vol. 29, no. 6

American

Civil Liberties

Union

Volume XXIX

SAN FRANCISCO, JUNE, 1964

JAMES FORSTNER

The Beard Case

Administrative autocracy met its match last month when

San Francisco Superior Court Judge Joseph Karesh held

that the record before him contained no substantial evidence

that Probation Officer James Forstner could not do his job

in the Youth Guidance Center while wearing a beard. Judge

Karesh also held that requiring Forstner to shave while

allowing other personnel at the

Youth Guidance Center in sim-

ilar positions to retain beards

was arbitrary and unequal treat-

ment in violation of the State

and Federal constitutions.

Reinstatement June 3

Forstner will go back to work

on June 3 unless the City Attor-

ney obtains an order of the Dis-

trict Court of Appeal staying the

effect of Judge Karesh's ruling.

He was also awarded $5,005.00

back salary which he will not be

able to collect until the City's

appeal is finally concluded. How-

ever, if Forstner prevails, he will

draw interest at 7% on his back

salary claim.

Suspended Last September

Forstner was suspended from

his permanent civil service posi-

tion in September of 1963 after

he came back from his vacation

wearing a beard and declined to

shave it off. He had previously

worn a beard in other positions

in the Youth Guidance Center

without complaint and was aware

that Edward Chay, Director of

the Center's Log Cabin Ranch,

also. wore a beard. A hearing

was then held before the same

man who ordered Forstner to

shave his beard, Thomas Stry-

cula, Chief Probation Officer at

the Youth Guidance Center.

Strycula heard testimony from

a lawyer, a social worker, a

psychiatrist, an architect, and

two teachers that all could per-

form their duties even though

they wore beards. But Strycula

held that it was the duty of

probation officers at the Youth

Guidance Center to conform to

standards of dress such as are

generally accepted in the down-

town business and financial com-

munities. He then found his own

order to be reasonable and or-

dered Forstner dismissed. Forst-

ner's appeal to the Civil Service

Commission resulted in a three

to nothing vote against him, and

his attorney, ACLU's Staff Coun-

sel Marshall Krause, then filed

an action seeking a review and

writ of mandate.in the San Fran-

cisco Superior Court.

Embarrassing Questions

The City's case was argued by

Deputy City Attorney Paul De-

Noia who had to deal with some

embarrassing questions asked by

Judge Karesh. Judge Karesh

wanted to know what would hap-

pen if the bearded Jesus Christ

applied for a position at the

Youth Guidance Center and was

told by DeNoia that he would be

turned down with the explana-

tion that "you may be a wonder-

ful man, but we can't use you

in that get-up."

whether children are not taught

to revere such bearded figures as

Abraham Lincoln, U. S. Grant

and Charles Evans Hughes. De-

Noia answered that these men.

were figures from the past and

would not disturb children as

would a bearded person in con-

temporary society. Karesh asked

-Continued on Page 4

Karesh asked.

Number 6

Trial June 15

In Burks'

Fiousing Case

The case in which Mr. and

Mrs. Seaborn Burks, Jr. charge

they were discriminated against

because of their race in attempt-

ing to purchase a San Francisco

home will finally come to trial in

San Francisco Superior Court on

June 15. The Burks were turned

down by the Poppy Construction

Company and its president, Sher-

man Cornblum, in 1959 and filed

their lawsuit in 1960. However, a

San Francisco Superior Court

Judge found that the Unruh Civil

Rights Act allowing damages for

the discrimination in the sale of

real property was invalid and the

ACLU then carried the Burks'

ease to the California Supreme

Court.

Unruh Act Valid

The high court ruled in 1962

that the Unruh Civil Rights Act

was valid and now the case will

come to trial on the issue of the

amount of damages the Burks

should recover. Because of dis-

crimination against them,

Burks were unable to purchase a

suitable home for many months

and had to live with their chil-

dren in cramped quarters at

their in-laws. The jury trial will

be handled by ACLU volunteer

attorney Eugene Rosenberg.

Should the segregation initia-

tive measure being sponsored by

the California Real Estate Asso-

ciation pass in the November

election, the Unruh Civil Rights

Act and the Rumford Fair Hous-

ing Law would be unavailable to

protect Californians from dis-

crimination because of race in

the sale or rental of real proper-

ty. The Burks trial may provide

a significant public record con-

cerning how much actual dam-

age is done to one family by the

practice of racial discrimination

in housing.

the

Indigent Defendants

Emphatically striking down the practice of denying ap-

pointment of counsel to indigent defendants in criminal

cases who have been released on bail, the Fifth California

District Court of Appeal last month filed its opinion in Wil-

liams vs. The Superior Court. The appellate court granted

Williams a writ of mandate or-

dering the Superior Court of

Stanislaus county to appoint the

public defender to represent him

and to set aside prior court

proceedings (arraignment and

plea) which were made without

the assistance of counsel and in

deprivation of his due process

rights under the Fourteenth

Amendment. The court also de-

clared that Williams had the

right to move to set aside his

preliminary examination in the

Municipal Court where he was

also. denied the appointment of

counsel because the court chose

not to regard him as an indigent

person because he had been re-

leased on bail.

Nareetics Case

Williams was arrested on two

charges of felony narcotics viola-

tions. His bail was set at $5,500

and his family and friends man-

aged to raise $550 to pay a bail

bondsman's premium so. that

Williams could be released from

jail. Williams probably did not

know that the practice in Stanis-

Jaus County was to refuse ap-

pointed counsel (even the public

defender) to any person who had

been released on bail, on the

theory that such persons could

have stayed in jail and used the

money paid for a bail bond

premium to retain his own coun-

sel. Williams asked for counsel

both in the municipal court,

where he went through a prelim-

inary examination without coun-

sel, and in the Superior Court.

Neither court was concerned

with his actual financial condi-

tion but only with the fact that

Eighteen Scholarships

Available for Workshop

Eighteen scholarships have been established by ACLUNC

for the one-week workshop on "Teaching the Bill of Rights"

to be presented by Univ. of California Extension in Richard-

son Hall, 55 Laguna St., San Francisco from June 29 to

July 3. Boalt School of Law (Univ. of Calif.) is a co-sponsor

of the workshop.

