vol. 19, no. 3
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American
Civil Liberties
Union-News
_ Free Press.
Free Assemblage
Free Speech
VOLUME XIX
SAN FRANCISCO, CALIFORNIA, MARCH, 1954
Number 3:
Four Major Decisions at
ACLU Biennial Conference
The first biennial conference of the ACLU held
in New. York City from February 12 to 15 reached
four major decisions:
1. It unanimously adopted a policy statement,
which is published elsewhere in this issue of the
NEWS.
- 2. By a vote of 26,112 to 15,248 it reeommend-
ed excision from the By-Laws of the national
board's power to over-ride a corporation decision
reached on a referendum, if such action is conso-
nant with New York membership corporation law.
(The ACLU of Northern California presented a
memorandum supporting the legal propriety of
such action.)
3. It authorized appointment of a committee to
consider establishment of a convention system to
run the organization and to consider various pro-
posed amendments to the By-Laws of a contro-
versial nature, and,
4, It recommended "withdrawal" by the board
of "the three policy statements" and referral of
the matters covered by them to a committee com-
posed of representatives of the board, the national
committee and the affiliates, This recommenda-
tion was adopted by the national board on Febru-
ary 15 by a narrow vote of 13 to 9.
The board has not yet acted on the proposal to
eliminate its veto power over a corporation de-
cision on a referendum, nor has it thus far acted
on proposed.minor amendments to the By-Laws.
The special committee considering changes in
the By-Laws is to report at a conference to be
called in 1955 or no later than 1956.
A motion to strike the reference to the Febru-
-ary 5, 1940 resolution from the By-Laws was de-
feated by a vote of 9,970 to 31,250. While the affil-
iates supported this resolution by a vote of about
3 to 1, the dozen individual corporation members
voted solidly against the proposal and, therefore,
by themselves cast 28,000 votes against the pro-
osal.
: The first session of the conference attracted 18
_ hational board and committee members besides
the representatives of the 18 affiliates. The ACLU
of Northern California was represented by Prof.
Laurence Sears and Ernest Besig.
Issues Drawn In John W.
Mass Dismissal Case
Following the over-ruling of a demurrer, an an-
swer was filed last month in the Superior Court
of San Francisco county in behalf of John W.
Mass, City College teacher, who was fired from his
teaching post for refusing to answer the questions
of the Velde Committee on December 4, 1953.
Irving G. Breyer, attorney for the Board of Ed-
ucation, in opposing the demurrer filed by ACLU
Staff Counsel Lawrence Speiser, contended that
Mass' dismissal was not taken under the Dilworth
Act, which requires teachers to answer the ques-
tions of legislative investigating committees under
certain circumstances. In making this argument,
Breyer ignored the proceedings at the meeting of
the Board of Educatioin last December 8 when
dismissal proceedings were authorized against
Mass. The discussion at that time centered almost
exclusively around the provisions of the Dilworth
Act.
Today, however, Mr. Breyer asserts that the
Dilworth Act is not in issue and that Mass' dis-
missal can be supported on the grounds of "un-
professional conduct," `evident unfitness for ser-
vace."). i
school laws of the State. The complaint also al-
leges that Mass should be dismissed because of his
"attitude and conduct," "refusal to cooperate,"
and "active and persistent efforts to defeat the
course of the Velde Committee's investigation."
The answer denies these charges and again
raises the question of the constitutionality of the
Dilworth Act. The case is expected to be tried the
latter part of March or early in April.
insubordination" and a refusal to obey the.
Dr. Meiklejohn Supports `Testimonial Silence'
For One `Accused' by Investigating Comm.
Writing from Cannes, France, Dr. Alexander
Meiklejohn, noted educator, writer, lecturer and
civil libertarian, has taken sharp issue with the
advice of Professors Chafee and Sutherland of
the Harvard Law School that a person subpoened
by an investigating committee should "cooperate"'
when inquiries are made into his political opinions
and associations. :
Dr. Meiklejohn argues that as an "accused"
the witness should enjoy the same right to testi-
monial silence as an accused in a court of justice.
Among other things, he points out that investi- -
gating committees have usurped executive and
judicial functions, and have used the "third de-
gree" to secure confessions of unpopular beliefs
and associations. Dr. Meiklejohn suggests that
the duty of "cooperation" requires "the denial of
ne, illegitimate demand rather than submission
(c) it. 2
Dr. Meiklejohn's letter was sent to the Editor
oe ae Harvard Crimson. The full text of his letter
ollows:
Text of Meiklejohn's Letter
On January 18, 1953, you published a letter
from Professors Chafee and Sutherland of the
Harvard Law School which discussed "the use
and the limitations of the privilege against self-
incrimination contained in the Fifth Amendment"'
-"No person .. . shall be compelled in any crim-
inal case to be a witness against himself..." The
letter argued from the accepted principle that the
privilege of "testimonial silence" which is granted
in criminal proceedings at all levels is, also, grant-
ed in Congressional investigations. On that basis.
- it generously undertook to give advice, legal and
ACLU Scores Victory In
"Sidewalk Table Case'
The Appellate Department of the Superior Court
of Alameda County on February 23 unanimously
reversed the conviction of Reuel S. Amdur for set-
ting up a sidewalk table without a permit and or-
dered a new trial.
The court's decision supported the contention
made by Lawrence Speiser, ACLU Staff Counsel,
that the Berkeley City Council had discriminated
in issuing sidewalk table permits and thereby de-
nied Amdur the equal protection of the law under
the Fourteenth Amendment.
