vol. 33, no. 10
Primary tabs
American
Civil Liberties
Union
Volume XXXIII
Good Year for Liberties
SAN FRANCISCO, OCTOBER, 1968
Final Report on
The 1968 Calif. |
Legislature
Everyone now agrees that the 1968 session of the California
Legislature ended sometime in August. That date on which
it ended continues, in some quarters, to be a matter of de-
bate. The dispute arose when Acting Governor Hugh Burns
decided that the Senate's desire to adjourn immediately and
the Assembly's desire to clean
up unfinished business created
a conflict between the two
Houses that empowered the Gov-
ernor to adjourn the Legislature.
Burns, when not acting as Gov-
ernor, and he usually is not, is
the President Pro. Tem. of the
Senate. His choice of adjourn-
ment date was viewed by Assem-
bly Speaker Unruh as an un-
seemly unilateral adjournment
by the Senate that affronted the
dignity of the lower house. Ac-
cordingly, Unruh kept the As-
sembly in session after the Sena-
_ tors had left.
But the acappella Assembly
session was short-lived, the vic-
tim of defections from the As-
sembly ranks. The defectors were
Republican Assemblymen, a
group that enjoys embarrassing
Unruh almost as much as the
Senate does. Once the California
Legislature had dwindled to a
gathering of Democratic Assem-
blymen, Unruh decided to recess
the Assembly.
The precise date of adjourn-
ment may still be in doubt but
the important point is that the
legislative session did, finally,
end. What follows, is a review
of civil liberties legislation in
the 1968 session. -
Suit to Put
Cleaver on
The Ballot
As the NEWS goes to press,
ACLUNC is preparing to file a
suit in the California Supreme
Court that, if successful, will
place the name of Eldrige Clea-
ver on the November presiden-
tia] ballot.
Cleaver is the _ presidential
candidate of the Peace and Free-
dom Party. Secretary of State
Frank Jordan, however, has in-
formed Peace and Freedom Par-
ty Chairman Jack Weinberg that
he will not certify Cleaver as a
candidate because he is not old
enough to be President.
ACLUNC will ask the Court to
command Jordan to place Clea-
ver's name on the ballot on the
grounds that Jordan, whose elec-
toral duties are purely minis-
terial, is not qualified or em-
powered to determine who is an
eligible candidate for - Presi-
dent and that a decision on Clea-
ver's eligibility would be pre-
mature at this time because the
California electorate will not
have an opportunity to vote for
Cleaver in November but, rather,
for undisputably qualified presi-
dential electors who are pledged
to Cleaver. The question of Clea-
ver's eligibility and the equally
important question of what body
is charged with the responsi-
bility of determining who is
eligible for President ought not
to be decided until it is ripe for
adjudication.
Cleaver is represented in his
ballot suit by Paul Halvonik.
Bills that went down to defeat
would have prohibited unwanted
labor pickets on the "private"
property of supermarkets; pro-
hibited the display of the Viet
Cong flag and the destruction,
with contemptous intent, of the
American flag; prohibited the
advocacy of communism on col-
lege campuses; made advocacy
of school boycotts punishable as
a crime; made any conduct which
"tends" to incite a riot a crime;
made a "disruptive presence" on
university or college campuses
a crime; and required the dis-
missal of any junior college
teacher who advocated any posi-
tion contrary to national secu-
rity. The most baroque of the
defeated anti-freedom bills was
S.B. 850 (Schmitz), which would
have required parade sponsors to
post a $10,000 bond before re-
ceiving a permit. The bill took
care of the American Legion by
exempting parades held on the
same day of the week in the past
two years.
Additionally, attempts to re-
vive the oath of non-disloyalty
(ACA 10, Hayes) and the crimi-
nal syndacalism act (AB 1771,
Hayes) never got out of the
committees to which they were
originally assigned.