Source of Scholarships

Ten of the scholarships have

been provided from the ACLU's

Prof. Laurence Sears Memorial

Fund, while Mrs. Helen Salz con-

tributed five scholarships and

Ralph Atkinson, Howard Fried-

man and Zora Cheever Gross one

each.

Distributed Through Chapters

The scholarships will be avail-

able mainly through ACLUNC

chapters. The six larger chapters,

Berkeley-Albany, Marin, Mid-

Peninsula, Mt. Diablo, Sacramen-

to and Santa Clara Valley have

each been allotted two scholar-

ships for distribution as they see

fit, while Monterey, Santa Cruz

and Stockton have each had one

scholarship made available to

them. Since the workshop is

geared for teachers, school ad-

ministrators and school board

members, such persons will re-

eeive first consideration for

scholarships.

How to Apply

Persons wishing to apply for

scholarships should contact the

ACLU office or their local ACLU

chapter. Other persons wishing

to attend should apply to Uni-

versity Extension, University of

California, Berkeley. The en-

rollment fee is $35. Enrollees

may receive 2 units credit.

Focus Of Workshop

The workshop will focus on how

the teacher can best help stu-

dents understand the _ theory,

practice, and responsibilities of

citizenship. Emphasis will be on

ease materials relating to free

speech, assembly and equal treat-

ment before the law in questions

and situations involving civil

rights. Recent court decisions

and issues currently before the

courts will be studied. Teachers

who have developed materials on

civil rights will have the oppor-

tunity to evaluate their work

through lectures, panel and

group discussions. The staff will

give extensive consideration to

specific problems concerning the

teaching of civil rights on all

levels of education-elementary,

secondary and adult.

Speakers

Seminar speakers will include

Howard H. Jewel, California

Asst. . Attorney General, Prof.

Joseph Tussman of U.C., Prof.

Earl F. Cheit, Hon. Lionel J.

Wilson, Prof. Robert H. Cole,

Prof. Robert M. O'Neil and

Eugene McCreary. The last two

persons are also the coordinators

of the workshop.

he or someone acting in his be-

half had purchased a bail bond.

ACLU Assistance Sought

Finally Williams wrote the

American Civil Liberties Union

and Staff Counsel Marshall W.

Krause wrote Superior Court

Judge David F. Bush in Modesto

and ascertained the facts of the

case. When Judge Bush insisted

on requiring Williams to face

trial on the two felony charges

without an attorney, writs of

prohibition and mandate were

filed with the District Court of

Appeal, with the assistance of

-Continued on Page 2

High Court

ill Heer

lass Case

The case of San Francisco City

College teacher John W. Mass

has again made its way to the

California Supreme Court and

will be argued there on June

18th at 10 a.m. Both Mass' ACLU

attorneys and the San Francisco

Board of Education asked the

California Supreme Court te

grant a hearing in the case be-

cause both were dissatisfied with

some aspects of the decision of

the District Court of Appeal re-

ported in the April News. The

decision of the high court to

hear the case vacates the opin-

ion of the District Court of

Appeal.

This will be the fifth occasion

for an appellate court decision in

the Mass case. Mr. Mass has

been suspended from his job

ever since December of 1953

when he declined to testify be-

fore the House Un-American

Activities Committee on the

basis of his privilege against

self-incrimination. There is a

good chance that the high court's

decision will be the last neces-

sary in the case. This is-the fer-

vent hope of John Mass, his fame

ily, and his attorneys.

ANNUAL MEETING

Mrs. Franklin

Speaker at Mt.

Diablo Chapter

The ACLUNC Mt. Diablo

Chapter will hold its annual

membership meeting on Sun-

day, June 14, at 7 p.m. in the

Diablo Room of Diablo Valley

College. The featured speaker

will be Mrs. Virginia Franklin,

social studies teacher in Par-

adise, California. She will

speak on her experiences asa

teacher under fire by the ultra

right because of her efforts

to teach about the Bill of

Rights in her classroom.

The program will include :a

report of committee activities

since inception of the chapter

last fall, election of a new

board of directors and a vote |

to revise the By-Laws to per-

mit chapter dues of $1 per

month.

Dr. Robert Suczek, chapter

chairman, will preside.

=

AMERICAN CIVIL LIBERTIES UNION NEWS (c)

Published by the American Civil Liberties Union of Northern California

Second Class Mail privileges authorized at San Francisco, California

i ERNEST BESIG.. . Editor

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

Subscription Rates -- Two Dollars a Year

Twenty Cents Per Copy

A

Superior Judge Joseph Karesh ruled last week that a

man's whiskers are his own, inviolate from the intrusion of

bureaucratic decree.

To James Forstner, the cultivator and proprietor of a

neatly trimmed Van Dyke, this means he will get back his

job as a City probation officer, assuming that Karesh is up-

`held on a possible appeal.

_ Forstner was fired by Chief Probation Officer Thomas

Strycula, who thought the beard made Forstner lock like a

beatnik and out of character as a counselor to young de-

linquents.

Muni bus driver Roderick Mann, who affected similar

`facial adornment and met a like fate, is sure to: find comfort

in the judicial reasoning of Judge Karesh.

Assuming high standards of neatness and a reasonable

conformity in dress, it seems to us that a governmental em-

ploye is entitled to his own peculiar tastes when he presents

himself to the public.

We would have thought it inappropriate had Mr. Forstner

appeared before his wayward young charges garbed as a

knight in armor. And would surely have frowned on Mr.

Mann's reporting to his bus dressed as a Roman charioteer.

But certainly a decent latitude in haberdashery and style

of grooming is allowable among public employes. The beat-

nik image seems to be fading anyway, with beards coming

more into vogue even among those of unimpeachable po-

litical and social conviction.

Therefore the issue is not so burning as when it first

arose some months ago. We think City Attorney Thomas

O'Connor might take this development into consideration

and on a moment of sober second thought, decide not to

appeal.