Evidence Of Discrimination Excluded
_ At the trial, Speiser called City Clerk Ruth
Kemp as a defense witness and through her "of-
fered in evidence all of the sidewalk table applica-
tions considered by the City Council between Octo-
ber 1948 and February 1953. In addition to the two
filed by appellant, these totaled forty-two in num-
ber. He also offered in evidence the recommenda-
tion of the Berkeley Police Department and the
official resolution of the City Council in connection
with each application, as well as the phonographic
recordings of the proceedings of the City Council
in connection therewith. All of this evidence was
excluded on the ground that it was immaterial.
"From the discussion in the record . . . it is also
clear that it was offered for the express purpose
of showing discrimination in the administration
of the ordinance.
"In his opening brief appellant asserts that the
documentary evidence showed that all forty-four
applications received a favorable recommendation
from the Police Department; that of the forty-
four applications considered by the City Council
thirty-six were granted; that of the eight denied,
six were in connection with petitions urging execu-
tive clemency for the Rosenbergs . . . Appellant
asserts further that there is nothing to distinguish
the eight cases in which permits were denied from
the thirty-six cases in which permits were granted,
(Continued on Page 4, Col. 1)
non-legal, to citizens who may be subpoenaed to |
testify in such investigations.
I am not personally acquainted with Mr. Suth-
erland. But, more than fifty years ago, when
Zecharian Chafee Jr. was a brilliant undergrad-
uate at Brown University, I was his Dean.
Through the ensuing years, I have followed his.
career with warm admiration and gratitude. But
now, speaking as one who might be called to
appear before a "committee," I find myself doubt-
ing the wisdom of the advice which he gives. Will
you, then, give me space so that I may (1) aska
question about the legal theorizing of the letter,
and (2) challenge, on wider grounds, the non-
legal advice which it gives? ?
1;
A Specimen of the Investigations
For the sake of clarity we should, I think, have
before us a specimen of the "investigations" to
which we American citizens are now being sub-
jected. To that end, I quote an Associated Press
dispatch of September 18. It reads.as follows:
"Edward Rothschild, Government Printing
Office bookbinder, refused to say whether he was
a Communist, stole a secret code, or engaged in
espionage. He was susvended from his job within
amehour, "-- :
"Rothschild was summoned before the Senate
Investigations Sub-committee to face what Chair-
man Joseph McCarthy (Rep.-Wis.) said were
some of the most serious charges ever made
against a Government official'."
"McCarthy was sitting as a one-man committee.
""Mr. Rothschild,' the Senator said, `very, very
Serious charges have been made concerning you.
That you have been a long time member of the
Communist Party, that you have stolen secret
documents, that your wife has been a member
and officer of the Communist party.'
"He offered the slender pipe-smoking witness a
chance to comment at any len th. Rothschild
shook his head in refusal. : =
Fifth Amendment Invoked
"Confronted with a long list of specific questions
about Communism and stealing secret papers sent
to the Government's big printing plant for print-
ing, Rothschild invoked the Constitution's Fifth
Amendment. He said replies might tend to incrim-
inate him.
"Turning to Roy Cohn, the subcommittee coun-
sel sitting by his side, Mr. McCarthy issued these
instructions:
""Mr. Counsel, will you call the head of the
Government Printing Office and tell him of this
testimony? I assume he will be suspended. I can't
conceive of his being allowed to go back to the
Government Printing Office and allowed to han-
dle secret material.'
"David Schine, a subcommittee staff member,
hustled to a telephone booth in the corner of
the big hearing room in the Senate Office Build-
ing. It wasn't long before McCarthy told reporters
word had come back from Philip L. Cole, deputy
public printer, that Rothschild had been suspend-
ed immediately without pay."
McCarthy Was Making Accusations
_ This example of committee procedure is, [ pre.
sume, somewhat extreme in its ruthlessness. And
yet, in principle, it may be taken as representa-*
tive. Senator McCarthy, sitting as a one-man com-
mittee was, to use his own word, making ``accusa-
tions" against Mr. Rothschild whom, ostensibly,
he was asking for cooperation in an investigation.
He was citing evidence of guilt and threatening
punishment for it. And, indirectly at least, he was
getting his judgment executed. In a word, he was
treating Mr. Rothschild, not as a witness but as
(Continued on Page 2, Col. 1)
Page 2
AMERICAN CIVIL LIBERTIES UNION-NEWS
Meiklejohn Supports Testimonial Silence
(Continued from Page 1, Col. 3)
a culprit; he was requiring of him, not evidence,
but a confession.
To any person, thus dealt with, the letter offers
legal advice. And what it advises is submissive
obedience, as follows:
"The witness is not the ultimate judge of the.
tendency of an answer to incriminate him. He
can be required, on pain of contempt punishment,
to disclose enough to show a real possibility that
an answer to the question will tend, rightly or
wrongly, to convict him of a crime. Manifestly,
this is a delicate business. The witness must not
be required to prove his guilt in demonstrating
the incriminating character of the answer sought.
A judge must decide when the witness has gone
far enough to demonstrate his peril."
13;
An Accused Need Not Be a Witness
That statement, as it stands, seems strangely
at odds with our usual criminal procedures,
whether those of the police, or of Grand Juries,
or of a Court of Justice. Is it true that a man
standing trial on accusation of crime must await
the decision of a judge as to whether or not he
will answer questions asked by the prosecution?
