vol. 16, no. 7

American

Civil Liberties

Union-News

"Eternal vigilance is the price of liberty."

Free Press

Free Assemblage -

Free Speech

VOLUME XVI

SAN FRANCISCO, CALIFORNIA, JULY, 1951

.No. 7

Pmediate Relief Denied .

In Waterfront Test Suit

_ Federal Judge Edward P. Murphy of San Fran-

cisco on June 1 refused to grant a preliminary

injunction to enjoin the Government from carry-

ing on its waterfront screening program. Judge

- Murphy agreed with the plaintiffs' contentions

except in one respect. He said he had no power to

act if the injury to the Government in the event

the injunction were issued would be greater than

the injury to the plaintiffs in the event the pro-

gram is allowed to continue. He therefore denied

the preliminary injunction on the ground that it

would be "detrimental to the public interest and

national security."'

The Court decided that the plaintiffs did not

have to exhaust their administrative remedy be-

cause they were faced with irreparable injury

both to their reputations and through being de-

prived of the right to work. The Court also swept

aside the contention that the suit was an unwar-

ranted interference with the executive functions

of the Government. `Where it is established that

freedom has been subverted," said Judge Murphy,

"judicial interference is mandatory."

Only local Coast Guard officers were made

defendants in the suit. The Government contended

that these persons were merely the agents of the

a Commandant, who is in Washington, and that all

screenings were in fact made by that official in

Washington. The Court decided, however, that the

Commandant was not an indispensable party to

the suit, and that the Court's authority could be

visited upon the inferior officers to forbid them

to interfere with the job opportunities of the

plaintiffs. :

The plaintiffs may now either appeal the

Court's decision to the Circuit Court of Appeal or

_ go ahead with the trial of the suit on its merits.

Court Rules Against Forced

Listening In Street Cars

Radio's captive audiences moved a step closer

to liberation last month. In a unanimous ruling,

the District of Columbia Circuit Court of Appeals

held that the Capital Transit Co. had deprived

passengers "of liberty without due process of

law' when it forced them as a "`captive audience"

to listen to commercial broadcasts on its street-

cars and buses. Capital has a public transporta-

tion monopoly in the district.

The case will be appealed to the Supreme Court

by Washington Transit Radio, owner of the FM

station that broadcasts to the buses. The final

ruling will undoubtedly have nationwide effect.

Besides Washington, several other cities-among

them Des Moines, Kansas City, Jacksonville and

St. Louis-have radio-equipped buses and street-

cars.

In its decision, the court ruled that "short of

imprisonment, the only way to compel a man's

attention for many minutes is to bombard him.

with sound that he cannot ignore in a place where

=

he must be. If Transit obliged its passengers to

read what it liked or get off the car, the invasion

of their freedom would be obvious. Transit obliges

them to hear what it likes or get off the car.

"Freedom of attention, which forced listening

destroys, is a part of liberty essential to indivi-

duals and to society."

The court added that "the Bill. of Rights, as

appellants say ... can keep up with anything an

advertising man or electronics engineer can think

OL

Supreme Court Strikes A Blow At The First

The First Amendment went into partial eclipse

last month when the U.S. Supreme Court, succumbing

to the current fears of Communism, by a vote of 6-2,

upheld the conviction of the eleven Communist Party

leaders under the Smith Act. In the absence of.a

`/ statement from the Union's national office comment-

ing on the decision, the editor is reprinting herewith

Justice Douglas' eloquent dissent contending that "our

aim should be to keep speech unfettered and to allow

the processes of law to be invoked only when the

provocateurs among us move from speech to action:"

If this were a case where those who claimed

protection under the First Amendment were

teaching the techniques of sabotage, the assassi-

nation of the President, the filching of documents

from public files, the planting of bombs, the art

of street warfare, and the like, I would have no

doubts. The freedom to speak is not absolute; the

teaching of methods of terror and other seditious (c)

conduct should be beyond the pale along with ob-

scenity and immorality. This case was argued as

if those were the facts. The argument imported

much seditious conduct into the record. That is

eos

Loyalty Brain Teaser

Following is one of a number of questions pro-.

pounded in a loyalty questionnaire submitted to

an Electrician Mate, Second Class, who once

contributed money to the Joint Anti-Fascist

Committee besides subscribing to `In Fact."

The man was recalled to the Navy as a reserv-

ist after receiving an honorable discharge in

the last war. He now faces a dishonorable dis-

charge despite an excellent record in the Navy.

Here are the questions:

"I2(a). You are known to have expressed

dissatisfaction with the economic system exist-

ing in the United States and to have indicated

that you beieve that the Communist concept of

community ownership of weath to be correct.

In view of the fact that the citizens of the

United States now have the world's highest stan-

dard of living and in view of the fact that the

economic level of the United States is being

raised daily under a system of free enterprise,

_ what justification can there be for instituting in

the United States the system of state socialism

as proposed in the doctrines of Communism?

`(b). Discuss community ownership of prop-

erty historically and show the examples wherein

community ownership of property on a national

level has materially augmented the well being

of the citizens of the national state involved."

, Moving?

Summer months bring many changes of

address, especially among those engaged in

academic pursuits. If you are planning to

move, the Union would appreciate prompt

notice of any change of address.

New Draft Law Tougher On

Conscientious Objectors

Conscientious objectors will have it tougher

under the new draft law signed by the President

June 18. Under the previous law, if an objector

were unwilling to perform non-combatant service

in the Army he was deferred and went about his

business. Now, that has all been changed.

