vol. 18, no. 5

~ American

Civil Liberties

Union-News

"Eternal vigilance is the price of liberty."

Free Press

Free Assemblage.

Free Speech

VOLUME XVIII

SAN FRANCISCO, CALIFORNIA, MAY, 1953

; No. 5

Atheist Wins on Appeal

The ACLU on April 28 received formal

notice from the Clerk of the Ninth Circuit

Court of Appeals in San Francisco that the

Government has confessed error in the case

of Wladyslaw Plywacki, testing the right of

an atheist to citizenship.

With the approval of the Attorney Gen-

eral, the U.S. Attorney in Hawaii itted

that Congress had specifically allowed aliens

to affirm upon being admitted to citizenship.

Therefore, the Court reversed Federal Judge

J. Frank McLaughlin's decision and ordered

him to grant citizenship to Plywacki. This is

the first case in which a court has ruled that

an atheist may affirm.

Judge McLaughlin had denied Plywacki

citizenship last August 28 because as an

atheist he could not take the prescribed oath.

The reversal of his decision was greeted by

Judge McLaughlin with the declaration that

he would continue to deny citizenship to Ply-

_ wacki unless the higher court ordered him to

do so. He has been accommodated.

The case was handled by ACLU staff coun-

sel, Lawrence Speiser, and attorney Thomas

Scholars May Not Be Called Upon to Answer to

Legislative Committees for Their Convictions

By ALEXANDER MEIKLEJOHN

A recent statement issued by the Association of

American Universities discusses Congressional

investigations of the political beliefs and affilia-

tions of teachers in the universities. That state-

ment seems to me to fall into error by ignoring

basic features of our American culture which are

relevant to that discussion.

f

1. As the principles and practices of the free

mind have been slowly worked out in our demo-

cratic society, it has often happened that individu-

als and institutions devoted to the pursuit of truth

have refused to submit to the imposition of eccle-

siastical or political controls over personal beliefs

or the communication of those beliefs. The issue

raised by that refusal has taken one of its most

controversial forms when the authorities of

Church or State have required, with varying kinds

of inquisition, that an individual should make

compulsory disclosure of his opinions or of his

association with others in the advocacy of those

P. Gill of Honolulu.

~ Appeal Conviction In -

"Sidewalk Table Case'

Berkeley's current civil liberties issue, the "`side-

walk table case,'"' is headed for another round in

the courts. Last month, after a trial by Berkeley

Municipal Court Judge Redmond C. Staats, Jr.,

Reuel S. Amdur, 18-year-old University of Cali-

fornia student, was convicted of violating a city

ordinance in placing a table at Sather Gate with-

out having a permit from the City Council. He

was fined $25, but execution of the sentence was

stayed pending the outcome of an appeal which is

expected to be argued before the Appellate De-

partment of the Superior Court of Alameda coun-

ty on June 15. .

In handing down his judgment, Judge Staats

claimed iAmdur had waived his constitutional

_ rights. "Any person who is seeking protection of

the Constitution," said Judge Staats, "who shows

by his conduct that he has no respect for the

officials who are pledged to carry out the pro-

visions of the Constitution, and in that way might

be making a mockery of the City Council, has

waived his right of equal protection of the law."

The prosecution contended throughout the

trial that Amdur has not acted "in good faith' be-

cause he sought a table permit only as a means of

testing the refusal of the City Council to issue

table permits to supporters of the Rosenberg cle-

mency petition because of their opinions. The ap-

peal will argue that a person is entitled to exer-

cise his constitutional rights irrespective of his

motives,

The appeal, which is being handled by ACLU

staff counsel, Lawrence Speiser, will also argue

that the ordinance is bad on its face because it

sets up no standard for the issuance of table per-

mits. The City Council claims and exercises an

_ absolute discretion in granting or withholding

permits.

Another point to be raised on the appeal is that

the ordinance has been applied and construed in

an unconstitutional manner by the City Council,

because 36 out of 43 previous applications for side-

walk table permits had been granted under condi-

tions not significantly different from the case at

issue. In this connection, it will be charged that

Judge Staats erred in refusing to allow into evi-

dence the prior applications for permits for side-

walk tables in order to establish the Council's

discriminatory action, or to question Council

members concerning these prior applications for

permits.

Four Loyalty Bills Headed

For Adoption by Legisiature

At this writing, a number of anti-civil liberties

bills appear headed for adoption by the 19538 ses-

sion of the California Legislature.

A.B. 923 (Backstrand and Levering), to require

a loyalty oath as a condition for any tax exemp-

tion, is presently before the Assembly for adop-

tion. As now written, it would appear to apply to

any exemptions claimed by individuals, churches

or corporations. It is quite possible that recent

criticisms will reduce the scope of the measure

and possibly exclude income tax statements, if

not claims for exemptions filed by churches.

A.B. 1796 (Levering), to implement Proposi-

tion No. 6 adopted by the electorate last Novem-

ber, has passed the Assembly and is now in the

Senate. It would write the `Levering oath" into

the Government Code and punish false swearing

or the joining of subversive organizations by 1 to

14 years in prison.

A.B. 2677 (Levering), amending the Civic Cen-

ter Act to require a loyalty oath of persons and

groups, has also been adopted by the Assembly

with only six dissenting votes. Such a loyalty oath

would become mandatory for every Boy Scout

troop, PTA or Brownie group that meets in the

schools. The matter is now before the Senate.

