vol. 18, no. 9

American

Civil Liberties

Union-News

ae Bee

Free Press

Free Assemblage

Free Speech

"Eternal vigilance is the price of liberty."

VOLUME XVIII

SAN FRANCISCO, CALIFORNIA, SEPTEMBER, 1953

No. 9

LET FREEDOM RING |

Levering Oath Non-Signers Seek to Resign

The Union's staff counsel, Lawrence Speiser, on

August 25 appeared on behalf of five non-signers

of the Levering Act oath who were appealing dis-

missals ordered by Roy Simpson, Superintendent

of Public Instruction. Appeals to the State Per-

sonnel Board had been held in abeyance pending

action of the State Supreme Court on the test

cases. Following the adverse decision, the hear-

ing was set although Wayne Collins, counsel for

the non-signers was on vacation. The ACLU was

called into the case at the last moment and Speiser

urged that the employees be allowed to resign

rather than have a record of discharge against

them. He was given ten days in which to try to

induce Roy Simpson to accept the resignations.

The San Francisco Board of Education recently

allowed its non-signers to resign.

Special Oath for Some Teachers

The ACLU has urged the San Francisco Board

of Education not to enforce a special loyalty oath

for certain teachers that was enacted by the re-

cent session of the State Legislature and goes into

effect on September 10. The Union contends that

the new oath is unconstitutional since the consti-

tutional oath just adopted by the people last No-

vember provides that "No other oath, declaration,

or test shall be required."

Under the new law, in addition to taking the

Levering Act oath, a new teacher employed by a

school district "must state under oath whether or

not he is knowingly a member of the Communist

Party." Also, any teacher who during the past

five years was knowingly a member of the Com-

munist Party must take an oath within 90 days

that such membership has been terminated in

good faith.. f

"Poor Judgment" Confirmed

The Board of Immigration Appeals has con-

curred in the decision of the Immigration Service

in San Francisco denying suspension of deporta-

tion to a Korean who has resided in the United

States 3314 years, on the ground that "his judg-

ment as to proper associations and activities

leaves a great deal to be desired." The alien was

granted voluntary departure but if he fails to

- find a country that will accept him he faces de-

portation to Korea and almost inevitable political

persecution since he is an opponent of Syngman

Rhee.

More Campaign Returns

A further report about the special membership

campaign is warranted because since the last re-

port $69.50 was received to raise the total income

to $2440 or 81% of the financial goal. Nine new

memberships and 1 subscription were received,

resulting in a total of 358 new members (80% of

the membership goal) and 24 new subscribers.

There was one major change in area results.

Carmel, which had secured 130% of its member-

ship goal, received additional income to achieve

101% of its financial goal. -

Appeal Murphy's Decision

The U.S. Attorney in San Francisco has filed a

notice of appeal from the decision of Federal

Judge Edward P. Murphy requiring the Coast

Guard on demand to furnish bills of particular in

security screening cases.

On the other hand, the Commandant of the

Coast Guard has advised the Union in various

cases "that it is now considering the procedures

to be followed as a result of'? Judge Murphy's

decision. In the meantime, the Union has elected

to postpone hearings in cases until the Govern-

ment's intentions are clarified.

Union Challenges Discharge of Private

Utilities Employees at Behest of Burns Comm.

In a letter to Chairman Hugh M. Burns, the

American Civil Liberties Union of Northern Cali-

fornia last month challenged the authority of the

California Senate Fact Finding Committee on Un-

American Activities (1) to recommend the dis-

missal of private utility employees who refuse to

"cooperate" with'the Committee; and, (2) to set

up a liaison with private utility companies under

which information would be exchanged to permit

screening out (dismissal) of security risks. The

latter scheme is similar to one that has reportedly

been established with California colleges and

universities.

Exceeded Authority

In both matters, the Union claimed, the Com-

mittee has exceeded the authority granted it by

the California Senate. Such authority, the Union

pointed out, is to find facts and to make recom-

mendations for the adoption of legislation to meet

the problem. The Union expressed confidence that

the Committee was "fully aware of the dangers

in the unauthorized assumption of powers by any

governmental body or representative and will do

everything possible to avoid falling into such an

error."

In recommending dismissal of "uncooperative"

Court Bans Enforcement

Of Housing Loyalty Oath

A New York state court has blocked New York

City Housing Authority from putting into effect

the Gwinn amendment, which requires tenants in

`all federally supported housing projects to sign

affidavits that they are not members of organiza-

tions on the Attorney General's "subversive'"' list.

The city housing authorities took action on the

oath in compliance with directions from the fed-

eral Public Housing Administration. PHA had

followed the requirements of the Gwinn amend-

ment last December by adopting a resolution re-

quiring the affidavits. ie

In rendering his adverse decision, New York

Supreme Court Justice M. Henry Martuscello held

that the PHA's resolution implementing the order

did not provide tenants with the due process

guarantees of the federal and state constitutions,

although ruling that the amendment was not a

bill of attainder since it did not punish past mem-

bership in an organization.

The case was brought by Mrs. Rebecka Peters,

a resident of a Brooklyn housing project, who

sued on the ground that the authority's action

was "capricious, arbitrary, and unreasonable."

The judge held that Congress, in attempting to

exclude subversives from housing projects, act-

ually excluded all persons who are members of

organizations that are designated by the Attor-

ney General. Justice Martuscello pointed out that

the Supreme Court has questioned the constitu-

tionality of the way in which the list was com-

piled. He continued:

"Such a legislative mandate should be based-

on a finding that the organizations listed have

been found to be subversive after a hearing grant-

ing all the safeguards of due process as under-

stood by our courts since the time of the adoption

of the federal Constitution. No such hearing is

provided by Executive Order 9835 nor by the

Gwinn amendment."

The ACLU has also brought several test cases,

challenging the constitutionality of the amend-

ment. A preliminary injuction against the en-

forcement of the Gwinn amendment has been

obtained in Newark, New Jersey where the case

still awaits final determination. Other test cases

have been grought by the Union in Los Angeles,

Denver, Buffalo and Richmond, Calif. ACLU at-

torneys are assisting in.a Chicago test case, as

they assisted in the New York City test case.

witnesses to private business, the Union charged

that the Committee was playing "the parts of

prosecutor, judge and jury," and that a witness

was being penalized indirectly without due process

of law. The letter suggested that statutory autho-

rity was essential before employees of private

utilities could be screened, just as the Coast

Guard needed the authority of the Magnuson Act

to screen out security risks in the maritime in-

dustry. But such broad statutory authority is

lacking and the 1953 Legislature has even turned

down a proposed law under which employers (on

their own) were permitted to dismiss workers

whom they had reasonable grounds to believe

were Communists, the Union said.

