by which millions of confused

and hungry people are. persuaded or coerced to

sign away their freedom in exchange for utopian

promises. But to paste a label of communism on

the yearnings of men everywhere for a better

life, to classify as subversive those goals of equal-

ity and human service toward which our democ-

racy is moving, is to concede to the Communists

all the best arguments and make a mockery of

the faith that sustains us.

It is undoubtedly part of the Communist stra-

tegy to frighten us into a position which seems to

identify our democracy, not with forward-looking |

movements related to the hopes of men, but with

outmoded patterns of social thinking. If in the

eyes of the nations, America could appear as a

victim of spiritual paralysis, frozen to the present,

deaf to the impact of new ideas of human equal-

ity which are sweeping the world, it would be an

overriding victory for Soviet policy. That is the

picture the Communists are trying to paint for

us, and that, unfortunately, is the picture that

some thoughtless and panicky people in this

country are trying, unwittingly to help them

paint.

I do not underestimate the necessity which we

face in times like these of keeping the Commu-

nists clear of our Government and rooting out

treachery wherever it may be found. Split loyal-

ties or loyalties that respond to strings pulled in

Moscow cannot be tolerated in positions of power. -

We must know who our enemies are. But this is

a task requiring consummate judgment and skill.

If, in a clumsy attempt to exorcise evil, we pro-

scribe the good as well, the damage will be irre-

parable. To act as if the term communism covers

_all the plans and dreams of men for making this

world an inviting home to live in instead of a

place to freeze and fight and starve in is no more

intelligent than using a steam shovel to weed a

flower garden.

In our concern over what communism may do

to democracy we have overlooked the danger of

what we ourselves may do to democracy under the

stimulus of fear. Fighting fire with fire is an

easy but misleading slogan which has betrayed

more than one cause in the past. Challenged by

authoritarianism, men begin to build an authori-

tarianism of their own; they tend to take on the

mood and techniques of their opponents; they

answer heresy-hunting with heresy-hunting; they

become like the thing they fight. That is what

(Continued on Page 4, Col. 2)

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: EiXbrook 2-3255

BRINTGSI BEISIG 22 3 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

Pious Declaration Against

Race Bias in Redevelopment

The San Francisco Board of Supervisors on

May 16 adopted a resolution piously recommend-

ing against racial and religious discrimination in

housing projects undertaken by the Redevelop-

ment Agency under the California Community

Redevelopment Act. While the present chairman

of the Agency declares he feels himself morally

bound by the resolution to write covenants

against race and religious restrictions in deeds,

Helter he nor his successors are legally bound

to do so.

The City Attorney's office has ruled that an

ordinance prohibiting such discrimination in the

use of property acquired under the Act would be

invalid, and that the only way to accomplish that

purpose is to write a prohibition into each plan

for redevelopment undertaken by the Agency.

The Union's Executive Committee went on

record in favor of an ordinance prohibiting racial

discrimination in the use of the land acquired

under the Act. "The redevelopment program,"

said the Union, "is a public program, and we in-

sist that the Board has an obligation to see to it

that all the citizens may avail themselves of its

benefits."

Eee gi

ACLU to Aid War Bride

Detained Without Hearing

A German war bride, detained on Ellis Island

without a hearing on the ground that adverse in-

formation could not be disclosed to her, will be

aided by the ACLU in her effort to join her

American husband here. She came to the U.S.

with a proper visa but was refused entry. Al-

_ though the charges against her were said to be

secret for security reasons, they were stated in

private correspondence.

Her attorney appealed to the Federal Court for

a review and was refused. He then filed a petition

.to the U.S. Supreme Court for a review which

was granted May 2.

ge :

Two Million Appeal Bail for

12 Convicted Pickets Opposed

Excessive bail, fines and jail sentences im-

posed on arrested strikers at the Fawick Airflex

plant in Cleveland by Judge James C. Connell will

be opposed in the Court of Appeals by the ACLU

Cleveland affiliate.

Bail exceeding two million dollars, jail sentences (c)

totaling 480 days and fines of $22,500 were given

12 picketers who resisted police. Mrs. Hileen

Schie, mother of two young children, was given

10 days in jail, $500 fine and held in $15,000 bail.