A positive free speech gain
was the enactment of A.B. 267
(McDonald) which amends Pe-
nal Code section 602.9. 602.9,
adopted at the 1967 legislative
session, makes it a misdemean-
or for a person to remain upon
school grounds or adjacent areas
when his presence "interferes"
with the peaceful conduct of the
school and he is there "without
lawful business." The section
has been used to harass pamph-
leteers near school grounds even
though handbill distribution is
obviously "lawful business." The
McDonald amendment, which
provides that "lawful. business"
is any reason for being present
not otherwise proscribed by stat-
ute, ordinance or _ regulation,
should clear up whatever am
biguity existed. .
-Continued on Page 2
Free Speech
Guide Available
ACLUNC's summer legal in-
tern, Mrs. Barbara Kass, has pre-
pared a comprehensive guide to
"First Amendment Right to Ex-
pression."" The guide is written
for the non-lawyer wishing to
have a general description of
First Amendment rights in spe-
cific areas such. as handbilling,
etc.
The guide also contains cita-
tions to leading legal authorities
so that a lawyer may use it as
a first reference for a_ First
Amendment research problem.
All ACLU chapters will be given
a supply of the guides and other
interested persons may obtain
one by sending a long, self-ad-
dressed stamped envelope bear-
ing 18c in stamps to the
ACLUNC office.
No. 10
STAFF JOBS
AVAILABLE AT
ACLU OFFICE
The ACLUNC is stil! inter-
viewing candidates for the half-
time job of Chapter Director. -
Interested persons should con-
tact Ernest Besig.
The office also has a vacancy
for a stenographer. The salary is
$425 per month. Applicants
should get in touch with Mrs.
Pamela Ford.
State Welfare
Agrees on Due
Process Rights
ACLUNC counsel have been
engaged in an attempt to gain
for Mrs, Calvin Fenske of Or-
land, California, basic due proc-
ess rights to a hearing from the
State of California. Finally the
file was turned over to our Sac-
ramento chapter who assigned
volunteer attorney Carl M. Stein
to handle the matter. Mr. Stein
has now obtained an agreement
from the department of Social
Welfare and the Department of
Mental Hygeine that the State
cannot deny Mrs. Fenske a li-
cense for a child-care home with-
out providing her a hearing on
the question of whether she is
qualified for this license.
The State had maintained that
since Mrs, Fenske had _ surren-
dered a previous license it had
no obligation to grant a hearing
on a new application. The
ACLU believes that any appli-
eant for a state license is en-
titled to find out what evidence
is used against him if such ap-
plication is denied and to con-
front and examine such evi-
dence.
Free Press and Fair Trial
Court Upholds -:
ACLU Position :
On Publicity -
On August 27 the California Court of Appeal decided the
case of Craemer v. Superior Court of Marin County and in
doing so made an important ruling in the area of the power
of a trial judge to keep certain information from becoming
public when he believes it will prejudice a criminal defend-
ant's right to a fair trial.
The particular case involved
a group of persons charged with
felonies by the Marin County
Grand Jury. When the Grand
Jury transcripts were filed with
the court clerk, Judge Joseph G.
Wilson instructed him not to al-
low this testimony to be exam-
ined -by the public and also in-
structed the District Attorney
not to disclose the contents of
the transcripts to unauthorized
personnel. Mr. Craemer, editor
of the San Rafael Independent
Journal, filed a mandamus ac-
tion to obtain access to the
transcripts on the ground that
they were public information un-
der statute.
Tria] Court's Duty
ACLUNC, through staff Coun-
sel Marshall W. Krause and
volunteer attorney Theodore La-
chelt, filed a brief amicus curiae
-with the court, taking the posi-
tion that the judge had a duty
under the Fourteenth Amend-
ment to protect the defendants'
right to a fair trial regardless of
whether there was a statute mak-
ing the particular documents
"public". The brief pointed out
that the Grand Jury testimony is
not subject to cross-examination
and frequently contains such
items as alleged confessions and
alleged results of searches which
could be challenged as illegal
and excluded from the trial. If
this information were given pre-
- predecessors.