No Judicial Functions

Finally, if the Committee's immediate concern

Springs from evidence that certain individuals

have committed or are conspiring to commit

crimes such as espionage or sabotage, "then," said

the Union, "it is the plain duty of the Committee

members as citizens to present their information

to the proper agency for prosecution. But, it is

clearly not a function of a legislative committee

to try and to punish individuals nor to recom-

mend that private businesses do so." =

The text of the Union's letter follows: -

According to press reports, your Senate Fact

Finding Committee on Un-American Activities has

recommended to private employers the discharge

of six public utility workers because they invoked

the protection of the Fifth Amendment when

called as witnesses before your Committee, be-

sides offering to establish a liaison with private

utilities in order to screen their employees for

security risks. It seems to us that both the recom-

mendation and the offer go far beyond the autho-

rity granted your Committee by the California

Senate.

The Committee's Purpose

The purpose of your Committee, as stated in

the resolution creating it, is to find facts. It is

"created and authorized and directed to investi-

gate, ascertain, study and analyze all facts relat-

ing ... to the activities of groups and organiza-

tions which have as their objectives . . , the over-

throw of the State of California or of the United

States by force, violence or other unlawful

`means,' etc.

After these facts have been obtained, the Com-

mittee is "to report its findings and reeommenda-

tions to the Legislature and to the people from

time to time." And, it is stressed in the preamble

of the resolution that the reason for securing

these facts is to enable the.State of California

to "enact pertinent legislation" to meet the prob-

lem. Nowhere in the resolution is there any lan-

guage which gives the Committee the authority to

recommend to a private employer whom he should

or should not employ.

Indirect Penalty Without Due Process

Not only does the Committee's recommendation

. go far beyond its authority, but it has the prac-

tical effect of penalizing private employees in an

indirect manner without due process of law. If a

witness commits a contempt before your Com-

mittee by refusing to answer questions you be-

lieve he is legally required to answer, adequate

court procedures are available to determine the

matter. (It is possible, of course, that in a parti-

cular case the Committee itself may be in the

wrong and the witness in the right.) But with

or without a judicial determination, the Commit-

tee has no moral or legal right to punish the wit-

ness, either directly or indirectly. By recommend-

ing dismissal of `uncooperative' witnesses from

their private jobs, the Committee is in effect play- _

ing the parts of prosecutor, judge and jury. While

(Continued on Page 4, Col. 1)

: Page 2

AMERICAN CIVIL LIBERTIES UNION-NEWS

Because of the wide interest shown by the Union's

members, the News is devoting half of the current issue

to letters from members commenting on the three policy

statements adopted by the national board. If you have

not yet expressed your opinion on this subject, how about

doing it NOW? ;

Verbosity, Ambiguity, Loose Meaning oe

Concerning the three policy questions of the national

Board of Directors, you ask for opinions. Therefore...

Statement No. 1: This statement describes and con-

demns the Communist Party in America and holds that,

nevertheless, members of the Party are not necessarily

engaged in illegal conspiracy or acts, and that the Union

will defend their civil liberties upon need. However, the

policy statement is muddied up by the further comment

that one's political associations may, without a violation

of civil liberties, be taken into account in the judgment

of that person under certain conditions: "providing that

such a judgment is not indiscriminate or automatic, but

specific and comprehensive in weighing all relevant fac-

tors." :

The vagueness of this writing, the great uncertainty of

its precise meaning, and the rather negative attitude of

the approach, all tend to leave one uncertain as to how this

statement can effectively become a guide to action. Would,

for instance, the discharge of a teacher be thought "indis-

criminate and automatic" if the only case against him was

the suspicion of his political association, a suspicion

brought on, let us say, by use of the Fifth Amendment nae

a legislative hearing? The answer, I suppose, would be

yes, and the Union would defend that teacher. On the

other hand, what if, as in the Rutgers University case, the

teacher had been given a full hearing before a faculty

board of review, with the resultant decision in his favor,

and he was then discharged by action of the trustees? Is

`this "indiscriminate and automatic" or `"`specific and com-

prehensive'? I suspect that the latter would be thought to

describe the situation, in which case this policy statement

would negate the possibility of the Union's defense of this

teacher. In other words, do not the key terms used in this

statement need clarification? How relevant, for instance,

is "relevant"? Since the Union holds that membership in

the Party is not illegal, is the implication that membership

is, however, immoral, and can be so considered under cer-

tain conditions and for certain positions of employment?

In short, it is, in my opinion, impossible to know exactly

what the National Board has in mind in this first State-

ment, and I should think that, in time, the vagueness of

the statement would be more of a threat than a guide for

future action. The failure of language-verbosity, ambigu-

ity, loose meaning, imprecision-obviously predicts the fail-

ure of action based on that languege. This is what really

worries me here, and in the other two statements: one feels

that the Board itself did not know what it was trying to

say and so, in the end, could not say it clearly.and force-

fully.

Statement No. 2: :

(a) In April, 1952, evidently, the Board could write

clearly. This statement is neat and clean, since it deals

with a concrete situation-defense of a teacher when he

is discharged without prior unfavorable judgment by his

colleagues. The vague abstractions of Statement No. 1 do

not appear here. Under this section (a), the Rutgers case

I mentioned before would obviously be taken up by the

Union; under Statement No. 1 the matter would seem to

be doubtful. Of course the issue is complex: would use of

the Fifth Amendment be `unprofessional conduct" and thus

enter into a judgment under the "specific and comprehen-

sive' matter? I don't know. But the point is, that these

statements do not let me know. They even suggest some

kind of interior contradiction.

(b) Again, vague language bothers one. The opening

sentence says, though it may not mean, that the Union

will not oppose a security program for UN employees pro-

viding that that program is based on the three principles

set down. The obvious implication, then, is that the Union

will oppose and will defend against any program not meet-

ing these three principles. Is this so? Since I am told that

the US security and loyalty program does not fully honor

the principles previously proposed by the Union, and since

the US government is acting, as I undestand it, upon its

nationals in the UN, would this not come in the end to

mean that the Union will not support the current UN

security program and will defend against it? The lan-

guage says just this, but one wonders.