The present law provides that the objector un-

willing to perform non-combatant service may be

"ordered by his local board, subject to such regu-

lations as the President may prescribe, to perform

(for a period of 24 months) such civilian work

contributing to the national health, safety or

interest as the local board may deem appro-

priate. 2.0 = ,

The new law grants tremendous power to local

boards, limited only by regulations to be approved

by the President. What kind of work will an

objector be ordered to perform? What will be

the attitude of trade unions to such assignments?

May objectors be ordered to perform work out-

side their own communities? These and many

other questions cannot be answered until the

required regulations are issued. _

Amendment In Case of 11 Communist Leaders

easy and it has popular appeal, for the activities

of Communists in plotting and scheming against

the free world are common knowledge. But the

fact is that no such evidence was introduced at

the trial. There is a statute which makes a sedi-

tious conspiracy unlawful. Petitioners, however,

were not charged with a "cdnspiracy to over-

throw" the Government. They were charged with

a conspiracy to form a party and groups and as-

semblies of people who teach and advocate the

overthrow of our Government by force or violence |

and with a conspiracy to advocate and teach its

overthrow by force and violence. It may well be -

that indoctrination in the techniques of terror to

destroy the Government would be indictable un-

der either statute. But the teaching which is con-

demned here is of a different character.

So far as the present record is concerned, what

petitioners did was to organize people to teach

and themselves teach the Marxist-Leninist doc-

trine contained chiefly in four books: Foundations

of Leninism by Stalin (1924), The Communist -

Manifesto by Marx and Engels (1848), State and

Revolution by Lenin (1917), History of the Com-

munist Party of the Soviet Union (B) (1939).

_ Those books are to Soviet Communism what

Mein Kampf was to Nazism. If they are under-

stood, the ugliness of Communism is revealed, its

deceit and cunning are exposed, the nature of its

activities becomes apparent, and the chances of

its success less likely. That is not, of course, the

reason why petitioners chose these books for their

classrooms. They are fervent Communists to

whom these volumes are gospel. They preached

the creed with the hope that some day it would be

acted upon.

The opinion of the Court does not outlaw these

texts nor condemn them to the fire, as the Com-

munists do literature offensive to their creed. But

if the books themselves are not outlawed, if they

can lawfully remain on library shelves, by what

reasoning does their use in a classroom become a

crime? It would not be a crime under the Act to

introduce these books to a class, though that

would be teaching what the creed of violent over-

throw of the government is. The Act, as con-

strued, requires the element of intent-that those

who teach the creed believe in it. The crime then

depends not on what is taught but on who the

teacher is. That is to make freedom of speech turn

not on what is said, but on the intent with which

it is said. Once we start down that road we enter

territory dangerous to the liberties of every citi-

zen,

There was a time in England when the concept

of constructive treason flourished. Men were pun-

ished not for raising a hand against the king but

for thinking murderous thoughts about him. The

Framers of the Constitution were alive to that

abuse and took steps to see that the practice

would not flourish here. Treason was defined to

require overt acts-the evolution of a plot against

the country into an actual project. The present

case is not one of treason. But the analogy is

close when the illegality is made to turn on intent,

not on the nature of the act. We then start prob-

ing men's minds for motive and purpose; they be-

come entangled in the law not for what they did

but for what they thought; they get convicted not

for what they said but for the purpose with which

they said it.

Intent, of course, often makes the difference |

`in the law. An act otherwise excusable or carrying

minor penalties may grow to an abhorrent thing

if the evil intent is present. We deal here, how-

ever, not with ordinary acts but with speech, to

eet the Constitution has given a special sanc-

ion.

__ The vice of treating speech as the equivalent

of overt acts of a treasonable or seditious charac-

ter is emphasized by a concurring opinion, which

(Continued on Page 2, Col. 1)

Page 2

AMERICAN CIVIL LIBERTIES UNION-NEWS

(Continued from Page 1, Col. 3)

by invoking the law of conspiracy makes speech

do service for deeds which are dangerous to so-

ciety. The doctrine of conspiracy has served di-

vers and oppressive purposes and in its broad

reach can be made to do great evil. But never un-

til today has anyone seriously thought that the

ancient law of conspiracy could constitutionally

be used to turn speech into seditious conduct. Yet

that is precisely what is suggested. I repeat that

we deal here with speech alone, not with speech'

plus acts of sabotage or unlawful conduct. Not a.

single seditious act is charged in the indictment.

To make a lawful speech unlawful because two

men conceive it is to raise the law of conspiracy

to appalling proportions. That course is to make

a radical break with the past and to violate one

of the cardinal principles of our constitutional

scheme.

Free speech has occupied an exalted position

because of the high service it has given our so-

ciety. Its protection is essential to the very exist-

ence of a democracy. The airing of ideas releases

pressures which otherwise might become destruc-

tive. When ideas compete in the market for ac-

ceptance, full and free discussion exposes the

false and they gain few adherents. Full and free

discussion even of ideas we hate encourages the

testing of our own prejudices and preconceptions.

Full and free discussion keeps a society from be-

coming stagnant and unprepared for the stresses

and strains that work to tear all civilization apart.

