vol. 18, no. 10

Free Press

Free Assemblage

Free Speech

- American

Civil Liberties

Union-News

"Eternal vigilance is the price of liberty."

VOLUME XVIII SAN FRANCISCO, CALIFORNIA, OCTOBER, 1953

| ANNUAL MEETING OCTO

| Rev. Harry C. Meserve and Dr. Joseph Tussman

Will Discuss "Congress and the $64 Question'

- The annual membership meeting of the American Civil Liberties Union of Northern California,

marking the 19th anniversary of the branch, will be held at the Marines' Memorial Theatre, 609 Sutter

Street (at Mason), San Francisco, Tuesday evening, October 27, at eight o'clock. The Rev. Harry

C. Meserve, minister of the First Unitarian Church, San Francisco, and Dr. Joseph Tussman, of the

Philosophy Department at the University of California, will discuss, "Congress and the $64 Question.

No.

LET FREEDOM RING

ACLU Legal Committee Formed

_ Eleven attorneys, a majority from the East Bay,

met last month at the call of the Union's staff

counsel, Lawrence Speiser, to consider the forma-

tion of an ACLU Legal Committee, While no for-

10

That question is generally phrased, "Are you now

or have you ever been a member of the Commun-

ist Party?" a4

Discussion Not Limited To Communist Issue

The discussion, however, will not be limited to

the Communist issue but will concern itself gen-

erally with inquiries by legislative investigating

committees into the political and religious opinions

and associations of witnesses. One aspect of the

problem is whether the First Amendment is a bar

to such inquiries. Dr. Tussman will examine that

question, while Mr. Meserve will consider the use

of the Fifth Amendment as a defense against

such inquiries.

The Rt. Rev. Edward L. Parsons, chairman of

the Union's local Executive Committee, will pre-

side at the meeting. Ernest Besig, the local direc-

-tor, is scheduled to give a report about the state

of the Union. a

The Speakers

Mr. Meserve is a graduate of Haverford College

and the Harvard Divinity School. Before coming

to San Francisco in 1949, he served as minister of

Unitarian churches in Cohasset, Mass., and Buf-

falo, New York. He is a member of the Union's

local Executive Committee and a member of the

board of the San Francisco Council for Civic Unity.

Joseph Tussman is a graduate of the University

of Wisconsin, 1936, where he specialized in eco-

nomics. He also holds a doctorate from the Uni-

versity of California, 1946, in philosophy.

Dr. Tussman taught in the U.C. Speech Depart-

ment for five years before being appointed to the

Philosophy Department in 1952, where he spe-

cializes in political and legal philosophy, constitu-

tional theory and ethics. He is regarded as a

disciple of Alexander Meiklejohn. He is the co-

author with Jacobus Tenbroek of an article in the

September, 1949, issue of the California Law Re-

view entitled, `""The Equal Protection of the Laws."

Dr. Tussman served in the Army from 1941-45,

including two years in China.

Question Period

The Union hopes that its members who reside

in the Bay Area will make a special effort to at-

tend the meeting and that they will make it an

occasion to invite their friends. There will be an

`opportunity for questions after the main addres-

ses are presented. :

There is no admission charge. Over 600 seats

are available. The meeting is open to all who are

interested.

Final Blow for Race Covenants

In a 6-1 decision handed down in June, the U.S.

Supreme Court held that a person could not sue

for damages another person who had broken an

agreement prohibiting the sale of property to per-

sons who were not of the white race. The majority

opinion, written by Justice Minton, held that un-

der the circumstances of thig case, the defendant

would have the right to raise the question of the

unconstitutionality of the enforcement of such

a clause by the courts, though the persons whose

constitutional rights were violated, the non-whites,

were not before the court.

ACLU's attorneys from its Southern California

affiliate had filed a brief as friend-of-the-court

supporting the majority position.

"Sidewalk Table' and "Tropics'

Cases Argued on Appeal

Two ACLU cases were argued in appellate

courts late last month. One was Berkeley's "`side-

walk table case," growing out of the Rosenberg

issue, and the other was the Henry Miller book

case.

' The first case involves an appeal by Reuel Am-

dur, now a student at Reed College, who was con-

victed on a charge of setting up a sidewalk table

without a permit. Amdur applied to the Berkeley

City Council for a permit to set up a table at Sather

Gate to collect signatures on a petition and to dis-

tribute. literature protesting the death penalty in

the Rosenberg case. When the permit was denied,

he went ahead anyway and suffered arrest iast

February 7.

The City Council claimed Amdur was not acting

in good faith because he was merely trying to test

the constitutionality of its action. On the other

hand, Amdur contends not only that the Council's

action was discriminatory but that the ordinance

was invalid because it failed to set up any standard

for granting or refusing permits. The question also

arises whether a table may not be used as a neces-

sary piece of property for a public forum. Law-

rence Speiser, ACLU staff counsel, appeared for

Amdur.

The second case was argued by George Ols-

hausen before the Federal Ninth Circuit Court of

Appeals in San Francisco. The case challenges the

standard used by the Federal District Court in

holding "The Tropic of Cancer" and "The Tropic

of Capricorn" by Henry Miller to be obscene and

subject to destruction on importation. The Union

charges that the court picked out isolated passages

for condemnation, instead of judging the books as

a whole, and disregarded valid critical opinion on

the merit of the books.

mal organization has as yet been established, the

lawyers agreed to meet monthly. An announce-

ment about the next meeting will be sent to about

(100 attorneys in the Bay area who belong to the

ACLU. Anyone wanting further information

should get in touch with Lawrence Speiser at

EXbrook 2-3255.

At the first meeting the group discussed meth-

ods of attacking several loyalty bills enacted at

the recent session of the State Legislature, Sub-

committees will examine the legislation and report

their findings at the next meeting.