She is said to: have had nothing to do with the

strike, but the strikers had borrowed the Schie

family car.

@

_ Goodman Refuses to Stay Execution

Of His Judgment in Nisei Case

Federal Judge Louis E. Goodman last month

refused the government's request for a stay of

_ execution of his judgment restoring citizenship -

to more than 5000 Nisei who renounced under

duress. As a result of this decision, the renun-

ciants may exercise all of their rights as citizens"

(voting, etc.), pending the determination of the

government's appeal to the Ninth Circuit Court

of Appeals.

It was agreed, however, that insofar as the

judgment affects renunciants in Japan, they will

be treated the same as others claiming American

nationality. This would permit a consular officer

to require posting of a bond by the renunciant

desiring to reenter the United States, the bond to

be effective until the appeal has been determined.

ee eg

"Oliver Twist' and "Merchant of Venice'

Remain in New York Schools

The New York City Board of Education an-

nounced last month its decision by a narrow vote,

that it will not exclude the books "Oliver Twist"

and "The Merchant of Venice' from school li-

braries. Following the decision, the ACLU re-

ceived reports that a private suit challenging the

action of the Board may be brought. If so, the

ACLU will support the Board of Education.

)

WE MUST NOT BE AFRAID OF CHANGE

(Continued from Page 3, Col. 3)

fear does to people. If the tactics of the Soviets

succeed in inducing us to try to stamp out dissent

and to measure loyalty by conformity, if they

`scare us into a denial of our historic goals, then

they have maneuvered us into retreating from

the field before the battle has even begun.

If democracy means anything at all it means

the promise of growth. Democracy is not a fin-

ished project; we are engaged in building it.

There is no blueprint which covers all the con-

tingencies that may arise, or the new ideas and

patterns that may be developed in the future.

There is no final and absolute form of democracy

which has been handed down from some political

Sinai. We have no Karl Marx in our past. Democ-

racy is a method of evolution, a maturing way of

living, a conception of human relations rooted in

the worth and dignity of the individual and in-

spired by the developing idea of freedom.

This is what our democracy has always meant.

We have given it its pre-eminent place in the world

because we have welcomed diversity of opinion,

because there has been no fixed creed to which

our citizens have had to subscribe, no Siberia for

our intellectual and spiritual non-conformists. Our

national life has been healthy and vigorous be-

cause dissenters have been encouraged to think

critically of the political, social, and economic

order in which we live.

Indeed, as we look back on our history we real-

ize that the periods when we rose to moral great-

ness were periods of non-conformity - when

Thoreau wrote his essay on civil disobedience;

when Seward appealed to the country with his

revolutionary thesis: "There is a law higher than

the Constitution'; when Theodore Parker from

his pulpit in Boston denounced the iniquity of

our war on Mexico in words that burned their

way into the conscience of the nation. "If there is

any fixed star in our Constitutional constellation,"

said the Supreme Court in the Barnette flag-salute

case in.1943, "it is that no official, high or petty,

can prescribe what shall be orthodox in politics,

nationalism, religion, or other matters of opinion,

or force citizens to confess by word or act their

faith therein."

It is this kind of tolerance and adaptability that

makes the evolving will of the people effective in

reaching new definitions of liberty and equality.

It is this philosophy of growth that gives us assur-

ance in the present crisis. The only adequate way

to answer the challenge of communism is to con-

tinue the building of an economic and social sys-

tem whose concrete results in terms of the welfare

of mankind will far outstrip anything that com-

munism can even promise. Democracy thus in-

terpreted as a positive force can create new hopes

and new initiatives in human life and can capture

the imagination of the world.

Here is a faith worth fighting for. Stalin boasts

of his "new order." We have a new order, too,

based on the capacity of each generation to expe-

rience what Lincoln called ``a new birth of free-

dom." The Communists extol the youth and viril-.

ity of totalitarianism. In the evolution of democ-

raey we have a world that is perpetually young.