_ Full and free discussion has indeed been the

first article of our faith. We have founded our po-

litical system on it. It has been the safeguard of

every religious, political, philosophical, economic,

and racial group amongst us. We have counted on

it to keep us from embracing what is cheap and

false; we have trusted the common sense of our

people to choose the doctrine true to our genius

and to reject the rest. This has been the one single

outstanding tenet that has made our institutions

the symbol of freedom and equality. We have

deemed it more costly to liberty to suppress a

despised minority than to let them vent their

spleen. We have above all else feared the political

censor. We have wanted a land where our people

can be exposed to all the diverse creeds and cul- _

tures of the world. -

- There comes a time when even speech loses its

constitutional immunity. Speech innocuous one

year may at another time fan such destructive

flames that it must be halted in the interests of

the safety of the Republic. That is the meaning of

the clear and present danger test. When condi-

tions are so critical that there will be no time to

avoid the evil that the speech threatens it is time

to call a halt. Otherwise, free speech which is the

_ strength of the Nation will be the cause of its de-

struction. F

Yet free speech is the rule, not the exception. .

The restraint to be constitutional must be based

on more than fear, on more than passionate oppo-

sition against the speech, on more than a revolted

dislike for its contents. There must be some imme-

diate injury to society that is likely if speech is

allowed. The classic statement of these conditions

was made by Mr. Justice Brandeis in his concur-

ring opinion in Whitney v. California, 274 U. S.

357, 376-377, : e

"Rear of serious injury cannot alone jus- ,

tify suppression of free speech and assembly.

_ Men feared witches and burnt women. It is

the function of speech to free men from the

bondage of irrational fears. To justify sup- ,

pression of free speech there must be reason-

able ground to fear that serious evil will re-

sult if free speech is practiced. There must ~

be reasonable ground to believe that the dan- -

ger apprehended is imminent. There must be |

a,

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reasonable ground to believe that the evil to

be prevented is a serious one. Every denuncia-

tion of existing law tends in some measure to

increase the probability that there will be vi-

olation of it. Condonation of a breach en-

hances the probability. Expressions of ap-

proval add to the probability. Propagation of

the criminal state of mind by teaching syn-

dicalism increases it. Advocacy of law-break-

ing heightens it still further. But even ad-

vocacy of violation, however, reprehensible

morally, is not a justification for denying free

speech where the advocacy falls short of in-

citement and there is nothing to indicate that

the advocacy would be immediately acted on.

The wide difference between advocacy and in-

citement, between preparation and attempt,

between assembling and conspiracy, must be

borne in mind. In order to support a finding

of clear and present danger it must be shown

either that immediate serious violence was to

be expected or was advocated, or that the

past conduct furnished reason to believe that

such advocacy was then. contemplated.

"Those who won our independence by rev-

olution were not cowards. They did not fear

political change. They did not exalt order at

the cost of liberty. To courageous self-reliant

men, with confidence in the power of free and

fearless reasoning applied through the proc-

esses of popular government, no danger flow-

ing from speech can be deemed clear and

present, unless the incidence of the evil ap-

prehended is so imminent that it may befall

before there is opportunity for full discus-

sion. If there be time to expose through dis- -

cussion the falsehood and fallacies to avert

the evil by the processes of education, the

remedy to be applied is more speech, not en-

forced silence."

I had assumed that the question of the clear

and present danger, being so critical an issue in

the case, would be a matter for submission to the

jury. It was squarely held in Pierce v. United

States, 252 U.S. 239, 244, to be a jury question.

Mr. Justice Pitney, speaking for the Court, said,

"whether the statement contained in the pamphlet

had a natural tendency to produce the forbidden

consequences, as alleged, was a quesion to be de-

termined not upon demurrer but by the jury at

the trial." That is the only time the Court has

passed on the issue. None of our other decisions

is contrary. Nothing said in any of the nonjury

cases has detracted from that ruling. The state-

ment in Pierce vs. United States, supra, states the

law as it has been and as it should be. The Court, I

ey errs when it treats the question as one of

aw.

Yet, whether the question is one for the Court

or the jury, there should be evidence of record on

the issue. This record, however, contains no evi-

dence whatsoever showing that the acts charged,

viz., the teaching of the Soviet theory of revolu-

tion with the hope that it will be realized, have

created any clear and present danger to the Na-

tion. The Court, however, rules to the contrary.

It says, "The formation by petitioners of such a

highly organized conspiracy, with rigidly disciplin-

ed members subject to call when the leaders, these

petitioners, felt that the time had come for action,

coupled with the inflammable nature of world

conditions, similar uprisings in other countries,

and the touch-and-go nature of our relations with

countries with whom petitioners were in the very

least ideologically attuned, convince us that their

convictions were justified on this score."

That ruling is in my view not responsive to the

issue in the case. We might as well say that the

speech of petitioners is outlawed because Soviet

Russia and her Red Army are a threat to world

peace.

The nature of Communism as a force on the

world scene would, of course, be relevant to the

issue of clear and present danger of petitioners'

advocacy within the United States. But the pri-

mary consideration is the strength and tactical

position of petitioners and their converts in this

country. On that there is no evidence in the record.