Marshall Krause Resigns; _
Succeeded by Paul Halvonik
Marshall W. Krause, Staff Counsel of the ACLUNC
for the past eight years has resigned his position effective
October 1, 1968. He will be succeeded by Paul Halvonik,
Assistant Staff Counsel and Legislative representative dur-
ing the past two years.
Krause is taking some time off
for attention to some non-legal
interests. His residence will be
in Marin county.
Longest Tenure
Krause is the third staff coun-
se] in branch history and held
the job ever since November 1,
1960 - longer than any of his
He suceeded AI-
bert M. Bendich, who served a
little more than three years.
Lawrence Speiser, the first staff
counsel, served for almost five
years,
Brilliant Record
Marshall Krause has had an
outstanding record at the
ACLUNC and he will be sorely
missed. He won five out of six
U.S. Supreme Court cases and
has been equally successful in
State and Federal Courts in
northern California. `Marshall
Krause," said Ernest Besig,
MARSHALL W, KRAUSE
branch executive director `was
an able, dedicated, hard-working,
likeable and responsible staff
counsel. He made a tremendous
contribution to the cause of free-
dom in this country and north-
ern California in particular."
Something Added
This issue of the NEWS car-
ries pictures of Krause and Hal-
vonik. In the case of Krause, the
picture was taken in January,
1967, when he was elected Presi-
dent of the San Francisco Bar-
risters' Club.' Something has
been added since that time-a
mustache.
The office is now attempting
to secure someone to fill the po-
sition of Assistant Staff Counsel
and Legislative Representative.
Many applicants have sought the
job and a special board commit:
tee will help make the selection,
hopefully by October 15 and in
any case by November 1.
BERS
PAUL N, HALVONIK.
trial publicity it would stick in
the minds of many prospective
jurors and prevent the defend:
ant from having a trial under
rules of evidence.
ACLU Position
The Court of Appeal in hand-
ing down a decision in the case
said: "It is clear that a judge
has the duty to protect a defenc-
ant from inherently prejudicial
publicity. Accordingly, it follows
that in the performance of that
duty a judge may require the
removal from: public scrutiny of
a public record containing data
or' material which, if publicized
prior to trial, could result in
publicity so inherently prejudi-
cial as to endanger a fair trial.
Appointment Procedure
The Court went on to hold
that an appropriate procedure
for handling these matters would
be that the transcripts could be
withheld from being public rece-
ords until the indicted defend-
ant had a resaonable opportunity
to examine the transcripts and
move the court that any objec-
tionable matter be held from
public scrutiny until after the
trial of the case. "Such a pro-
cedure appears to be a reason-
able accommodation of the right
to inspect public records to the
constitutional right of an indicted,
defendant to a fair trial." The
Court therefore issued a wrif
of mandate setting aside Judge
Wilson's broad order and _ in-
structed the lower court to fol-
low the suggested procedure.
The Right of
The Unemployed
To Be Bearded
Stephen Spangler has been de-
nied unemployment compensa-
tion insurance benefits because
he has, according to the Depart-
ment of Employment, made
himself unavailable for work by
growing a beard,
The Unemployment Insurance
Appeals Board, with one mem-
ber dissenting, has upheld a rul-
ing by a referee that Spangler's
beard is a voluntary action that
has taken him out of the em-
ployment market in spite of evi-
dence, developed at the refer-
ence hearing by Executive Direc-
tor Ernest Besig, that the De-
partment of Employment has
never referred Spangler, whose
profession is that of manufac-
turer's representative, to an em-
ployer and does not expect to
have any requests from a suit-
able employer. If there have
been no requests for manufac-
turer's representatives, manifest-
ly there have been no requests
for unbearded manufacturer's
representatives.
A suit requiring the Depart-
ment of Employment to pay
Spangler his benefits has been
filed in San Francisco Superior
Court by assistant staff counsel
Paul Halvonik, In that suit AC-
LUNC maintains that the deci-
sion of the Appeals Board is un-
supported by the evidence and
that the state has not "demon-
strated that here is any compel-
ling state interest that would
justify conditioning receipt of
benefits on the waiver of peti-
tioner's fundamental right to
groom himself as he pleases."