S.B. 1425 (Kraft) is aimed at dismissal of State

College teachers and redefines "unprofessional

conduct" to require the dismissal of teachers who

join or actively participate in public meetings of

subversive groups, or who advocate the violent

overthrow of the government or who wilfully ad-

vocate communism (which is undefined). An

amendment to the bill struck out a section under

which any person could have brought charges

against a teacher. The measure was adopted by

the Senate and has been reported favorably to the

Assembly by its Education Committee.

Trust Fund For Levering

Act Test Case

The Executive Committee of the ACLU of

Northern California last February agreed to act

as a depositary for funds to carry on the appeal

in the Pockman case, testing the constitutionality

of the Leveing Act loyalty oath. During the past

month, the Union received the first deposits for

the fund from the "Committee of Non-Signers of

the Levering Act Oath." The $222.50 received will

be placed in a trust account for legal expenses in

the case.

opinions. Over and over again, in the history of

our Western society, individuals and groups have

challenged that requirement, have decided, even

under the threat of severe penalties, that they

could not loyally submit to it.

2. In the course of the long struggle against

suppression, individual freedom has won great

victories. Both the churches and the universities

have fought for and have secured decisive limita-

tions of the jurisdiction of legislative and other

governing agencies. The greatest of all among

those victories is recorded in the First Amend-

ment to our Constitution by which our own Gov-

ernment forbids its Congress to take any action

which would abridge the freedom of religion,

speech, press, assembly, or petition, The basic

meaning of that enactment is that all citizens,

scholars or non-scholars, as they deal with the

issues of religion or of politics, shall be unhin-

dered by the intimidation or control of any gov-

erning agency. They must be free to follow the

truth wherever it may seem to them to lead.

3. The most striking contribution of the uni-

versities to the winning of the freedom of the

mind is, however, that they have gone far beyond

mere resistance to the external authority of the

civil government. They have, also, following the

lead of the Federal government, limited the use of

their own authority. They have seen that, in uni-

versities as they are now organized, administra-

tive actions upon appointments, salaries, promo-

tions, dismissals, and so on, might be used, con-

sciously or unconsciously, to influence and control

the opinions and expressions of scholars and

teachers. And since nothing worse than this could

happen to a university, they have taken careful

precautions against such abuse of their own pow-

ers. Those precautionary self-limitations are what

we call, "The System of Academic Tenure." Their

purpose is not to grant special favors to faculty

members. It is to guard the independence and

integrity of the university's own work.

4. The Tenure System, as usually adopted,

makes two sets of provisions. First, it arranges

that no one shall be given "permanent tenure' on

the teaching staff until his moral and intellectual .

competence has been tested and approved by his

colleagues, on the basis of years of active service.

But, second, when permanent status is thus grant-

ed to a professor, it is also provided that no ad-

verse action shall be taken against him, except on

(Continued on Page 2, Col. 2)

That's Where

Our Money Goes

1. Last month, the Union spent $208 to

print its brief in the Plywacki appeal, testing

the right of an atheist to citizenship.

2. The court reporter estimates that the

transcript of the trial record in Berkeley's

"sidewalk table case" will cost $185. Thus

far, $150 has actually been spent.

3. About $25 has thus far been spent in

connection with the suit pending against the

Richmond Housing Authority, testing the

constitutionality of a loyalty oath for tenants

of a low rent housing project.

While the ACLU does not send special

appeals for money to its members, -it will

welcome contributions to help pay the legal

costs of the pending suits. Send your contri-

butions to the ACLU, 503 Market St., San

eee 5 and designate the purpose of the

gut,

Page 2

AMERICAN CIVIL LIBERTIES UNION-NEWS

Union Publishes Pamphlet

On 'The States and Subversion'

The rash of state anti-subversive laws, growing

out of the fear and tension of the Cold War, has.

not resulted in prosecutions by state law-enforce-

ment officials, the American Civil Liberties Union

said late last month in a new pamphlet, `The

States and Subversion."

"Intimidation of dissent, fear of false accusa-

tions as Communists or fellow-travelers, pressures

to conform to majority views,-these rather than

prosecutions mark the effects of the laws."

The ACLU publication asserts that while the

flood of state laws might have been expected to

produce prosecutions and resistance, inquiries ad-

dressed to the state attorneys general brought

replies from 32 that "not a single prosecution has

taken place under any of these laws.

"One known prosecution of a Communist under

a state law took place in Pennsylvania where Com-

munist leader Steve Nelson was convicted under a

sedition statute. Two other prosecutions, in Louis-

iana and California, have been brought under reg-

istration laws. Few known Communists have lost

their jobs. Indeed, it has been the Quakers, and

others conscientiously opposed to test-oath-taking

who have lost their jobs as teachers or public em-

ployees.

"The epidemic of laws has spread over the coun-

try in the wake of federal action. Though it is gen-

erally accepted that national security is primarily

the concern of the federal government, the states

have satisfied an excited public demand for action

by passing an unprecedented array of `protective'

laws," the pamphlet states.

