vol. 29, no. 7

American

Civil Liberties

Union

Volume XXIX

Freedom of Association

inist

in Labor

ffices Invali

SAN FRANCISCO, JULY, 1964

Equal Rights for

an

on

In a 5 to 3 decision last month, the Federal Court of Ap-

peals in San Francisco declared a provision of the 1959

Landrum-Griffin Act, which prohibits a Communist Party

member from holding office in a labor union, is unconstitu-

tional. The decision was handed down in the ease of Archie

Brown, an admitted Party mem-

ber, who served on the executive

board of Local 10 of the Interna-

tional Longshoremen's and Ware-

housemen's Union and was con-

victed in 1962. The ACLU of

Northern California filed a

"friend of the court" brief op-

posing the law.

Political Strikes

The law in question supplanted

a provision of the Taft-Hartley

Act which denied the facilities of

the NLRB to any labor organiza-

tion whose officers failed to file

affidavits with the Board that

they were not members of or af-

filiated with the Communist

Party. In each case, the purpose

of the law was to outlaw so-

called "political strikes."

No Evil Intent Needed

The only actions charged

against Brown were that he was

a Communist Party member

while an offieer in a labor-union.

He was an elected member of

Local 10 in 1959, 1960 and 1961.

The trial court instructed the

jury that Brown could be con-

victed even though it was not

proved that he intended to cause

political strikes or other unlawful

aims of the Party.

The court's opinion recognizes

"that the Communist Party has

both legal and illegal aims and

carries on both legitimate and

illegitimate activities," and "that

there may be members `for whom

the organization is a vehicle for

the advancement of legitimate

aims and policies' alone."

Law "Unreasonably Broad"

"In our judgment," said the

court, "the regulation here-far

broader than the threat it is de-

signed to meet-is unreasonably

broad. To relieve Congress from

having to wait until it can punish

the act, it is given power not sim-

ply to remove the threat but to

punish it; and with no showing

whatsoever that the act in fact

is threatened by the person pun-

ished.

"We conclude that this statute

as construed by the district court

constitutes an invalid restraint

upon the freedom of association

protected by the First Amend-

ment."

Due Process Violated

The majority also determined

that the due process clause of

the Fifth Amendment was vio-

lated by the law. "The gist of the

offense (and, indeed, the sole

basis for federal concern)," said

the court, "lies in the anticipated

efforts of the individual to use

union authority or influence to

bring about union action which

would interfere with commerce.

This ... is `the underlying sub-

stantive illegal conduct.' It is the

relationship of Communist union

officers to this potential disrup-

tive and illegal activity which

alone can justify the punishment

imposed by Sec. 503. In our judg-

ment that relationship is not suf-

ficiently substantial to justify,

under the due process clause,

imposition' of criminal punish-

ment on the basis of union offi-

cership combined with Commu-

nist Party membership per se.

Conclusion

"We conclude that the relation-

ship between the conduct pun-

ished and the evil intended here

to be prevented is not suffi-

ciently close or substantial to

meet the requirements of either

the First or Fifth Amendments

unless Sec. 504 can be construed

as requiring proof either that the

defendant has specific intent to

use his union office to attempt

to disrupt interstate commerce

or that he is an active member

of the Communist Party with

specific intent to promote unlaw-

ful party advocacy and action di-

rected toward overthrow of the

Government.

"We feel it clear that this stat-

ute is not susceptible of such a

limiting judicial construction."

ACLU Brief

In its brief, prepared by staff

counsel Marshall W. Krause, the

ACLU argued that. rights of as-

sociation may not be restricted

on the sole basis of political be- .

liefs and that the statute involved

is a bill of attainder since it de-

-Continued on Page 3

Deportation

Case Concluded

Successfully

_ One of the oldest cases in the

ACLU office came to a successful

conclusion last month when an

Immigration Service Special In-

quiry Officer ruled that a hus-

band and wife, both born in

China, who entered the United

States in 1937, could adjust their

status and remain here perma-

nently.

The case has had a lengthy

history before administrative

bodies , Congress and the courts.

Originally, the Immigration Serv-

ice refused suspension of deporta-

tion on the grounds of confiden-

tial information. After a suit was

filed in the Federal courts, a new

administrative hearing was pro-

vided by the Government at

which the Immigration Service

disclosed its dissatisfaction with a

Masters thesis about the recent

political changes in China. Ap-

parently, the Government repre-

sentative felt that the thesis was

too friendly to the Communist

cause, whereas the writer of the

thesis insisted she had done a

scholarly job. Ultimately, the

Special Inquiry Officer granted

suspension of deportation but af-

ter long delay Congress rejected

such suspension without disclos-

ing a reason for its action. A re-

cent change in the law then en-

abled the aliens to make their

successful application for perma-

nent residence,

The aliens were represented by

Ernest Besig, executive director

of the ACLUNC,

Number 7

s

Naturalized

c} oe

Citizens

On May 18, the United States

Supreme Court declared "that

the rights of citizenship of the

native born and of the natural-

ized person are of the same dig-

nity and are coextensive. The

only difference drawn by the

Constitution is that only the

`natural born' citizen is eligible

to be President." This declara-

tion was made by the court in

the case of Angelika L. Schnei-

der, in which the ACLU ap-

peared as amicus curiae, while

holding that Mrs. Schneider had

not lost her citizenship by rea-

son of residence in Germany,

the country of her birth.

Passport Denied

Mrs. Schneider acquired deriv-

ative citizenship through her

mother in 1950 at the age of 16.

She was educated at Smith Col-

lege and, in 1956, while abroad,

married a German. Resting on a

statute, the State Department

claimed she had lost her citizen-

ship by reason of residence in

the country of her birth (Ger-

many) for eight years, and,

therefore, denied her a passport.

Impermissible Assumption

In its opinion, the court de-

clared: "This statute proceeds on

the impermissible assumption

that naturalized citizens as a

class are less reliable and bear

less allegiance to this country

than do the native born. This is

an assumption that is impossible

for us to make. Moreover, while

the Fifth Amendment contains

no equal protection clause, it

does forbid discrimination that

is so unjustifiable as to be vio-

lative of due process ... A na-

tive born citizen is free to re-

side abroad indefinitely without

suffering loss of citizenship. The

discrimination aimed at natural-

ized citizens drastically limits

their rights to live and work in

a way that other citizens may. It

creates indeed a_ second-class

citizenship. Living abroad,

whether the citizen be natural-

ized or native born, is no badge

of allegiance and in no way evi-

dences a voluntary renunciation

of nationality and allegiance. It

may indeed be compelled by

family, business or other legiti-

mate reasons."