And again, note the negative attitude of the language:

the Union will not, instead of the Union will. We learn

throughout these statements more of what the Union will

not do `and what it does not stand for, than what it will do

and will stand for. Can we back into civil liberties? The

Union used to speak with force and affirmation, but it does

not here.

Statement No. 3:

(a) This is a maddeningly insecure and uncertain state-

ment. Sentence by sentence, the following questions come

up: what is "a law'? An act of Congress, yes. An act of.

the Board of Regents? Is an administrative ruling a law?

Nongovernmental administrative ruling? Would the Board

of Regents be legally authorized to ask of professors in-

formation concerning political associations? Would such.

a question be "legally permissible'? Under what law?

`What does "generally be limited" mean, when used in the

comment regarding the questions a legislative committee

may ask? Why generally, and where is the line to be

drawn? Assuming that a Board of Regents is "legally

responsible for employment" and that information re-

garding political associations is relevant to employment

in a university, does this mean that the Union will sup-

port such political questioning under all such conditions?

And support, too, the results of such questioning, includ-

ing refusal of employment for political associations, should

such refusal result? One wonders.

(b) This paragraph clearly contradicts earlier state-

ments, especially that of Statement 2, a. It says that one

has the perfect right to use the Fifth Amendment with-_

out the imputation of guilt, and yet it goes on to hold that

use of this privilege may be "inconsistent with his duty of

full disclosure toward an employer' and evidence of a

surrender of "his judgment to control of some totalitarian

organization.'"' This seems to me to be a dangerous exten-

sion. Since the Fifth Amendment can be used, and has

been, as 'a protection against the possibility of being forced

into perjury, and for no other reason, how can it be that

the mere use of it can be taken as evidence of a surrender

of judgment? In effect, this paragraph seems to hold that

one has the right to exercise the privilege of the Fifth

Amendment, but one can expect no protection, no defense,

if its use leads to later punishment. If the Union holds

that there can be no imputation of guilt, how can it hold

that use of this privilege may be taken as having "weight"

in some later judgment?

In short, it seems to me that the Union is hedging and

again moving in negative directions. Hither the Fifth

Amendment means something, both in the court of law

and under later conditions, or, in the end, it means nothing

at `all. The Union seems to hold that one may escape crim-

inal prosecution through the exercise of this privilege, but

one may not look forward to relief in any subsequent |

prosecution brought on by this use. In other words, you

won't go to jail, but you may well be discharged. Of course,

the Statement says that weight can be given as "appro-

priate in the particular circumstances," but these vague-

nesses give one little comfort. It seems to me that when

one `allows the threat of discharge from employment to

exist if testimony is refused, then one is in effect being

"forced" to testify against himself. I say this without

necessarily holding that administrative bodies have no

authority to investigate professional fitness of employees,

but I worry about the vague language in which this policy

statement is written.

I realize that the problems regarding the use of the

Fifth Amendment are complex and that there may be hid-

den things that a layman might overlook. But as a matter

of principle, in this and in other touchy areas of civil

liberties, I would hold it better in the end to err on the

side of fullest freedom and protection than on the side of

compromise, however `"`wise'' and "necessary" compromise

may seem to be in certain times. I think we'll get out of

the woods better by holding the line firmly than by beat-

ing strategic retreats. I think it would be better for the

Union to hold that the Fifth Amendment means what Jef-

ferson meant it to mean-protection against forced self-

incrimination-and hew to that line as long as possible.

The result would be that the Union would also hold that

discharge from employment in government, UN, or edu-

cational institutions ought to be for clearly proven failures

to meet clearly stated demands of professional conduct,

and that use of the Fifth is not necessarily evidence of

failure.-J. E.

No. 3 Especially Poor

The three statements in the July issue should be re-

jected. `Statement No. 3 is especially poor for our organi-

zation to support.-W. L.

Appeasement of McCarthy

I vote against adoption of all of the statements of policy

set forth in the July issue. They are all, in my opinion,

produced by a desire to appease the McCarthy-McCarran- .

Jenner-Tenney opponents of civil liberties. I will be de-

lighted to support statements of policy which show bold

opposition to the men named.-P. H. P.

Security and Free Discussion

Except for the comments which follow, I agree with the

three policy statements of the national board printed in

the July ACLU News.

Statement No. 1 affirms: "The ACLU holds that the

American Communist Party is... essentially characterized

... by obedience to...a despotic foreign power... threat-

ening the national independence and individual civil liber-

ties of all other countries." If we grant that this threat is

embodied in conspiracies and acts, and that such conspi-

racies and acts are illegal in the threatened nations-both

of which seem unassailable contentions-then I think the

ACLU must hold what it disavows, that "all persons who

submit to the Communist Party's rigid discipline...are

engaged in illegal secret conspiracy or illegal acts.'"' And

further, if such persons are lawbreakers, then questions

concerning anyone's associations with them (see No. 3c)

certainly touch on possible violations of law and on pos-

sible legislation within the purview of a legislative com-

mittee; such questions are therefore properly asked by

authorities or by legislative committees, and do not de-

serve the protection of the First Amendment.

As to the argument of No. 3b, I agree that a person

seeking the protection of the Fifth Amendment does not

justify imputation of criminal guilt to him. Let us note,

however, that he does thereby assert his own belief that

he may be guilty of a crime. Thereupon he must admit

that others are justified in being suspicious of him, until

he has taken such steps as may ascertain his guilt or

innocence, and submitted himself to due process of law.

Against this course, such a man may fairly raise the

question, whether in time of stress he could trust legal

agencies to adhere to due process, and to reasonable pun- -

ishments. Most men in such straits would be so biased by

the natural wish to escape punishment that they would

be unable to find a reliable answer to this question with-.

out seeking help from someone cooler because less in-

volved. The humility and wisdom to be gained in rueful

review of one's errors are easily submerged and dissolved

in blind self-righteousness when one can point to threats

of unfair retribution.

Finally, as regards the April, 1952, statement quoted in

Ne. 2a, the first two sentences are absurdly idealistic and

implicitly contradictory. Obviously anyone pursuing truth

is not yet in possession of it, and must therefore be some-

what biased; "unbiased pursuit of truth" is nonsense.

Every living man has countless commitments which bias

him and interfere with his pursuit of truth; whatever of

academic freedom is incompatible with that fact will have

to be sought in an academy of angels, not of men.