Both Mr. O'Connor's office and the appellate courts in-

dubitably have before them other matters of greater import

than whether a public worker, razor in hand, chooses to

emulate U. S. Grant or Dwight Eisenhower.-Editorial, San

_ Francisco News Call Bulletin, May 18, 1964.

ee

Continued from Page 1-

volunteer attorney Lawrence L.

Angelo of Sacramento. That

- Court issued a show cause order

preventing the trial of the case

until a decision was made on the

questions presented by the writs.

Appellate Court's Opinion

In upholding the ACLU's posi-

tion the District Court stated:

"In the instant case both the

Municipal Court and the Supe-

rior Court based their refusals to

appoint an attorney for the de-

fendant on the ground that he

had been released on bail and

therefore was not an indigent.

The bail had already been fur-

`nished before arraignment and

the defendant had already paid

a total of $141 out of the pre-

mium of $550. The question. pre- |

sented to us, therefore, is wheth-

er it is proper for a court to re-

fuse to appoint counsel for an

indigent defendant on the sole

ground that he has been released

on bail. The answer is emphat-

ically "no." The purpose of bail

jn criminal cases is to insure the

personal attendance of the de-

fendant during the court ses-

sions at all times that his at-

tendance may be lawfully re-

quired; it is not pecuniary com-

pensation to the State."

Procedure Not Delineated

' The court did not clearly lay

out the procedure for appoint-

ment of counsel where a claim

to indigency is made, but in-

dicated that the defendant who

seeks the assistance of the pub-

lic defender or other appointed

counsel might have to file an

affidavit with the court showing

that he is in fact too poor to hire

his own attorney. However, the

test is a pragmatie one and ab-

solute indigency is not required.

In Williams' case the record

ACLU NEWS

JUNE, 1964

Page 2

niment of Counsel

lodesto Case

showed he was receiving $55 a

week as unemployment compen-

sation but still could not retain a

private attorney with the funds

available to him.

Speedy Trial Issue

Originally, ACLU counsel for

Williams had asked the Appel-

late Court to order charges

against him dismissed on the

ground that the delay in appoint-

ment of counsel had deprived

him of his right to a speedy trial

without good reason. The Ap-

pellate Court indicated that it

was sympathetic with this re-

quest but that it would not grant

it because it would probably

work against the interests of the

defendant. The Court said: `In

the event that the present case.

should be dismissed, the bail

bond which is, now effective

would terminate. One may as-

sume that the District Attorney

in Stanislaus County if a dis-

missal of the present action were

ordered would again file a

charge covering .the two counts

set forth in the present informa-

tion, which would be followed by

a new arrest, a preliminary hear-

ing, and a trial. The present

bond would not apply to the new

charge and the defendant would

be placed under the necessity of

either finding the means to fur-

nish another bond in the second

case, or he would be kept in jail

until he was tried. Furthermore,

a delay would ensue, and in view

of the repeated statements of the

defendant in the present peti-

tion that he desires an early

trial, this would not be to his

advantage, particularly if he

were unable to furnish bail."

Precedent

It is believed that this case

will end the unconstitutional

practice in some of the smaller

counties of requiring a man to

choose between freedom on bail

and representation by counsel at

his trial.

_ concessionaires

Federal Buildings

The American Civil Liberties Union announced last

month its opposition to regulations which have heen pro-

posed by the General Services Administration concerning

the choice of publications to be sold by vendors in federal

buildings. The stands are generally run by blind persons

licensed by state agencies.

In a memorandum filed with

the GSA and the Bureau of the

Budget, the ACLU characterized

the GSA's suggested criteria as

"vague, redundant, arbitrary and

restrictive.

Constitutional Principles

"Tf a government agency un-

dertakes to provide facilities for

the distribution of publications,"

the ACLU said, "it must conform

to the constitutional principles

that protect the free press. We

submit that the proposed Gen-

eral Services Administration

standards regulating the sale of

publications at vending stands in.

federal buildings fall short of

these principles."

The ACLU urged the rejection

of the GSA's vroposed censor-

ship eriteria on the grounds that

this type of censorship violates

the right of the citizenry to sell,

to buy and to read written

material of almost any nature

without hindrance.

"Approved" List Rescinded

The selection of the publica-

tions in question became a pub-

lic issue in January, 1963 when

a GSA official in San Francisco,

now retired, issued an "ap-

proved" list of magazines for

in his region.

This list resulted in the removal

of many nationally-known peri-

odicals before it was rescinded

in July, 1963, following criticism

from the press and other sources.

At that time the GSA began con-

sideration of an overall policy to

regulate the operation of vend-

ing stands in federal buildings.

Its proposals are now before the

Bureau of the Budget.

Proposed Criteria

The GSA proposes to limit the

sale of periodicals and publica-

tions to "those determined to be

appropriately consistent with the

public dignity and nature of gov-

ernmental business transacted in

the federal property wherein the

vending facility is located." The

decision would be made by the

heads of the GSA regional of-

fices and the state licensing

agency. The criteria for deter-

mining whether its standard is

being met would be examination

of publications as to whether

they: 1) meet customer demand,

preference and acceptance; 2) -

are "patently offensive'; 3) are

in good taste "under the decency

concepts of the average person";

4) are prohibited from sale by

state or local law and 5) are

barred from the mails.

The ACLU finds these criteria

at fault both in their substance

and because they would be dif-

ficult if not impossible to im-

plement within constitutional

limits.

Demands of Free Market

Concerning the standard of

customer demand, preference

and acceptance, the civil liber-

ties organization said: "If this

criterion is intended to mean only

that the vendor will stock pub-

lications which his experience

shows meet the demands of the

free market, then, of course, we

have no objection. If, however,

it is intended to mean that his

stock must be acceptable to all

his customers, then, of course,

it is wholly objectionable. The

power of the majority cannot be

permitted to dictate the tastes

of the minority."

Commenting on the criteria of

"patently offensive," the memo-

randum states: "This criterion is

drawn from Manual Enterprises

v. Day, 370 U.S. 478, but ignores ~

half of the standard which the -

Supreme Court laid down. Patent

offensiveness by itself is not

enough. Without a showing that

a publication has `prurient inter-

est' appeal, there can be no show-

ing of obscenity. Outside the

area of obscenity, this standard

is equally deficient. If applied to

political literature, for example,

there are those who find Com-

munist publications, John Birch

Society publications, and shades

of opinion in between, to be

patently offensive. Surely, how-

ever, there is no ground for sup-

pression."