The pamphlet summarizes the record of state

committees investigating un-American activities

and concludes that they have done damage to civil

liberties. a

"The ACLU queried its representatives in the

states which have had these committees, and all

reported an adverse effect on civil liberties by lim-

iting the area of public debate through confusion

of liberals with Communism. :

"Since such terms as `subversion,' `loyalty' and

`un-American' cannot be precisely defined, and are

subject to the definition of the committees and

_whatever interpretation the tension of the mo-

ment prompts, these legislative committees are

dangerous to our liberties. While we agree that

anti-democratic movements should be fully guard-

ed against, the job should be done not by commit-

tees with their sensational approach, which can

often present a distorted picture, but by qualified

investigative agencies, such as the FBI."

In discussing related federal measures, the

ACLU pamphlet states: "It appears a very remote

hope that the Supreme Court will, in any substan-

tial way, interfere with the federal and state laws

adopted to deal with subversion, loyalty or secu-

rity, except where clearly inconsistent with pres-

ent concepts of constitutional rights. Congress has

adopted every measure seriously urged except the

formal outlawing of the Communist Party, and

the courts have put the seal of judicial approval

on Congressional power to take such action in all

those cases that have come before it." ;

In affirming its opposition to the state laws, the

ACLU publication states:

"The ACLU, which shares the national concern

for security against Communist subversion, has

opposed these state laws, as it has similar federal

legislation. It has done so solely on the ground of

its specialized function-maintaining the prin-

ciples of the Bill of Rights."

The pamphlet contains two maps showing

states which, by law, bar subversive political par-

ties from the ballot, require public registration of

members of subversive organizations, demand loy-

alty oaths of teachers, public employees and civil

defense workers, and punish subversive move-

ments which advocate violent overthrow of the

government. Copies of the pamphlet can be ob-

tained at 20c per copy at the ACLU offices, 503

Market St., San Francisco 5, Calif.

Birth Control Supporters

Win Hospital Privileges

A controversy over the rights of physicians

practicing at a Roman Catholic hospital to support

planned parenthood has ended in victory for the

doctors.

St. Francis Hospital in Poughkeepsie, N.Y., has

renewed for another year the staff privileges of

seven physicians around whom the controversy

centered.

A year ago the hospital served notice that the

seven men must resign from the hospital staff un-

less they severed connections with the Dutchess

(N.Y.) County League for Planned Parenthood.

Four of the doctors refused to comply. The re-

maining three resigned from the League but indi-

cated they acted only to protect their patients

then in the hospital.

Scholars May Not Be Called Upon to Answer to

Legislative Committees for Their Convictions

(Continued from Page 1, Col. 3)

charges of moral or intellectual incompetence,

carefully defined in advance and carefully investi-

gated by competent colleagues. These provisions

give assurance that neither the threat of dismissal

nor of any other administrative action will ever

be used to terrify faculty members, to impose

upon them an intellectual or religious or political

orthodoxy. An institution which would require

such orthodoxy could not be a university-that is

what the Tenure System means.

I.

The immediate crisis which has called forth the

Statement of the American Universities arises

from the fact that committees of the Federal Leg-

islature are now attempting to impose upon fac-

ulty members the demand that they make com-

pulsory disclosure of their beliefs and associa-

tions. And some of the scholars and teachers who

have been questioned under this procedure have

refused to "cooperate," have denied the authority

of the committees to demand an answer to their

questions. These ``protestants" have, therefore,

been held to be in "contempt" of Congress and

have been recommended for prosecution and, if

convicted, for punishment. Where that situation

has arisen, what is the duty of university toward a

"protesting" professor to whom it has granted

permanent tenure?-That is the basic question

with which the Statement of the Universities is

called upon to deal. As a reader seeks to assess

the validity of the Statement's answer, the fol-

lowing factors seem relevant and are, I think,

decisive.

1. It must, of course, be recognized that the

refusal to ``cooperate" with a governing agency

will incur popular disapproval. The beliefs under

investigation are, generally, regarded as danger-

ous and evil. A protestant's refusal to share in

what seems to him a futile or unconstitutional

method of rooting them out arouses, therefore, a

double hostility. It outrages prevailing anxieties.

It appears to defy established authority.

2. For the reason just stated, it is sometimes

suggested that a teacher who holds fast to his con-

viction that legislative committees are exceeding

their authority, is, thereby, doing harm to his uni-

versity by arousing resentment against it. But in

reply to that it must be said that no university can

play its proper part in the life of a community un-

less it can be trusted: to meet such resentments

without terror, without yielding because of terror.

And, further, it must be said that the only serious

injury which any teacher can do to his university

is that he submit his mind or his words to external

domination, whether by the government or any

other institution-that he think what he is re-

quired to think, that he say what he is required to

say.

8. But the decisive element in the situation is

the clear fact that a citizen-scholar of the United

States may honestly, intelligently, loyally, believe

that the intent of the Constitution forbids him to

submit to the requirement of compulsory disclo-

sure of his beliefs. The question of the constitu-

tional relation between a citizen and his legislature

is as difficult as it is important. Men technically

trained in law, or not so trained, may and do, dif-

fer about it honestly, intelligently, loyally. And,

that being true, it can never be validly said that

adherence to either side of the issue gives evi-

dence, by itself, of moral or intellectual incompe-

tence.