I think it valuable to a university to include advocates

of all views, including those regarded as illegal, immoral,

heretical, unhealthy, or in any way anti-normative; but

freedom to advocate a view in a forum where it will surely

and promptly be confronted with conflicting views need

not and must not interfere with the community's protect-

ing its organization against such dangers as conspiracy,

espionage, sabotage, and entrenched oligarchy-the objec-

tives of the Communist Party. Indeed, freedom to advo-

cate and discuss is likely to be greatest in the community

which feels most secure against such acts; and I think the

current hampering of discussion in this country is due in

part to a recent genuine lack of such security. I do not

believe there is any incompatibility between security and

free discussion-rather, each supports the other.-S. N.

TS ON 3 POLICY STATEMENTS

In Complete Agreement

With regard to the three policy questions, | wish to say

that | am in complete agreement with the stand you have

taken regarding them.-J.'M. F.

' Adding to the Communist Hysteria

I would oppose all three statements on the following

grounds:

1. In my conception it is the business of ACLU to defend

civil liberties whenever and wherever they are violated. It _

is neither appropriate nor necessary for the ACLU to form

judgments about other organizations, about members of

other organizations, or about other nations. When such

judgments `are made solely against one organization, the

Communist Party of the U. S. A. and its members, and

solely against one nation, the U. S. S. R., it can have no

other effect than to add to "the present Communist hys-

teria" which you mention in your letter. It is precisely

this hysteria which must be abated if civil liberties are to

be successfully defended!

2. Throughout the statements there seems to be an

attempt to open just a little the door to penalizing persons

for their exercise of their constitutional freedoms and pro-

tections. The whole history of the post-war period is con-

clusive evidence that once this door is opened at all it is

thrust wide under the pressure of the hysteria previously

mentioned. It is the job of those who would defend civil

liberties to close, bolt, and padlock for all time this open-

ing. We cannot do it by voluntarily giving ground.

In addition to the above, I call attention again to the

second paragraph of the first Statement. I find it a little

difficult to be temperate in my language about such a

paragraph. Let's put it this way: Was Goebbels right? Is

Franco right? Are McCarran and McCarthy and Velde

and Jenner correct after all? Is not the opinion expressed

in this paragraph the very cornerstone of the entire edi-

fice of lies, distortions, and hysterics erected by the ene-

mies of our civil liberties and used by them to justify the

destruction of our civil liberties? I characterize this para-

graph as a lie. It is a lie if for no other reason than that

it oversimplifies to the point of dangerous idiocy a world

situation which cannot be explained in terms of one nation

or One political belief.

As you undoubtedly see, my opposition to the three

statements is on the grounds of what I consider as weak-

nesses in the statements. To whatever extent the state-

ments propose to defend persons in the exercise of their

civil liberties, to that extent I agree with them.-R. L.A.

A Complex Matter

No. 1. I see little objection to this statement. Of course

the Union is being criticized for defending Communists.

If a man admits loyalty to Russian Communism, the Union

may have no obligation to defend `him. But I infer that

in the great majority of cases this is not admitted so it

may be necessary to enter and hear a case before the

defendant's loyalty can be determined. Otherwise innocent

people may suffer. Some preference may be shown for

citizens over noncitizens. I feel that the danger from in-

ternal Communism, more `properly called Stalinism, is

greatly exaggerated by 'a few of our demagogues, who use

it as a cover to discredit worthy men and institutions.

Thus McCarthy is trying to discredit Protestants, etc.

This creates a public sentiment that makes it difficult for

a man accused as subversive to get a fair trial so this is

another reason to defend a man who is accused but not

known to be guilty. It is a complex matter any way one

looks at it.

No. 2. I see no objection. ae

No. 3. I see no objection, except the first sentence does

not seem entirely clear and may perhaps be better if re-

stated.-c. P.S.

A Concession to FEAR and Hysteria

Statement No. 1 strikes me as a concession to fear and

hysteria. I did not approve of the original resolution men-

tioned (Feb. 5, 1940). You don't protect yourself from total-

itarians by resolutions. If such a one were elected to office,

it would be a sure sign that the organization was about to

fold. If we are alert and active, we need never fear such an

eventuality. I also think it is a violation of civil liberties

to take into account `a person's voluntary associations.

I love a lot of people who, in my opinion, hold stinky

political or religious views. Their opinions on these mat-

ters irritate me, and I could think of nothing more unfair |

than to judge me by some of my dumber friends' opinions.

I wish to be judged, if at all, by my opinions, not by other's

opinions....

Statement No. 2 also stinks. In the first place, I never

heard a professor who was entirely objective. What you

think can't help leak out of you, even if you don't want it

to. I have been taught by Catholic, Communist, Demo-

cratic, Republican, Liberal, Atheist, mystical, conceited,

shy, dumb, intelligent professors. Some were more inter-

esting than: others. Some were better teachers than others.

Not one of them had a monopoly on Truth. I think the

sole criteria of teaching should be can he teach and does

he have `anything to teach. This is just another concession

to Joe. About UN employment-I oppose the application

of any kind of screening for "loyalty" or "security" risks

in the UN of any agency of any government, especially, |

right now ours. I think the FBI ought to be reorganized,

overhauled, investigated and cut down because it is trying

to turn us into a police state; (I may be wrong, but how

come nobody ever asks any questions about them), and I

don't think they are capable of clearing anybody for any-

thing. A good administrator would have a good depart-

ment. I feel also that this statement is slightly ambiguous.

I am against Statement No. 2.

Statement No. 3 makes me think that perhaps we should

secede from the Union, the American Civil Liberties Un-

ion, that is. What kind of double talk is this? |

The Fifth Amendment is to protect all us innocent peo-

ple who have principles about freedom, liberty, justice,

and also the privilege of not being an informer. I don't

think anyone has a right to ask those questions. I don't

see anybody asking are you a Ku Kluxer or a Catholic or

a Jehovah's Witness or a Bundist. I doubt if Julian Wad-

leigh could have been caught by a mere question like

that. His immediate superior should have known him well

enough to recognize him. You don't find spies by making

laws and asking questions.

If these Statements are adopted, I do not see any point

in there being an ACLU. In fact, there won't be an ACLU.

At a time when we should all be cheering Alexander

(Cont. on Page 3, Col. 1)

os

AMERICAN CIVIL LIBERTIES UNION-NEWS

Page 3

ACLU Members' Comments on Text of Nationa!