Final Report on the
1968 Calif. Legislature
Obscenity
All bills expanding the defi-
nition of obscenity were defeat-
ed. Their number, and the num-
ber was large, included a bill
that would have adopted the
"pandering" test of Ginzberg v.
U.S., bills that would have es-
tablished a special test of "`in-
decent matter" that could not
be exhibited to minors and, most
ambitious of all, A.B. 1480 (Rus-
sell) which would have made a
misdemeanant of anyone who ex-
hibited the Venus de Milo to a
minor.
An innovation in the area of
obscenity introduced by Senator
Lawrence Walsh (D.-L.A.) was
also killed. S.B. 49%, directed at
Michael] McClure's play, The
`Beard, would have prohibited the
performance of plays containing
"simulated" sex acts on college
campuses.
Civil Rights
`Rumford Fair Housing Act re:
peal, one of the most heated is-
sues in the 1967 session, received
little attention this year. Rum-
ford repealers were introduced
in both: houses but were easily
defeated after the enactment of
the Federal fair-housing law and
a United States Supreme Court
decision holding an 1866 Civil
Rights Act applicable to private
housing convinced proponents
that the game wasn't worth the
candle.
Civil Rights advances were, not
suprisingly, also thwarted. A hap-
py exception was A.B. 2061
(Sieroty) which partially elimi-
nates the prohibition of state
employment of aliens. Sieroty
(D--Beverly Hills) had a similar
bill vetoed by the Governor last
year.
Prisoner Rights
The rights of prison inmates
were greatly enhanced in this
year's session. A.B. 581 (Sieroty)
secures the following rights to
prisoners: :
1. To inherit real or personal
property. :
2. To correspond, confidential-
ly, with any member of the State
Bar, or holder of public office,
provided that the prison authori-
ties may open and inspect such
mail to search for contraband.
3. To own all written material
produced by such person during
the period of imprisonment.
4. To purchase, receive, and
read any and all newspapers,
periodicals, and books accepted
for distribution by the United
States Post Office, with the ex-
ception that prison authorities
have the authority to exclude
obscene publications or writings,
and mail containing information
concerning where, how, or from
whom such matter may be ob-
tained; and any matter of a
character tending to incite mur-
der, arson, riot, violent rascism,
or any other form of violence;
and any matter concerning gam-
bling or a lottery.
Death Row Counsel
S. B. 1028 (Petris) provides
indigent death-row inmates,
whose convictions have been af-
firmed by the State Supreme
Court, with state-appointed Coun-
sel to pursue their legal reme-
dies in the United States Su-
preme Court. The steering of the
bill through four legislative
Committees, both houses (where
a 2/3 vote was required because
of a $25,000 appropriation and
the securing of the Governor's
signature, is a tribute to the mas-
terful legislative skill of the au-
thor, Senator Nicholas Petris
(D-Oakland).