Standards of Average Person

The ACLU memorandum af-

tacked the standard of decency

concepts of the average person,

saying: ."Even under Roth v.

United States, 354 U.S. 35, this

standard falls short of constitu-

tional justification.. `Good taste'

and `decency concepts' are not

elements of the Roth definition

of obscenity and therefore can-

not be the basis for any govern-

ment action to suppress any pub-

lications. In addition, they are

so vague that reasonable men

could not agree to their mean-

ing. Furthermore, it falls short

of even the Manual Enterprises

formulation. What the average

person finds in good taste would

not satisfy the artist or dissident

political believer."

State or Local Laws

Decrying the reliance on state

or local laws which may prohibit

the sale of certain periodicals or

publications, the memorandum

comments: "First, the selection

board is required to delegate its

responsibility to other bodies,

which may have inferior or no

criteria for selection. Second, the

selection board is required to

construe substantial quantities

of local legislation, with the re-

sult that it might find a particu-

lar publication to be prohibited

by local ordinance, while the lo-

cal authorities decide to the

contrary."

Barred from the Mails

Analyzing the criteria of

whether a periodical or publica-

tion has been barred from the

' U.S. mails, the ACLU said: "Mr.

Justice Brennan's concurrence in

Manual Enterprises makes it

perfectly clear that this criterion

is based on a flimsy foundation

if it means to include adminis-_

trative determinations by the

Post Office Department. As Jus-

tice Brennan shows, there is no

congressional authorization for

the practice. It is his opinion,

therefore, that the only publica-

tions that could constitutionally

be barred from the mails are

those found in a judicial forum

-not an administrative forum-

to be obscene. If this criterion

means less than that, we believe

that it is an improper standard."

Procedural Questions Raised

The memorandum also raises

several procedural questions in-

cluding: "What are the special

' qualifications of the heads of the

General Services Administration

regional offices that justifies

their determination of what is fit

for others to read? Is the selec-

tion board to meet once for se-

_|Needs Helpers

S: Mateo Area

For Campaign

The ACLU is grateful to the

scores of volunteers all over

northern California for their

help in the current member-

ship drive which has raised

the paid-up membership to a

record high of over 5600 or

about 300 more than at this

same time last year.

One area, San Mateo, re-

mains of concern. While sev-

eral members are "following

up" prospective members, we

still urgently need volunteers

to contact "dead" and dormant

members in Burlingame,

Hillsborough, Millbrae and

San Mateo, to urge them to re-

new. Members in those com-

munities willing and able to

make these contacts should

write or telephone the office

(EXbrook 2-4692).

Legal Intern

Position Filled

The ACLUNC just announced

that Jerome B. Falk, Jr. of

Berkeley, California has been ap-

pointed to the position of sum-

mer legal intern for 1964. Mr.

Falk is 25 years of age and will

have completed his second year

of law school at Boalt Hall in

Berkeley. He is a graduate of

San Francisco's Lowell High

School and of the University of

California at Berkeley and is

now an editor of the California

Law Review.

Letters...

... to the Editor

Fair Housing

Editor: Persons backing the

initiative on housing are trying

to mislead the general public

into believing that the purpose

of the initiative is to repeal the

Rumford Act. In reality, the ini-

tiative is much more than that.

It is an attack on fair housing,

not merely an attack on the

Rumford Act.

Many people who are opposed

to this initiative and who should

know better are incorrectly re-

ferring to the initiative as a re-

peal of the Rumford Act. Op-

ponents of this initiative do not

help their cause by referring to

it as a repeal of the Rumford

Act. There are many people who

will vote for this initiative in

the belief that it is simply a re-

peal of this one specific law. If

they understood the full implica-

tions of this initiative, many

would vote against it.

In essence, passage of this ini-

tiative would. make it impossible

for the citizens of California to

pass fair housing laws at the

city, county, or state level at any

time in the future. .

We would like to suggest that

opponents of the initiative,

should cease to refer to it as a

- repeal of the Rumford Act, and

should always refer to it as the

initiative against fair housing

laws. - Alfred C. Hexter and

Leonard A: Marascuilo.

lection? Yearly? Monthly? How

is violation of the prohibition

against previous restraints on

freedom of the press to be

avoided? What is to be the nat-

ure of the hearing? Private?

Public? Are all publications to

be given a hearing? Will pub-

lishers be able to present evi-

dence? Is the list of approved

and disapproved publications to

be made public? Is there to be

a right of appeal? By whom? Is

there to be judicial review?

What action will be taken against

newsstand operators who dis-

tribute unapproved publications?

What of the anomaly of approval

of a publication in one region

and disapproval in another?"

Criminal Contempt Cases

ACLU Backs

Jury Trial Ri

-or Defendants |

hts

The American Civil Liberties Union called last month for

federal legislation guaranteeing a jury trial for all defend-

ants charged with criminal contempt but said that if such a

law could not be enacted it would support the Dirksen-Mans-

field amendment to the civil rights bill which offers a limited.

right of jury trial.

The Dirksen-Mansfield amend-

ment, which has become one of

the major issues around which

the civil rights debate in the

Senate is focussing, provides the

accused in any criminal contempt

proceeding with a jury trial at

the judge's discretion. But if the

charge is heard without a jury

the fine to. be paid and the

sentence to be served cannot

exceed $300 or 30 days in jail.

A Measure of Protection

The Civil Liberties Union, in a

letter to the Senate Democratic

and Republican leaders who are

directing the civil rights debate,

said: "While the Dirksen-Mans-

field amendment is not as sweep-

ing as the broader jury trial

guarantee we urge, it establishes

a good measure of protection

against arbitrary judicial behav-

ior, particularly where the

penalties and sentences may be

severe."