Proposed Policy Statements

(Continued from Page 2, Col. 3)

Meiklejohn, who is it that has done this deed? Is it that

Patrick Murphy Malin? If he is the culprit, let us throw

him out and make a Besig or a Meiklejohn the National

Director. The times call for spine, not whine, and we have

in our group a lot of people with spine.-M. P.

In General Agreement

I should like to go on record as in general agreeing with

these statements. There are various points at which I

could wish for a slightly different emphasis, but these

seem to me on the whole well-considered and consistent

positions. I think that it is of very great importance at

present for people who wish to defend civil liberties to

consider their premises and present circumstances very

carefully. It is important to make a courageous and forth-

right defense, and it is also important to take a position

which is valid and will stand examination.

My general agreement with these statements is based

on the following opinions: (1) that the Communist Party

is more than an organization for the advocacy of political

opinion (though I would certainly not outlaw it nor bar

its members from an expression of their opinions); (2)

that democratic rights do not include a right to secret

political activities; and (3) that disclosures of actual Com-

munist activities make it reasonable and inevitable that

certain kinds of employing authorities take some steps to

prevent the employment of secret Communists. I think

that the ACLU, having granted these (to me) inescapable

points, should examine investigative activities for sense,

relevance `and fair procedure, and that it should make an

unqualified defense of the right of open advocacy of any

opinions, including revolutionary ones short of immediate

incitement to violence.

I hope that the discussion within the Union of these

problems will be wide enough to result in the reduction to

a minimum of our internal differences.-H. F. M.

Neither Desirable nor Necessary

I was first interested in the beginning paragraph of

Statement One which refers to a resolution adopted in

1940 barring particular people from the governing bodies

of the American Civil Liberties Union. The only persons

who I believe can be validly denied those offices would he

those who find themselves unelected (or unappointed) and

therefore not preferred by the Union members. It would

be an unfair reflection on the Union if it were forbidden

free exercise of its members discretion. Placing restric-

tions on groups of people (in this case the American

Communist Party, et al.) is always a dangerous practice,

and especially dangerous where the general similarity

among the members of that group is as abstract and of as

wide a range of difference true of a group defined politi-

cally. Such a resolution carries a note of distrust which

its proponents hold for their own intelligence. Also an

unnatural and unnecessary limit is placed upon a field of

choice. Whether or not there would ever be cause to vio-

late that limit does not alter its oppressiveness. Perhaps

most dangerous is the precedent such a resolution would

establish, a supposed justification for future resolutions

of a similar nature, with a similar lack of necessity and

with a similar easily stronger oppressive effect.

People `are capable of self-government, of choosing their

leaders, and doing so without laws which prevent them

from reading the wrong books, saying the wrong things,

_or voting the wrong way.

I feel that some of the policies proposed are out of con-

text with the purpose of the Union, which is to defend the

individual against infringement upon the civil liberties

established to protect him in the Constitution of the United

States. A definition of. the American Communist Party or

the American communist hardly seem appropriate. In-

cluding definitions of this sort in Union policy (regardless

of the quality of the definition, which, in this case, I feel

to be quite poor) implies that there are particular people

whose defense should be undertaken differently from that

of others, or, possibly, not undertaken at all. The civil

liberties guaranteed under the Constitution are, of course,

to apply to everyone who is or comes under its jurisdiction.

The definitions hide individuality, both persons and na-

tional, under the word "all" and thus neglect it entirely-

an odd performance of an organization as interested in

and concerned with the individual.

The threat of the American Communist is defined as

being of such proportions that a bet on Democracy in open

competition would be a poor one. I believe this not only

exaggerates the position of the American Communist but

slurs the strength and wisdom of the American Democrat.

The first statement goes on vaguely to say that there

are instances when it is proper and instances where it is

not to consider one's associations. The instances are not

cited for either case nor is a scale for measuring the rele-

vancy of associations established. Less than `a policy state-

ment it seems a remark on the nature of things. Is. this

relevancy to be left to committees and regents?

The second statement says that the discharge of a

teacher should be preceded by an unfavourable judgment

by the teacher's colleagues based on "professional incom-

petence, immoral conduct, or perversion of academic proc-

ess." Later, in the third statement, it is stated that a re-

fusal to answer questions relating to membership in the

Communist Party must be taken into account in such

cases. The third statement disregards both the judgment

of the colleagues as well as the basis for discharge stipu-

lated in the second. And, again in the third statement, the

question of relevancy is raised. Revelancy is left to the

arbitrary decision of whoever the particular authority

may be.

The third statement also says that an imputation of

guilt is not justified towards a person exercising the Fifth

Amendment though he may justly suffer other conse-

quences of having exercised it. What consequences might

these be other than an imputation of guilt (or a conse-

quence in which that imputation is implicit) ?

The policy as a whole sounds like an apology to those

"honorable men" to whom the Union's defense of persons

under legitimate circumstances where civil liberties were

being upheld caused some consternation.. Parts of the

statements were disregarded by other parts, and a good

deal of it is vague enough to be credited with no pertinent

meaning at all. It goes out of the field of the Union to

define groups and intentions as well as give advice to the

United Nations. Adoption of the policy will lose prestige

for `and effectiveness of the Union, consequences neither

desirable nor necessary.-T. M. H. i

Because of the continuing comments from our mem-

bership on the three policy statements adopted by the

Union's national board, which are now the subject of a

referendum of the corporation members, the News is

again printing the text of the statements. Since the issue

may not be determined far a couple of months, there is

still time to tell the Union what you think about these

proposals. Send your letter to the ACLU, 503 Market

Street, San Francisco 5.

STATEMENT No. 7 on:

Nature of Communist Party;

Defense of Civil Liberties Regardless of Associations;

Allowable Consideration of Associations (In General).

`On February 5, 1940, the American Civil Liberties Union

adopted a resolution barring from its governing bodies

and staff any person `who is a member of any political

organization which supports totalitarian dictatorship in

any country (including the American Communist Party,

the German-American Bund and native organizations with

obvious anti-democratic objectives or practices), or who

by his public declarations indicates his support of such a

principle." On January 17, 1949, the Union adopted a reso-

lution reiterating its opposition to `any form of the police

state or the single party state, or any movement in sup-

port of them, whether Fascist, Communist or known by

any other name."