Plywacki Stilled Plagued by Oaths

Atheist Wladyslaw (Walter) Plywacki is still

without his citizenship, despite a favorable ruling

by the Federal Court of Appeals in San Francisco

on April 28.

Since Plywacki is now residing in Oregon, he

asked to have his case transferred to the Federal

Court in Portland. To accomplish this, he signed a

paper before a notary which says "signed and |

duly sworn before me," etc. Of course, he didn't

swear, nor did he affirm; he simply signed. Now

Judge McLaughlin wants to find out whether Ply-

wacki was playing fast and loose with the court

by refusing an oath in one instance and taking an

oath in another. Last July, the Judge asked the

Immigration Service in Portland to investigate but

has received no response. Consequently, he has not

signed the order transferring the case from Hono-

lulu to Portland. a

Final Curtain in Levering Act Test

The State Personnel Board on September 14

ruled that the San Francisco State College em-

ployees who refused to sign the Levering Act oath

were guilty "of gross unprofessional conduct" and,

therefore, upheld the action of Roy E. Simpson,

Director of the Department of Education, in dis-

missing them. Dr. Simpson had previously turned

down a request that the group be permitted to

resign.

American Legion Pot Shots

The recent American Legion national convention

took its usual pot shots at the YMCA, YWCA and

the ACLU as subversive groups. The Legion urged

the investigation and exposure of the "infiltration

of Communistic elements" into the YM and YW. It

also urged that Congressional Committees and the

Attorney General investigate the activities of the

ACLU, "and, if warranted," institute prosecutions

under the Smith and/or McCarran Act." The

ACLU received immediate editorial support from

the New York Times and the St. Louis Post

Dispatch.

Two Security Cases Disposed Of

Two security cases arising in private industry |

having access to classified military information

were disposed of last month. In the first case, the

employer requested the Industrial Personnel and

Facility Security Clearance Board to drop the

Security proceedings since the employee had no

access to classified military information, while in

the second case the Board ruled that the case

could not be heard since the employee was no

longer employed by a defense contractor. The

ACLU still has three other cases pending before

the Board. :

Page 2

AMERICAN CIVIL LIBERTIES UNION-NEWS-

FBI Reports Can Be Kept From

Draft Registrant, Court Rules

The U.S. Supreme Court, before it recessed in

June, held in a 5-3 decision that the contents of a

Federal Bureau of Investigation report, used by

the Department of Justice in making its recom-

mendations to an appeal board of the Selective

Service System, can be kept from the draft regis-

trant. .

Chief Justice Vinson, writing for the majority

in the Nugent and Parker cases, reversed two de-

cisions of the U.S. Court of Appeals of New York,

which had held that the Selective Service Law's

requirement of a hearing before the Justice De-

partment included the right to examine the FBI

report. He reasoned that the Justice Department

takes no decisive action, that all it does is recom-

mend to an appeal board, and that Congress

could have dispensed, in any event, with the ad-

visory action of the Justice Department, which is

provided for in selective service cases, only where

conscientious objectors are involved. It was furth-

er held that the due process requirements of the

Fifth Amendment did not require such a hearing,

since the law was an exercise of the war power

in times of peril and that these procedures were

adequate.

Justice Frankfurter, joined by Justices Black

and Douglas, dissented. He argued that `The

enemy is not so near the gate that we should allow

respect for the tradition of fairness, which has

heretofore prevailed in this country, to be over-

borne by military exigencies." Though the major-

ity had held that the registrant, in effect, had a

fair hearing because he was supplied with "a fair

resume" of the FBI report, Justice Frankfurter

pointed out that no one could tell whether the

resume was fair when it was not known what it

contained. "In a country with our moral and ma-

terial strength, the maintenance of fair procedures

cannot handicap our security. Every adherence

to our moral professions reinforces our strength

and therefore our security." :

Justice Douglas, joined by Justice Black, added

a dissenting opinion in a succinct paragraph in the

following language: "The use of statements by

informers who need not confront the person under

investigation or accusation has such an infamous

history that it should be rooted out from our

procedure. A hearing at which these faceless peo-

ple are allowed to present their whispered rumors

and yet escape the test and torture of cross-exam-

ination is not a hearing in the Anglo-American

sense. We should be done with the practice -

whether the life of a man is at stake, or his repu-

tation, or any matter touching upon his status or

his rights. If FBI reports are disclosed in admin-

istrative or judicial proceedings, it may be that

valuable underground sources will dry up. But

that is not the choice. If the aim is to protect the

underground of informers, the FBI report need

not be used. If it is used, then fairness requires

that the name of the accuser be disclosed. With-

out the identify of the informer the person in-

vestigated or accused stands helpless. The preju-

dices, the credibility, the passions, the perjury of

the informer are never known. If they were ex-

posed, the whole charge might wither under the

cross-examination."

Rev. Meserve Addresses

Enthusiastic Carmel Meeting

Carmel supporters of the ACLU recently held an

enthusiastic meeting addressed by the Rev. Harry

C. Meserve, minister of the First Unitarian Church

of San Francisco and a member of the Union's

local Executive Committee.

Mr. Meserve discussed the philosophy and func-

tion of the ACLU and some of its day-to-day work.

"The foundation stone of the ACLU," said he, "`is

the conviction that the most important human

activity is the free use of the mind together with

the free expression of ideas. There are always

risks involved in the freedom of the mind," said

Mr. Meserve. ``This is particularly true today, but

unfortunately there are many who are willing to

destroy this freedom simply because a few have

misused it."