Basic Civil Liberty

The civil liberties organization

noted that it champions the right

of jury trial in criminal contempt

cases aS a basic civil liberty and

had filed a friend of the court

brief arguing this point in the -

United States Supreme Court in

the key Barnett case. This case

concerned a criminal contempt

charge against the then Missis-

sippi Governor, Ross Barnett,

who defied a federal court order

to admit James Meredith in the .

University of Mississippi. The

Supreme Court on April 6 re-

jected Barnett's plea that he was

entitled to a jury trial, but

pointed out that "punishment by

summary trial without a jury

would be constitutionally limited

to that penalty provided for petty

offenses."

One Exception

In urging the Congress to

adopt broad legislation assuring

jury trials in all criminal con-

tempt cases, the ACLU said it

would exclude only contempts

committed in the presence of the

court. "Since we regard the

guarantee of a jury trial as such

an integral element of our en-

tire civil liberties structure, we

pelieve it should be applied not

only to one area but should be

recognized as a fundamental safe-

guard wherever a criminal con-:

tempt charge occurs. The etcep-

tion we have noted recognives

the necessary judicial power to

deal immediately with contuma-

eious behavior that may affect

the fair and orderly process of a

trial."

Minor Offenses

The ACLU letter also recog-

nized the distinction the Su-

preme Court drew in the Barnett

case concerning: cases where the

punishment would be minor. It

said: "In considering criminal

contempt legislation, should Con-

gress decide to set up categories

of contempts, with scales of

punishment for these categories,

we would not oppose the denial

of a jury trial in those categories

where the punishment to be im-

posed would classify the offens-

es aS minor. This would be so,

at least, as long as practice in

the trial of statutcry criminal of-

fenses recognizes a distinction

between minor and major of-

fenses in affording a right of

jury trial. This distinction, in the

trial of criminal contempts as

well as statutory crimes, would

not burden the court while pre-

serving the right of jury trial for

those kinds of cases which sub-

ject the individual, to possibly

heavy penalties."

Compulsory

Church Rule

Terminated

Compulsory church attendance

at San Francisco's Loe Cabin

Ranch for delinquent boys (lo-

cated in La Honda) was _ter-

minated last month. Under a

directive that had been issued

by Ranch director, Edward J.

Chay, "all boys are to go to

church and are to he disciplined

if they do not.

"Only in cases when parents

specifically demand that their

boys be exempt from going to

church are they relieved of this

responsibility."

In cancelling the order, Chief

Juvenile Probation Officer

Thomas Strycula claimed it was

never intended "to require non-

Christian children to attend Cath-

olic or Protestant 'church serv-

ices if they do not want to go."

Henceforth, he said, parents of

Log Cabin boys will be asked to

designate in writing what

churches, if any, they want their

sons to attend regularly.

Strycula also disclosed that the

saying of Protestant and Cath-

olic prayers before meals has

been halted at San Francisco's

Youth Guidance Center and a

moment of silence has been sub-

stituted. The practice was

stopped on the complaint of a

Jewish mother, relayed to Juve-

nile Judge Melvin I. Cronin by

Eugene B. Block, executive di-

rector of the Jewish Community

Relations, that her child had

been required to recite a Cath-

olic prayer.

Discrimination

Against Nat.

Citizens

Last month's decision of the

U.S. Supreme Court in the

Schneider case, upholding the

citizenship rights of naturalized

United States citizens, has

brought into question another

law that discriminates against

naturalized citizens: That law, 22

United States Code Annotated

910, provides that "No person

shall be eligible for appointment

as a Foreign Service Officer un-

less he is a citizen of the United

States and has been such for at

least ten years." It was adopted

in 1946.

A 20 year old student at the

University of California, who be-

came a naturalized citizen six

years ago, is eager to enter the

foreign service of the U.S. gov-

ernment. Under the above law,

he will be ineligible to do so

when he graduates from U.C. in

1965 because he will have been

a citizen only seven of the re-

quired 10 years.

The matter will be considered

by the ACLU board of directors

at its next meeting in the light

of the Schneider decision.

, Cause

@ @

Trial of Mail.

e e e

Detention Suit .

Postponed

Leif Heilberg's ACLU spon-

sored suit challenging the con-

stitutionality of.the Post Office

program for the detention of

"communist political propagan-

da" and its destruction unless the

recipient is willing to create an

official government record that ;

he desires to receive it, will not

come to trial until September 21.

Efforts of staff counsel Marshall

Krause and volunteer attorney

Coleman Blease to get an earlier

trial date were denied by USS.

District Judge Alfonso Zirpoli on

the ground that vacation sched-

ules and other scheduled trials

prevented the convening of a

three-judge court before that

date.

Many Northern California resi-

dents have reluctantly filled in

the cards that the program de-

mands in order to get their mail,

but other persons - especially

those in government jobs or re-

quiring security clearance-have

feared to return the cards be-

cause of the past history of such

information being turned over to

Congressional investigating com-

mittees by willing Post Office

and Customs Service personnel.

Hill and Sandness

Ralph Ginzburg Case

Seek Reversal -

ity

ction

Decrying the threat of censorship to magazine publishers,

the American Civil Liberties Union asked the United States

Court of Appeals last month to reverse the obscenity convic-

tion of Ralph Ginzburg. publisher of Eros magazine. Ginzburg

was given a sentence of five years in prison and a $28,600

fine following his conviction in

the Federal District Court for

distributing through the mails

the publications Eros, Liaison

and the "Heousewife's Handbook

on Selective Promiscuity."

Friend of the Court

The ACLU and its affiliate,

the ACLU of Pennsylvania,

joined in submitting a friend of

the court brief to the appellate

court. Because of the severity of

Ginzburg's sentence, the ACLU

said, publishers of material deal-

ing with love and sex "will pub-

lish only at their peril," lest they

miscalculate whether a publica-

A holdover vagrancy statute, section 647a(2) of the Cali-

fornia Penal Code, is under a two-pronged attack by the

ACLU in the District Court of Appeal. The first attack is in

the case of Everett Hill and William Sandness. These men

were arrested in a park while lying on the grass and charged

with "loitering about a public

place at or near which children

attend or normally congregate"

thus making them "vagrants."