The ACLU holds that the American Communist Party

is distinctively and essentially characterized both by ex-

treme anti-democratic doctrine and practice and by obedi-

ence to the government of the Soviet Union, a despotic

foreign power which dominates a world-wide revolutionary

movement unprecedentedly threatening the national inde-

pendence and individual civil liberties of all other coun-

tries. It is thus sharply differentiated from traditional

American political parties, and all its present adherents

are to some degree involved in its distinctive and essential

character,

The ACLU does not hold that all persons who submit to

the Communist Party's rigid totalitarian discipline (wheth-

er formal members or not), or even all those who are its

leaders, are engaged in illegal secret conspiracy or illegal

acts. And since the Union is opposed to any tendency by

which American democracy might stoop to the level of

Communist tyranny in withholding any civil liberties from

Communists (or Fascists, Ku Kluxers or adherents of other

totalitarian doctrines), including the Constitutional rights

of due process, equal protection of the law, and freedom

of speech, press and association, it will defend those rights

regardless of the associations of individuals to whom they

may be denied.

But: (1) It is not a violation of civil liberties to take

into account a person's voluntary choice of association

when that choice is relevant to a particular judgment-

providing that such a judgment is not indiscriminate or

automatic, but specific and comprehensive in weighing all

relevant factors. (2) There are a number of judgments

wherein it is relevant, just as there are judgments wherein

it is not relevant, to take into account a person's volun-

tary choice of membership in or submission to the discip-

line of the Communist Party. This is not to condone "guilt

by association" in the reprehensible sense of holding a

person guilty of believing or doing what someone else

with whom he is (often remotely) connected believes or

does. And, in taking a person's adherence to the Commu-

nist Party into account, weight must be given to the time

and circumstances of such adherence and to its duration

and, if terminated, the sincerity of its termination. It is

particularly important that persons not be penalized

because of an association which has been abandoned.

STATEMENT No. 2 on:

Allowable Consideration of Associations

(In Educational and United Nations Employment).

(a) Regarding educational employment: The ACLU re-

-affirms the two-fold position set forth in its April, 1952,

statement on "Academic Freedom and Academic Respon-

sibility':

It is (a teacher's) duty...not to advocate any opinions

or convictions derived from a source other than his own

free and unbiased pursuit of truth and understanding.

Commitments of any kind which interfere with such pur-

suit are incompatible with the objectives of academic

freedom....The ACLU does not oppose the ouster or re-

jection of any teacher found lacking in professional integ-

rity...On the other hand, the ACLU steadfastly opposes

any ban or regulation which would prohibit the educational

employment of any person solely because of his personal

views or associations (political, religious, or otherwise).

Even though a teacher may be linked with religious dog-

matists or political authoritarians, the ACLU believes that

he must nevertheless be appraised as an individual...

The ACLU will intervene in appropriate cases involving

the discharge of a teacher when action is taken by admin-

istrative officials without a prior unfavorable judgment

by the teacher's colleagues based on professional incompe-

tence, immoral conduct, or perversion of academic process.

(b) Regarding United Nations employment: The ACLU

does not oppose the application by the United Nations to

its employees of a program, aimed at promoting the in-

tegrity of the United Nations and the security of each

of its member nations, and based on the following prin-

ciples:

(1) The program should be aimed, not at making

United Nations employees of any nationality the servants

of their government instead of their employer the United

Nations, which would be contrary to United Nations prin-

ciples; but at preventing its employees of any nationality

(or without any nationality) from wrongly serving the

interests of any government instead of their employer the

United Nations, and thus-among other things-prevent-

ing its employees of any nationality from wrongly serving

the interests of any other government against their own.

(2) The program should be framed and administered, `not

by any member government, but by the United Nations

as a whole. (3) The program should honor the principles

previously proposed by the ACLU for the American gov-

ernment's security and loyalty program for its employees,

with due regard to recognized principles of due process.

Board's 3 Proposed Policy

Statements Concerning Communist Association |

STATEMENT No. 3 on:

Refusal to Answer Questions About Associations;

Propriety of Questions and Competency of Authority;

Allowable Consideration of Such Refusals (In Govern-

ment, United Nations and Educational Employment).

(a) Questions concerning possible violation of any law

may be asked by any authority legally responsible for up-

holding that law. Questions concerning any other matter

may properly be asked only if information thereon is rele-

vant to a purpose legally permissible to the authority

asking the questions. For example, questions concerning

Communist or other totalitarian `associations which are

not illegal should, in the case of a legislative committee,

generally be limited to the purpose of possible legislation

within its purview. But any authority legally responsible

for employment to which information concerning Com-

munism or other totalitarian associations is relevant may

ask questions concerning such associations.

(b) The ACLU heartily supports the rights guaranteed

by the Fifth Amendment, and fully recognizes that a per-

son, in availing himself of the privilege against self-

incrimination guaranteed therein, does not thereby justify

an imputation of guilt of any crime. But the exercise of

that privilege does not challenge the propriety of the

question to which answer is refused or the competency of

the authority asking it, nor does it carry protection against

any consequences of having exercised it except the impu-

tation of criminal guilt. And the ACLU recognizes that

there are certain situations in which a person's exercise

of the privilege may be inconsistent with his duty of full

disclosure toward an employer, whether public or private. 0x00B0

For example, there `are certain types of work with regard

to which it is legitimate for an employer or prospective

employer to consider whether a person has surrendered

his judgment to control by some totalitarian organization

-Ku Klux, Fascist, Communist, etc. Therefore, we believe

that it is not a violation of civil liberties for employers in

those types of work-including government, the United

Nations, and educational authorities-to take into account

the refusal of an employee or prospective employee, on the

ground of possible self-incrimination, to answer questions

asked by any duly constituted authority and relating to (c)

submission to the discipline of, the Communist Party or

his present, recent or pertinently past membership in, or

other totalitarian organizations, and to give such weight

to the refusal as may be appropriate in the particular cir-

cumstances. This position is taken without prejudice to

our examination of cases of such refusal which may pre-

sent extenuating circumstances.

(c) Although it should be emphasized that the propo-

sition has not been judicially established, the ACLU will

continue to maintain that a person, by refusing to answer

on the ground of the First Amendment's protection of free

`association, may challenge the propriety of any question

concerning his or another person's Communist or other

totalitarian associations. And the ACLU will continue to

maintain that he may also, on proper grounds, challenge

the competency of any authority to ask such a question.