ACLUN_1946 ACLUN_1946.MODS ACLUN_1947 ACLUN_1947.MODS ACLUN_1948 ACLUN_1948.MODS ACLUN_1949 ACLUN_1949.MODS ACLUN_1950 ACLUN_1950.MODS ACLUN_1951 ACLUN_1951.MODS ACLUN_1952 ACLUN_1952.MODS ACLUN_1953 ACLUN_1953.MODS ACLUN_1954 ACLUN_1954.MODS ACLUN_1955 ACLUN_1955.MODS ACLUN_1956 ACLUN_1956.MODS ACLUN_1957 ACLUN_1957.MODS ACLUN_1958 ACLUN_1958.MODS ACLUN_1959 ACLUN_1959.MODS ACLUN_1960 ACLUN_1960.MODS ACLUN_1961 ACLUN_1961.MODS ACLUN_1962 ACLUN_1962.MODS ACLUN_1963 ACLUN_1963.MODS ACLUN_1964 ACLUN_1964.MODS ACLUN_1965 ACLUN_1965.MODS ACLUN_1966 ACLUN_1966.MODS ACLUN_1967 ACLUN_1967.MODS ACLUN_1968 ACLUN_1968.MODS ACLUN_1968.batch ACLUN_1969 ACLUN_1969.MODS ACLUN_1969.batch ACLUN_1970 ACLUN_1970.MODS ACLUN_1971 ACLUN_1971.MODS ACLUN_1972 ACLUN_1972.MODS ACLUN_1973 ACLUN_1973.MODS ACLUN_1974 ACLUN_1974.MODS ACLUN_1975 ACLUN_1975.MODS ACLUN_1976 ACLUN_1976.MODS ACLUN_1977 ACLUN_1977.MODS ACLUN_1978 ACLUN_1978.MODS ACLUN_1979 ACLUN_1979.MODS ACLUN_1980 ACLUN_1980.MODS ACLUN_1981 ACLUN_1981.MODS ACLUN_1982 ACLUN_1982.MODS ACLUN_1983 ACLUN_1983.MODS ACLUN_1984 ACLUN_1984.MODS ACLUN_1985 ACLUN_1985.MODS ACLUN_1986 ACLUN_1986.MODS ACLUN_1987 ACLUN_1987.MODS ACLUN_1988 ACLUN_1988.MODS ACLUN_1989 ACLUN_1989.MODS ACLUN_1990 ACLUN_1990.MODS ACLUN_1991 ACLUN_1991.MODS ACLUN_1992 ACLUN_1992.MODS ACLUN_1993 ACLUN_1993.MODS ACLUN_1994 ACLUN_1994.MODS ACLUN_1995 ACLUN_1995.MODS ACLUN_1996 ACLUN_1996.MODS ACLUN_1997 ACLUN_1997.MODS ACLUN_1998 ACLUN_1998.MODS ACLUN_1999 ACLUN_1999.MODS ACLUN_ladd ACLUN_ladd.MODS ACLUN_ladd.bags ACLUN_ladd.batch add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log
A bill that would have re-
quired the Adult Authority to
provide reasons when it refuses
to grant parole to a prisoner
convicted of a non-violent crime
(A. B, 1269-Vasconcellos) failed,
for lack of one vote, to get out of
ACLU NEWS
OCTOBER, 1968
Page 2
the Assembly Committee on
Criminal Procedure.
Rights of the Accused
Bills that would have expand-
ed police arrest power, curtailed
the right of appeal from a crimi-
nal conviction, increased the
power of prosecutors to conceal
the names of informants, and
permitted court clerks to issue
arrest warrants, were all defeat-
ed. Bills authored by Assembly-
man William Bagley (R-Marin)
that would have reformed Cali-
fornia's archaic bail laws and
greatly increased the right to be
free without bail. (A. B.'s 319,
640) were defeated in assembly
committee by his Republican
colleagues. Bail reformers Bag-
ley and Senator George Moscone
(D-San Francisco) will doubtless
try again next year.
Gains for the criminally ac-
cused include S. B. 580 (Mos-
cone) which prohibit Judges
from reading certain prejudicial
matters about a defendant prior
to a decision about his guilt and
S. B. 1207, authored by Senator
Lewis Sherman (R-Berkeley)
providing that only the accused
juvenile, and not his parents,
can waive his right to counsel
in juvenile proceedings.
: Marijuana
A, B. 1%2 (Biddle) reduces
the penalty for possession of
marijuana by giving a judge the
discretion to punish a first-time
offense as a misdemeanor. The
bill reflects, in part, a minimal
legislative awareness that un-
duly harsh punishment for the
possession of a euphoric does
nothing but crowd the jails. In
part, however, the bill denies
this experience because it in-
creases the penalty for posses-
sion of dangerous drugs. Biddle
(R-Riverside) felt the increased
penalties for the possession of
dangerous drugs, to make them
commensurate with the mari-
juana penalty, were necessary in
order to have this bill enacted
into law. Perhaps he was right.
An attempt by Assemblyman
Sieroty to reduce the penalty for
~ possession of marijuana to a mis-
demeanor (A. B. 1155) failed to
get out of committee.