Municipal Judge Clayton Horn

threw out the statute as uncon-

stitutional when ACLU counsel

filed a demurrer to the com-

plaint. But the district attorney

appealed Horn's decision to the

Appellate Department of the San

Francisco Superior Court.

Split Decision

The Appellate Department up-

held the validity of the statute

in a split decision. Presiding

Judge Caulfield felt bound by

previous precedents concerning

similar wording in other statutes

to read into the word "loiter" the

necessity to find a sinister intent

in the actions of the defendant.

Judge Caulfield felt this re-

moved the vagueness and broad-

ness of the statutory language."

Judge Carpenetti concurred but

only with the stipulation that the

words "or normally congregate"

be excised from the statute be-

they were unconstitu-

tionally vague. Judge Weinber-

ger, the third member of the

court, dissented and would hold

the statute unconstitutional and

unredeemably so. He wrote: "In

my opinion section 647a(2) is so

vague and indefinite that it is

impossible without completely

unwarranted speculation or sur-

mise, to ascertain what sinister

connotation, if any, the legisla-

ture intended to ascribe to the

otherwise innocent act of loiter-

ing. Under the guise of police

regulation it takes away com-

pletely the general right of every

person to enjoy and engage in

lawful and innocent activity,

and thus constitutes an arbitrary

invasion of inherent personal

rights and liberties of all citi-

zens."

Case Certified

We are not left with a split

decision, however, since the Ap-

pellate Department unanimously

certified the case to the District

Court of Appeal for further deci-

sion. That court accepted the

certification and combined the

case with In re Huddleson in

which the ACLU appears as a

friend of the court. Huddleson's

case is a habeas corpus action

attacking the same Penal Code

section filed in the Superior

Court after Judge Horn's deci-

sion in the Hill and Sandness

case. Superior Court Judge Mc-

Carty granted the writ and again

the district attorney appealed.

Both cases will shortly be argued

in the District Court of Appeal.

U.C. Seminar on

Civil Liberties

Court Decisions

Recent Supreme Court Deci-

sions in Civil Liberties and Civil

Rights is the title of a seminar

to be given at University of Cali-

forna Extension beginning June

16 at 7 o'clock. Classes will be

held twice a week for a period

of five weeks. Registration is

limited to 15 persons holding

B.A.s or equivalent degrees.

The seminar is being con-

ducted by Ephraim Margolin of

San Francisco, a member of the

California bar. Mr. Margolin has

taught many extension courses

on civil liberties and civil rights.

Decisions to be discussed will

deal with sit-in demonstrations,

school prayers, legislative in-

vestigations, cruel and unusual

punishment, right to counsel, re-

apportionment, search and sei-

zure and freedom of speech.

Inquiries about the course

should be directed to U.C. Exten-

sion, 55 Laguna St., San Fran-

cisco. Two units credit will be

allowed.

tion is legally obscene and draw

long jail terms and heavy fines.

The brief emphasizes that the

ACLU does not evaluate the

merit of the material charged

with being obscene. It does as-

sert, however, that prosecution

for obscenity must be based on

proof that the material would

induce behavior in the normal

adult which is legally judged

criminal.

First Amendment Protection

The ACLU contends that all

forms of speech are entitled to

the protection of the First

Amendment, and only such ut-

terances can be restricted which

"ereate a clear and present

danger." It supports Supreme

Court Justice Douglas' dissent-

ing opinion in the Roth v. United

States decision: "For the test

that suppresses a cheap tract to-

day can suppress a literary gem

tomorrow. I would give the broad

sweep of the First Amendment

full support. I have the same

confidence in the ability of our

people to reject noxious litera-

ture as I have in their capacity

to sort out the truth from the

false in theology, economics,

polities or in any other field."

No Clear Proof of Harm

Whether harm actually results

from exposure to. obscenity, the

ACLU says further, is not clear-

ly known. Therefore, limitations

on freedom of speech or the

press because of obscenity are

unjustified. "The causal rela

tionship between exposure to

sexual material and sexual con-

duct remains entirely specula-

tive," it says. The brief argues

that while some psychiatrists

have said that erotic or shocking

material can have a deleterious

effect on sexually maladjusted

adults or juveniles, others hold

that materials depicting violence

and sadism may suggest ideas

and methods of misconduct to

deviates. "None of the psychiatrie

assertions is based on statistical

evidence," the ACLU claims.

Predisposition Of Courts

The `second argument

sented in the brief is that accord-

ing to the Roth decision, ideas

having "even the slightest" re-

deeming social importance have

the protection of the Constitu-

tion. Several other decisions of

the Supreme Court, and of other

courts, reversing convictions for

obscenity against nudist or girlie

magazines and allegedly obscene

moving pictures are cited. Much

of the material in the Ginzburg

publications, the ACLU says,

may be found repulsive by many,

but "the infringement of an in-

dividual's right to freedom of ex-

pression is not determined on

the personal predisposition of a

censor or a court."

Clear and Present Danger Test

Prohibiting "obscene utter-

ances must serve a proper publie

purpose," the ACLU brief states

in conclusion. "No proper pur-

pose has been found in any of

the decisions upholding convic-

tion or censorship. This court

should re-establish that the only

permitted limitations on freedom

of speech and press are where

the utterances present a clear

and present danger bringing

about an evil which the State has

a right to protect."

ACLU NEWS

JUNE, 1964

Page 3

pre- ,

before .the

ahetaiots Freedom

Testifies

rayer

A leading New York clergyman, appearing before the

House Judiciary Committee last month on behalf of the

American Civil Liberties Union, strongly condemned pro-

posed Constitutional amendments to permit prayers in the

schools. The Rev. Edward O. Miller, Rector of St. George's

Episcopal Church of New York

City, warned that "the threat is

not the secularization of our

schools but the secularization of

our religion."

Reversing Supreme Court

The Protestant leader was one

of a series of persons to testify

House panel on

amendments offered by Repre-

sentative Frank J. Becker and

other Congressmen. All would

have the effect of reversing the

U.S. Supreme Court decisions of

1962 and 1963, which outlawed

prayers and Bible-reading in the

public schools.