If we are to take judicial notice of the threat of

Communists within the nation, it should not be

difficult to conclude that as a political party they

are of little consequence. Communists in this

country have never made a respectable or serious

showing in any election. I would doubt that there

is a village, let alone a city or county or state

which the Communists could carry. Communism

in the world scene is no bogey-man; but Com-

munists as a political faction or party in this

country plainly is. Communism has been so

thoroughly exposed in this country that it has

_ been crippled as a political force. Free speech has

destroyed it as an effective political party. It is

inconceivable that those who went up and down

the country preaching the doctrine of revolution

which petitioners espouse would have any success.

in days of trouble and confusion when bread lines

were long, when the unemployed walked the

streets, when people were starving, the advocates

of a short-cut by revolution might have a chance

to gain adherents. But today there are no such

conditions. The country is not in despair; the

people know Soviet Communism; the doctrine of

Soviet revolution is exposed in all of its ugliness

and the American people want none of it.

How it can be said that there is a clear and

present danger that this advocacy will succeed is,

therefore, a mystery. Some nations less resilient

than the United States, where illiteracy is high

and where democratic traditions are only budding,

might have to take drastic steps and jail these

men for merely speaking their creed. But in

America they are miserable merchants of un-

wanted ideas; their wares remain unsold. The

fact that their ideas are abhorrent does not make

them powerful. :

The political impotence of the Communists in

this country does not, of course, dispose of the

problem. Their numbers; their positions in in-

dustry and government, the extent to which they

have in fact infiltrated the police, the armed

services, transportation, stevedoring, power

plants, munitions works, and other critical places

-these facts all bear on the likelihood that their

advocacy of the Soviet theory of revolution will

endanger the Republic. But the record is silent on

these facts. If we are to proceed on the basis of

judicial notice, it is impossible for me to say that (c)

the Communists in this country are so potent or

so strategically deployed that they must be sup-

pressed `for their speech. I could not so hold un-

less I were willing to conclude that the activities

in recent years of committees of Congress, of the

Attorney General, of labor unions, of state legis-

latures, and of Loyalty Boards were so futile as

to leave the country on the edge of grave peril.

To believe that petitioners and their following are

placed in such critical positions as to endanger the

Nation is to believe the incredible. It is safe to say

that the followers of the creed of Soviet Commun-

ism are known to the F.B.1.; that in case of war -

with Russia they will be picked up overnight as

were all prospective saboteurs at the commence-

ment of World War II, that the invisible army of

petitioners is the best known, the most beset, and

the least thriving of any fifth column in history.

Only those held by fear and panic could think

otherwise. :

This is my view if we are to act on the basis

of judicial notice. But the mere statement of the

opposing views indicates how important it is that

we know the facts before we act. Neither prejudice

nor hate nor senseless fear should be the basis of

this solemn act. Free speech-the glory of our

system of government-should not be sacrificed

"on anything less than plain and objective proof

of danger that the evil advocated is imminent.

On this record no one can say that petitioners

and their converts are in such a strategic posi-

tion as to have even the slightest chance of achiev- -

ing their aims.

The First Amendment provides that ``Congress

shall make no law .. . abridging the freedom of

speech." The Constitution provides no exception.

This does not mean, however, that the Nation

need hold its hand until it is in such weakened

condition that there is no time to protect itself

from incitement to revolution. Seditious conduct

can always be punished. But the command of the

First Amendment is so clear that we should not

allow Congress to call a halt to free speech except

in the extreme case of peril from the speech itself.

The First Amendment makes confidence in the

common sense of our people and in their maturity

of judgment the great postulate of our demo-

cracy. Its philosophy is that violence is rarely,

if ever, stopped by denying civil liberties to those

advocating resort to force. The First Amendment

reflects the philosophy of Jefferson "that it is

time enough for the rightful purposes of civil

government for its officers to interfere when

principles break out into overt acts against peace

and good order.' The political censor has no place

in our public debates. Unless and until extreme

and necessitous circumstances are shown our aim

should be to keep speech unfettered and to allow

the processes of law to be invoked only when the

provocateurs among us move from speech to

action. :

Vishinsky wrote in 1948 in The Law of the

Soviet State, "In our state, naturally there can be

-no place for freedom of speech, press, and so on

for the foes of socialism."

Our concern should be that we accept no such

standard for the United States. Our faith should

be that our people will never give support to these

advocates of revolution, so long as we remain

loyal to the purposes for which our Nation was

founded.

_ AMERICAN CIVIL LIBERTIES UNION-NEWS

Page 3

"Red' Hunt In State Colleges

State College professors who join or give

"active support'' to communist fronts face dis-

~ missal for "unprofessional conduct" under the

terms of a bill adopted by the State Legislature

and now awaiting action by Gov. Earl Warren.

Persons opposing this legislation should write to

the Governor at the State Capitol, Sacramento,

urging him not to sign it. The text of the

_ measure is as follows:

"Sec. |. Sec. 20393.1 is added to the Educa-

tion Code, to read:

. "20393.1 'Unprofessional conduct' as used in

Section 203933 includes, but is not limited to:

(a) Membership in, or active support of, a

`communist front' or `communist action' organ-

ization, as those terms are now defined in the

federal `Internal Security Act of 1950.'

"(b). Persistent active participation in pub-

lic meetings conducted or sponsored by an or-

ganization mentioned in subdivision (a) of this

section.

"(c) Wilful advocacy of communism, either

on or off the campus, for the purpose of under-

mining the patriotism of pupils in the Public

School System, or with the intent to indoctrinate

any pupil with communism or inculcate a prefer-

ence for communism in the mind of any pupil.