S745

Members of the ACLUNC were

in good standing last month when

this story was written, an in-

erease of exactly 400 members

over a year ago on June 30. In

fact, the present figure repre-

sents a new membership record

for the branch and exactly 274

members more than the peak of

5,471 reached in October 1963. In

addition, the branch has 175 sep-

arate subscribers to the monthly

NEWS and a paid mailing list of

5,920.

The Union's paid-up member-

ship could more than surpass the

6,000 mark if almost 600 delin-

quents whose memberships ex-

pired since January 1 would re-

new. In any case, it is interesting

to note that the Union's member-

ship passed the 3,000 mark in

October 1952, the 4,000 mark in

October 1958 and the 5,000 mark

in June of 1961. It is hoped it

will reach the 6,000 mark by the

time it celebrates its 30th anni-

versary next September.

Los Gates Joint Union H. S. Dist.

Taxpayer s

ges

C h al le f

On June 25, the petition of Prof. Theodore J. Balgooyen

of San Jose State College was tried in the Superior Court of

Santa Clara county to determine whether the court should

permanently enjoin the Los Gatos Joint Union High School

District from allowing the PTA to hold "vesper services" for

graduating classes at the Los

Gatos and Saratoga high schools.

The August issue of the NEWS

will relate what transpired at the

trial.

Taxpayer Action

The plaintiff in the suit, Dr. Bal-

gooyen, suing as a taxpayer, is a

full professor of speech at San

Jose State College, a member of

the Unitarian Church and the

father of a daughter who gradu-

ated from Saratoga High School

last month. The suit is sponsored

by the Santa Clara Valley Chap-

ter of the ACLUNC and is being

tried by attorney Philip L. Ham-

mer of San Jose.

Services Transferred

The suit was filed on June Ist

and an order was issued requir-

ing the School District to show

cause why a temporary injunc-

tion should not be issued. Before

the matter came on for a hearing

it was agreed between Mr. Ham-

mer and attorney Maurice Rank-

in, representing the school board

in place of the County Counsel,

that this year's vesper services

would not be held in the high

schools and consequently a tem-

porary injunction would not be

necessary. On the other hand, it

was agreed that a request for a

permanent injunction should be

litigated in due course.

issue Arose in 1962

The question of vesper serv-

ices has been debated by the

school board since February,

1962. At that time such services

were directly under school aus-

pices. According to a previous

program of such services, one

minister delivered a sermon, a

second gave the invocation anda

third the benediction. The senior

class president led the call to

worship, the student body presi-

Case Against

Evangelist

Dismissed

Mrs. Mattie Bee Stephenson

spent several hours in City prison

and had to pay a bail bond of

$21.00 to be released because she

was handing out religious tracts

at San Francisco's Fisherman's

Wharf and accepting contribu-

tions for missionary work ``with-

out a permit." How a permit re-

quirement for this activity could

be squared with the Constitution

of the United States would be

difficult to explain, but the fact

is that the Police Code does re-

quire such a permit. When the

police officer arrested Mrs.

Stephenson he confiscated, a-

mong other things, a card on

which was-printed Article I of

the Bill of Rights and pertinent

quotations from Supreme Court

decisions that such a permit may

not be required. The policeman

dutifully noted these items in his

police report.

Mrs. Stephenson appeared in

Municipal Court on June 17, 1964

in company with her ACLU coun-

sel, Marshall W. Krause, and all

charges were dismissed by Judge

Maloney. The $21 Mrs. Stephen-

son will never get back, and she

has decided to leave the copy of

the First Amendment with the

police officers in case it might do

them some good.

dent presented the Scripture les-

son and another student sang the

Lord's Prayer. Religious hymns

were sung by the students and

audience.

Counsel's 1962 Opinion

On June 6, 1962, the County

Counsel ruled "that while the

conduct of vesper services for

graduating seniors is not, per se,

a violation of this constitutional

prohibition, the specific program

which was proposed probably

would violate the principle em-

bodied in the Federal Constitu-

tion as defined by the Supreme

Court of the United States ... Al-

though we believe that the pro-

posed vesper service gives rise

to serious constitutional pro-

blems, we think that these pro-

blems would be eliminated if the

service was conducted off school

property and not under the au-

thority, supervision or direction

of the district."

Rental Question

The issue was again debated by

the board February 25, 1963, at

which time it was agreed that the

services could not be held under

district auspices, and that school

personnel could not be used to

plan or organize such services, At

the same time, the Board voted

to ask the County Counsel for

his opinion whether the high

school auditoriums could be rent-

ed to church groups, under the

Civic Center Act, for the holding

of vesper services.

On April 22, 1963, the County

Counsel ruled that "the use of

school property by a community

organization for vesper services,

being essentially religious in

character, is not authorized by

the so-called Civic Center Act..."

Opinion Rejected

The recommendations of its

County Counsel and Superinten-

dant were rejected by the trus-

tees by a vote of 3 to 2 and ves-

per services were approved, if

sponsored by P-TA, students or

some outside group. The P-TA

proceeded to hold the services

and on May 25, 1964 the trustees,

after hearing protests from citi-

zens, decided to continue its pre-

vious policy and allow the ves-

per services to be held under the

auspices of the P-TA. At this

point, the Santa Clara Valley

Chapter secured approval from

the branch to file legal action

and the test suit on behalf of Dr.

Balgooyen resulted.

Protestant Services

Richard Weston, minister of

the Unitarian Fellowship of Los

Gatos, in commenting to the

trustees about the 1963 services,

is quoted as follows:

"There is absolutely no doubt

in my mind that these services,

held in the Los Gatos High School

and Saratoga High School audi-

torium, were Protestant Christian

services."

"With the exception of the ben-

ediction at the Saratoga High

School, which was given by a

Catholic priest, these services

bear no resemblance whatsoever

to Jewish, Catholic, or Unitarian

services."

"The use of a willing priest as

the main speaker in the Los

Gatos services this year will not

change this at all," Weston con-

tinued. "His willingness tells

more of his concern for the high

school students than it does of

the non-sectarian nature of the

service."