Contrary to the opinion of the

Court's detractors, Rev. Miller

argued, "you cannot kill God by

a Supreme Court decision." He

said the high court's decisions

did not impair religious freedom,

because individuals could apply

the remedy suggested by Presi-

dent Kennedy: to "pray a good

deal more at home..."

He expressed the belief that

American home and community

life and the American churches

-eannot be so weak that govern-

ment help is needed to incul-

eate religious values oat inspire

prayer.

Threat to Religious Freedom

It is not the Court's decisions,

but the proposed amendments

which represent a great threat

to the-religious liberty enjoyed

by all under `the brave Amer-

ican experiment". of the secular

state, the Rev. Miller said.

He suggested Thomas Jeffer-

son's "Bill for Establishing Reli-

gious Freedom" in colonial Vir-

ginia, and the religion clause of

the First Amendment to the Con-

stitution set a bold new prec-

edent in the development of

church-state relations. Previous

to this period, the clergyman

noted, observance of a "civic

religion" inseparable from civic

responsibility was obligatory in

all civilizations and cultures. He

said the Protestant Reformation

was a great step forward for

religious freedom, because it en-

couraged "religious territorial-

ism" and permitted unhappy

subjects of any monarch to

migrate to a more satisfactory

religious climate. -

No Official Religion

The first Amendment declares

that "Congress shall make no

law respecting an establishment

of religion or prohibiting the

free exercise thereof..." "The

essence of the `no-establishment'

elause," the Rev. Miller con-

tended, "was that there would

be no `official' civic religion to

which all loyal citizens must pay

at least lip-service. A lesser part

of this provision was the guaran-

tee that no church or eccles-

jiastical hierarchy would be sup-

ported by taxation, but that was

subordinate to, and implemen-

"tive of, the protection against

religious qualifications for citi-

zenship,"' he added.

Vestiges of Establishment

Rev. Miller remarked that in

spite of the First Amendment

prohibition, "vestiges of the

establishment pattern of Euro-

pean Christendom persisted in

America for many decades after

the beginning of our noble ex-

periment." Among such "ves-

ACLU NEWS

JUNE, 1964

Page 4

ferent

tiges,' he named theistic quali-

fications

Protestant practices in'

ceremonies and

school Bible-reading, etc. The

Episcopal leader said it was

natural that the groups who had

created these secular but sec-

tarian institutions would declare

themselves "shocked" by the

Supreme Court's efforts to place

persons of all religious per-

suasions on equal `footing, by

eliminating the religious institu-

tions.

civic

' institutions,

Two Grave Dangers

Yet, the preservation of such

institutions presents two grave

dangers, Rev. Miller warned. On

the one hand, absolute majority

rule would bring "divisive sec-

tarianism .. ., with a strong pat-

tern of Mormon practices pro-

vided for school districts in

Utah, Roman Catholic sacramen-

talism in Boston and New York

City, and Black Muslim rites in

Harlem and South Chicago." And

on the other hand. adoption of a

vague, weak non-sectarian reli-

gion would, he charged, "be a

regression to Constantinianism,

if not to the emperor-cult of

pagan Rome, where a single at-

tenuated religion was the uni-

versal test of civic belonging."

Such a non-sectarian religion

would encourage the growth of a

local, as opposed to cosmopolitan,

culture, in which persons would

be unable to imagine others dif-

from themselves, Rev.

Miller said. "For members "DE

the minority, who are no less

citizens because their faith is

different, the result is not

merely a moment or two of in-

convenience but an impairment

of equal citizenship," he added.

Open-Ended Permits

The ACLU witness also

charged the Becker and related

amendments are open-ended per-

miis for any type of religious in-

cursion in government, without

fixing the responsibility. "One

conjures up the vision of The

Prayer Which Nobody Chooses,"

he said. "It springs spontaneous-

ly from nowhere."

Rev. Miller pointed to com-

ments on the Schempp and Mur-

ray cases by the Pennsylvania

Superintendent of Public In-

struction and the Baltimore

Superintendent of Schools to il-

lustrate his contention that the

uses of prayer can too easily be

distorted in the classroom. The

Pennsylvania official said Bible-

reading represented "one of the

last vestiges of moral value that

we have left in our school sys-

tem." The Baltimore Superin-

tendent similarly concluded that

the tone set by the opening

prayer "tends to cause each in-

dividual pupil to constrain his.

overt acts and consequently to

conform to accepted standards

of behaviour during his attend.

ance at school." Mr. Justice

Brennan, citing these remarks

on the non-religious uses of

prayer, noted that the "Torcase

and the Sunday Law Cases for-

bid the use of religious means to

achieve secular ends where non-

religious means will suffice." It

was on the basis of the Schempp

and Murray cases that the high

court outlawed Bible-reading in

the public schools last June.

Unwise Use of Prayer

More broadly speaking, the

for oaths of office,

Forstner Wins

Job and Back Pay:

City Will Appeal

Continued from Page 1-

how it was-that Children at the

Youth Guidance Center were re-

quired as a condition of their

probation to see psychiatric so-

cial worker Morris Kilgore who

himself wears a beard? DeNoia

answered that this was a thera-

peutic relationship and if the

child could not get on well with

the social worker wearing a

beard he could request a change.

DeNoia had to admit that there

was no evidence in the record

substantiating Strycula's charge

that Forstner's beard tended to

identify him with "beatnikism."

However, he stated that it was

sufficient if "somebody might

think Forstner was a beatnik."

Community Support

Forstner's case has received

widespread community support.

Both the San Francisco Examiner

and the San Francisco News Call

Bulletin have run editorials tak-

ing his side and urging the city

not to persist in making a minor

matter a cause celebre. The deci-

sion in Forstner's case is impor-

tant not only for him but for all

civil servants. If "permanent

status" is to be meaningful, civil

servants must be protected from

the whims and prejudices of

their superiors.