4. From what has just been said it follows

that no university is called upon to decide whether

a protesting professor is right or wrong in his.

refusal to "cooperate." Any genuine institution of

learning accepts diversity of opinion on such con-

troversial issues as a fruitful feature of its work.

And this means that, for an institution which has

adopted a Tenure System, the only relevant ques- _

tion is "Has this man, by his protest, given evi-

dence of any of those forms of moral or intellectu-

al incompetence which are agreed upon as the only

justifications of disciplinary action against him?"

If such evidence is lacking, a genuine university

will stand by its accredited representative, as it is

pledged to do. And if any other agency, govern-

mental or non-governmental, attempts to disci--

pline him, such a university will not supinely ac-

quiesce, will not consent to or share in the viola-

tion of those principles upon which its very exist-

ence, as a servant of the truth, depends.

Ir. .

As against the attitude thus far defined, the

statement of the Universities seems to me to deny

and discard the meaning of the Constitution about

intellectual freedom, to deny and discard, also, the

application of that meaning, which is formulated

by the Tenure System. That position taken by the

statement in reference to the protesting profes-

sor, reads as follows:

"It is his duty as a citizen and a professor to

speak out if he is called upon to answer for his

convictions. Refusal to do so, on whatever legal

grounds, cannot fail to reflect upon a profession

that claims for itself the fullest freedom to speak,

and the maximum protection of that freedom-

available in our society."'

Is it true that an American citizen-scholar may

be "called upon to answer for his convictions?"

Does a teacher who honestly, intelligently, loyally,

stands fast, under pressure, by his convictions as

to the meaning of the Constitution and the obliga-

tions of a scholar, thereby `"`reflect upon"' his pro-

fession ?"

As against such pronouncements as these the

universities, rising to the defense of the men

whom they have found worthy of trust, should be

saying to Committees which have transformed

investigation into inquisition, ""We have tested

these men in adequate ways, and we know them

to be morally and intellectually fitted for our

work. Nothing which you have alleged about them

gives reason for the withdrawing of that judg-

ment. If, then, you bring legal action against them,

we will take part in their legal defense. If you suc-

ceed in convicting them, we will do everything in

our power to secure reversal of that conviction by

higher courts. If they are sent to jail, we will keep

them on our rolls and will pay their salaries. And,

further, when they have taken their punishment,

they will find their positions waiting for them

among colleagues who, being competent to make

such a judgment, will gladly recognize them as fel-

low-workers in the research and teaching of a free

society."

I wish the universities were saying something

like that rather than what they have said. The

nation desperately needs their leadership in the

cultivation and defense of individual freedom. The

battle for that freedom cannot be won merely by

the martyrdom of individual scholars. Each uni-

versity must stand fast as a unit, and all the uni-

versities must stand together in defense of the

principle which makes a university what it is,

which defines its deepest obligation to the nation" ~

which it serves.

Chicago ACLU Aids Citizens

Charged With Contempt

The Chicago Division of ACLU has entered a

friend-of-the-court brief in the case of some Ili-

nois petitioners who are charged with contempt of

court for having sought the appointment of a spe-

cial prosecutor in a criminal action.

Nelson O. Howarth, LeRoy Clapper, Alan

Wyneken, and 578 others petitioned Circuit Judge

Frank S. Bevan to appoint a new prosecutor in the

case of the State vs Jones. The state's attorney,

who himself had asked to be relieved from duty,

had "shown a reluctance and unwillingness to

prosecute," says the ACLU brief.

On November 6, 1952, Judge Bevan cited the

respondents on the grounds that they were ob-

structing justice and coercing the court.

In its brief before the Supreme Court of Illinois,

the ACLU branch contends that these contempt

citations "represent a grave threat to some of the ~

fundamental rights of the respondents as citizens

of the United States."

The law firm of Taylor, Miller, Busch and Magner

base their argument on three main grounds. They

say that the citations violate the equal protection

of laws as guaranteed by the Fourteenth Amend-

ment, the right of free speech, and the right of

petition, :

The ACLU's lawyers point out that under Illi-

nois law, a state's attorney may ask a judge to

appoint a special prosecutor. `""There are no proce-

dural rules or statutory provisions distinguishing

between state's attorneys' petitions before a court

and private citizens," they state.

The brief further contends that "the respond-

ents' language does not contain criticism of the

court." It states that these `remarks in the form

of a petition were addressed to legitimate ends."

ACLU's lawyers also argue that `had the same

`words been incorporated into an open letter to the

court, published in a newspaper, it is clear that the

remarks could not be held contemptuous in the

light of the guarantees of free speech and free

press."

They then assert that "by formalizing their con-

duct in a court proceeding, the, respondents cer-

tainly did not place themselves further from the

basic protections of the constitution than they

were when outside the court."

AMERICAN CIVIL LIBERTIES UNION-NEWS

Page 3

96 New Members Secured

Thus Far In Special Drive

As of April 27, 21% of the membership goal

and 28% of the monetary goal have been achieved

in the Union's special membership drive for 450

new members and $3000 to balance the current

budget. Exactly 96 new memberships and $848 in

money have been received at the office.