_ At another point, Mr. Meserve stated: "We be-

lieve that any basis of judging a man other than

by his acts constitutes a deep spiritual danger. The

practice of judgment by means of reported conver-

sations or alleged opinions held, leads to a state

of society in which every man mistrusts his neigh-

bor. Human conversational exchange would pres-

ently be limited to such safe topics as the

weather."

The meeting, attended by about 50 persons, took

place at the home of Henry F. Dickinson. Mrs.

Douglas Carter, who recently served as chairman

of the successful membership campaign in the

Carmel area, presided at the meeting and intro-

duced the speaker. Mrs. Ansley K. Salz, one of the

founders of the local branch and a vice-chairman

of its Executive. Committee, together with Mrs.

Carter, called and helped plan the meeting.

Official Arguments, `Pro' and `Con,'

On the `Three Policy Statements'

The chairman of the national board of directors of the ACLU designated James Lawrence Fly

and Osmond Fraenkel, both distinguished New York attorneys, to write the "Pro" and "Con" argu-

ments respectively concerning the three proposed policy statements that are now being voted upon by

the members of the corporation on a referendum. The complete texts of their arguments follow:

Affirmative Arguments

James Lawrence Fly

Statement #1

It follows the declaration of 1940, and holds the Amer-

ican Communist Party to be anti-democratic and subser-

vient to a despotic and revolutionary foreign power which

threatens civil liberties in all countries, and thus to be

_ sharply distinguished from traditional American political

parties. It reaffirms that the ACLU will defend the civil

liberties even of Communists. On the other hand, it recog-

nizes that, where voluntary associations, including Com-

munist Party membership, are relevant to a particular

judgment, they may be taken into account. But they are

to be weighed in the scales of reason along with all quali-

fying and countervailing factors. Automatic guilt by asso-

ciation is rejected, and the problem of Communist associa-

tion is confined to a person's current subservience to

Communist Party discipline, as tested by all the facts. -

The statement does not make outlaws of Communists.

Their civil liberties are to be defended as we would defend .

those of other citizens. Can the ACLU reasonably assure |

more?

The statement not only avoids guilt by association but

also automatic guilt by actual membership, Subservience

is not to be assumed or guilt inferred from a simple fact.

The character, extent and currency of the association are

to be weighed. And every qualifying or countervailing

factor is to be thrown into the scales of reasoned judg-

ment.

Why The Communists Are Condemned

It has been asked why the ACLU needs to condemn the

Communist Party. The answer is, in part, that it has done

so ever since 1940. It has done the same for the Nazis, the

Fascists, the Ku Klux Klan and every despotic anti-democ-

racy mechanism. A fair consciousness of well known facts

and of judicial determinations renders it impossible to as-

sume that the Party even approximates the concept of a

traditional American political party. Communism rejects

the basic tenets of democracy and the Bill of Rights, e.g.,

it has no free elections, no freedom of speech and of press,

and no due process of law. Our whole basic theory of

change in the form of government by orderly, peaceful

means is thrown in reverse. Party discipline is rigid, thor-

ough and devastating. The Party machine in the United

States parrots Moscow policy, awaits its voice where

known to be necessary, and veers like a weathervane to

conform to Moscow utterances. Subservience is so com-

plete that member spies go to their graves in silent obedi-

ence. That individual members of this mechanism are still

protected in their civil liberties, and may still bring in .

every pertinent fact to be weighed in the scales of judg-

ment, is a tribute to our faith in these principles of de- -

mocracy. The man accused of assault and battery, or

murder, is accorded no more.

It has been suggested that this Party, like others,

may change in the future. To the extent that this is a

valid assumption, and that happy day should dawn, there

will be ample time to recognize such a great shift in the

controlling facts and known principles. But the guardians

of the Bill of Rights must always pierce the thin skin of

name and symbol, and take a solid position on the actual

facts, The nation itself has done this to a substantial ex-

tent, in rejecting the modern development of a once (1866)

partially good Ku Klux Klan. The ACLU has roundly con-

demned such things, including fascism and the extremes

of McCarthyism. What meaning of liberalism calls for

more favored treatment for the red tyranny?

Another reason for this reiterated condemnation of the

Communist Party is that the Board has long been faced

with a myriad of questions where specific decisions were

bogged down by long discussions on this significant back-

ground fact. As a matter of sheer workability, it became

essential to establish a recognized landmark from which

orderly discussion and decision could proceed. This will

enable us, with singleness of purpose, better to dispose of

many questions.

The Board is Far From Hysterical

And why do this when the extremes of McCarthyism,

Veldism and neo-fascism, on the march, threaten so much

of our liberties? The answer is that we are fighting them,

in statement and action, all the time; and that the Com-

munist Party problem also is constantly upon us, and we

must face it. In this statement, we aim to settle a few

things, not a lot of things, and nothing by sheer inference,

No effort has been made to write a theory of liberalism,

nor any ground provided for the inference that we condone

other known dangers or intend to weaken our fight against

them. It is both the Union's established public record and

its pride that it has battled the threats to the Bill of Rights

from all sides. It is our strength that we fight issues and

defend issues, not persons as such. And may it not, in

fact, sap our strength in all the fights to which we are

committed if we should fail to brand the Communist ma-

chine for what we know it to be? The Board is far from

hysterical. No subject, to the writer's knowledge, has re-

ceived the same long, patient, even laborious consideration,

Finally, as to minor questions of phraseology. This is

a composite work. The writer is not the author. No one is

the author. Frequent clumsiness is the natural result. But

the principles are clear enough.

Statement# 2

(A) Teachers :

They must be free, in two senses, No authority should

Negative Arguments

Osmond Fraenkel

Statement #1

This proposal arose from the belief expressed by many

Board members that a specific and comprehensive state-

ment with regard to the character of the Communist

Party would be useful. To others, it seemed that the issu-

ance of such a statement would be going outside the func-

tion of our organization. The form of the statement now

proposed for approval, we believe, justifies the latter opin-

ion.