AMERICAN CIVIL LIBERTIES UNION NEWS

Published by the American Civil Liberties Union of Nerthern California

Second Class Mail privileges authorized at San Francisco, ie

ERNEST BESIG ... Editor

503 Market Street, San Francisco 5, California, EXbrook 2-4692

Subscription Rates -- Two Dollars a Year

Twenty Cents Per Copy

Ralph B. Atkinson

Dr. Alfred Azevedo

Prof. Arthur K. Bierman

Leo Borregard

Rey. Richard Byfield

Prof. James R. Caldwell

William K. Coblentz

- Richard DeLancie

Rabbi Alvin I. Fine

Mrs. Zora Cheever Gross

Albert Haas, Jr.

Rey. Ford Lewis

Rey. F. Danford Lion

Honorary Treasurer:

Joseph S. Thompson

Honorary Board Member:

Sara Bard Field -

Mrs. Gladys Brown (c)

Mrs. Paul Couture

John J. Eagan

Joseph Eichler

Morse Erskine

Dr. H. H. Fisher

Mrs. Margaret C. Hayes

Prof. Ernest Hilgard

Mrs. Paul Holmer

Mrs. Mary Hutchinson

Richard Johnston

Board of Directors of the American Civil Liberties Union

of Northern California

CHAIRMAN: Howard A. Friedman

' VICE-CHAIRMEN: Dr. Alexander Meiklejohn

Helen Salz

Rey. Harry B. Scholefield

SECRETARY-TREASURER: John M. Fowle

EXECUTIVE DIRECTOR: Ernest Besig

Committee of Sponsors

Prof. Seaton W. Manning

John R. May

Prof, Charles Muscatine

Clarence E. Rust

John Brisbin Rutherford

Mrs. Martin Steiner

Gregory S. Stout

Stephen Thiermann

Richard J. Werthimer

Donald Vial

GENERAL COUNSEL

Wayne M. Collins

Roger Kent

Mrs. Ruth Kingman

Prof. Theodore Kreps

Prof. Carlo Lastrucci -

Norman Lezin

Prof. John Henry Merryman

Rey. Robert W. Moon

Dr. Marvin J. Naman

`Prof Hubert Phillips

Prof. Wilson Record

Dr. Norman Reider

Prof. Wallace Stegner

Mrs. Theodosia Stewart

Rt. Rey. Sumner Walters

Washington State

Loyalty Oaths -

Struck

; wit

For Vagueness

On June 1, the U.S. Supreme Court struck down two

Washington State loyalty oaths, one for all public employees

and the other for teachers, and the statutory provisions on

which they are based "as invalid on their face because their

language is unduly vague, uncertain and broad."

First Oath

Under an oath required by a

1955 statute "A teacher must

swear that he is not a subversive

person: that he is not one who

eommits an act or who advises,

teaches, abets or advocates by

any means another person to

commit or aid in the commission

of any act intended to overthrow

or alter, or to assist the over-

throw or alteration, of the con-

stitutional form of government

by revolution, force or violence.

A subversive organization is de-

fined as one which engages in or

assists activities intended to alter

or overthrow the Government by

force or violence or which has as

a purpose the commission of

such acts. The Communist Party |

is declared in the statute to be a

subversive organization, that is,

it is presumed that the Party

does and will engage in activi-

ties intended to overthrow the

Government. Persons required to

swear they understand this oath

may quite reasonably conclude

that any person who aids the

Communist Party or teaches or

advises known members of the

Party is a subversive person be-

cause such teaching or advice

may now or at some future date

aid the activities of the Party.

Teaching and advising are clear-

ly acts, and one cannot confi-

dently assert that his counsel,

aid, influence or support which

adds to the resources, rights and

knowledge of the Communist

Party or its members does not

aid the Party in its activities,

activities which the statute telis

ACLU NEWS

JULY, 1964

Page 2

us are all in furtherance of the

stated purpose of overthrowing

the Government by revolution,

force, or violence...

Additional Difficulties

"The Washington statute suf-

fers from additional difficulties

on vagueness grounds. A person

is subversive not only if he him-

self commits the specified acts

but if he abets or advises an-

other in aiding a third person to

commit an act which will assist

yet a fourth person in the over-

throw or alteration of constitu-

tional government. ... Must he

know that his aid or teaching

will be used by another and that

the person aided has the requi-

site guilty intent or is it suffi-

cient that he know that his aid or

teaching would or may be useful

to others in the commission of

acts intended to overthrow the

Government? Is it a subversive

act, for example, to attend and

participate in international con-

ventions of mathematicians and

exchange views with scholars

from Communist countries? What

about the editor of a scholarly

journal who analyzes and crit-

icizes the manuscripts of Com-

munist scholars submitted for

publication? Is. selecting out-

standing scholars from Commu-

nist countries as visiting profes-

sors and advising, teaching, or

consulting with them at the Uni-

versity of Washington a subver-

sive activity if such scholars are

known to be Communists, or re-

gardless of their affiliations, reg-

ularly teach students who are

members of the Communist

Party, which by statutory defini-

tion is subversive and dedicated

erican

of Northern California, Inc.

ARTICLE I

Name

The name of this organization

shall be the American Civil Lib-

erties Union of Northern Cali-

fornia.

ARTICLE II

Headquarters

The headquarters of the Union

shall be in San Francisco.

ARTICLE IE

Affiliation

This organization shall fune-

tion as an affiliate of the Amer-

can Civil Liberties Union, Inc.,

of New York.

ARTICLE IV

Object

Its object shall be to maintain

the rights of free speech, free

press, free assemblage and other

civil rights and to take all legiti-

mate action in furtherance of

such purposes. The Union's ob-

ject shall be sought wholly with-

out political partisanship.

ARTICLE V

Membership and Dues

All persons wishing to further

_ the purposes of the Union are

eligible for membership. Mem-

bership is established by signing

an application and paying the an-

nual dues. Dues shall be fixed by

the Board of Directors.

ARTICLE VI

; Board of Directors and Officers

la. The direction and adminis-

tration of the Union.shall be un-

der the control of a Board of

Directors of not less than fifteen

_(15), nor more than thirty (30),

members. The Board of Directors

shall meet once each month, at a

time and place fixed by the

to the overthrow of the Govern-

ment?"