It is true that persons other than the accused
may be summoned as "witnesses," to give evi-
dence for or against him. And these witnesses
are, with respect to their testimony, subject to
that final authority of the judge of which the
letter speaks. But, in a court of justice, is the
"defendant" under the same authority? Pre-
sumably, he, too, is capable of being a witness."
He may have information which prosecution and
- judge and jury could use for the making of a just
decision. May he, then, be summoned to the wit-
ness-stand and, at the discretion of the judge, be
required to "tell what he knows'? Surely not!
"Defendants" are not, in that sense, "witnesses."
-In our criminal procedure, no principle seems
more firmly fixed than the provision that a sus-
pect or a defendant himself, with such advice as
he may take from his lawyer, is the "ultimate
judge" as to whether or not he shall testify. And
at this point, it must be noted, he does not enter
a plea to the Court. He makes a decision.
A Question About the Legal Theorizing
Here, then, is the question which I wish to ask
the writers of the Crimson letter. On what
grounds do they assign to a Congressional Com-
mittee an authority over an accused person which,
-in criminal proceedings, is denied to every agency
charged with the administration of Justice?
3.
One of the most confusing features of the
letter is the characterization which it gives of the
motives of its client. The argument of the letter
begins as follows:
"The underlying principle to remember in con-
sidering the subject is the duty of the citizen to
cooperate in government. He has no option to say,
`T do not approve of this Grand Jury or that Con-
gressional Committee; I dislike its members and
its objectives; therefore, I will not tell what I
know'."
A person who should thus base a protest upon
_ personal disagreement with, or dislike of, offi-
cials is, obviously, not appealing to the Fifth
Amendment or to any other section of the Con-
stitution. He has no legal case at all.
Motives of Witnesses Clarified
For the correcting of that caricaturing of the
issue we should, I think, take another specific
example. For that purpose. we might well, if the
facts were easily available, study the motives of
the thirty-six professors at the University of
California who suffered "dismissal for insubordi-
nation" rather than acknowledge the authority
of the Regents to "investigate" their beliefs. But
the issue can, I think, be more directly stated if I
offer myself as a teacher who, if called upon to
testify about his political beliefs or associations,
would refuse to testify.
In my own case, as in many others, that refusal
would claim justification from the Fifth, as well
as from the First Amendment. It would, however,
have no reference to a danger of self-incrimina-
tion. It would express a citizen's concern (1) for
the general welfare and safety of the nation and
(2) for the integrity of the Constitution.
National Welfare and Safety Involved
First, so far as our national welfare and safety
are involved, I am convinced that the actions of
the committees are both futile and self-defeating.
They are, also, tragically destructive of our na-
tional morale at home, and of the esteem and con-
fidence of our friends abroad. They are, in fact,
of use only to our enemies. AS an American citi-
zen, therefore, I must do everything I legitimately
can to bring about their abolition.
Second, the investigations under compulsion, in
so far as they inquire into political beliefs and
associations, contravene the First and Fifth
Amendments, as well as the intent of the Consti-
tution as a whole. As one who has pledged, and
who gives unqualified loyalty to that Constitu-
tion, I must, therefore. do everything in my power
to bring about the abolition of those investiga-
tions. a
For the explaining of this second reason, a
brief listing of three supporting considerations
may be useful. -
Usurpation of Functions
1. No one can question the authority of Con-
gress to `"investigate.'' But, under the Constitu-
tion, that power is a limited one. And the avowed
activity of the committees as they seek to "drive"
specified persons out of private industry or out of
the government service, is a direct legislative
usurpation of executive and judicial functions.
2. The committee methods, which seek, by
threats and pressures, to secure confession of
unpopular beliefs and associations, are identical,
in their own legislative field, with those of the
"third degree," in the criminal field, as that prac-
tice was defined in 1931 by the Report of the Pres-
ident's National Commission on Law Observance
and Enforcement. In Section 11 of that report,
which studied Lawlessness in Law Enforcement,
and for which Mr. Chafee had some responsibility
as legal consultant, the practice is defined as
follows: ~
"The phrase `third degree' as employed in this
report is used to mean the employment of methods
which inflict suffering, physical or mental, upon a
person in order to obtain from that person infor-
mation about a crime."
And to this, the report adds:
". .. the practice is shocking in its character
and extent, violative of American tradition and
institutions, and not to be tolerated." `
Inquisitors Flaunt Their Tortures
As we here apply the same principle of con-
demnation to legislative and to criminal investi-
gations it should, perhaps be noted that, while
police officers who use the "third degree" find it
advisable to do their illegal work in secret, the
Congressional inquisitors flaunt their tortures
before the public eye and ear as they try, in the
words of the Report, "to win applause by pro-
ducing a victim when popular clamor demands the
solution of a crime." ;
3. We Americans, I am sure, are facing a bitter
crisis. If we are to preserve, or to restore, the
integrity of free and just institutions, we must
recognize that these congressional committees, in
the political field, are practically identical, in pur-
pose and method, with the Ecclesiastical Courts
which, in the religious field, England abolished
three centuries ago. That abolition, the Report
tells us, was England's first decisive step, preced-
ing the reforms of the Civil Courts, along the
long road toward political and religious freedom.
The retrogressive action of an irresponsible Con-
gress has, within a few years, taken us far back
into the past. The damage has been quickly done.