"Sec. 2. Section 20393.2 is added to said

code,toread:

'20393.2. Dismissal proceedings for any

cause specified in Section 20393.1 shall be com-

Fenced by the Director of Education or presi-

dent of the college in which such employee is

serving upon the filing, by any person, of a com-

plaint accompanied by an affidavit stating facts

which, if established by competent evidence,

would constitute grounds for dismissal under

Section 20393.1. The applicable provisions of

this article shall govern as to notice, hearing,

review and appeal of such dismissal pro-

ceedings."

_ Ask N.Y. High Court To Extend

Moevies Free Press Protections

The ACLU last month asked the New York:

State Court of Appeals in Albany to extend to

motion pictures the full constitutional protection

against censorship now granted the press. The

plea was-contained in a "friend of the court"

brief supporting the appeal of Joseph Burstyn,

Inc., from a decision of the Appellate Division

upholding the state Board of Regents' ban on the

showing of the film, ``The Miracle."

Reaffirming that they take no position on the

question of whether or not the controversial film

is sacrilegious, the New York City Civil Liberties

Committee and the National Council on Freedom

From Censorship challenged a 36-year-old U.S.

Supreme Court ruling which held the movies, then

an embryo industry, mere entertainment, and not

entitled to the protections extended the press.

"Motion pictures are no more pure entertain-

ment (without) ideas than are fictional novels and

no one doubts that fictional novels are entitled to

protection of the First Amendment," the ACLU

affiliates maintained, adding:

"(Protections of) the First Amendment....

must be extended to the media of communication

which the technology of our age has developed.

The hand press is protected because it can be a

conveyance of ideas to numbers of people. The

so-called mass media and specifically motion

pictures, must be protected just because they are

more effective, more graphic and reach a wider

audience." _

In their brief, the civil liberties groups raised

these two additional points:

1. There was an absence of power by the Re-

gents to revoke a license for commercial films

without violating specific statutory laws not in-

_volved in this case.

2. Revocation or denial of a license of a film

because it is "sacrilegious" violates due process

of law.

In reviewing the statutory scheme of the Educa-

tion Law, under which the Motion Picture Divi-

sion-which originally approved "`The Miracle'-

was established, the brief concluded that "the

legislature intended careful pre-exhibition scru-

tiny" only and clearly intended that "exhibitors

- and distributors be protected from harassment by

the threat of losing an investment already launch-

ed with state sanction and approval.

"A finding that the Board now (two years after

issuance) has the power to revoke the license of

the film, would thus leave the Board open to he

- pushed by the winds of opinion . . . having to take

the risk of offending either a private group or a

vast majority of the public," the brief added.

Six Suppressive Measures Enacted By

1951 Session Of California Legislature

The 1951 session of the California Legislature,

which adjourned on June 23, adopted 6 suppress-

ive measures, one of which is still awaiting ap-

proval by the Governor. In addition, the Senate

re-established the Senate Fact Finding Commit-

tee on Un-American Activities with an appro-

priation of $50,000.

While the suppressive forces made significant

gains in the State Legislature, only a small part

of their program was adopted. The Legislature

refused to require conformity oaths of lawyers,

and some 360,000 persons holding state licenses,

including such persons as doctors, morticians,

beauticians and barbers. The various `Little Mc-

Carran Acts" were largely dropped without hear-

ings, and the legalization of wiretapping was sent

back to Committee after reaching the Assembly

floor. A couple of bills empowering private em-

ployers to discharge Communist employees never |

made much headway, and a proposed loyalty

check of school teachers likewise received short

shrift in both houses. The question of Bible read-

ing in the public schools has been referred to an

interim committee.

ACLU Urges Wiretap

Safeguards

The American Civil Liberties Union made public

last month a list of stringent safeguards which it

believes should be incorporated in any legislation

to legalize wiretapping. :

At the same time it disclosed that a bill by Rep.

Emanuel Celler (D.-N.Y.) to authorize wiretaps,

now before the House Judiciary Committee, was

being revised in line with ACLU recommenda-

tions.

While continuing to oppose all wiretapping, the

Union prepared proposals this spring after several

wiretap bills were intrvoduced in Congress. The

recommendations were: (1) All wiretapping

should be prohibited, except by federal: officials

in cases involving treason, sabotage, espionage,

-and kidnapping or threats of kidnapping. In kid-

napping cases, parents' wires should be tapped

only with their prior consent, (2) the authority to

grant permission for wiretapping should be vested

in one federal judge in each district. He should

be assigned by the justices of the Supreme Court

for a 10-year term; (3) only the Attorney Gen-

eral should be allowed to apply directly to the

`court for permission to tap a wire; (4) a court

should not authorize a wiretap except upon sworn

statements of fact demonstrating reasonable

basis for belief of actual, as opposed to potential,

treason, sabotage, espionage, or kidnapping; (5)

only recordings sealed and preserved in a central

place could be used in evidence. The defense should

have full access to the taps; and (6) the press

and public would be informed by monthly and

annual reports of the number of taps sought for

each type of case, the number granted, the num-

ber resulting in prosecution or conviction, and

other pertinent data. Strict penalties would be

provided for any person who tapped a wire ille-

gally, and each year a federal grand jury would

be convened to determine whether the law had

been violated.

Rep. Celler's agreement to revise his bill was

noted in a letter to ACLU Staff Counsel Herbert

Monte Levy. It said: "I find we are very much in

agreement .... I shall try to amend the Bill I

have offered ....I do not like the practice of

wiretapping, but the present circumstances under

which we live dictate the necessity for some bill

authorizing wiretapping within, of course, pos-

sible limitations."