But we believe that it is not a violation of civil liberties

for authorities legally responsible for employment in cer-

tain areas-including government, the United Nations and

education-to ask, before or after such a challenge, ques-

tiens relating to an employee or prospective employee's

present, recent or pertinent past membership in, or sub-

mission to the discipline of, the Communist Party or other

totalitarian organizations, and-if he refuses to answer-

to take into account that refusal and give it such weight

as may be appropriate in the particular circumstances.

This position is taken without prejudice to our examination

of cases of such refusal which may present extenuating

circumstances.

(d) Any judgment on qualification: for employment

which takes into account either sort of refusal to answer

questions concerning membership in or submission to the

discipline of the Communist Party or other totalitarian

organizations should be, like any judgment taking into

account such associations themselves, not indiscriminate

or automatic, but specific and comprehensive in weighing

all relevant factors. And, as in all matters, due process

appropriate to the particular employment should be scrup-

ulously observed.

Organized Campaign Kills -

lllincis 'Anti-Subversive' Bills

The Broyles "anti-subversive" bills have once

more failed to become law in Illinois. One of the

two bills was rejected by a veto of Governor

Stratton; the other was defeated in the legisla-

ture.

Both bills were fought by a long list of organ-

izations, headed by the Chicago division of ACLU,

which organized a strong campaign against the

bills, and including the Illinois Bar Association,

the major labor organizations, church groups, and

veterans' organizations.

The bill defeated in the legislature (Senate Bill

No. 101) would have set up a commission to in-

vestigate subversive activities at a cost of $65,000.

ACLU charged that the bill would organize a

"fishing expedition" similar to the investigation

carried on by Senator Broyles between 1947 and

1949, which "presented such a sorry record that

it was put out of business by the legislature."

In support of its view that the probe would result

in wild charges, it cited testimony favoring the

bill which called the American Friends Service

Committee-the Quakers-and the Chicago Coun-

cil Against Discrimination subversive.

The second bill (Senate Bill No. 102), vetoed

by the governor, started in the state senate in

the identical form in which it was vetoed by Gov-

ernor Adlai Stevenson in 1951. Though much

amended in an effort to avoid defeat, this bill,

patterned after Maryland's Ober Law, was, ac-

cording to ACLU, "unnecessary and dangerous."

Page 4

AMERICAN CIVIL LIBERTIES UNION-NEWS

American Civil Liberties Union-News

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

Calif., by the American Civil Liberties Union

of Northern California.

Phone: EXbrook 2-3255

ERNEST BESIG Editor

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

Post Office at San Francisco, California,

under the Act of March 3, 1879.

Subscription Rates-One Dollar and Fifty Cents a Year.

Fifteen Cents per Copy -151

ACLU Charges Burns Comm.

Exceeds Its Authority

(Continued from Page 1, Col. 3)

the Committee's purpose may be highly commend-

able, certainly you will agree that the end does not

justify such means as these.

Legislature Turned Down Proposal

If the Committee, as a result of its investiga-

tions, finds that our laws are inadequate and be-

lieves that legislation is needed to eliminate cer-

tain individuals or groups from private employ-

ment in particular fields in order to prevent

espionage or sabotage, then it should recommend

adoption of such legislation and allow the en- .

tire Legislature to pass on the problem. As a

matter of fact, at the recent session of the Cali-

fornia Legislature, Assembly Bill No. 3051 was

` introduced allowing a private employer to dis-

charge an employee if there is reasonable ground

to believe he is a member of the Communist Party.

Whatever the constitutionality of such legislation,

it was not adopted. If it had been adopted, it might

have afforded some ground for independent action

by the present employers in dismissing the six

employees, although, as you know, invocation of

the privilege of the Fifth Amendment does not

afford legal justification for an imputation of

` guilt. But here the Committee is in the strange

position of recommending action not authorized

by its mandate, which would result in having the

employer do something for which there is no

specific legal basis and as to which the Legisla-

ture has refused to take action. j

In this general connection, it might be pointed

- out that the Coast Guard did not undertake to

screen out security risks from the maritime in-

' dustry until Congress first adopted the Magnuson

Act and a Presidential order was issued there-

under finding a need for the screening. Even so,

provision was made to grant hearings to suspect-

ed security risks and Federal Judge Edward P.

Murphy only recently held that a specification of

the charges had to be furnished on demand. Cer-

tainly, there are some minimum legal prerequi-

sites before a private utility employee can be cast

out of his job at the request of a legislative in-

vestigating committee.

No Authority For Liaison Plan

The press also reported that your Committee

has proposed `to the private utilities that they

each name a person to maintain contact with the

Committee in order that information might he

exchanged which would allow the companies to

sereen out subversives from among their em-

ployees. This program would be similar to one

which has reportedly been established with Cali-

fornia colleges and universities. In the case of the

colleges, however, there is a mixture of public and

`private institutions, whereas in the case of the

`utilities only private businesses are involved, In

either case, however, there is absolutely no autho-

rity from the California Senate for the program.

If the Committee's present concern springs

from evidence that certain individuals have com-

mitted or are conspiring to commit crimes such as

espionage or sabotage, then it is the plain duty of

the Committee members as citizens to present

their information to the proper agency for prose-

cution. But, it is clearly not a function of a legis-

lative committee to try and to punish individuals

nor to recommend that private businesses do so.

Danger In Assumption Of Powers

We are sure you and your Committee are fully

aware of the dangers in the unauthorized assump-

tion of powers by any governmental body or

representative and will do everything possible to

avoid falling into such an error.

We respectfully urge your Committee to re-

consider these matters and trust we will be in-

formed of its conclusion.

Amorphous Statements

With reference to the three policy questions adopted by

the national board, may I simply ask, is the ACLU con-

cerned with the protection of citizens under the Constitu-

tion of the United States, or is it attempting some sort of

educative campaign? I, as a member of the organization,

object to other members serving the organization starting

what appears to me to be an educative program, for, as I

see it, the ACLU is concerned with specific questions of

constitutionality, not with generalities regarding proper

or improper behavior. If the Union could discover every

instance of abrogation of our constitutional rights and

powers, and could take appropriate legal action, there

would be less need for such amorphous statements of

political-philosophical opinion.-D. H. K.