The court also found the pro-

hibition of "revolution", which is

in addition to "overthrow or al-

teration by force or violence,"

also to be a vague term.

Second Oath

The second oath declared to

be unconstitutionally vague re-

quires a teacher to declare he

will, by precept and example,

promote respect for the flag and

the institutions of the United

States and the State of Washing-

ton. "The range of activities

which are or might be deemed

inconsistent with the required

promise is very wide indeed,"

said the court. "The teacher who

refused to salute the flag or ad-

vocated refusal because of reli-

gious beliefs might well be ac-

cused of breaching his promise.

Even criticism of the design or

color scheme of the state flag or

unfavorable comparison of it

with that of a sister State or for-

eign country could be deemed

disrepectful and therefore vio-

lative of the oath... ."

Free Speech Inhibited

"Those with a conscientious re-

gard for what they solemnly

Swear or affirm, sensitive to the

perils posed by the oath's indefi-

nite language, avoid the risk of

loss of employment, and perhaps

profession, only by restricting

their conduct to that which is un-

questionably safe. Free speech

may not be so inhibited."

The court's vote was 7 to 2.

Justice Byron R. White wrote the

prevailing opinion. Justices Clark

and Harlan dissented. The ACLU

of Washington sponsored the test

case.

As Amended May 10, 1962

Chairman, or on request of five

or more of its members. Mem-

bers of the Board who fail to at-

tend five consecutive meetings

without explanation may be

dropped from membership in the

Board by a majority vote of all

of the members of the Board.

Seven members of the Board .

shall constitute a quorum.

b. Members of the Board of

Directors shall be elected for

three-year terms, and are eligible

for two full consecutive three-

year term. The foregoing limita-

`tion shall not apply to an incum-

bent chairman of the board; how-

ever, nine years shall be max-

jum served in any event. Prior

election to unexpired terms shall

be permissible in addition to the

two full terms. After having

served two consecutive terms,

members shall again become

eligible for election only after at

least one year's absence from the

board, and they shall continue

to be eligible for election for

periods of two full consecutive

three-year terms, so long as such

periods of service are interrupted

by at least one year's absence

from the board.

ec. An exception to the forego-

ing provisions shall be made in

the cases of board members who

served on the original Board of

Directors. After the expiration

of their present terms of office,

said board members shall hold

office for life, with full voting

rights.

d. Each `year, at the April

meeting of the Board of Direc-

tors, a committee of five per-

sons, composed of two members

of the Board of Directors and

three members of the American

Civil Liberties Union who are

not members of the Board of Di-

rectors shall be appointed by

the Chairman to serve as a

nominating committee to nomi-

nate persons to fill Board of Di-

rector terms expiring during the

current year as well as any unex-

pired terms that may be vacant.

The committee shall report its

recommendations to the Board of

Directors at the September meet-

ing, the proposed nominations

of which shall be subject to ap-

proval or change by the Board of

Directors at the said meeting.

e. Every year, the April issue

of the A.C.L.U. NEWS. shall

carry an invitation to the Union's

membership to suggest names to

the nominating committee, and

such names must reach the Un-

ion's office not later than April

30 in order to receive considera-

tion. The nominating committee

shall consider such suggestions'

but shall not make any nomina-

`tions until after April 30.

f, In addition to the foregoing

method of proposing names to

the nominating committee, mem-

bers may make nominations di-.

rectly to the Board of Directors

in the following manner: Not

later than August 1 of each year,

nominations may be submitted -.

by the membership directly to

the Board of Directors, provided

each nomination be supported by

the signatures of 15 or more

members in good standing and

be accompanied by a summary of

qualifications and the written

consent of the nominee.

2a. The officers of the Union

shall be: a Chairman, three Vice-

Chairmen, a Secretary-Treasurer,

and an Executive Director, who

`shall be elected by and hold of-

fice at the pleasure of the Board

of Directors.

b. Officers of the Board of Di-

rectors shall be elected annually

for terms beginning November 1.

c. Each year at the April meet.

ing the chairman shall appoint

three members of the Board to

act as a Nominating Committee

for officers of the Board. The

Committee shall present its nom-

inations to the Board at the Sep-

tember meeting.

3. The Chairman shall pre-

side at all meetings of the mem-

bership and the Board of Direc-

tors and act in cooperation with-

the other officers and with com-

mittees as found necessary or

desirable.

4. The Vice-Chairman shall act

in lieu of the Chairman in event

of the latter's absence or in-

ability to serve.

5. The Secretar y-Treasurer

shall perform the usual duties of

such an office.

6. The Executive Director shall

conduct the office of the Union,

issue its monthly publication,

maintain minutes of all meetings

of the Union and the Board of

Directors, keep the records of

membership and of receipts and

disbursements, handle all mat-

ters of civil liberties coming to

the attention of the Union be-

tween meetings of the Board of

Directors and report thereon at

the following meetings of the

Board, secure the services of at-

torneys, appear before public

bodies on behalf of the Union,

and perform such other duties

as may be assigned by the Board

of Directors.

7. Such other committees as

may be found necessary or de-

sirable may be elected or ap-

pointed as determined by the

Board of Directors.

ARTICLE VII

Meetings

la. A general membership

meeting shall be held in San

Francisco at least once each year

for the purpose of receiving re-

ports of activities during the pre-

ceding year, and considering such

other business as the Board of

Directors may lay before it.

b. Special meetings of the

members may be called at any

time by a majority of the Board

of Directors or shall be called by

the chairman on the written re

quest of at least 10 per cent of

the membership. Any such peti-

tion and the notice of such meet-

ing shall state the purpose there-

of: notice shall be sent 10 days

before the date set for such

meeting. No business other than

that specified in the notice of the

meeting shall be transacted. The

presence of 15 per cent of the

membership at any special meet-

ing shall constitute a quorum.

2. Additional membership

meetings for the transaction of

business indicated in the preced-

ing section shall be held at the

call of the Board of Directors.

3. Luncheon, dinner, mass or

area meetings may be held or

lectures may be sponsored, as di-

rected by the Board of Directors.