L.A. Communist Faces 10-Yrs.

For Failing To Deport Himself

Frank Spector, Los Angeles Communist, has

been indicted by the Federal Grand Jury in that

city for failing to leave the country. Bail on the

indictment has been set at $25,000.

Spector was ordered deported to Russia 21

years ago, but the Government was unable to

execute the.warrant of deportation. The McCar-

ran Act now provides that "anarchists, subver-

sives and similar classes, who shall wilfully fail

or refuse to depart from the United States within

a period of six months from the date of such

order of deportation, or from the date of the

enactment of the Subversive Activities Control

Act of 1950, whichever is the later .. . shall upon

conviction be guilty of a felony, and shall be im-

prisoned not more than ten years."

This is the first indictment under the particular

section of the McCarran Act. Because of tech-

nicalities, the present indictment may he set aside,

but the U.S. Attorney has promised to present .

the matter to a new Grand Jury.

Leading the parade of successful suppressive

measures is a constitutional amendment which

places the Levering Act loyalty oath in the State

Constitution. Among other things, this oath re-

quires a declaration that the public employee,

including the staff of the University of California,

has not advocated nor belonged to a group ad-

vocating the violent overthrow of the Government

during the previous five years, Any exceptions

must be listed. This measure will be submitted to

_the electorate at the next general election.

The advocacy or teaching of Communism "with

the intent to indoctrinate any pupil with, or in-

culcate a preference in the mind of any pupil for

Communism" has been made a ground for dis-

missal of a school teacher. This legislation was

opposed by the San Francisco Superintendent of

Schools, who had been planning to establish a

course on Communism in the public school system.

With this law on the books, teaching anything

about Communism becomes 2 precarious business.

The Legislature also enacted a bill aimed at

barring State College teachers from participa-

tion in Communist front activities. Membership in

or active support of a Communist front is now

defined as unprofessional conduct. The definition

of a Communist front is taken from the McCarran

Act and is as follows: "The term `Communist

front organization' means any organization in the

United States which (A) is substantially directed,

dominated, or controlled by a Communist action

organization, (B) is primarily operated for the

purpose of giving aid or support to a Communist-

action organization, a Communist foreign govern-

ment, or the world Communist movement... ."

Senator Fred Kraft of San Diego, who intro-

duced this bill, stated quite frankly that it was

aimed at securing the discharge of Prof. Harry

Steinmetz of San Diego State College, who has

been active in left-wing groups off the campus.

Under the proposal even "persistent active parti-

cipation in public meetings conducted or spon-

sored by" a Communist front would be a basis of

dismissal. This ought to serve to discourage State

College professors from participating in reform

movements for fear of getting caught in some

well-disguised "Communist front." The full text

of the proposal is carried in another column.

_ Governor Warren has 30 days in which to sign

or pocket veto this bill. Those opposing it should

write letters without delay urging Governor

Warren not to sign the bill.

The campaign against Communists was also

directed at excluding them from the use of civic

centers. Under previous legislation introduced by

Senator Tenney, subversive groups were barred

from the use of civic centers, but the legislation

was held to be unconstitutional by the State Sup-

reme Court. Now that legislation has been re-

pealed and a new section enacted, which its spon-

sors hope will meet constitutional objections.

Under it any use `for the commission of any act

intended to further any program or movement the

purpose of which is to accomplish the overthrow

of the Government of the United States or the

State by force, violence, or other unlawful means

shall not be permitted or suffered." The school

board may require affidavits ``stating facts show-

. ing that such school property is not to be used for

the commission of any act intended to further any

program" of a subversive group.

In the future candidates for public office will |

have to subscribe to an oath declaring that they

are not engaged in "one way or another in an

attempt to overthrow the government by force or

violence" and that they are not members of any

organization engaged in such an attempt. This is

the language of Maryland's Ober Law which was

recently upheld by the U.S. Supreme Court.

Finally, legislation has been enacted to allow ~

the disbarment or suspension of any attorney who (c)

advocates the violent overthrow of the Govern-

ment and an applicant for admission to the bar

who so advocates will be denied the right to prac-

tice law.

Test Oath Arguments Heard

The California Supreme Court on June 21

heard arguments in both the University of

California and the Levering Act conformity

oath test suits. The Court stated it would

propound certain questions which the attor-

neys would be given an opportunity to

answer. Those questions have not yet been

submitted.

Contributions toward the expenses of the

_ Levering Act cases now totals $418.75.

Further contributions will be. welcomed.

Please send all contributions to the A.C.L.U.,

503 Market St., San Francisco 5, California,

earmarking the purpose of the contribution.

Page 4

American Civil Liberties Union-News

Published monthly at 503 Market St., San Francisco 5,

e - Calif., by the American Civil Liberties Union

: of Northern California.

Phone: EXbrook 2-3255

GRINS] BH SiGe ee ee 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

Separation of Church and State

The following letters carry on a discussion that grew

out of a story carried in the April issue of the "News"

telling about the filing of an amicus curiae brief by the

ACLU in the Dixon, New Mexico, school case, in which

_. the Union took the position "that members of religious

orders not be barred from teaching in public schools,

but that wearing of religious garb by teachers be pro-

hibited in these classrooms." Incidentally, the Union

welcomes comments from its members on any civil

liberties issue.