One hopes that, by decisive action of Courts an
People, it may be quickly undone.
A Claim for Testimonial Silence
As we now turn away from the legal phase of
the letter, it should be noted that the justifica-
tion of the question I am asking does not depend
upon the validity of the "reasons" which are
given for my refusal to testify. They may be
ill-founded. But all that is needed to justify my
question is assurance that, at present, I find them
true and cogent and, further, that they are
offered as basis for a claim, not against self-
incrimination, but for unqualified testimonial
silence. :
4.
The non-legal advice of the letter discusses
what it calls "a principle of wisdom and good citi-
zenship." In this field persons act and, hence,
must be advised, not as individuals protecting
their own "rights" and "privileges," but as citi-
zens seeking to do their "duty" to their country.
Law Professors' Advice
The advice given may be found in two state-
ments. The first of these, already quoted, reads:
"The underlying principle to remember in con-
considering the subject is the duty of the citizens
to cooperate in government."
_ The second says:
"It is not only a legal requirement but also a
principle of wisdom and good citizenship for an
individual called before a court, grand jury, or a
legislative committee, to answer questions frank-
ly and honestly. The constitutional privilege to
keep silent is an exception to the legal obligation
to testify, but even when the legal privilege is
available, there are times when it is best not
exercised."
The logical relevance of this second statement
I find very hard to determine. What guidance
does one draw from a general principle which, at
the specific point in question is recognized as out-
lawed by the Constitution? And further, when
we' are talking about "wisdom and good citizen-
ship," the matter at issue is not a "legal privi-
lege" but a "moral duty." And, that being true,
there are no "times when it is best not exercised."
5.
Illegitimate Demand Requires Denial
But the other demand that every citizen shall,
in every relevant situation, "cooperate in govern-
ment" cannot, in the same way, be set aside. In
Some sense, that duty is laid upon every one of
-us. But in what sense? Does it mean that our
only duty is to obey the laws and submit, without
question, to the authority of our agents who gov-
ern us? That suggestion, which would be valid in
a despotic society, is intolerable where men, as
we say, "govern themselves." If it were true, what
is the purpose of those "checks and balances"' by
which each of the separate branches of our gov-
ernment holds powers which no other branch may
invade? A refusal to obey a specific Congressional
demand for information is not, in itself, a refusal
to cooperate in government? The President of the
United States has, on occasion, denied to Con-
gress information from his files. So, too, have the
Departments of State, Justice, and War. Have
they, then, failed in their duty? Certainly not, if
Congress, in seeking the information, was usurp-
ing powers not granted to it by the Constitution.
In that situation, the duty of cooperation requires
the denial of the illegitimate demand, rather than
submission to it. And, in a free society, that duty
is laid upon the citizens as directly and inescap-
ably as upon their representatives. Unless men
are willing, when emergency comes, to do that
duty, whatever the cost to themselves, the entire
structure of free institutions falls to the ground.
6.
The letter seems to me to fail of its purpose of
advising citizens about their duty to the nation
chiefly because it ignores the two-sidedness of
the institutions of political self-government. Free
men, it is true, are subjects of the laws. But, in a
far more important aspect, they are also masters
of them, responsible:-for them. As subjects, we (c)
have "privileges." But, as master's, we have
"duties." The letter speaks much of our privi-
leges. But it seems to me to ignore our Constitu-
tional status as the ultimate rulers of the nation.
It, therefore, leaves out of account the duties
which we assume when we undertake to govern
ourselves.
How Shall the Conscience of the U.S. Be Aroused ?
In 1662, by action of the Ecclesiastical Courts
of England, nearly two thousand rectors and
vicars, one-fifth of the total number, were ex-
pelled from their parishes on the ground that
their refusal to renounce heresy rendered them
"unfit for office." In the years which followed,
they suffered penury and misery. But, by holding
their ground, they, and others with them, so
aroused the conscience of England that the Eccle-
siastical Courts were abolished-three hundred
years ago! Today; in the United States, teachers
and others, on grounds of political heresy, are
likewise being declared "unfit for office." How
shall the conscience of the United States be like-
wise aroused? Perhaps it cannot be. But, in any
case, if the issue is thrust upon him, it is a man's
duty to defend the Constitution, no matter what
it may cost him. .
4.
Because of the deservedly high repute of its (c)
writers, the Chafee-Sutherland letter has had, I
think, more popular influence upon current dis-
cussions of Congressional investigations than any
other public statement. If, then, that influence
has been misleading, the issue here discussed is,
for practical purposes, an exceedingly serious one.
For example, there is a clear and direct relation
of dependence between the letter and the State-
ment on "The Rights and Responsibilities of Uni-
versities and their Faculties," issued unanimously
by the Association of American Universities, on
March 30, 1953. I do not, for a moment, question
the good intentions of the forty-three Presidents
who signed that document. And yet their renun-
ciation of the obligations of intellectual leader-
ship which they owe to the nation, their desertion,
in time of trial, of scholars and teachers whom,
through years of association, they had found
worthy of trust, is one of the most disastrous
actions in the history of American education.
What the letter really means can be most clearly
seen in the sanction which it gives to actions such
as this. And what those actions mean is revealed
by the rising tide of political and social repression
which now threatens the foundations of our na-
tional life. -Alexander Meiklejohn.
AMERICAN CIVIL LIBERTIES UNION-NEWS :
Page 3
ACLU Drive Set for 400
New Members and $2700.