_ `Berkeley, under the leadership of Lynn Ben-

nion, is presently setting the pace in new member-

ship with 27 received at the office. Mrs. B. Abbott

Goldberg's San Francisco Committee leads the

monetary parade with $481. While only 21 new

memberships have presently been received from

the San Francisco area, Mrs. Goldberg's workers

reported on April 22nd that they had received 62

promises to join, with 253 prospects still to be

contacted. _

Chairman Lee H. Watkins of Davis says he

expects to treble his quota of 5 for that commu-

nity. Thus far 3 new memberships have been re-

ceived at the office. Benjamin Russell's Stockton

Committee has thus far secured 6 new members

towards its goal of 10.

Campaign committees are also working on the

problem of renewals. As a result of last year's

membership campaign, there are 187 April expira-

tions and almost 300 in May. The office has thus

far made no effort to tabulate the campaign re-

sults in this regard. :

A complete report on the results of the member-

ship campaign will appear in the June issue of the

"News."

Decision Postponed on Mich.

Communist Registration Law

A Michigan law requiring the registration of

Communists, the Communist Party and Commu-

nist-front organizations, and preventing them

from appearing on the state ballot, has been re-

ferred back to the lower courts by the U. S. Su-

preme Court. In a short 7-2 decision, on a test case

of the constitutionality of the law, the Supreme

Court remanded the case to the federal trial court

in Michigan, directing that it hold up proceedings

in the case pending state court construction of the

legislation.

The Court pointed out that there have been no

_ interpretations of the law by the state courts,

since this case was begun by William Albertson,

the chairman of Michigan's Communist Party,

only five days after the law became operative and

that another test case was pending in a state court

in Michigan. This other case was brought by the

Socialist Workers Party, an anti-Stalinist Marxist

roup.

: J dsiiee Black dissented without opinion. Justice

Douglas, dissenting, argued that whether or not

the ambiguities in the law might be resolved by

the state courts, it was clear that the Communist

Party in this case did come within the terms of the

statute, and that, therefore, no construction of the

statute by the state courts could make any differ-

ence in this case. -

The ACLU had filed a brief as friend-of-the-

court contending that the law was unconstitution-

al both because of its vagueness and its infringe-

ment upon freedom of speech and association.

Another Civil Liberties

Group Springs Into Being

The ACLU has a number of inquiries about an

organization calling itself "Californians for the

Bill of Rights,' which sprang into being on April '

15.

The People's World of April 17 reported that

"the organization is an outgrowth of the Federa-

tion for Repeal of the Levering Act," and that

some 40 persons met at ``the former federation

headquarters" and adopted by-laws and the name

for the new organization. ;

"The purpose of this organization," according

to the preamble of the Constitution, as reported

by the People's World, shall be the protection of

liberty by opposing all measures seeking to en-

force comformity through the medium of test

oaths, investigations, perjury penalties and other

devices; to support action to test the legality of

existing legislation of this type; to seek repeal of

such existing legislation, and to support those

measures to advance civil liberties."

A letter announcing the organization meeting of

the group included "`political action" among its

activities. Just what form this "political action"

will take was not indicated. .

When the Federation voted to disband it sought

to end its career in such a way that no person or

group could exploit its name and prestige. Any

attempt to tie up the new civil liberties group with

the Federation is wholly unauthorized.

While some of the Union's inquirers have ques-

Court Upholds Waterfront Security Screening

Bui Requires Specification of Cha

Federal Judge Edward P. Murphy of San Fran-

cisco on April 21 upheld the constitutionality of

the Coast Guard security screening of maritime

`employees but at the same time ruled that those

subject to the program are entitled to a specifica-

tion of any charges against them, Consequently,

"A limited: injunction and a declaration of rights

will issue."

In. supporting the 1950 Magnuson Act and

Executive Orders issued under it, Judge Murphy

declared that "Initial solicitude for the petitioners,

however great, is limited by countervailing con-

siderations of equal magnitude . . . the undoubted

right of the Nation to protect itself from subver-

sion. Where national. security is involved, the

courts have gone far in permitting limitation of

the usual procedural protections."

The decision was handed down in the case of

Lawrence F. Parker and others against J. A. Les-

ter. The matter has been pending for almost two

years. ;

At the present time, a so-called appellant in a

Coast Guard screening case receives no specifica-

tion of the charges against him. It is merely

charged that the man's classification as a security

risk "is based on the belief that you are affiliated

with, or sympathetic to an organization, associa-

tion, group or combination of persons subversive

or disloyal to the Government of the United

States." Judge Murphy ruled that wasn't enough.

"In cases such as these," said he, "no reason

appears why the Commandant could not apprise

petitioners of the basis for his initial determina-

tion with such specificity as to afford them rea-.

sonable notice and an opportunity to marshal the

evidence in their behalves. The same is true of the

conduct of the examination by the board. While

it may not be feasible to reveal to petitioners the

source of the evidence against them, no reason

appears in common sense or respondents' argu-

ment why petitioners should not be informed of

the contents of the testimony. Thus a bill of par-

ticulars should be furnished upon demand and

petitioners should be given an opportunity to

rebut specific allegations of misconduct or other

acts and associations which the board considers

probative. No less an authority than General Don-

Physicians Suspended For

Contempt of Congress

The New York Court of Appeals has ruled that

a physician may be disciplined legally in the state

for contempt of Congress.

It based its 6-I decision on a section of the New

York education law which permits the Board of

Regents to penalize a doctor who `has been con-

victed in a court of competent jurisdiction, either

within or without this state, of a crime."