Privacy
The right of privacy faired
well in 1968. Proposed legaliza-
tion of police wire-tapping and
eavesdropping was rejected. S.B.
1089, a potential threat to ACL-
UNC's 1967 U. S. Supreme Court
victory in Camara v. Municipal,
which brings non-criminal,
searches within the protection of
the Fourth Amendment, was
converted into a fortification of
Camara when the author, Senator
James Wedworth (D-Hawthorne),
aften an extensive battle in the
Assembly, accepted ACLU
amendments to his bill.
A proposal to make the list
of welfare recipients available
for the scrutiny of anyone
(S. B. 102, Schmitz) was defeated
for the second consecutive year.
Bills prohibiting schools from
administering surveys in which
questions appear about a pupil's
beliefs or practices regarding
sex, morality and religion, with-
out first receiving permission
from his parents (S. B. 669,
Schmitz); greatly limiting the
persons to whom personal infor-
mation concerning a pupil may
be given (S. B. 670, Schmitz);
and limiting the persons to whom
information regarding a _ mis-
treated minor may be given
(A. B. 187, Milias), have all been
signed into law by Governor
Reagan.
Defeats
The most serious ACLU de-
feats in 1968 were the enact-
ment into law of A. B. 144 (Vas-
concellos), which provides for
implementation of Federal aid
to parochial schools, and A. B.
133 (McDonald) which permits
counties to seek reimbursement
of probation expenses from the
parents of a juvenile offender.
Assessment
The results of the 1968 ses-
Leics...
... to the Editor
Recorded Messages
Editor:-As a member of the
John Birch Society and opera-
tor of Berkeley "Let Freedom
Ring" recorded telephone mess-
age service, I would like to pub-
licly thank the American Civil
Liberties Union of Northern
Caltfornia for successfully de-
fending my case against the Pa-
cific Telephone Company and
the California Public Utilities
_ Commission,
On July 19th, the Supreme
Court of the State of California
unanimously rendered their de-
cision upholding my right to free
speech; including my right to
anonymity of recorded tele-
phone message transmissions.
This important decision of the
State Supreme Court protects
and reinforces the rights of free-
dom of speech for all Ameri-
cans - especially for those hold-
ing minority or unpopular views.
The ACLU spent many thou-
sands of dollars worth of time,
talent and materials in working
on my case over the past two
years, At no time did they ever
request or imply that I should
pay even one cent.
The ACLU's legal briefs were
masterful expositions on -con-
stitutional law, and as a JBS
member, I can honestly subscrib2
to every word therein.
My thanks go to Mr. Ernest
Besig, ACLU Director, whom I
first solicited to accept my case;
and to Mr. Reed H. Bement, the
principal attorney and the others
of the ACLU staff who handled
my case supremely well.
-Fred E. Huntley
Gun Control Policy
Editor: You may include me
among those wio were aston-
ished at the action of the ACLU
in its stand on gun control laws.
Civil liberties, in the light of
how our nation was established,
in the light of the current dis-
turbances in Czechoslovakia and
the Vietnams, are something the
Union seems to have lost sight
of.
Or if we, as a nation, have be-
come so nearsighted that we see
only the threat of illegal guns,
then what has the Union's stand
on gun control done to legalize,
sequester, or otherwise hamper
the illegal use of firearms or any
other weapon?
The Union's action has been
a step toward: 1) removal of a
threat to loss of civil liberty;
2) taking arms from all but crim-
_inals, or creating a new class of
criminal; 3) pinpointing the
availability for the taking of
arms, for the benefits of crim-
inals. The incentives in the con-
ception of the Union's stand will
inevitably lead toward the op-
posite of the very things for
which the members of the Union
conceive it stands, and away
from the very arms contro] ap-
parently desired.
At least Senator Marks' bill,
now law, is a step in the right
direction William Frank Poyn-
ter, San. Francisco.
sion were certainly better than
anticipated. It was, on balance,
a very good year for civil lib-
erties. The principal assaults on
civil liberty, and they were many
and from sundry sources, were
repelled. And gains, particularly
in the areas of prisoner rights
and privacy, were of significant
proportions.