The ACLU of Northern California will hold a
special membership drive after Easter to secure
400 new members and $2,700. In view of last
year's income of $25,500, exactly $2,700 is needed
in new funds in order to balance the current bud-
get of $28,200 and thereby finance the expanded
operations of the Union.
Last month the Union sent to each member a
request for the names of good prospects for mem-
bership. Already, over a thousand names have
been received. The office feels, however, that it
must have two thousand good names in order to
secure 400 new members. Consequently, it urges
all members who have not already done so, to
send in the names of prospects without delay in
order that they may be processed.
Quotas for 18 Areas :
The campaign will be carried on in an organized
manner in eighteen areas. Campaign committees
are now being set up in the following areas, which
have the indicated quotas:
San Francisco ............_..- 100 members and $675
Berkeley -..............---.------- 80 members and $540
Palo Alto area ____........... 30 members and $203.
Oakland, Marin and Sacra-
mento area __..........- 25 members and $170
Richmond _.2.._.)... os. 15 members and $101
Carmel, Davis, Fresno,
Orinda, San Jose
and Stockton ___...... 10 members and $ 68.
Fresno, Hayward, Santa
Cruz, San Mateo
and Redwood City.. 5 members and $34
Arthur P. Allen, former chairman of the Re-
gional Wage Stabilization Board in San Francisco,
has consented to serve as Chairman of the Cam-
paign Committee. Thus far, too, the following
have agreed to serve as area chairmen: Dr. Hu-
bert Phillips in Fresno; Wayne Loretz in Oakland;
Gordon McWhirter in Sacramento and Lee H.
Watkins in Davis.
Court Denies School Board's
Power to Distribute Bibles
The New Jersey Supreme Court has held that
the Rutherford, N.J. Board of Education violated
both the federal and state constitutions when it
distributed free copies of the Gideon Bible to
school children. The decision, which reversed a
lower court decision, resulted from an appeal by
Mr. Bernard Tudor, Mr. Ralph LeCoque and Mrs.
Walter Natanyk, parents of Rutherford school
children.
The Supreme Court specifically enjoined the
Board of Education from distributing pocket-
sized copies of the King James Version of the
New Testament and parts of the Old Testament,
even though the Board had taken such precau-
tions as seeking prior parental permission to
distribute the Bibles and actually distributed
them after school with a conscious attempt to
draw as little attention to the distribution as
possible. :
The Court based its decision on the constitu-
tional doctrine that "the state or any instru-
mentality thereof cannot under any circum-
stances show a preference for one religion over
another. Such favoritism cannot be tolerated and
must be disapproved as a clear violation of the
Bill of Rights of our Constitution." A review of
the testimony at the previous trials was sufficient
to convince the court that the Gideon Bible was
unacceptable to those of both Jewish and Cath-
olic faiths.
While the defendants, the Board of Education
and Gideon International, Inc., contended that the
distribution of the Gideon Bible "in no way injects
any issue of the `free exercise' of religion" be-
cause, under the arrangement provided by the
Board of Education, "no one igs forced to take
a New Testament and no religious exercise or
instrument is brought into the classrooms of the
public schools," the Court felt otherwise, quoting
Supreme Court Justice Frankfurter in his opinion
in the McCollum case:
"Religious education conducted on school time
and property is patently woven into the working
scheme of the school. The arrangement presents
powerful elements of inherent pressure by the
school system in the interests of religious sects."
Investigation In Progress
Last month the ACLU-NEWS carried a story
entitled, `Does the University of California at
Berkeley Have a Thought Policeman?" Various
issues raised by that article are now being investi-
gated by a six-man sub-committee of the Union.
That Committee has not yet secured all the facts.
It expects to make a full and public report on the
matter in the near future.
Unanimous Action on Policy
Statement at ACLU
Last month the biennial conference of the
ACLU, by a unanimous vote, adopted a restate-
ment of the Union's purposes, and its action was
ratified by the national board of directors on
February 15.
The statement grew out of debate on a motion
to recommend to the board that it rescind its re-
cent action in over-riding a corporation vote re-
jecting "the three policy statements." The previ-
ous day, Sen. Frank Graham had made a state-
ment about the Union's purposes that had met
general approval. Why not adopt some such state-
ment in place of the three statements, it was asked.
Thereupon, the motion to rescind was temporar-
ily withdrawn and a motion was adopted, by a
vote of 29,334 to 14,218, to assign the task of pre-
paring such a statement to the three national com-
mittee members who were present: Sen. Frank
Graham, Robert Lynd and:Morris Rubin.