The case concerned Dr. Edward K. Barsky, Dr.

Jacob Auslander, and Dr. Louis Miller, who were

convicted of contempt and served prison terms for

refusing to turn over records of the Joint Anti-

Fascist Refugee Committee to the House Commit-

tee on Un-American Activities.

The defendants brought suit after the Board of

Regents had suspended Barsky's license to prac-

tice for six months, Auslander's for three months,

and had censured and reprimanded Miller.

In their brief, the defendants claimed that con-

tempt of Congress is not a crime in New York

state, and that the statute was intended to penal-

ize medical men only for moral turpitude or unpro-

fessional ability or conduct.

Finding that the men had been convicted in a

"competent court," New York's highest tribunal

held that the Regents' action was authorized by

the law. ae -

"Stringent as it is, that statute needs no cutting

down, for constitutionality's sake," the opinion

stated. ;

A dissenting opinion, by Associate Justice Stan-

ley Fuld, declared that the fact that a crime had

been committed "somewhere" was ``too vague, too

capricious, too unrelated to anything that a citi-

zen of our state is entitled to have considered to

be regarded as a.standard for any legislation,

much less for legislation that . . . authorizes a

penalty that may destroy a person professionally."

The ACLU had filed a friend-of-the-court brief

in the case, charging that the disciplinary action

was a violation of due process of law, in that the

contempt conviction did not involve moral turpi-

tude or the doctors' professional ability.

tioned the need for a new civil liberties group in

California, obviously the field is open to all comers.

To this observer, the new group appears to be a

left-wing undertaking intended to exploit th

prestige of the defunct Federation.

rges

ovan has suggested that individuals accused of

being bad security risks be informed of the con-

tents of the examiner's dossier."

At the same time, Judge Murphy ruled that

there were certain procedural safeguards which

could not be granted without jeopardizing the se-

curity program. Said he, "opportunity for con-

frontation and cross-examination of adverse wit-

nesses cannot be afforded a petitioner in these sit-

uations without destroying the security program.

The Federal Bureau of Investigation has uni-

formly insisted that practically none of the evi-

dentiary sources available will continue to be

available to it if proper secrecy and confidence

cannot at all times be maintained with respect to

original sources of information.

Judge Murphy also ruled that a maritime em-

_ ployee is not entitled to a hearing before being

screened as a security risk. "Public necessity of

a much less pressing order than the prevention of

espionage and sabotage has often been held to

justify administrative orders or other action fol-

lowed subsequently by a hearing." In many cases

maritime workers have been charged as security

risks and been unemployed for many months be-

`fore finally being cleared.

It is interesting to note that after the litigation

was begun, the Government did file in court its

charges against the particular maritime workers.

It is reported that the petitioners will appeal___

the decision to the Court of Appeals.. At this.

point, however, it is not known whether the Coast

Guard will revise its procedures in line with Judge

Murphy's decision.

Alien May Be Held

Forever Without Hearing

The U. S. Supreme Court has ruled, in a 5-4

decision, that an alien denied admission to this

country on security grounds and refused a hear-

ing, who is now imprisoned on Ellis Island because

no other country would accept him, can be refused

bail, without a hearing.

The case involved one Ignatz Mezei, an alien

who had lived in the U. S. from 1923 to 1948, and

was abroad behind the Iron Curtain for 19

months. He received an immigration visa from an

American Consulate, but was excluded from the

U. 8.-without hearing-on the basis of confiden-

tial information, the disclosure of which, the gov-

ernment charges, would be prejudicial to the pub-

lic interest. His attempts to secure admission into

several other countries failed. He finally obtained

a writ of habeas corpus after being detained at

Ellis Island for 21 months, when the government

refused to divulge the evidence against him even

to the Federal District Court in New York. The

U.S. Court of Appeals in New York affirmed the

grant of habeas corpus by a 2-1 vote, but the Su-

preme Court, in an opinion written by Justice

Clark, reversed Mezei's release on conditional pa-

role on bail.

The Court relied on the Ellen Knauff case,

which held that an entering alien has no right to a

hearing; it decided a question left open in the

Knauff case, holding that a re-entering alien has

no greater rights. The continued detention at Ellis

Island was held to be "an act of ... grace," pre-

venting hardship to the alien which would other-

wise result, by keeping him on vessels. The Court

admitted that there was hardship, but held that

this was the will of Congress with which the

courts could not interfere.

Justice Black wrote a dissenting opinion con-

curred in by Justice Douglas. He pointed out that

Mezei had not been charged or convicted of any

crime, that Mezei might now be required to stay

on "his island prison .. . indefinitely, perhaps for

life." He argued that "individual liberty is too

highly prized in this country to allow executive

officials to imprison and hold people on the basis

of information kept secret from courts." He joined

Justice Jackson in the belief that due process was

violated.

Justice Jackson wrote a separate. dissenting

Opinion, joined by Justice Frankfurter. He admit-

ted that there might be detention of an alien as a

preventive measure, but that procedural due proc-

ess ``of the indispensable essence of liberty' must

be granted. He argued that it was insurance to the

government too, against blunders such as almost

happened in the Ellen Knauff case. Said Justice

Jackson: `When individual confinement becomes

the means of enforcing exclusion, it seems to me

that due process requires that the alien be in-

formed of its grounds and have a fair chance of.

overcoming them. This is the most due him when

he is entrapped into leaving the other shore by

reliance on a visa which the Attorney General

refuses to honor."