We believe that the American Civil Liberties Union

should confine itself to taking positions on specific issues

of civil liberties and should not attempt comprehensive

political, economic or historical expressions. That has been

our general policy in the past. In line with that policy, we

have from time to time taken positions with regard to

Communist Party membership in particular contexts.

Thus, we have made a policy for ourselves barring Com-

munists from Board.membership or staff positions, We

have indicated that Communists might properly be `ex-

cluded from employment in sensitive areas; we have re-

fused to accept the view that Communists were neces-

sarily disqualified from teaching' positions. We have also

taken a position as to Communists in connection with im-

migration, naturalization, and labor organization prob-

lems.

We do not believe that anything of value will be ac-

complished by a statement such as the one here proposed.

If Communists attack civil liberties, we should condemn

them; if their rights are violated, we should come to their

aid. There is no need for any statement of policy to re-

assure the public of our position in these matters, nor do

we think it necessary to reaffirm our own political recti-

tude. :

Statement #2

The first part of this statement, which deals with edu-

cation, is unobjectionable, but perhaps not altogether

clear in view of the fact that it is taken somewhat out

of context. There seems, however, to be no reason why the

Union should reaffirm a position taken as recently as

April 1952. -

The second part, dealing with the United Nations,

hardly seems necessary either. Whether or not the United

Nations adopts a security program is hardly a civil lib-_.

erties issue, and it goes without saying that if it does

adopt such a program, then the same principles of due

process should be applicable there as we have recommend-

ed for the security program of the United States gov-

ernment, That is a position which the office can maintain

without requiring approval either by the Board or the

Corporation. ;

In order to avoid any misinterpretation with regard to

the meaning of this referendum, should our recommenda-

tion of a negative vote be accepted, we suggest that those

who so vote indicate that they are doing so because they

believe the proposals unnecessary.

Statement #3

Our opposition here rests on somewhat different con-

siderations. In view of the dismissal of many public and

private employees because of their plea of the privilege

against self-incrimination, it is necessary for the American

Civil Liberties Union to determine to what extent such

dismissals constitute a violation of civil liberties.

There is general agreement that the claim of the priv-

ilege alone should not constitute ground for dismissal.

Our task would have been easy had we been able to accept

the view that under `no circumstances would it be proper

for an employer to take notice of his employee's having

claimed the privilege. But no such dogmatic assertion can,

in our opinion, be sustained. It is therefore necessary to

find a formula which will indicate a proper criterion.

The proposed statement attempts to do this in the third

sentence of paragraph (b): that there are situations in

which the exercise of the privilege might be inconsistent

with the employee's duty of full disclosure towards his

employer, Unfortunately, the statement.as a whole is so

worded that the basic position of the Union could easily

be misunderstood and misinterpreted. In its present form,

it has been opposed by the Academic Freedom Committee.

Perhaps the difficulty is one of emphasis rather than of

policy.

Alternative Proposal

Therefore, a mere defeat of Proposal No, 3 will leave

the basic problem hanging in the air. While the referen-

dum machinery does not permit the submission of alterna-

tive proposals, we `believe it only fair to the Corporation to

indicate that if this particular proposal is defeated, the

Board members who are opposing it would recommend

adoption by the Board of a brief statement of policy that

made the following points:

(a) The use of the privilege against self-incrimination

does not justify any inference as to the character of the

answer which might have been given to the question;

(b) No person, whether public or private employee,

should lose a job or be deprived of a job opportunity be-

cause of his claim of such privilege before a judicial or

legislative body.

(c) Where the subject of the inquiry deals with a mat-

ter which involves possible disqualification for unfitness

for a particular employment, the dismissal for refusal to

disclose the facts to the employer would not raise a civil

liberties problem.* 3

Finally, we believe that the portion of the statement,

(Continued on Page 4, Cols. 2 and 3)

Page 3

AMERICAN CIVIL LIBERTIES UNION-NEWS

Elections to Local Executive ACLU Corporation Members Now Voting

On Three Proposed Policy Statements

Committee Announced

Subject to confirmation at the annual meeting

on October 27, Wayne M. Collins, Seaton W. Man-

ning, Rev. Harry C. Meserve, Prof. Laurence

Sears and Fred H. Smith, IV, have been re-elected

to three-year terms on the Executive Committee

of the ACLU of Northern California.

Prof Edward L. Barrett asked not to be con-

sidered for another term, because of other duties,

as did Prof. Van D. Kennedy, who is in India for a

year. Another vacancy was created by the de-

parture from California of Beatrice Mark Stern.

Arthur P. Allen, William M. Roth, and Theodo-

sia B. Stewart were elected to existing vacancies

on the Committee, beginning November 1, also

subject to confirmation at the annual meeting.

Following are brief biographies of the three new

members:

Arthur P. Allen, 61, a graduate of Michigan

College of Mines, took post graduate work in La-

bor Law and Economics at the University of Cali-

fornia. After engaging in copper mining for seven

years, he was for 21 years an automobile dealer

representing Chevrolet in the Harbor district of

Los Angeles, under the firm name of "Seaboard

Motors." :

In addition to his business activity, Mr. Allen

has had wide experience in the industrial relations

field. From 1951-1953 he was public member and

chairman of the Regional Wage Stabilization

Board (San Francisco) ; he was a panel chairman

with the War Labor Board, on the staff of the

Institute of Industrial Relations at U.C. (1947-

' 1948), and a member of the Presidential Board of

Inquiry in the maritime dispute of 1948. During

the past few years he has had considerable ex-

perience as a labor arbitrator. He has also had

numerous civic activities.