The next day the special committee returned
with a statement that ultimately received unani-
mous support after suffering five changes. Inci-
dentally, Mr. Lynd did not join in urging adoption
of the statement because it did not specifically
call for rescinding of the three statements, but
he eventually joined in its support when it was
made plain that the earlier motion to rescind
would be renewed. Strenuous efforts on the part
of a number of national board members to add
denunciations of communism to the statement
were overwhelmingly rejected. ;
Certainly, the statement as finally written did
not entirely satisfy anyone, but it was unanimous-
ly agreed to as generally satisfying the wishes of
the various delegates. The text of the statement
follows:
The American Civil Liberties Union is gravely
concerned over the alarming extent to which the
suppression of basic liberties and the corruption
of historic safeguards have replaced legitimate
police and judicial procedures required to safe-
guard the security of the country. We therefore
stand against guilt by association, judgement by
accusation, the invasion of the privacy of per-
sonal opinions and beliefs and the confusion of
dissent with loyalty-all of which are character-
istic of the totalitarian tyrannies we abhor. The
abuse by wrongful un-American methods of the
rightful national aim to safeguard the security of
Rule Critic of Courts
May Be Required to Testify
A judge has the right to subpoena a critic of
his court and require him to testify regarding
his criticism, the Appellate Division of the New
York State Supreme Court ruled recently. While
upholding a prior decision by a Supreme Court
Justice, the Appellate Division noted that a juror
had the right to criticize publicly the court and
judge in which he served and any investigation of
the critic's charges were to be free from "undue "
pressure." :
The case grew out of a letter written by juror
Robert Payson Hill to The New York Times, in
which he complained about the "unsanitary con-
ditions and the intemperate nature of one of the
judges who sat there," during his term in Munici-
pal Court. Following publication of the letter, the
President Justice of the Municipal Court of New
York City, Judge William Lyman, supoenaed Mr.
Hill to give supporting evidence for his charges.
Through his lawyer, Emanuel Redfield, who han-
dled the case for the New York Civil Liberties
Union, Mr. Hill sought to have the subpoena va-
cated on the grounds that it was a "flagrant
abuse of freedom of the press and expression." .
His application was denied by State Supreme
Court Justice Gold and an appeal was then ad-
dressed to the Appellate Division.
Associate Justice Francis Bergan, speaking fo
the Appellate Division, wrote: `"`We are of the
opinion, then, that the juror had the right to-
express and publish his criticism of the court and
of the judges with whom he served; but we think
also the President Justice of the Municipal Court
had the power, indeed, the duty, to undertake to
make investigation into his own court ..."
. Pointing out that "criticism of the conduct of a
judge with respect to past cases or matters
finally disposed of generally does not constitute
contempt," the Appellate Court remarked that
false or libelous criticism could be combated by
_the judge acting as a private citizen.
In the particular case at hand, it was noted that
Mr. Hill was sworn only as a witness and proper
legal safeguards for his rights were available.
However, the Appellate Division felt that more
explicit assurance that both juror and inquiry
would be free from pressure should have been
made. The case is now being appealed to the State
Court of Appeals. ok
Biennial Conference
the Country not only betrays the noblest traditions
of our history but also impairs the capacity for
leadership of free peoples at this crucial time for
freedom in the world.
Civil liberties, born of centuries of the people's
struggle for dignity and freedom, are a basic part
of man's heritage. Freedom of religion, thought,
communication, assembly, dissent, freedom from
discrimination, and the right to due process of law
are highly prized parts of the American heritage.
Mindful of its responsibilities as a voluntary
association of free citizens and in furtherance of
its declared principles and purposes to defend the
civil liberties of any person in the United States,
we today reaffirm the policy of the American Civil
Liberties Union not to have as an officer, Board
member, committee member or staff member, na-
tional or local, any person who does not believe
in civil liberties or who accepts the discipline of
any political party or organization which does not
believe in civil liberties or which is under the con-
trol or direction of any totalitarian government,
whether Communist or Fascist, which itself does
not believe in civil liberties or in practice crushes ~
civil liberties. The facts regarding any such mat-
ters must themselves be the subject of responsi-
ble and appropriate consideration in fair pro-
cedures.
It is the continuing responsibility and policy of
the American Civil Liberties Union vigorously to
defend the civil liberties of any person, however
unpopular that person or his views may be, and
regardless of any political party, organization,
denomination, race or nationality to which that
person may belong.
In war and peace, the American Civil Liberties
Union has defended and championed, and pledges
itself to continue to defend and champion the
rightful civil liberties of any person or organiza-
tion, the essentials of academic freedom, fair hear-
ings and due process, whatever be the issues of
the hour, the temper of the times, the alarms of
crises and the pressures of groups.
The concentration of the American Civil Lib-|
erties Union must always be on the basic liberties
of the people, the principles and fair procedures
of academic freedom, the Bill of Rights and the
Constitution of the nation which is in position to
hold out so much hope to the peoples struggling
for freedom and peace in the world.
Tax Exemption Loyalty
Oath Deadlines Near
The new California law requiring loyalty oaths
of persons and organizations claiming tax exemp-
tion is about to be applied in accordance with the
following schedule:
A. Property Taxes of Cities and Counties:
1. Veteran's exemption-between the first Mon-
day in March and the last Monday in May.
2. Churches-cemeteries and orphanages-be-
tween the first Monday in March and the last
Monday in May.
3. Welfare exemption for charitafite organiza-
tions-between March 1 and Afjef 1.
B. In cases of income taxes payable from or-
ganizations such as churches, or religious,
charitable, scientific, literary or educational
organizations, business leagues, civic leagues
and social welfare organizations and social
clubs, etc., the law requires the oath form
to be filed with the State Franchise Tax
Board by March 15, 1954. However, because
of the State's failure to mail these forms to
all the organizations covered by the law, an
extension will probably be granted for the fil-
ing of exemption applications. If an organi-
zation fails to file the oath, in most cases it
will suffer a tax of only $25 and, otherwise,
4% of its "net income."
The problem of testing the constitutionality of
the oath requirement is now in the hands of an
ACLU group of lawyers headed by Ralph Wert-
heimer. Close study is being given to the feasibility
of an injunction to stop the entire program.