Invasion Of Personal Life

Judge Karesh also found that

Strycula's order was an unjusti-

fied invasion of Forstner's per-

sonal life and his personal in-

tegrity. Concerning this point,

Forstner's brief had this to say:

"Mr. Forstner is qualified as a

worker with youth in difficulty

under every objective standard

and with high distinction. He de-

sires to make probation work his

lifetime career and nothing he

has done is any indication that

he will not be a credit to this

profession. The beard is an in-

tegral part of petitioner's per-

sonal life and he cannot take it

off when he comes to work. If

he is the first among his group

to wear a beard let that be one

of his distinctions rather than a

nit-picking blockade which forces

him toe choose between his career

and a demeaning surrender of

the right to control his own per-

sonal appearance within the

bounds of propriety. Petitioner

has the desire and the skill to

make a meaningful contribution

to society, but he is not willing

to turn himself into a marionette

to do so."

Support from Colleagues

- Forstner lives in San Francis-

co with his wife and children.

He will be welcomed back to the

Youth Guidance Center by his

many colleagues there who ex-

pressed support for him and

testified in his behalf. His case

also received the moral support

of both municipal employees'

unions.

Rev. Miller said unwise use of

prayer in the classroom could

actually turn children from reli-

gion. He noted that teachers

were not chosen for their knowl-

edge of religion or the Bible,

and said classroom conditions

made meaningful interpretation

of the Scriptures impossible.

He quoted Justice Black's opin-

ion "that the people's religions

must not be subjected to the

pressures of government for

change each time a new political

administration is elected to of-

fice."

Lesson of History

The Rev. Miller concluded that

history has not shown the cit-

izens of theocratic states to be

more religious or moral than

citizens of secular states. In fact,

Judaism and Christianity have

both survived active government

hostility, but "they have been

weakest in just those societies

where the state has undertaken

to sponsor and promote religious

activities in public institutions,"

he said.

Kennedy Urged To End

lail Surveillance

The American Civil Liberties Union has asked Attorney

General Robert Kennedy to make a public pledge that mail

checks,

"a shocking invasion of privacy," will be discon-

tinued by the federal government. This type of surveillance

-admittedly practiced against some 750 persons per day-

consists of recording all. infor-

mation on the outside of letters.

The practice came to light re-

cently with the protest of attor-

ney Thomas J. Bolan that his

mail and that of his client, Roy

Cohn, was being "covered" in

this way. Cohn was being tried

for perjury before a grand jury

and seeking to obstruct justice.

The case ended in a mistrial.

Public Concern

The ACLU letter said that the

pledge was needed to calm pub-

lic concern that the thoughts,

ideas and opinions of citizens are

being inspected by the govern-

ment "-a censorship practice as-

sociated with totalitarian govern-

ments- .

the statement of the New York

Civil Liberties Union of March

4 which stated: "The check is an

invasion of the right of privacy

and an unwarranted interference

with the right to use the mails.

Surveillance of mail sent to the

attorney of an accused, such as

the check ordered by the US.

_Attorney's office of mail directed

to Roy Cohn's attorney, is de-

nounced not only for the reasons

outlined but because it is also

an interference with one's right

to counsel and an undue ad-

vantage to the prosecution. Ac-

cording to news reports that

have not been denied, an Assist-

ant U.S. Attorney intimated in a

statement to the Court that his

office had not ordered a check

on mail addressed to Roy Cohn

or his attorney, Mr. Bolan. In

so doing, he misled the Court

and was guilty of an inexcusable'

evasion and lack of candor. The

failure of the U.S. Attorney to

reprimand his assistant's flagrant

violation of the lawyer's ethical

duty or to replace him in the

prosecution of the case may be

construed as condonation."

Editorial Comment

The ACLU letter also quoted

an editorial of the Washington

Post-Times Herald of March 3:

"A Post Office Department which

admits mail watches is not fully

believed when it denies opening

the mail; and in the same way

a Federal Bureau of Investiga-

tion which admits tapping a few

tefephones. in violation of the

law is not fully believed when it

denies tapping many telephones."

Proposed Legislation

A bill to prohibit mail covers

has been introduced by Senator

Edward Long (D., Mo.). Post Of-

fice Chief Counsel Louis Doyle

has invoked two Court of Ap-

peals decisions to defend the

legality of mail covers. One, U.S.

v. Costello (255 Fed 2d 876),

held that mail covers do not

violate the law forbidding deten-

tion and opening of mail. The

other U.S. v. Schwartz (283 Fed

2d 107), held that postal regula-

The first right of a citizen

Is the right

To be responsible.

.." It also endorsed (c)

Brief Order

Ends Bracero

Camp Case

On May 18 the United States

Supreme Court entered an order

denying certiorari in Poland v.

California thus ending a case

which started in October of 1961

in Manteca, California. John Jef-

ferson Poland and Fred Cage

were arrested at a farm labor

camp for Mexican nationals

(braceros) and charged with

trespassing after they went on

the camp grounds to hand out

leaflets to the workers concern-

ing their rights while in the

United States.

Trespassing

Poland and Cage, represented

by ACLU Staff Counsel Marshall

Krause, were convicted of tres-

passing in a justice court and

their conviction was affirmed by

the appellate department of the

Superior Court of San Joaquin

County. The next step was a peti-

tion for writ of certiorari to the

United States Supreme Court

which was filed in January of

1963 with the assistance of volun-

teer attorney Donald Cahen.

Long Delay

The petition for certiorari was

pending for sixteen months be-

fore the Court's order declining

to grant a review of the decision.

Only Justice William O. Douglas

voted to grant the petition. Both

the Attorney General of Califor-

nia and the Solicitor General of

the United States opposed the

petition for certiorari. The Solici-

tor General noted that negotia-

tions were under way to change

the agreement with Mexico al-

lowing importation of braceros

so as to provide that representa-

tives of labor organizations could

have access to the camps. (Po-

land and Cage were representing

the Agricultural Workers Orga-

nizing Committee of the AFL-

CIO at the time of their arrest.)

The Solicitor General also noted

that many statements were made

on the floor of Congress that the

bracero program would not be

again renewed past the end of

1964. Neither Poland nor Cage

was sentenced to jail but they

now must pay the fines of $100

imposed by the justice court.

tions are not violated when in-

formation from a mail cover is

turned over to the Justice De-

partment.

In the Cohn case, Federal

Judge Archie Dawson declined

to dismiss the indictment on the

ground that there was no evi-

dence that the mail itself had

been opened.

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