I started by saying that the future belongs to

the thing that can grow; a tree can demolish a

rock. In spite of the present impetus of its revolu-

tionary program, communism, by encasing itself

in an iron-clad orthodoxy, is sealing its own ulti-

mate doom. Whether the field is science or eco-

nomics or literature or art or music, the Kremlin .

has circumscribed it with an adamantine authori-

tarianism. The conformist reaction which holds

the intellectual and humanistic life of Russia in a

viselike grip can end only by strangling the vital-

ity of the system it seeks to preserve.

In such an atmosphere there can be no flower-

ing of the human spirit; it withers and dies from

suffocation. The Communists are fighting against

the laws of nature. In their fanaticism they have

forgotten, if they ever knew, that stagnation and

death await ideas as well as social and economic

arrangements which have lost their power to

grow. They taunt us for being the supporters of a

erumbling status quo, but it is they who are look-

ing backward, they who are trying to build a

status quo far more rigid and absolute than any-

thing the world has ever seen. It is they who

would put blinders on men and establish boun-

daries beyond which ideas and dreams shall not

be allowed to go.

Four hundred years ago, Galileo shook the

world with the question: "Who is willing to set

limits to the human intellect?" Well, the Com-

munists are not only willing to do it, they are at-

tempting to do it; and in that attempt which flies

in the face of history lie the seeds of their own

ultimate disintegration.

There is no future for such a system, any more

than there is a future for a rock stranded by a

glacier. Ultimately the irresistible power of a

thing that can grow will shatter it. That is why

democracy, rightly interpreted, is the last best

hope of earth. It is rooted in the principle of

growth; it is adaptable to new concepts of social

justice. It is built, not on a fixed creed or on a

system of regimented concepts, but on the sure

knowledge that frontiers are never stationary,

that the thrust of events is steadily forward, that

there are no privileged ideas around which magic

circles can be drawn to protect them from compe-

tition. It is only free men who dare to think, and

it is only through free thought, freely expressed,

that the soul of a people can be kept alive--Re-

printed from The New York Times Magazine,

Sunday, April 3, 1949. .

New `Subversive' Listings

Draw Prompt Protests

An urgent request to Attorney General Tom

C. Clark for removal of the long defunct North

American Committee to Aid Spanish Democracy

from his new listing of 36 organizations held to

be "subversive" was made last month by Roger

N. Baldwin, ACLU director, and James Loeb, Jr.,

executive secretary of Americans for Democratic

Action, acting personally. Both had served on

the executive committee of the North American

Committee. Both the ACLU and ADA oppose list-

ing organizations without hearings.

The protest charged that the listing is a "di-

rect affront to thousands of Americans opposed

to all forms of totalitarianism, including Com-

munist dictatorship and the Franco regime in

Spain."

Emphasizing that present methods of detecting

"subversives" is unsuccessful and dangerous, the

letter to the Attorney General stated: "Affiliation

with these organizations is used to damage se-

riously many innocent and loyal persons. They are

made subject to accusations of guilt by associa-

tion. What is worse, the accusation is made re-

troactive, since the North American Committee

has been defunct for ten years."

The protest recalled that the Committee, co-

chaired by Bishop Francis J. McConnell and the

late Dr. Walter B. Cannon of Harvard University,

was the only broad national group to aid the legi-

timate Republican Government of Spain during

the Spanish war, 1936-1939. At the end of the

war, the committee became the Spanish Refugee

Relief Campaign with Harold L. Ickes, then

Secretary of the Interior, honorary chairman.

Following the Nazi-Soviet pact, pro-Communists

were forced to withdraw and the committee con-

tinued to operate, assisting non-Communist |

Spanish Republican refugees for several years.

W. H. Westman, general secretary-treasurer of

the Industrial Workers of the World, in Chicago,

the first labor union to be listed as ``subversive"',

also demanded immediate correction of its in-

clusion. :

He declared that although I.W.W. is not sub-

versive, or even bothered by subversives, of great-

er consequence is the novel doctrine that unionism

is or can be subversive. His protest to the Attor-

ney General read: "These workers do not like

to have you or others confuse them with the

communists who were ordered more than a

quarter of a century ago to liquidate the I.W.W.

because its program of Industrial Democracy was

seen by their leaders to be the most effective

barrier to their program of political dictatorship."

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