In the event the proposed injunction proceed-
ings are tried promptly but unsuccessfully, it has
been suggested that the least inconvenient pro-
cedure open to individuals and organizations
who object to the oath is to file the exemption ap-
plication with the oath crossed out, thereby result-
ing in a denial of the exemption and consequent
payment of the tax. If the law is subsequently
declared unconstitutional the taxpayer's exemp-
tion rights will be protected and claims for re-
funds will, no doubt, be upheld. It is to be noted,
too, that an organization may, if it chooses, sign
the loyalty oath in connection with the application
for.the property tax exemption, which may involve
a substantial sum of money, but still refuse to sign
it for the income tax exemption, which generally
involves only a nominal tax.
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.
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"gE
ACLU Scores Victory In
"Sidewalk Table Case'
(Continued from Page 1, Col. 2)
other than disagreement by the majority of the
City Council with the purposes and views of the
applicants, and that this conclusion will be sub-
stantiated by the phonographic recordings which
were excluded from evidence.
Equal Protection Clause Applies
"These facts, if proved, would constitute evi-
dence that the City Council in the instant case
applied the ordinance in a discriminatory manner,
hence in an unconstitutional manner, in violation
of the Equal Protection Clause of the Fourteenth
Amendment of the Federal Constitution, and of
Article I, Section 21, of the Constitution of the
State of California..." :
In conclusion, the Court said, "The City of
Berkeley was under no duty to permit the use of
tables on its sidewalks as an adjunct to the public
forum, but if it has granted this privilege to some,
it may not deny the same privilege to others un-
der similar circumstances merely because its offi-
cials disagree with their views."'
The Court declared that the question of whether
the Berkeley Council acted reasonably in denying
the permit, as distinguished from whether it dis-
criminated, could be raised only in a civil proceed-
ing to compel issuance of a permit. Nevertheless,
the Court noted that five Councilmen who testi-
fied "felt that the applicant was not acting in good
faith." This conclusion was based on the appli-
cant's reported statement that he "hoped that the
permit would not be granted, that he wanted to
challenge the Council's authority to deny it."
Motives of Amdur Not In Issue
`We find no reasonable basis," said the Court
in rejecting this reason for the Council's denial
of the permit, "for considering the motives of an
applicant in deciding whether a permit should or
should not be granted. The approval of such a
standard would contribute an open invitation to
discrimination." : es
- The Court also noted that "the conclusion is in-
escapable that on both occasions one of the pri-
mary considerations governing those members of
the council who voted on the first occasion to
deny applicant's permit, and on the second to refer
it to the file, was the fact that they disagreed with
the views which according to his application ap-
pellant wished to expound. ae
"However distasteful the political philosophy of
the applicant may have been to members of the
City Council, no question of a `clear and present
danger' being involved, this was not a proper stan-
dard to be applied in determining whether the
council should grant or deny the permit, except
insofar as it may have had a bearing upon the
question of public safety or convenience."
Textbook Writers
Screened In Alabama
Textbook publishers are studying the effects
of a new law passed by the Alabama legislature
requiring sweeping statements on the political
Editor
beliefs and background of authors.
The act requires that all textbooks or written
instrumental material in order to be approved
for use in the schools must carry a statement by
the author or publisher indicating, (1) whether
or not the author is or is not or ever was a mem-
ber of the Communist Party, `2) an advocate of
' Communism, or Marxist Socialism, or (3) a mem-
ber of any Communist front organization listed
by the Attorney General of the United States or
Congress or any committee of Congress. The
statement must also cover the same information
with regard to the author of any book or writing
cited in the work under scrutiny as parallel or
additional reading.
Any taxpayer may by injunction halt the use of
such material as the act forbids. Other than this,
however, the act carries no penalties for a viola-
tion. The act became law January 1, 1954 and
"will not affect use of any textbook previously
approved or adopted until a year from that date.
The act specifically exempts periodical news-
papers and magazines or legal opinions by courts
of record from carrying the statement. To date,
no arrangements have been made for administra-
tion of the law.
Book Review
The Shocking Story of the impact of
The McCarran- Walter Act On [ts Victims
By KEVIN WALLACE
THE GOLDEN DOOR. By J. Campbell Bruce.
244 pp. New York: Random House.
The high-level abstract case against the McCar-
ran-Walter Immigration Act, which has already
been aired in no end of writings and speeches, is
translated here into the dramatic terms of the
law's impact on the people exposed to its actual
administration, It is shocking.
"The Golden Door" is the work of a careful but
indignant newspaperman who has ferreted out
closely guarded case histories of visiting and im-
migrant victims, and applied their experiences to.
the unravelling of the law's snarled language.
As a small instance, Bruce studies the immi-
gration law's definition of the words `re-entry
permit." The unsophisticated would jump to the
hasty conclusion that a re-entry permit' is a per-
mit to re-enter.
Such was the innocent assumption of a random
distinguished guest upon our shores a couple of
years back - Edmund W. Tipping, then city edit-
or and now chief columnist of the powerful Mel-
bourne (Australia) Herald. He had been invited
to sojourn for the year as an Associate Nieman
Fellow at Harvard University, and to bring along
his family, with the Carnegie Corporation picking
up the tab.
During the Christmas holiday, the Tippings de-
NOW AVAILABLE!