Editor:-I want to back up `"M.P.''s letter in

the ACLU News. I can't see that any question of

civil liberties is involved in this matter. How can

we consistently oppose the teaching -of religion

in the public schools, and at the same time uphold

the claims of persons whose only object in becom-

ing teachers is to subvert the entire concept of the

secular public school? Would the ACLU say that

officials of any totalitarian organization also had

the right to teach in the public schools? That is

what members of religious orders are.

There are States in which ministers of religion

cannot be elected to the Legislature. Is that too

a violation of civil liberties? The ACLU on sev-

eral occasions has approved barring of Communist

Party members from official positions in various

groups. How then can it sanction the employment

as public school teachers of representatives of an

even more dangerous totalitarian organization,

with even more obvious attachments to a foreign

power? .

I too hope you will discuss this whole question

`in a forthcoming number of the News.-Miriam

deFord Shipley, San Francisco.

. he National Office of ACLU Replies

Editor:-Thank you for giving us this oppor-

tunity to reply to Mrs. Shipley's letter of June 1.

The ACLU indeed would say that officials of

any totalitarian organization have the right to

teach in the public schools. Without admitting

that members of religious orders are officials of

totalitarian. organizations, and assuming solely

for purposes of argument that they are, we still

feel that persons should not be barred from the

~ classroom because of their views or affiliations

but should be judged solely on the basis of their

skill as teachers. If any person who is a member

of a religious order or an official of a totalitarian

organization uses his position as a teacher to

teach religion or otherwise misuses it, there is

time enough then in which to dismiss that per-

son-and he should then indeed be dismissed.

It would seem to me that barring the electorate

from choosing ministers of religion as their rep-

resentatives would indeed be a violation of civil

liberties. If Mrs. Shipley will advise me as to

which states have such laws, I will take up with

our Board the question of beginning a test case.

We bar Communists ourselves from our govern-

ing councils; but the barring of a Communist

from controlling posts in a private organization

dedicated to certain purposes, because the Com-

munist does not believe in those purposes, is a

vastly different case from action of public offi-

cials barring people for their private views.

In reply to the contentions made by "M.P." in

your June issue, let me state that there is no

reason to assume that the vows that members

of religious orders take would require them to

act in conflict with the law by indoctrinating |

their pupils with religious beliefs. And even if

this were not so, if the "shepherds" do in fact

teach religion, they can then be dismissed, as in-

dicated above. If any teacher does give a "dis-

torted kind of education," he should be dismissed

for that as well. The only remaining reason for

objection to Catholic teachers would be that non-

Catholics pay the salaries of Catholics; but that

is to say no more than that persons should be dis-

qualified from their posts because of their be-

liefs-a position I am sure that M.P. did not in-

tend to take.-Herbert Monte Levy, Staff Counsel,

A.C.L.U., New York.

(Mr. Levy fails to answer Mrs. Shipley's point

that the ACLU has approved barring of totali-

tarians from official positions in various groups,

and, therefore, should not oppose banning Roman

Catholic teachers from public schools. What she

has in mind, no doubt, is the recent action taken

by the corporation in sanctioning the exclusion

of Communists and other totalitarians as officers

AMERICAN CIVIL LIBERTIES UNION-NEWS

Union Votes -

Total:

The American Civil Liberties Union last month

announced two more changes in policy. In the

future the Union will not object to the denial

of citizenship or permanent immigrant status to

aliens who are-Communists or members of other

totalitarian groups. Both issues arose out of the

enactment of the McCarran Act. Last May the

Union, by a 40-18 vote, declared it would not

object to the barring of Communists as officers

of trade unions.

Participating in the referendum were 101 mem-

bers of the National Board and National Commit-

tee, with one vote each, and the 16 branches, with

2 votes each, or a total of 133 possible votes. Only

45% of the total vote, or 61 votes were cast, in-

cluding 16 votes cast by the affiliates.

The statement of policy to deny permanent

Against

immigrant status to totalitarians declares: `The.

ACLU will not oppose the refusal of permanent

immigrant status to present members of the

Communist, Fascist, Falangist, or other totali-

tarian parties. Since' permanent immigration must

be selective in any case, because only a limited

number of persons may enter the United States

each year, it is not unjustifiable to exclude mem-

bers of the aforesaid organizations, since such

organizations are dedicated to the overthrow of

democratic government."

Likewise, `"`The Union will not oppose the denial

of citizenship to persons who are members" of the

above groups "at the time they apply for natu-

ralization. It is not unreasonable for the govern-

ment to determine that such persons cannot

honestly be attached to the principles of the Con-

ians Seeking Eniry Or

p For

-itizenshi

stitution of the United States as required by the.

oath of allegiance."

Previously the Union had taken the position

`that "no alien should be refused admission to the

United States on the ground of holding objection-

able opinions. Present restrictions are wholely

contrary to our tradition of political asylum." :

On the question of naturalization, the Union

had in the past declared that "citizenship should

not be refused to any alien because of views which

may legally be expressed by a citizen."

On this last issue, the vote was 40-19 in favor

of the change of policy. The Northern California

Committee opposed the change. On the subject of -

opposing entry of Communists and other totali-

tarians into the United States as immigrants, the

vote was 38-21 in favor of the new policy. The

Northern California Committee once again voted

against the change in policy.