William M. Roth, 37, graduated from Yale in

1939 and did post graduate work at U.C. and

Princeton. He has been Treasurer of the Matson

Navigation Company since 1951. Prior to that time

he was in the oil business and, from 1942-1945,

with the Overseas Division of O.W.I.-Alaska and

North Burma Command. He is presently serving

as President of the Council for Civic Unity of San

Francisco.

Theodosia B. Stewart, after attending Vassar

secured a B.A. degree from the University of

Michigan, Class of '24, and a Master of Social

Work degree from the University of California.

She is a psychiatric social worker and housewife.

Also, she is a former president of the Berkeley

Community Y.W.C.A. as well as a former presi-

dent of the University Section Club.

S.F. School Board Accepts :

Special Loyalty Oath

The San Francisco Board of Education decided

last month to require an additional "loyalty" oath

of teachers newly hired as well as those who have

been members of the Communist Party during the

past five years. The specialty loyalty oath was

enacted by the last session of the California Legis-

lature.

The ACLU had questioned the constitutionality

of the new oath since the Levering oath that was

placed in the State Constitution last November

declares that ``No other oath, declaration or test

_ Shall be required." Irving G. Breyer, legal adviser

of the Board of Education, said he was inclined to

agree that the new oath was in conflict with the

Constitution, and that the State Attorney General

had also expressed doubts as to its validity. He

contended, nevertheless, that "an administrative

body such as this has to assume that a State law

is constitutional until it is proved otherwise in

court."

AUTHORITY DEFENDS SEGREGATION |

The Housing Authority of the City and County

of San Francisco, by a 3 to 2 vote, has decided to

appeal to the California Supreme Court the una-

nimous decision of the District Court of Appeal,

handed down August 26, holding the so-called

`neighborhood pattern policy" of selecting tenants

to be unconstitutional. Under the policy, the

Authority sought to "maintain and preserve the

same racial composition which exists in the neigh-

borhood where a project is located." As a result,

Negroes were excluded from all but the Westside

Court project.

"The arbitrary character of such a method of

selection," said the District Court, "is too obvious

to require elaboration. It bears no relation to eli-

gibility of the individual. It cuts across and dis-

regards every element which conceivably has any

bearing upon eligibility of the individual. It is

really an arbitrary method of exclusion, a guar-

anty of inequality of treatment of eligible `per-

sons'." Attorneys for the Authority have unsuc-

cessfully urged racial segregation upon the courts

under the "separate but equal" treatment doctrine.

The referendum on the three policy statements

proposed by the national board of the ACLU has

been submitted to the membership of the corpora-

tion for a vote. The referendum material was re-

ceived by the local ACLU on September 10, and

the covering letter expressed the hope that the

ballots would be returned by September 15 or

anyway by September 30. However, no deadline

was fixed for the ballots to be received. :

"Package Deal"

The national board has submitted the state-

ments as a "package deal" because ``The three

statements are closely inter-related." Conse-

quently, they must be accepted or rejected as a

whole.

James Lawrence Fly and Osmond Fraenkel, na-

tional board members, submitted the affirmative

and negative arguments respectively, which ap-

pear elsewhere in this issue of the News, and Dr.

Alexander Meiklejohn, as a member of the Na-

tional Committee, circulated his comments to the

members of the corporation. Ernest Angell, Chair-

man of the national board, submitted a message

dealing "with certain external and surrounding

aspects," and suggested "that a `nay' vote would

inevitably carry implications of widely differing

nature."

The letter of submission from the national direc-

tor, Patrick Malin, declares that "difficulty" was

"created by the publication of the full text of the

statements by one of our local organizations." The

statements appeared in the July and September

issues of the ACLU-News. The difficulty was not

described. In another connection, however, it was

stated, "There would normally be no publicity

during the course of a referendum, but in this in-

stance one of our local organizations has already

published the full text. There would ordinarily be,

even after a referendum, no release of such com-

plicated and technical material-in any event, not

without an attempt at paraphrasing it intelligibly

for the general reader, and at putting the material

in its full context."

Issues Debated By General Members

There has been considerable discussion of the

proposals by the local members of the Union. The

News knows of at least two home meetings on the

subject-one in Berkeley and the other in Palo

Alto. The subject was also discussed on the Com-

mentator Series of Station KPFA, and the News

has before it 20 written comments, in addition to

those previously printed, which could fill a couple

of issues. These comments run more than three to

one against the proposals. Because of the limita-

tions of space, only one affirmative and one nega-

tive comment are printed in this issue.

The issue has been considered by a sub-commit-

tee of the local branch of the Union and its recom-

mendations will be presented to the local Executive

Committee at its meeting on October 1.

Incidentally, the membership of the corpora-

tion presently consists of 31 national board and

72 national committee members, besides the boards

of the 18 affiliates. Each affiliate casts as many

votes as it has general members. The other cor-

poration members, however, cast as many votes

as there are general members throughout the

country. The value of the particular vote is de-

termined by dividing the total membership of the

Union by the number of national board and na-

tional committeemen voting.

Statements Express Balanced Judgments

I should like to comply with your request for member-

ship reaction to the policy statements printed on p. 3 of

the July NEWS.

To statement #1: I endorse this statement without quali-

fication. I think it is excellent. :

To statement #2: a.: I endorse this statement, without

any reservation as far as its text goes, but I see two prob-

lems which need further elaboration. The one concerns the

concept of implied faith. Very properly you call attention

to the outward similarity of the cases of a Communist and

a religious dogmatist, when the problem of fitness for

academic employment is judged merely by the criterion of

whether the person concerned advocates "any opinions or

convictions derived from any source other than his own

free and unbiased pursuit of truth." Obviously, it is im-

possible to exclude all people who entertain some kind of

implied faith from academic employment; on fundamental

grounds, too, we should be prepared to defend implied

faith of university teachers within some limits; but these

limits we should study.

