vol. 19, no. 3

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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