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 "gaa:

Special Loyalty Oath

Proposed For Calif. Teachers

A bill pending in the current session of the State

Legislature which escaped the Union in its pre-

vious search for measures affecting civil liberties,

is a proposal by Sen. Dilworth, S.B. 1367, relating

to a special non-Communist oath for public school

teachers and the testimony of teachers before

legislative investigative committees, school boards

and superintendents.

Under the proposal, a new employee "must state

under oath whether or not he is knowingly a mem-

ber of the Communist Party." If he is, he may not

be employed.

Any present employee of a school district `"`who

is now or within five years prior to the effective

date of this section was knowingly a member of

the Communist Party shall within ninety (90)

days of the effective date of this section file with

the governing board of the school district em-

ploying him a verified statement that he is no

longer a member of the Communist Party and that

such membership has been terminated in good

faith." Any employee failing to do so is guilty of

insubordination ``and shall be suspended and dis-

missed."

Moreover, "Any employee of any school district

who hereafter knowingly becomes a member of

the Communist Party shall be guilty of insubor-

dination..."

The bill would also require employees of any

school district to appear before legislative investi-

gating committees to answer all questions con-

cerning the employee's advocacy of the violent

overthrow of the government, present knowing

membership in subversive groups, and knowing

membership during the past five years in any sub-

versive group and particularly the Communist

Party. Any employee failing to answer such ques-

tions is guilty of insubordination and "shall be

suspended and dismissed from his employment."

The bill also makes a "legislative finding that

an indirect or evasive answer or an answer which

neither affirms nor denies shall, for the purposes

of this act and chapter, be considered as a failure

and refusal to answer, regardless of the ground

or explanation given for any such answer."

The same duty to answer questions would apply

to questions propounded by school boards and

superintendents.

eRe

a

Rumely Contempt of Congress

Citation Reversed

In a 7-0 decision, the Supreme Court has held

that Edward A. Rumely was improperly convicted

of contempt of Congress because he refused to

provide a committee investigating lobbying activi-

ties with the names and addresses of persons who

had bought literature from him. Rumely was an

official of the Committee for Constitutional Gov-

ernment, and the literature was distributed by

that organization. Contributions of $500 or over to

an organization engaged in lobbying activities

must be reported; Rumely did not accept such

contributions, insisting instead that persons who

wanted to donate larger amounts must buy litera-

ture for distribution as the buyer saw fit.

In an opinion written by Justice Frankfurter,

the Court ruled that a delicate constitutional issue

would arise if it were held that the authority of

the investigating committee extended into an in-

quiry as to private persons to whom Rumely sold

books. Therefore, it construed the authorization

of the investigation to mean investigation only

into representation made directly to the Congress,

its members or its committees. Thus, the inquiry

directed to Rumely was in excess of the commit-

tee's authority and the contempt citation must

fall. Justices Burton and Minton took no part in

the consideration or decision of the case.

Justice Douglas wrote a concurring opinion,

joined in by Justice Black. They contended that

the inquiry made of Rumely was indeed authorized

by law, but that it was a violation of the First

Amendment protecting freedom of speech to re-

quire that a publisher disclose the identity of those

who buy his books. This requirement, they said,

`fs indeed the beginning of surveillance of the

press ... the purchase of a book or pamphlet to-

day may result in a subpoena tomorrow...

through the harassment of hearings ... the gov-

ernment will hold a club over speech and over the

press."

Richmond Housing Authority Restrained

From Evicting Non-Signers of Loyalty Oath

On April 24, hearings on a suit testing the con-

stitutionality of a federal law requiring loyalty

oaths of tenants of low-rent housing projects were

continued by Superior Judge Harold Jacoby of:

Contra Costa county until May 22. In the interim;

the Richmond Housing Authority is restrained

from evicting or threatening to evict any tenants

who refuse to sign the oath.

Dana Murdock, attorney for the Housing Au-

thority, has proposed that a stipulation be en-

tered into holding the case in abeyance until the

U.S. Supreme Court rules on the constitutionality.

of the law in pending Eastern cases which are

being handled by the ACLU. Of course, the Union

is not opposed to such a proposal so long as the

Authority's tenants are excused from signing the

oath.

The Richmond suit was filed by the ACLU of

Northern California on April 20 on behalf of fif-

teen tenants and others similarly situated. It

asked that the Gwinn amendment to the Inde-

pendent Offices Appropriation Act, the law passed

by Congress in 1952 which requires the oath, be

declared unconstitutional.

Under the law, all tenants and members of their

families must sign an oath that they .are not

members of any organization on the U.S. Attor-

ney General's subversive list, The suit alleges that

none of the plaintiffs are members of any of the

listed organizations and that they are "loyal citi-

zens of the United States.''All but one of the male

plaintiffs are graduate students at the University

of California, and some are instructors who have

signed the State's Levering Act loyalty oath.

Among them, too, are veterans who have previ-

ously received loyalty and security clearances.

For these loyal citizens, the oath requirement .

is a case of one oath too many. They feel that the

oath requirement violates their civil liberties and

that no person should be required to sign a con-

formity oath in order to secure shelter for him-

self and his family.