The second point on which I would like to see some

further studies made is the relationship between academic

freedom and "due process" for government employees. I

realize that this is a most difficult problem, but I think

we should not shun it. For academic teachers in many

fields, the full fructification of their studies depends on

being able to function occasionally as government con-

sultants. Moreover, typically, the families of university

professors have strong intellectual traditions, and very

frequently other members of such families are employed

as specialists in government service. Under present pro-

cedures, a professor may endanger the position of his son,

his daughter, his son-in-law etc. by making statements

which, however legitimate or even patriotic, may seem

objectionable to some individual who reports them to the

FBI, perhaps in distorted form or out of context, Although

this problem is incapable. of a neat solution, more safe-

guards could be established.

To statement 2b: I have not studied the problem enough

to take a position. Ags far as I can judge, the statement

seems alright to me.

Squeezing Out Unimportant Information

To statement #3 a, b, c, d: I fully agree with the state-

ments and think they are very good as far as they go. I

think they might have gone a little farther in condemning

the practice of squeezing out information about the atti-

tude of other persons from witnesses who have conceded

membership in subversive organizations, if the squeeze

is applied without regard to the witness' moral obligations

and in instances in which no vital interest of national

survival is at stake, It is probably not possible to extend

the constitutional protection against self-incrimination to

such instances as an editor who is asked about the name of

the author of a particular article, or the identity of an

informant, or to that of a professor who is asked whether

he knows any Communists among his colleagues, but I

think the power to ask such questions should be far more

narrowly circumscribed, and should preferably be in the

hands of the courts only, to prevent, fishing expeditions

which have got little to do with national security and

much with political sensationalism.

What I like particularly in the statements is the balanced

character of the judgments they express. Too often ad-

vocates of civil liberties have laid themselves open to the

accusation that they underestimate the vicious and danger-

ous character of Soviet Communism. No fairminded person

can raise such an accusation against these statements.

CL.

Democracy A Matter Of Reciprocity

P.S.: Having re-read statement #1, I feel constrained to

add a very slight qualification to my endorsement. It refers

to the sentence: ". . . . 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. . . 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." I agree that this should

be the practice of the Union, because in the present situa-

tion of the United States I believe that no good purpose

would be served by withholding any of these rights from

anybody, including totalitarians, I also agree that such

guarantees as due process must under all circumstances be

maintained for everybody. But I believe that, in principle,

democracy is a matter of reciprocity, and that therefore

it is not wrong-although it May be inexpedient-to deny

such rights as freedom of speech, press and associations

to those, who, if in power, would deny them to others.

Bending With The Wind

Introduction

The three policy statements must be measured by the

purposes of the Civil Liberties Union.

The purpose of the American Civil Liberties Union is to

defend civil liberties. This means civil liberties generally,

without regard to person. In most instances it means de-

fence against encroachment by governmental authority.

Since such encroachment will most frequently be directed

against any group which is momentarily unpopular, de-

fence of civil liberties will frequently, if not usually, entail

defence of currently unpopular groups who have `become

targets of official attack.

The purpose of the Civil Liberties Union therefore pre-

cludes taking a position that the civil liberties of a group

currently under attack should be protected less than those

of any other group. Such a position is precluded regardless

of the circumlocutions through which it may be expressed.

Free speech, of course, permits all these propositions to

be questioned or denied, But those who question or deny

them would no longer be a Civil Liberties Union-they

would have to function in some other way.

With these preliminaries, we consider the statements.

Statement No. 1-Nature of Communist Party-Defence

of Civil Liberties Regardless of Associations.

This statement is contrary to the purpose of the Civil

Liberties Union, and in spots, is nonsense.

Given the above definition of the purpose of the ACLU,

the nature of the Communist. party is beside the point. Its

nature could be considered only on the premise that

certain persons or organizations are not entitled to civil

liberties, or to fewer civil liberties than others. This posi-

tion is contrary to the fundamental purpose of the or-

ganization.

The reason why this special attention is now given the

Communist party is that the Communist party is currently

the special object of governmental attack. In short, the

statement entails bending-with-the-wind of governmental

persecution, when the object of the ACLU is precisely to

resist such measures.

Statement No. 1 goes so far in this direction as to lose

all sense of proportion. Thus it refers to Communism as

a "world-wide revolutionary movement unprecedentedly

threatening the national independence and civil liberties of

all other countries." (Emphasis added), "Unprecedented"

means worse than anything previous in 5,000 years of his-

tory-including Nazi Germany. And this extreme degree

of menace is said to operate against "all" countries. Even

the least threatened is threatened more than Nazi Germany

ever threatened any other country. All that ig obvious

nonsense.

But the statement falls into this nonsense because it

goes along with a trend which the ACLU was organized

to resist.

"Defence of Civil Liberties Regardless of Associations"

implies that there are some people, taken individually,

(Continued on Page 4, Col. 1)

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

Publishers of Textbooks

Must Take Texas Loyalty Oath

Would Shakespeare or Thomas Jefferson, if

they were alive today, have joined the Commu-

nist Party, or might they have been duped into

membership in an organization on the Attorney

General's subversive list? A publisher who wishes

his books to be used as textbooks in any of the

public schools in Texas must be prepared to take

not only a stand but an oath on such elusive ques-

tions-in fact, he must sign a sort of oath-in-ab-

sentia for all his dead authors affirming that "to

the best of his knowledge and belief the author

of the textbook, if he were alive and available,

could truthfully execute" the loyalty oath.