A supply of J. Campbell Bruce's new book,
The Golden Door: The Irony of our Immigra-
tion Policy, is available at the ACLU, which
is prepared to fill orders promptly at the reg-
ular price of $3.75 per copy. Orders should
be sent to the American Civil Liberties Un-
ion, 503 Market St., San Francisco 5, Calif.,
together with a check.
Conviction of Pastor for |
Court Criticism Reversed
Criticism of local court decisions may be pun-
ished in some cases by Virginia courts, the Vir-
ginia Supreme Court ruled recently, but it none-
theless reversed a conviction of a local minister
for such criticism.
In May 1952, Ross Alan Weston, pastor of a
-church in Arlington, preached a sermon criticizing
the decision of a local court judge that certain fed-
eral employees were disqualified to hold office on
the local county board. Weston claimed that the
decision was an encroachment on freedom, based
on an antiquated statute and that federal em-
ployees were made into second class citizens. Al-
though stating that he thought the judge was an
"honorable man,' Weston claimed that he was
appointed by a state legislature under the domina-
tion of Senator Harry Byrd and that the judge
himself could fill vacancies on the local board
which his own decision would create. The minister
was prosecuted for contempt of court, being
charged with having `publicly uttered certain ``de-
famatory statements consisting of contemptuous (c)
and insulting language addressed to, or published
of" the judge. Rev. Weston admitted having made
these statements, claiming that there was no at-
tempt to bring either the court of the judge into
disrepute or to attack the judge's integrity.
The Virginia Supreme Court, in its recent de-
cision, admitted that most courts hold that libel-
ous statements about a judge's conduct are not
subject to contempt. It added that the U.S. Su-
preme Court has three times reversed convictions
for contempt in state courts based upon criticisms
of trial judges. But, it continued, in these cases
there were not local laws making such conduct
punishable. The high court claimed that the right
of free speech "may not be exercised in such a
manner as to disregard respect for the courts."
It might impair "judicial efficiency,' the court
said. :
However, the court said that false and libelous
utterances as to the judge's conduct may be pun-
ishable only if they ``present a clear and present
danger to the administration of justice," and that
"guilt must be established beyond a reasonable
doubt."' The court found that Rev. Weston's lan-
guage had not been obscene, insulting, or libelous.
Rev. Weston's expressed confidence in the judge's
integrity and honesty, the court said, meant that
the statement did not present a clear and present
danger. The court warned that the language here
might be on the "`borderline."
The ACLU, from the beginning of the contempt
proceeding, had been in contact with Rev. Wes-
ton's attorney and consulted with him on legal
questions.
cided to visit relatives in Canada..The immigration
authorities in Boston gave the Tippings re-entry
permits and their blessing: "Just check in with
the U.S. Embassy at Ottawa when you're ready
to return." :
So they did. The consular officer fixed Tipping's
re-entry permit with a baleful eye and announced ~
that a re-entry permit is not a permit to re-enter:
only an application for one. Written proof would
have to be presented from Harvard to the effect
that Tipping was wanted there. Phone calls would -
not do. Because Western Union was on strike, it
happened that telegrams wouldn't do either.
The Tippings had an unexpected, annoying, ex-
pensive extension of their Canadian holiday until
the requested letter arrived - a trivial annoyance, -
compared to the tragedy of immigrant families
detained sometimes more than a year without
knowing why, before being denied entry. But the
trivial instance is ominous exactly because it is
So commonplace. As Bruce inquires, is this the
best impression of ourselves that a big, strapping
nation such as ours can offer to the world outside?
In such a manner, with exact cases at hand,
Bruce tabulates the disorders of our immigration
law and its ill-tempered administrators.
_ He also takes a poke at the absolute powers
invested in our petty consular officers abroad, and
he offers some barbarous examples of the powers'
abuse. Nobody can review the consular underlings'
decisions. Nobody can ask why. One chapter, rec-
ommended for reading aloud to anybody you
might think of, details virtually slapstick incidents |
in which celebrated (and notably anti-communist)
foreign scientists were denied visas to attend con-
ventions here. Bruce doesn't regard the cases as
very funny, however, in view of their proven de-
bilitating effect on the scientific researches that
are the basis of our atom age defenses.
Brutality of immigration officials towards
aliens, and an apparently institutionalized indif-
ference to due process, are exhibited in numbers
of case histories that should curdle the blood of -
Americans who have assumed that the immigra-
tion agency, like other United States agencies, is -
governed by at least the ideal of fair play.
Bruce offers clear evidence that major features
of the immigration law are brazenly based on -
racial and religious discrimination, despite Con-
gressman Walter's announced impression that he
co-authored "the most liberal" immigration law
ever enacted. 8
He also takes issue with Mr. Walters' conten-
tion that his law is opposed only by Communists
and their dupes, or people who haven't read the
law's baroque text. Bruce is hardly any Commun-
ist. Neither is another critic of the act, President
Hisenhower. Bruce and presumably the President
have read it. Bruce wonders if Walter read it.
Bruce does not contend that all immigration
barriers be dropped. He opposes entry of demon-
strable Communist agents, the hopelessly diseased
and the clearly criminal. But he asks for a policy
of fairness in our treatment of immigrants and
visitors, and proposes specific remedies for the
law that stands.
"Let us offer such people hospitality, not hos-
tility," he says. "To do that we need an immigra-
tion law that is not written in fear nor rooted in
racial discrimination. And those who administer |
the law need a change of attitude toward the im-
migrant and the visitor, an attitude that is not
cynical, malevolent and beyond all regard for due
process."
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