ARTICLE VIII

Chapters

The Union by a majority vote

of its Board of Directors may

grant a charter to any petitioning

local group in Northern Califor-

nia which has given satisfactory

evidence of. vitality, leadership

and devotion to the objectives

and program of the Union. Char-

ters may be revoked for cause by

`a two-thirds vote of the Board of

Directors, but only after a state-

-Continued on Page 3

Military Chaplaincy

The American Civil Liberties Union said last month that

a resolution adopted by the Military Chaplains Association

attacking the ACLU's stand on chaplains in the Armed

Forces "wholly misrepresents the facts' and distorts the

Union's actual position.

The military chaplains group,

at its recent convention, pledged

to place all of its resources into

a campaign to oppose any effort

to curb the military chaplaincy.

A key section of its resolution

declared that ". . . it is reported

- that a chapter of the Civil Liber-

ties Union in Los Angeles and

the chapter-of Camden, N.J. have

joined with the hostile critics to

challenge the Secretary of De-

fense that chaplains are in viola-

tion of the Constitution of the

United States."

Misrepresentation of Facts

In a letter to Major General

(Msgr.) Patrick J. Ryan, presi-

dent of the UMC, the ACLU's

executive director, John de J.

Pemberton Jr., said that "We are

at a loss to understand this state-

ment for it wholly misrepresents

the facts of our affiliates' actions

and the interest of the ACLU on

this issue." ~

The ACLU letter declared that

the chairman of the South Jersey

chapter of the ACLU of New

Jersey wrote to the Secretary of

Defense protesting the use of

chaplains for religious classes of

military dependents held in pub-

lic school buildings. ". . . No

legal action was taken or is con-

templated, although much mail

to Congress on this subject has

erroneously stated that litigation

was begun," the ACLU said.

No Southern Calif. Suit

The ACLU also pointed out

that "at no time did the ACLU

of Southern California bring or

consider a suit involving the

chaplaincy. What your resolu-

tions committee may have had

in mind was a suit filed by our

Southern California affiliate on

behalf of a high school teacher

who refused, as a matter of per-

sonal conscience, to lead the

salute to the flag which included

a reference to this nation, "under

God." The purpose of the suit

was not to eliminate this phrase

from the flag salute, but to pre-

vent the dismissal of the school

teacher. The suit was settled last

October when the Los Angeles

Board of Education agreed that

the teacher was not required to

lead his class in a daily recita-

tion of the pledge of allegiance

because of his conscientious

scruples against doing so. The

suit itself was based on the free-

dom of religion clause of the

First Amendment as affecting

that school teacher rather than

the establishment clause. In spite

of the fact the suit ended over

8 months ago, it is still being

described in letters to Congress-

men as a pending action and the

purpose of the suit has been

grossly distorted.

Military Chaplains Not

Condemned

The civil liberties organiza-

tion said that its dismay at the

widely reported inaccurate reso-

lution of the UMC was com-

pounded "by the fact that the

ACLU has never attacked the

concept of the chaplaincy pro-

gram." It said that it agreed

wholeheartedly with the distinc-

tion made by the U.S. Supreme

Court last year between the mili-

tary chaplaincy issues and public

school religious practices. The

ACLU letter cited Justice Clark's

statement for the court that it

was

chaplains

not condemning military

"Where the Govern-

ment regulates the temporal and ~

geographic environment of indi-

viduals to a point that, unless it

permits voluntary religious serv-

ices to be conducted with the

use of Government facilities,

military personnel would be un-

able to engage in the practice of

the faiths."

Committee Opinion

Acknowledging that the inter-

est stimulated by its South

Jersey chapter has prompted a

thorough study of the military

chaplaincy programs by the na-

tional .Church-State Committee,

the ACLU letter noted that its

committee has come to the opin-

ion that: (1) any discrimination

against non-majority religions in

the program, and (2) any com-

pulsory services held by the

Armed Forces would violate both

the establishment and free exer-

cise clauses of the First Amend-

ment. "Neither this position nor

the overall record of ACLU's ac-

tivities merit the characterization

attributed to a statement by Rear

Admiral (Msgr.) Robert J. White

of `a total conspiracy to destroy

the

American life.' "

No Hostility to Religion

The Pemberton letter to Maj.

Gen. Ryan expressed regret at

the resolution because "it rein-

forces the distortion that' the

ACLU's activities are motivated

by a hostility to religion itself.

The Union, which engages solely

in the defense of civil liberties,

is not so motivated. Our only

concern is civil liberties and the

constitutional command of the

First Amendment" protecting

the free exercise of religion and

barring efforts to establish re-

ligion. "The historic meaning of

the two religion clauses of that

amendment, as we have repeat-

edly urged in our legal briefs

and public statements, is found

in the unique protection for re-

ligious freedoms,' the ACLU

said.

Great Harm Done

Noting that great harm has

been done to the ACLU's name

and effectiveness by the UMC

resolution, Pemberton asked,

"for the sake of fairness," that

the errors of the resolution be

corrected by public statement

and that the UMC "distribute

to your members the text of this

letter which describes the truth

of the ACLU's interest in the

chaplainecy program."

Invalidate Ban

On Communists

Continued from Page 1-

clares all members of the Com-

munist Party to be guilty of fo-

-menting labor strife without re-

quiring proof as to the intentions

or acts of the individual member

and regardless of whether or not

the member embraces any or all

of the tenets of the Party. This

is substantially the position taken

by the court's majority.

Opinion by Judge Merrill

The 20-page opinion was writ-

ten by Judge Charles M. Merrill.

He was joined by Judges M. Oli-

ver Koelsch, James R. Browning,

Gilbert H. Jertberg and Ben C.

Dunniway. It is assumed that the

Government will ask the Su-

_.preme Court to review the deci-

sion.

influence of religion in

S. F. Fed. Court

Releases State

e

Prisoner

Federal Judge Alfonso J. Zir-

poli last month granted a writ of

habeas corpus to Frederick Gray,

35-year-old Los Angeles janitor,

who was sentenced to San Quen-

tin in 1962 for a term of one to

ten years on a charge of assault

with a deadly weapon, growing

out of an ice-pick attack on his

wife. He was found guilty on the

basis of the transcript of his

preliminary hearing.

No Mention

Gray testified that the public

defender representing him at the

trial had not mentioned anything

to him about submitting the mat-

' ter on the transcript, and the

latter could recall only that he

had told Gray that the trial pro-

cedure would involve having the

judge read the transcript.