- A new law, passed by the State Legislature and

signed by the Governor, says: "The State Board

of Education shall neither adopt nor purchase any

textbook for use in the schools of this state unless

and until the author of such textbook files with

the Board" a three-point, all-inclusive loyalty

oath. If the author is "dead or unavailable," his

publisher must go to bat for him, to-wit; "if the

publisher of any such textbook shall represent

to the Board under oath that the author of any

textbook is dead or cannot be located," the Board

may adopt and purchase said textbook if the pub-

lisher thereof executes an oath or. affirmation

stating that to the best of his knowledge and

belief the author of the textbook, if he were alive

or available, could truthfully execute the oath."

The publisher's best knowledge and belief may

not be sufficient, however, for if the Board of Ed-

ucation does not agree with him, he is overruled.

"Tf the Board is not satisfied," the law says, "with

respect to the truth of any oath or affirmation

submitted to it either by the author or the pub-

lisher of a textbook, it may require that evidence

of the truth of such oath or affirmation be fur-

-nished it and it may decline to adopt or purchase

such textbook if it is not satisfied from the proof

that the oath or affirmation is truthful."

Passage of this law, bad as it is, apparently

headed off an even worse bill that had been intro-

duced into the Texas Legislature providing for

the removal of books from public school or college

libraries which discredit or hold up to ridicule a

number of American values, American heroes,

and American families, as well as those of a sub-

versive nature. Books which are hostile to Amer-

ican mores but need to be studied for comparative

purposes would be required, according to this bill,

to carry a special label and a statement that the

author is or was a Communist. .

ACLU Now Voting on

Three Policy Statements

(Continued from Page 3, Col. 3)

whose civil liberties we would not defend. That is-we will

still defend the civil liberties of persons who associate with

such people-but what about the civil liberties of these

people themselves (i. e., the people with whom associations

are had) ? :

Statement No. 2-Allowable Consideration of Associa-

tion (In Educational and United Nations Employment).

(a) The statement on education tries to be all things to

all men, In retrospect it looks like a curtain-raiser for

more recent objectionable statements.

(b) The statement on United Nations employment is a

shameful instance of the ACLU's abdicating its functions.

The United Nations includes Communist nations; so there

are bound to be communists among its employees. The

administrative staff is employed by the United Nations as

a whole, presumably without regard to nationality. Hence,

not only their communist membership, but their nation-

ality is immaterial.

The press reports for September 2, 1953 that the United

Nations appeal board ordered the American employees re-

instated, who had been discharged for invoking the Fifth

Amendment before a Congressional Committee when asked

about Communist membership. ACLU Statement No, 2

does not go that far. Thus the employing organization

shows more solicitude for individual rights than the Civil

Liberties Union. :

Statement No. 3 - Propriety of Questions and Compe-

tency of Authority; Refusal to Answer Questions; Allow-

able Consideration of Such Refusals. ~

The emphasis which this statement puts on the commu-

nist party is another instance of going along with current

attacks on a particular group. |

So far as this statement deals with the United Nations

it is subject to the same objections as Statement No. 2. The

recent order of reinstatement for discharged. United Na-

tions employees shows that the United Nations goes fur-

ther in protecting individual rights than the ACLU-G.O.

OFFICIAL ARGUMENTS, `Pro' and "Con

On the `Three Policy Statements'

(Continued from Page 2, Cols. 2 and 3)

Affirmative

disqualify them for any sort of opinion, and they should

not disqualify themselves by any commitment which vio-

lates their own professional obligation to follow only their

"own free and unbiased pursuit of truth and understand-

ing." This is the two-fold essence of academic freedom.

The provision speaks for itself, and no extended discus-

sion is needed.

(B) United Nations Employees ;

This statement is designed to protect the complete in-

tegrity and independence of the United Nations. Its em-

ployees must serve only the U.N. as a whole. It is inherent

in this principle that any country's citizens in U. N. em-

ployment shall not serve the interests of their own govern-

ment, or any other government. The principle involved is

axiomatic. :

Statement #3

(A) This is an orderly statement as to authority and

scope in questioning. The authority must be legal, and the

questions relevant to the authorized inquiry. Employing

authorities, where totalitarian associations are relevant,

may make appropriate inquiry. This paragraph speaks

well for itself. :

(B) The exercise of the privilege against self-incrim-

ination. Though there is no imputation of criminal guilt,

the exercise of the privilege may in certain instances fall

short of an employee's duty of full disclosure to a public

or private employer, e.g., government, U.N., college, But

here again the refusal to answer is only thrown into the

scales with all other relevant factors to found a judgment.

And, even as to the refusal, extenuating circumstances will

be appraised.

Reject The Imputation Of Guilt

Thus we reject the imputation of guilt; and at the same

time recognize that special relations may create a duty of

full disclosure to an employer. The statement does not en-

dorse the idea that a refusal to answer in an investigative

forum is in itself grounds for discharge by an employer. It

only provides that certain specified employers may inquire

into all the facts (including, but not limited to, this refusal

to answer) relevant to the competency of the employee.

The Board remains completely free to attack any instance

of denial of employment which fails to conform to these

principles, and the clearing away of obstructive doubts

should enable the Board to deal more effectively with those

cases,

(C) The ACLU will support a claim of freedom of as-

sociation under the First Amendment in challenging the

propriety of a question as to associations; and, on various

proper grounds, a challenge to the competency of a body

to ask such questions. But we recognize that special types

of employers may themselves inquire into the same subject

matter, and a new refusal to answer may be given appro-

priate weight in the overall judgment on all the facts. This

follows the same reasoned approach discussed above.

(D) This is an added safeguard calling for a fair and

balanced judgment weighing all relevant facts; and it calls

for the appropriate ingredient of due process.