The local Committee felt that political tests and _

application of the principle of guilt by associa-

tion have no proper place in determining the eli-

gibility of a person for permanent entry into a

country that stands for freedom of opinion and

the doctrine of personal, individual guilt. When

it becomes unlawful for citizens to have certain

affiliations then it is time enough to say that

aliens, whether they seek entry or citizenship,

should also be barred from such associations.

Incidentally, it seems highly improper for a non-

partisan organization, to make a finding that

certain political groups `"`are dedicated to the

overthrow of democratic government."

Immigration Head Bars

Mrs. Ellen Knautf

Immigration Commissioner Argyle Mackey has

upheld a special board of inquiry which ordered

Mrs. Ellen Knauff, German war bride, excluded

from the country on the ground that she was a

poor security risk. That ruling was based on a

finding that she had served the Czech liaison

mission in Frankfurt, Germany as a spy during

- 1947.

Mackey's ruling, which will be appealed, accord-

ing to Mrs. Knauff's attorney, Alfred Feingold, to

the Board of Immigration Appeals, was the latest

chapter in the three year fight of Mrs. Knauff to

gain entry to the country. She was originally ex-

cluded by the Attorney General in 1948 without a

hearing or announced reasons for her exclusion.

After the U.S. Supreme Court upheld the Attor-

ney General's right to follow such a procedure,

bills were introduced into Congress to permit her

to enter. A hearing was held by the House Judi-

ciary Committee, which cleared Mrs. Knauff, and

the House voted approval of the bill. On the

Senate side, action has been stymied by the Senate

Judiciary Committee. Through popular pressure

and the personal intervention of Mrs. Knauff's

husband, an Army civilian employee in German

Mrs. Knauff was paroled from Ellis Island in her

husband's custody and a hearing ordered. From

the beginning, ACLU has intervened to have the

Attorney General grant Mrs. Knauff a hearing,

and is now studying the hearing record to see if

she received a fair one. The charge has been made

by her counsel that she had no chance to cross

examine her accusers and that the evidence

against her was hearsay.

ACLU Receives Only Passing

Mention In Burns Report

The 1951 report of the Burns Committee, Senate

Fact-Finding Committee on Un-American Activi-

ties, only twice mentions the ACLU. In discussing

the defunct International Labor Defense, it is

stated there was "constant and intimate liaison

between the ILD and the ACLU," especially

through Leo Gallagher who was connected with

both organizations.

The Union is also mentioned in an article by

Sidney Hook, excerpts of which are reprinted in

the report. In the article the Union is mentioned

together with the "AFL, CIO, and other organiza-

tions of the labor and liberal movement."

The 1951 report is essentially an attack against

the University of California and in that regard is

a rehash of matters that arose years ago.

of trade unions, which can no longer be classed as

private organizations. If affiliation with an or-

ganization in itself is no ground for discrimina-

tion against a person, then it would seem that the

corporation has been inconsistent in not objecting

to the barring of Communists and other totali-

tarians from holding office in labor unions.-Ed.)

Legislature Adopts Only

Minor Civil Liberties Bills

Numerous measures in aid of civil liberties

were introduced in the recent session of the Cali-

fornia Legislature but only a handful were

enacted. Nothing of great importance got by the

most reactionary Legislature in many years.

Possibly the most important bill to be enacted

makes it unlawful "for an employer or a labor

union to refuse to accept otherwise qualified em-

ployees as indentured apprentices on any public _

works, solely on the ground of race, creed, or -

color of such employee." That will affect very

few workers. Nevertheless, Senators Tenney and

Burns lead the fight against the.bill. Tenney said

the bill would deny an employer the basic right

of free enterprise-the right to select his own

employees.

A measure was enacted to restore liquor li-

censes taken from evacuated Japanese. Only a few

persons are affected by this legislation.

Another measure affecting Japanese would re-

imburse those who lost property under a section

of the Alien Land Law that has been declared un-

constitutional.

The Legislature also voted to submit to the

people a- Constitutional Amendment repealing

Article XTX of the State Constitution dealing with

Chinese. One section of the Article, which pro-

hibited public corporations from employing Chi-

nese, was declared unconstitutional by the courts. .

Among other things, the Article provides that

"The Legislature shall delegate all necessary

power to the incorporated cities and towns of this

State for the removal of Chinese without the

limits of such cities and towns, or for their loca-

tion within prescribed portions of those limits, |

and it shall also provide the necessary legisla-

tion to prohibit the introduction into this State

of Chinese after the adoption of this Constitu-

tion."

Of special interest to the ACLU is the repeal

of the so-called Anti-Okie Law which was de-

clared unconstitutional by the U.S. Supreme Court

in 1941 in a test case handled by the Civil Liber-

ties Union. Under that law it was made a mis-

demeanor to aid an indigent to enter the State.

During the depression period, particularly in Tu-

lare and Kings counties, migrants would be ar-

rested for bringing their indigent wives and chil-

dren into the State. They would be convicted and

given 6 months in the County jail, but the sentence

would be suspended on condition that they left

town. The Welfare authorities would generally

see to it that they got enough gasoline in their

jalopies to get them out of town and thus save

the county the expense of feeding the family.

The miscegenation statute, which has been de-

clared unconstitutional, was up for repeal but the

measure failed of adoption in the State Senate.

By so doing, a prejudiced county clerk can refuse

to issue a marriage license and compel the parties

to go to court for relief. Senators Burns, Dilworth,

Tenney and Watson, who do a lot of yelling about

Un-American Activities, all voted against repeal-

ing the statute.