New Security Screening of Armed Forces

Contractors Begins; Union Gets 5 Cases

The Defense Department of the Federal Gov-

ernment has revived its program of screening out

security risks from among private contractors

and their employees who have access to "classi-

fied security information," and five cases have

come to the ACLU of Northern California for

help. Two of the cases are hold-overs from the

Government's former program and have been

pending for six and ten months respectively. The

three other cases have just arisen.

The new agency, which goes under the awkward

title of Industrial Personnel and Facility Security

Clearance Board, succeeds the Industrial Employ-

ment Review Board and the Army-Navy-Air Force

Personnel Security Board. Whereas the old pro-

gram was centralized in a Review Board in Wash-

ington, the new program is decentralized with

boards located in New York, Chicago and. San

Francisco. :

Even though the old program has_ been

abolished, the new board is taking up where the

old one left off. For example, the Board is not is-

suing new charges in cases that were pending be-

fore the old Review Board, but is merely calling

the cases up for appeal hearings.

The new board is divided into a Screening Di-

vision and an Appeal Division. The Screening Di- |

vision sends a "suspect" a "notice of proposed

denial or revocation of clearance and a Statement

of Reasons which will be as specific and detailed

as, in the opinion of the Screening Division, secur-

ity considerations permit, in order to provide the .

contractor employee with sufficient information

to prepare a reply." The "suspect" then has ten

days to answer in writing. If a clearance is then

denied, the "suspect" may appeal to the Appeal

Division of the Board and receive a hearing.

The trouble with the Statement of Reasons fur-

Congress Urged to Adopt

Fair Investigating Procedures

The ACLU has again urged Congress to speed

consideration of measures to establish fair pro-

cedures for its investigating committees.

Three bills on this subject are now before the

Senate Rules Committee. The Union has no special

preference for any of the three bills, but re-

quested hearings be held on them as early as

possible. In a letter to the chairman of the Senate

and House Rules Committee, the ACLU stated:

"In our opinion, fair procedures for individuals

called to testify is an essential prerequisite to

any investigation. It demonstrates support for the

spirit of due process of law, and improves the

efficiency of the legislative process. A committee

interested in eliciting facts for the public's infor-

mation, or in developing information for possible

legislation, must search for accurate information,

and accurate information cannot be secured with-

out a full and fair hearing."

The letter went on to list what the Union con-

aders "the essentials of fair committee proce-

ures:

"1, The right of a person to defend himself, in-

cluding the right to testify in his own behalf;

to present other evidence in his own behalf; to

subpoena witnesses, both for and against him;

to cross-examine his accuser within reasonable

limits; to file a statement in his own behalf; to

have the opportunity to be accompanied and ad-

vised by counsel; and to receive advance notice

of the charges against him, insofar as possible.

"2. To have only relevant questions asked a

witness.

"3. To give the witness a transcript of his testi-

mony or other individuals' testimony affecting

im, :

"4. To have statements released by a commit-

tee only with full committee approval."

The letter also reaffirmed the ACLU's opposi-

tion to the televising of Congressional committee

hearings until fair procedures were adopted.

Shortly after its letter was written, the ACLU

testified before a subcommittee-of the House Rules

Committee which is holding hearings on the issue.

Irving Ferman, Washington director of the ACLU,

urged the subcommittee to adopt rules of pro-

cedure that would protect individual right to priv-

acy from undue invasion by Congressional in-

quiries

The ACLU official emphasized to the commit-

tee the need for giving attention to the possible

curbs that might be placed to protect individual

rights under the First Amendment.

In answer to questions posed to Mr, Ferman

by Congressmen, he cited examples of undue in-

vasion into privacy by Congressional inquiry, one

of which, he said, was the questioning of New

York Post editor James A. Wechsler by Senator

McCarthy.

nished in all of the cases thus far is that they

don't advise the ``suspect" of the charges with

particularity in order that he may prepare a de-

fense. Indeed, in some cases, the ``reasons'" are

almost as uninformative as Coast Guard security

charges.

For example, the charge in one case reads as

follows: `Information indicates that you have

participated in the activities of an organization

with knowledge that it had been infiltrated by

members of subversive groups; also that you have

sympathetic association with members of an or-

ganization known to be subversive." Certainly

there is nothing secret about the name of the or-

ganization that was allegedly infiltrated by mem-

bers of subversive groups or the name of the or-

ganization "known to be subversive."

In another case, the charge reads: "You have

been a member of an organization cited by the

Attorney General as being subversive." If the At-

torney General has named publicly the organiza-

tion as being subversive, there would seem to be

no good reason why the information cannot he

revealed by the Security Board.

In a third case, a charge reads as follows: "It

is further alleged that you have subscribed to

Communist Party publications including the Peo-

ple's World." If the People's World could be speci-

fied why withhold the names of any other Com-

munist publications?

At this point then the new program fails to give

adequate notice of the charges that the Govern-

ment has in its files so that a proper defense may -

be made thereto.

Chicago Court Upsets Ban on

"The Miracle' in Test Case

The Circuit Court of Cook County, Illinois, has

held that the city of Chicago cannot ban the

movie `The Miracle" on grounds of immorality or

obscenity. The test case was brought by the Chi-

cago division of the ACLU to challenge the vali-

dity of the Chicago censorship ordinance.

Judge Harry M. Fisher ruled that the ordinance

as applied in this particular case was unconstitu-

tional, but declined to rule on the constitutionality

of the entire ordinance.

Until the Supreme Court's "The Miracle" deci-

sion, Judge Fisher said, "it was supposed to be

the law that moving pictures were simply a busi-

ness operated for profit and, therefore, were sub-

ject to regulation and to prior restraint. It was

under that concept of the law that the system of

censorship was drawn up throughout the country.

Now that we have the final and authoritative ad-

vice of the Supreme Court of the United States,

holding that the moving picture, like the press,

is protected against all previous restraint, the va-

lidity of the entire system of censorship neces-

sarily becomes very doubtful."

Beyond ``very doubtful," however, the court

would not go. In ruling that the film could not

be banned on moral grounds, it cited the Supreme

Court's opinion that "this film does not seem to be

of the character that the First Amendment per-

mits a state to exclude from public view. There is

no escape from this conclusion," Judge Fisher said.

"Accordingly, without delving further into the

question of the validity of the ordinance involved,

as to the right of censorship under any circum-

stances, or whether all attempts at previous re-

straint are unlawful and that the State cannot

resort to, the criminal statutes-without delving

into it, I hold that this film may not be suppressed.

by the City."

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