Conclusion

Most of the adverse comment on these statements has

stressed the existence of other evils `besides the Communist

Party. But they are continuously being met head-on by the

Union. These statements deal with just one problem.

Numerous meetings laboriously yielded this product.

No one of our Board members could have written go

badly, or so well! All contributed to the formulation, by a

series of majority judgments adding up to a principle of

common sense and fairness. These judgments are needed

as a starting point in the disposition of many specific civil

liberties issues and as a release of energy for other fronts

demanding attention. as

Such considerations do not make bad policy. It may be

hoped they do make for better understanding of essentially

sound policy.

STATEMENT REQUIRED BY THE ACT OF AUGUST 24, 1912,

AS AMENDED BY THE ACTS OF MARCH 3, 1933, AND

JULY 2, 1946 (Title 39, United States Code, Section 233)

- SHOWING THE OWNERSHIP, MANAGEMENT, AND CIR-

CULATION OF : :

AMERICAN CIVIL LIBERTIES UNION-NEWS, published

monthly at San Francisco, Calif., for October, 1953. ;

1. The names and addresses of the publisher, editor, managing

editor, and business managers are: :

Publisher; American Civil Liberties Union of No, Calif., 503

Market St., San Francisco 5, Calif. :

Hditor: Ernest Besig

Managing editor: None.

Business manager. None.

2. The owner is: (If owned by a corporation, its name and

address must be stated and also immediately thereunder the

names and addresses of stockholders owning or holding 1 percent

or more of total amount of stock. If not owned by a corporation,

the names and addresses of the individual owners must be given.

If owned by a partnership or other unincorporated firm, its name

and ee as well as that of each individual member, must be

given.

American Civil Liberties Union of No. Calif., 508 Market St.,

San Francisco 5, Calif. :

Rt. Rev. Edward L. Parsons, Chairman, 503 Market St., San

Francisco 5, Calif.

Ernest Besig, Director, 503 Market St., San Francisco 5, Calif.

3. The known bondholders, mot gAees, and other security hold-

ers owning or holding 1 percent or'more of total amount of bonds,

MOT BEE ee: or other securities are: (If there are none, so state.)

one. :

4. Paragraphs 2 and 3 include, in cases where the stockholder or

security holder appears upon the books of the company as trustee

or in any other fiduciary relation, the name of the person or

corporation for whom such trustee is acting; also the statements

in the two paragraphs show the affiant's full knowledge and belief

as to the circumstances and conditions under which stockholders

and security holders who do not appear upon the books of the

company as trustees, hold stock and securities in a capacity other

than that of a bona fide owner. - ae

5. The average number of copies of each issue of this publica

tion sold or distributed, through the mails or otherwise, to paid

subscribers during the 12 months preceding the date shown above

was: (This information is required from daily, weekly, semi-

weekly, and triweekly newspapers only.)

e ; : ERNEST BESIG

(Signature of editor)

eve to and subscribed before me this 11th day of September,

1953

SEAL LORRAINE PACKARD

Notary Public in and for the City

and County of San Francisco.

(My commission expires Dec. 30, 1956)

Negative

Paragraph (c), which deals with First Amendment

grounds should be supported in principle but without the

many qualifying statements presently contained therein.

Perhaps elimination of everything except the first two sen-

tences of that paragraph would accomplish the desired

result.

: Conclusion

While we urge the rejection of all the proposed state-

ments, we recognize that a statement of policy by the

American Civil Liberties Union is necessary in connection

with some of the problems proposed `by the third state-

ment. Therefore, in order to obtain an indication of the

basis on which votes may be cast, we suggest that those

who accept this view indicate that they do so. In this

way, if these prove to be in the majority, the Board can

then formulate such statements as we have here indicated

to be desirable.

*It might be well to indicate, however, that such a

position does not necessarily mean our approval of

the particular law or regulation creating the disquali-

fication.

Coast Guard Security Risks

Must Be Informed of Charges

Any person screened as a security risk by the

Coast Guard is entitled to a specification of

charges, the Federal Ninth Circuit Court of Ap-.

peals in San Francisco ruled on September 22.

The unanimous decision affirmed the action of a

Federal Judge in Seattle who dismissed indict-

ments against three seamen based on their failure

to secure security clearances before working in

the maritime industry. !

"There seems no reason to doubt," said the

court, "that the screening operation initiated by

the Magnuson Act is a legitimate war measure.

The Executive Order and the regulations of the

Commandant issued in implementation of this

security legislation do not appear to us on their

face to infringe the due process clause of the

Fifth Amendment. Depending on the manner in

which they are administered, they would appear

to afford a fair means of reconciling the prob-

lems of security with those of individual freedom.

... Nevertheless, no good reason appears why the

Commandant can not apprize the seaman of the

basis for the initial determination with such speci-

ficity as to afford him notice and an opportunity

to marshal evidence in his behalf; and the same

is true of the conduct of the examination before

the appeal board. It is not impracticable, and we

are unable to believe that it would be hurtful to

the security program, to inform the seaman of

the contents of the showing against him. True, the

doing of that is time-consuming and requires ef-

fort and the taking of pains. The regulations, how-

ever, provide that `every effort (be) made to pro-

tect the interests of the United States and of the

appellant'." ;

FACTS ABOUT THE MEETING

Time: Tuesday evening, Oct. 27, at 8 o'clock.

Place: Marines' Memorial Theatre, 609 Sutter

a) San Francisco (corner of Mason

Subject: "Congress and the $64 Question."

Also, report on the state of the

Union.

Speakers: Rev. Harry C. Meserve

Dr. Joseph Tussman

Ernest Besig, report.

Chairman: Rt. Rev. Edward L. Parsons.

No Admission Charge Public Invited

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