What does the 1969 session
bode for civil liberties? The No-
vember election will determine
that. The appeal to "law and or-
der," advanced most conspicuous-
ly by George Wallace (who
gained prominence by defying
the law set forth in a federal
court order) is the fashionably
polite means of advancing the
cause of repression. If it is the
theme of the newly elected legis-
lature, civil liberties and civil
rights may be in for some diffi-
cult times.
-Paul Halvonik
"Campus Draft Opposition"
Federal Court
Upholds Denial
Of Facilities
Another skirmish in what promises to be a long battle
was fought last month in Federal District Court when
ACLUNC staff counsel Marshall Krause represented a group
of UC professors and students who are attempting to obtain
a ruling that a Regents' rule regarding use of campus
facilities is unconstitutional.
Pledges Sought
The group, known as Campus
Draft Opposition, circulates
pledges to draft-eligible men who
wish to publicly state that they
will refuse an induction notice
and also pledges of support from
non-draft eligible persons that
they will aid the signers of the
first pledge in vindicating their
positions.
One round of the battle was
lost last May when Federal Judge
William T. Sweigert denied a
preliminary injunction against
the University's refusal of the
Greek Theatre for the Campus
Draft Opposition to hold a "Viet-
nam Commencement." The Com-
mencement then was held on the
steps of Sproul Hall.
Regulation Attacked
Now the group is attacking
the Regents' resolution which
provides that University facili-
ties are not available for per-
sons engaging in or organizing
"unlawful activities." The regu-
lation is being attacked as a
prior restraint on First Amend-
ment activities since, under the:
procedures followed by the Uni-
versity, questions of possible un-
lawful activity are referred to
the General Counsel for an opin-
ion and that opinion is then fol-
lowed in granting or denying
use of University facilities. This,
argues the ACLU, creates a prior
restraint. That is, one adminis-
trative official by deciding some- -
thing illegal may happen at a
meeting can stop the exercise of
First Amendment rights without
any court determination of the
legality of the proposed activity.
Spock Case Issue
Also attacked in the lawsuit
is section 462 (a) of the Uni-
versal Military Training and
Service Act which makes it a
crime to aid or counsel persons
to fail to obey any provision of
the Act (this is the same law
as was invoked to convict Dr.
Spock and his co-defendants in
Boston). ACLU attacks this stat-
ute as unconstitutionally vague -
and overbroad in the First
Amendment area.
Latest Ruling
The second round of this court
battle was fought on September
23 before Judge Louis Burke on
the Regents' motion to dismiss
the complaint and on the plain-
tiff's motion to convene a three-
judge court to hear the constitu-
tional questions. Judge Burke
granted the motion to dismiss
the complaint and ruled that
there was not a substantial con-
stitutional issue presented allow-
ing the convening of the three-
judge court. Since it believed
that this ruling is completely er-
roneous on both grounds, an ap-
peal will be taken to the Ninth
Circuit.
Meanwhile, the Campus Draft
Opposition has said it will con-
tinue its normal activities on fhe
campus of the University of Cali-
fornia which could well raise
further problems of denial] of
First Amendment rights.
SSA A SE EE)
AMERICAN CIVIL LIBERTIES UNION NEWS
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Second Class Mail privileges authorized at San Francisco, California
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ee 151_
Ralph B. Atkinson
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Prof. John Edwards
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Rev. Aron S. Gilmartin
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Board of Directors of the American Civil Liberties Union
of Northern California
CHAIRMAN: Prof. Van D. Kennedy
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Richard Patsey
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Clarence E. Rust
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Norman Lezin :
FREEDOM OF EXPRESSION
Picketing
In Cameron v. Johnson the
petitioner alleged that a Missis-
sippi anti-picketing law which
prohibits". . . picketing or mass
demonstrations in such a man-
ner as to obstruct or unreason-
ably interfere with free ingress
or egress to and from any public
premises, state property, county
or municipal courthouses, city
halls, office building, jails, or
other public buildings .. ." was
vague and overbroad. Justice
Brennan, for seven justices, said
the statute clearly and precisely
delineated its reach in words of
common understandtng and was
therefore not vague, It was not
overbroad, since "Picketing and
parading are subject to. regula-
tion even though intertwined
with expression and association."