Record Silent

Judge Zirpoli noted that the

trial record failed to show that

Gray was ever advised of his

right to hear prosecution wit-

nesses and to cross-examine

them. "A Federal court," said

Judge Zirpoli, "has the duty to

insure that State courts do not

deprive defendants of Federal

constitutional rights. A Federal

Court can not lightly assume or

' speculate that the average de-

fendant fully understands his

constitutional procedural rights.

Better Procedure

"The better procedure _al-

though not constitutionally re-

quired, for all courts, whether

State or Federal, would be for

the trial judge to fully examine

the accused on the record to in-

sure that he is aware of his Con-

stitutional rights, that he is mak-

ing an intelligent waiver thereof,

and that he appreciates the pos-

sible consequences of such a.

waiver."

Beard Case Back at Work

Despite much action last month in the San Francisco

Superior Court and the District Court of Appeal, the City

Attorney failed to prevent James A. Forstner, bearded pro-

bation officer of the Youth Guidance Center, from serving

in his position pending the City's appeal in his case. The

latest series of maneuvers started

on June 1, 1964 when Superior

Court Judge Joseph Karesh

signed an order and judgment

for a peremptory writ to issue re-

quiring the City and County of

San Francisco, the Civil Service

ACLU By-Laws

Continued from Page 2-

ment of reasons has been sent by

the Board of Directors to the

chapter officers and members of

the chapter board and: a full

hearing accorded. Chapter By-

Laws shall not go into effect

until they are approved by the

Board of Directors.

ARTICLE IX

Rules of Order

Except as covered by the fore-

going, "Robert's Rules of Order,

Revised," shall govern the con-_

duct of all meetings of the mem-

bership, the committees and

Board of the Union.

ARTICLE X

Amending By-Laws

These BY-LAWS may be

amended at any meeting of the

Board of Directors by a vote of

a majority of all of the members

of the Board, provided the pro-

posed amendments are first sub-

mitted to the members of the

Board.

-each day.

No Real Freedom for

Ideas, Says Wm. Winter

Today we deny freedom of speech-and what is much

more important-the means of speaking to the largest num-

ber of people-to those who would dare challenge the stand-

ard ideas of the time. Just think-is there one single radio

or television commentator anywhere in the country who

dares to question the supremacy of Free Enterprise? Is there

one newspaper which opens its columns to "left-wingers" as

well as "rightwingers" and "moderates?" Papers which

boast of their tolerance will carry columns ranging from

middle-road to far right. Is there a great metropolitan news-

paper which would, for example, carry columns by people

urging an end to Free Enterprise, and a takeover by govern-

ment of private corporations? The point is not that such

nationalization is necessarily desirable or beneficial; it may

be the worst thing that could happen in our society. But we

should have an opportunity to hear the arguments and then

make up our minds.

Somebody has estimated that there are six thousand con-

servative and rightwing voices every week on the radio and

television stations of America, but you can count on one

hand the number of "liberals" and most are very conserva-

tive liberals at that.

This regimentation of ideas in our society has been

brought about by the constant, steady, day to day drumming

in of the same propaganda by our information media. We

hear it regularly-the refrain about the evils of Communism,

the noble purity of the "Free World" (which includes Franco,

Chiang Kai-shek and Salazar, of course), about the trouble-

making propensities of "leftwingers" and the virtues of

"moderation" and, most recently, of the `mainstream.' The

end result is that true liberalism has few spokesmen, the

liberal is suspect and some fanatic is likely to toss a bomb

at his house if he talks out loud.

We have a "fairness" doctrine in the Federal Communi-

cations Commission under which broadcast stations should

give equal time to opposing viewpoints, but nobody has chal-

lenged their denial of equal time to the liberal viewpoint

The First Amendment guarantees freedom of

speech and the Courts have held that this means that opposi-

tion speakers should have the same access to the same audi-

ences as their counter-parts. Do they have this same access

in the press and on the air?

What then can we expect, but a society which is steadily

moving rightward, which is producing on college campuses

an increasing number of conservative students instead of the

screaming radicals of a generation ago - William Winter

Comments.

Commission and each of its mem-

bers, and Thomas F. Strycula,

Chief Probation Officer at the

Youth Guidance Center, to put

Forstner back to work on June 5.

Told to Wait

The writ was served on the ap-

propriate defendants but on

_ June 5 when Forstner reported to

work at 8:30 a.m. he was told to

wait until the outcome of an ap-

plication for a writ of super-

sedeas which had been filed late

the previous afternoon by the

City Attorney. About 10:30 a.m.

Forstner was told that a writ of

supersedeas had been granted

and this would mean that he

would have to wait until the out-

come of the appeal before he

could go back to work.

No Writ

In fact no writ of supersedeas

had been granted but the Dis-

trict Court of Appeal had only

denied the City's application for

a writ and stated in its order of

denial that no writ was necessary

since the filing of a notice of ap-

peal automatically stayed the ef-

fect of Judge Karesh's order.

This order was issued after ex

parte (without opposing counsel

being heard) consideration of the

City's application and the docu-

ments that supported that appli-

cation. This made a crucial dif-

ference because the District

Court of Appeal could not know

that Judge Karesh had orally ac-

ted under a provision of the Code

of Civil Procedure which allowed

him to prevent an appeal acting

as an automatic postponement of

his order, if such postponement

would cause irreparable injury.

Irreparable Injury

Later the same morning ACLU

Staff Counsel, Marshall Krause,

-obtained a written order from

Judge Karesh embodying the

terms of his oral decision under

that provision of the Code of

Civil Procedure. This new order

was then shown to the District

Court of Appeal and Judge Kar-

esh was asked by Forstner's coun-

sel to issue an order to show

cause why the Civil Service Com-

mission members and Thomas F.

Strycula. should not be punished

for failure to obey his previous

order. The order to show cause

was issued on June 8, 1964, but

when City Attorney Paul DeNoia

agreed to let Forstner go back to

work that afternoon the Judge

agreed not to hold the hearing on

the order to show cause until the

end of the month.

Commission Action

The controversy was not yet

over, however, because the next

day counsel for Forstner and

Judge Karesh learned for the

first time that on June 4, 1964

the San Francisco Civil Service

Commission had in fact ordered

Forstner to go back to work pur-

suant to Judge Karesh's first or-

der. This resulted in the order to

show cause being cancelled. The

status of the case now is that

Forstner is working and the City

Attorney has not yet applied for

any writ of supersedeas to pre-

vent him from working during

the pendency of the appeal.