The suit was filed after some of the plaintiffs

received a "Final Notice' from the Richmond

Housing Authority to sign the oath or face evic-

tion proceedings.

Berkeley Council Candidates

Polled on Sidewalk Table Issue

Recently, the Univ. of California Daily Cali-

fornian polled the candidates for the Berkeley

City Council as to who should be permitted to set

up a sidewalk table. This was one of the burning

issues of the campaign, growing out of the Coun-

cil's refusal to allow supporters of clemency for

the Rosenbergs to set up sidewalk tables for the

circulation of their petitions. While the election

is now a matter of history, the following answers

of all but two of the candidates give some insight

into the thinking of the councilmen on this civil

liberty issue. Incidentally, the worst answers came

from the victorious candidates.

Harmon Bennett: Tables should be allowed for

any purpose except that of defending convicted

persons.

Mrs. Alice G. Heyneman: The only basis for

granting tables should be the First Amendment,

which means what it says ... We must fight

communism legally and through established

agencies, ~

Arthur Hinton: Tables should be granted onl

to non-communist, non-subversive groups. The

FBI should be consulted.

Fulton McMillan: "Freedom of thought" de-

mands that all tables be permitted. Otherwise,

might not "dictatorial" councilmen squelch a re-

call movement?

Donald Parce: A table may be prohibited if it

might create a fire hazard, the applicant "is not

acting in good faith" or if the literature is objec-

tionable.

George Pettitt: The granting of table privileges

is a courtesy extended by the council rather than

an essential part of any individual civil liberty.

Thomas B. Richardson: Tables should be pro-

hibited only if they are traffic hazzards.

Lorimer Skidmore: We can't have democracy

without free discussion. If the property owner

doesn't mind having a table set up on his side-

walk, the council shouldn't object either.

Mrs. Lee B. Thomas: Communists shouldn't be

allowed on the streets, in the school buildings or

behind sidewalk tables. Any table should be pro-

hibited whose purpose is to defend "convicted

communist traitors."

Lionel J. Wilson: No matter what kind of liter-

ature is to be distributed, all tables should be

granted unless they constitute fire or traffic

hazzards.

Arthur Beckley: If a table is "good for all citi-

zens," it should be allowed. If it would do "dam-

age" it should be prohibited.

The suit charges that the requirements of a

certificate of non-membership in subversive or-

ganizations violates "plaintiffs' rights to freedom

of speech, association and assembly guaranteed

by the First and Fourteenth Amendments" to the

Federal Constitution, and that it imposes an un-

constitutional condition upon the enjoyment of

a privilege. The suit also claims that the loyalty

oath requirement violates plaintiffs' rights to due

process of law and the guarantees against self-

incrimination. A

Four similar test suits are pending in Eastern

courts,-one in Newark, two in New York and one

in Chicago. Another test suit was filed by the

Civil Liberties Union in Los Angeles late in Feb-

ruary. This is the first test suit in Northern

California.

The plaintiffs in the present suit are as follows:

Eugene and Norma Zumwalt, Benjamin Buch-

alter, William and Muriel Allan, Evilio and Cath-

erine Grillo, Richard and Lora Lee Johnston,

Charles D. and Grace MacNeill, Giulio Pontecorvo,

Samuel B. Bloom and John and Alga Dale Dydo.

The suit is being handled by ACLU staff coun-

sel, Lawrence Speiser, and attorney Joseph Land-

isman of Richmond.

ACLU Opposes Harassment

Of Harry Bridges

The national office of the American Civil Liber-

ties Union issued a statement last month express-

ing the hope that the U.S. Supreme Court would

reverse the perjury conviction of labor leader

Harry Bridges because the prosecution was an

harassment amounting to an abuse of due process

of law.

The full text of the ACLU statement follows:

"The U.S. Supreme Court probably on May 4

will hear argument on whether or not Harry

Bridges perjured himself in naturalization pro-

ceedings when he denied past membership in the

`Communist Party. This is the third time that the

government has raised the question of such mem-

bership in legal proceedings instituted against

Bridges. On two occasions, the government at-

tempted to deport Bridges on this charge, but the

charge was not sustained in either case, even

though one case reached the Supreme Court.

"Now, ten years later, the government has been

successful in a prosecution charging Bridges with

lying in denying his past membership in the Com-

munist Party-which membership the govern-

ment has already twice failed to prove. It seems

to us that this continual harassment on the same

issue over a period of ten years amounts to a

violation of that due process of law required by

the Fifth Amendment to the U.S. Constitution.

Three legal proceedings brought against a man,

always involving the question of past member-

ship in the Communist Party, reflects an attitude

of persecution which is not consonant with Ameri-

can democratic concepts. Regardless of the

nature of the proceeding, political or otherwise,

if the idea of due process is to be preserved, indi-

viduals must be free of the need constantly to

defend themselves against the same accusation.

"The ACLU does not, of course, take any posi-

tion with respect to whether Bridges was or was

not a member of the Communist Party, and it af-

firms its unalterable opposition to Communist

totalitarianism, But it repeats once again its firm

conviction that, in opposing Communist tyranny,

American democracy cannot employ the methods

and tactics of that tyranny.

"It hopes the Supreme Court will reverse the

conviction."

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