ACLU NEWS

JULY, 1964

Page 3

Coast Guard Security Case

Backed by the American Civil Liberties Union a merchant

seaman sued in the Federal District Court last month to

foree the U.S. Coast Guard to reverse its decision that denied

him permission to sail on American civilian vessels, because

of his former political beliefs and associations.

Joseph Clinton McBride, a

Florida Negro who joined the

Communist Party in 1938 or 1939

because he believed the Party

supported Negro rights, brought

the action when the Coast Guard

refused to validate his merchant

marine certificate several years

after he dissociated himself from

the Communist movement.

ACLU attorneys are handling Me-

Bride's case.

Arbitrary Action

MeBride claimed in Federal

Court in the Southern District of

New York that the Coast Guard's

actions in denying him the

means of earning his living were

arbitrary and without due proc-

ess of law, and that the statutes,

executive orders and Coast

Guard regulations on which the

Coast Guard based

violate civil liberties protections

of the U.S. Constitution.

Barred in 1960

Mr. McBride sailed on Ameri-

ean flag vessels from 1941

through 1948. He left the sea in

1951 and worked in other trades

for the next several years, not

applying for authorization to re-

turn to the Merchant Marine un-

til 1959. Mr. McBride was then

subjected to a 17-month investi-

gation of his past and present

political beliefs and associations,

which terminated late in 1960.

A November 23, 1960, letter from

Coast Guard Captain Edwards,

chief of the Merchant Vessel

Personnel Division, informed

McBride that the service's Com-

mandant "is not satisfied that

your character and habits of life

are such as to warrant the belief

that your presence on board ves-

sels of the United States would

not be inimical to the security

of the United States." The let-

ter listed. twenty-five reasons

why Mr. McBride should be con-

sidered a security risk, all con-

nected with his former associa-

tions with the Communist Party.

Among these reasons were Me-

Bride's employment at Commu-

nist Party headquarters in New

York in 1948, and his part-time

employment at Party headquar-

ters in 1951. The Coast Guard

also objected te Mr. McBride's

signing a friend of the court

brief filed in the U.S. Supreme

Court urging reversal of an es-

pionage conviction against Mor-

ton Sobell. Other arguments

listed in the letter included at-

tendance at Communist Party po-

litical functions, frequenting

Party headquarters, and partici-

pation in the Party's political

campaigns.

Administrative Remedies

Mr. McBride exhausted all ad-

ministrative remedies in his ef-

fort to obtain a reversal of the

unfavorable ruling. At a hear-

ing before Coast Guard officials

in 1962 and 1963, McBride testi-

fied that he did not join the

Communist Party for the pur-

pose of overthrowing the US.

Government by force or to com-

mit espionage or sabotage; that

he never believed in or com-

mitted violence, sabotage or es-

pionage; that he joined the Com-

munist Party for the purpose of

advancing Negro rights, and left

Page 4

ACLU NEWS

JULY, 1964

its action .

it in or before 1957, when he

became disillusioned with the

Party's role in the equal rights

struggle. No evidence was pro-

duced in the purported hearing

`that in any way contradicted Mr.

McBride's testimony. Yet, he was

informed in a letter dated Oc-

tober 14, 1963, that the evidence

brought forth at this hearing

supported the Coast Guard's ear-

lier denial of McBride's request.

The Appeal Board of the Coast

Guard heard the McBride case on

February 6 and 7, 1964. In a

letter on March 3, it affirmed the

earlier decision against the

would-be merchant seaman.

Denial of Due Process

The complaint filed by ACLU

attorneys in behalf of McBride

charged that the Coast Guard

grossly transgressed the limits

of its authority and violated con-

stitutional safeguards of civil

liberties in a whole series of in-

stances. The civil liberties com-

plaint centered on the repeated

and flagrant denials of due proc-

ess by the Coast Guard, in de-

priving McBride of his liberty

and property. The complaint con-

tended that the statutes and or-

ders invoked by the Coast Guard

were too vague and uncertain to

determine eligibility for license

validation; that these same stat-

utes and orders also set uncon-

stitutionally arbitrary criteria

for judging when the security

of the United States is endan-

gered, and that there was no

valid reason to consider McBride

a security threat. The complaint

further argued that the Coast

Guard's application of the laws

in question made membership

in so-called "subversive" organ-

izations automatic grounds for

the deprivation of liberty and

property, without evidence that

the applicant knew of any il-

legal activity of these organiza-

tions. It said the Coast Guard

had violated the "due process"

clause by depriving the accused

of a chance to hear the evidence

against him, or to confront and

cross-examine the _ witnesses

against him by holding a "pur-

ported hearing" instead of hold-

ing a fair hearing before an im-

partial tribunal, by neglecting to

send McBride notice of the

charges held against him, and

finally, by punishing the appli-

cant without a judicial trial.

Att'y General's List Attacked

On a much broader ground,

the Civil Liberties Union at-

tacked the Attorney General's

List of alleged subversive organ-

izations and reports of the

House Un-American Activities

as violating First Amendment

guarantees, operating as bills of

attainder, and violating due proc-

ess of law. Both the Attorney

General's List and HUAC reports

were repeatedly cited by Coast

Guard reviewing authorities in

their attempts to show that by

his membership in certain or-

ganizations, McBride represented

a potential threat to U.S. secu-

rity.

Melvin L. Wulf, legal director

-of the ACLU, and David B. S.

Cohen, a cooperating attorney,

of New York, are representing

Mr. McBride.

Supreme Court

Turns Down

Parham Petition

-On May 25, 1864 the United

States Supreme Court denied the

Petition for Certiorari filed on

behalf of Alvin M. Parham by

attorneys for the American Civil

Liberties Union of Northern Cal-

ifornia. Parham was convicted of

bank robbery in Alameda County

and his conviction was affirmed

by the Supreme Court of Califor-

hia despite the fact that, from

the point of view of the ACLU,

he was denied two basic constitu-

tional rights at his trial.

Brutal Methods

The first of these was his right

not to have evidence used against

him which was obtained by such

brutal methods as to violate due

process of law. The California

Supreme Court recognized that

Parham had been deprived of his

constitutional right to due pro-

cess of law by the actions of the

police in obtaining evidence

against him, but decided that the

error was "harmless" since the

evidence against him was so

strong that he would have been

convicted even if the wrongfully

obtained evidence had never

been used at the trial.

Compulsory Process

A second constitutional ques-

tion raised in Parham's petition

to the High Court was his right

to compulsory process under the

Sixth and Fourteenth Amend-

ments to the United States Con-

stitution arising out of the fact

that at his trial he was denied ac-

cess to statements of witnesses

against him previously taken by

agents of the Federal Bureau of

Investigation, These agents had

investigated the crime and taken

statements of witnesses as to the

identity of the alleged perpetra-

tor but a decision was made to

prosecute Parham in the State

rather than the Federal Court.

The California Supreme Court

conceded that had the prosecu-

tion been in Federal Court, as it

might have been, the Jencks Act

would have enabled Parham to

have access to the witness re-

ports. The California court fur-

ther conceded that had the wit-

ness reports been in the custody

of an agent of the State of Calif-

ornia Parham could have had ac-

cess to them. However, the Cal-

ifornia Supreme Court reasoned

that since it was the Federal

' Government which claimed a

privilege of confidentiality in de-

clining to turn over the reports

even in face of a subpoena from

the State trial court, it was not

the State of California which de-

nied him a fair trial Gif one was

denied him) but rather a sover-

eign over which the State of Cal-

ifornia had no power.

Petitions for Rehearing

The United States Supreme

Court in failing to grant review

to either of these important

questions may have had in mind

that Parham could raise the same

questions by bringing an action

for a writ of habeas corpus in a

Federal District Court. A petition

for rehearing will shortly be filed

by Staff Counsel, Marshall W.

Krause, urging that the court at

least remand Parham's Case to.

the California Supreme Court for

further consideration in the light

of a similar case arising in Penn-

sylvania where the High Court

remanded the case for further

consideration by the Pennsylvan-

ia Supreme Court after the Soli-

citor General of the United States

had informed the Court he had

not received the request for wit-

ness statements. In the Parham

Case, the Solicitor General had

admitted that the request was re-

ceived by the Department of Jus-

tice and denied. It would seem

that if the request for witness

statements had no significance,

the Pennsylvania case would not

have been remanded, Therefore,

the petition for rehearing will

ask the same treatment for the

California case.

Ban Increased Bail to

Discourage Jury Trial

The California Judicial Council recently adopted an

amendment to its Rules of Court, effective July 1, under

which the fixing of a higher bail because a jury trial is de-

manded is expressly prohibited. The new rule merely recites

what has apparently always been the law but which some

lower courts found expedient to

ignore.

New Rule

The new rule reads as follows:

"The fact that a defendant in a

criminal case has or has not

asked for a jury trial shall not

be taken into consideration in

fixing the amount of bail, nor

shall bail once set be increased

or reduced by reason of such

facet"

"A study by the Judicial

Council", said its press release,

"has revealed that in some judi-

cial districts, defendants who ask

for a jury trial have been re-

quired to post as much as $300

bail in cases where the county

bail schedule provides for ee

or $20."

Usual Argument

The usual argument in support

of increasing bail when a jury

trial is requested (especially in

traffic cases) is that a great num-

ber of defendants fail to show up

and the county is, therefore, put

to great expense in calling pro-

spective jurors, and in the wasted

time of the court personnel. If

that be true, the problem might

be met by some other measures

rather than in increasing bail

when a jury trial is demanded.

Old Problem

The ACLU in northern Califor-

nia has been battling this prob-

lem for a number of years. In

May 1961, the ACLU handled the

case of William J. Linhart, Sr. of

Contra Costa County. When he

demanded a jury trial in a traffic

case he was informed that his

bail would be increased from $11

to $263. When Linhart was finan-

cially unable to post the in-

creased bail he was tried by the

court and found guilty. The Ap-

pellate Department of the Super-

ior Court of Contra Costa county

in June, 1961, reversed the con-

viction.

Appellate Court Decision

The court noted that the only

reason cited for the increased

bail "was the possible financial

loss to the county" if the defend-

ant failed to appear for trial.

"Under the cases," said the court,

"this does not appear to be a

proper reason for increasing the

bail. If Eleven Dollars bail was

sufficient in the opinion of the

Court to ensure the defendant's

presence at a court trial it should

be sufficient likewise to ensure

his presence at a jury trial."

Not Complete Answer

The Judicial Council's new rule

will be helpful, but it is not likely

to be a complete answer to the

problem. Some judges, so intent

on saving money for the county,

will look for excuses to raise bail

when a jury trial is requested. If

such situation should arise, they

should be called to the attention

Gf fic ACLU.

Jury Votes

Against Burks in

Damage Action

One of the Northern California

America Civil Liberties Union's

proudest achievements in the

legal field is validating the con-

stitutionality of the Unruh Civil

Rights Act in the case of Burks v.

Poppy Construction Company,

decided by the Supreme Court of

California, The Supreme Court

ruled that the statute was con-

stitutional and that persons could

collect damages if they were dis-

criminated against on the basis .

of their race in the sale of hous-

ing accommodations by a busi-

ness establishment.

Adverse Decision

Last month the case of Mr. and

Mrs. Seaborn Burks, Jr., v. Poppy

Construction Company went to

trial.on the issue of damages and

the Burks were represented by

ACLU volunteer attorney, Eu-

gene Rosenberg. After five days

of trial a jury voted ten to two to

give a verdict for the defendants.

This was a Shocking verdict since

the President of Poppy Construc-

tion Company, Sherman Corn-

blum, had testified under oath

that he denied the Burks the

right to purchase a house in the

tract built by Poppy Construction

Company because he had prom-

ised previous purchasers of

homes that he would not sell to

Negroes. The fact that in the face

of this testimony the jury could

still bring in a verdict for de-

fendants, is an indication of the

tough fight which will have to be

waged to keep the segregation

initiative sponsored by the Calif-

ornia Real Estate Association

from nullifying all State legisla-

tion preventing racial dicrimina-

tion in the sale and rental of Real

property,

Motion for New Trial

Attorney Rosenberg will file a

motion for a new trial with the

trial judge in the hope that the

judge will agree that the jury

was not warranted in bringing in

a defense verdict under the testi-

mony,

The first right of a citizen

Is the right

To be responsible.

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San Francisco, 5