He concluded that the record
did not establish any bad faith
in the enforcement of the law
for purposes of harassment, and
that therefore there were no
"special circumstances" justify-
ing relief, as in Dombrowski v.
Pfister, Fortas, and Douglas, dis- .
sented on the grounds that Dom-
browski dictated intervention.
A more significant case on the
right to picket was Amalgamated
Food Employees v, Logan Valley
Plaza. The issue was whether
peaceful picketing of the busi-
ness enterprise located within
the shopping center could be en-
joined on the ground that it con-
stituted an invasion of the prop-
erty rights of the owners of the
land. The picketing was peace--
ful and non-obstructive. Mar-
shall, writing for five members
of Court cited the "company
town" case, Marsh v. Alabama, as
authority for the proposition that
in some circumstances private
property may be treated as
- though publicly held for the
purposes of exercise of First
Amendment rights. He conclud-
ed that because this shopping
center served as a community
business block and was freely
accessible to the public, the state
could not delegate the power to
use trespass laws wholly to ex-
clude members of the public
wishing to exercise their First
Amendment rights on the prem-
ises, Douglas concurred, but
Black dissented on the grounds
that picketing is conduct, rather
than speech, and therefore not
protected.
Obscenity
In Ginsberg v. New York the
Court upheld a criminal obscen-
ity statute which prohibited the -
sale to minors under 17 of ma-
terial defined as "obscene" on
the basis of its appeal to them,
whether or not it was similarly
"obscene" for adults. Brennan,
speaking for five members of the
Court, said that the power of -
the state to control the conduct
of children reached beyond the
scope of its authority over adults.
In light of the state's and par-
ents' interest in the well-being of
the youth, and of the fact that
"obscenity" is not constitution-
ally protected, the only require-
ment to sustain such a statute is
a finding that it was not irration-
al for the legislature to conclude
that exposure to the condemned
material would be .harmful to
minors. He then held that this
statute was not vague because
the New York Court of Appeals
had construed the definitions
there to be virtually identical to
the Supreme Court's most recent
statements of the elements of ob-
_ scenity. Douglas, joined by Black,
dissented on the grounds that
obscenity was not excluded from
the protection of the First
Amendment. Fortas dissented be-
cause the Court did not reach
the question of whether the par-
_ticular publication at issue was
obscene but only considered the
constitutionality of the stat-
ute on its face. The scope of this
decision is somewhat confused
by the companion case of Inter-
state Circuit Incorporated v. City
of Dallas. There Marshall, speak-
ing for six justices, declared a
city ordinance which provided
for classification of movies as
ously subverts,
suitable or non-suitable for chil-
dren under 16 void for vagueness.
Although the statute provided
for a speedy court test of the
administrative body's decision,
thus fulfilling one of the require-
ments of Freedman v. Maryland,
Brennan stated that the problem
of vagueness was not cured by
affording prompt de novo judici-
al review, because the vague
terms still encouraged erratic ad-
ministration. The vague defini-
tions of "not suitable'? were (1)
"describing or portraying brutal-
ity, criminal violence or deprav-
ity in such a manner as to be in
the judgment of the Board, like-
ly to incite or encourage crime or
delinquency on the part of young
persons" or (2) "describing or
portraying nudity beyond the
customary limits of candor in
the community, or sexual prom-
iscuity or extra-marital or abnor-
mal sexual relations in such a
manner as to be, in the judge-
ment of the Board, likely to in-
cite or encourage delinquency
or sexual promiscuity on the part
of young people or to appeal to
their prurient interest." Harlan
dissented here and concurred in
Ginsberg on the basis that the
whole matter of obscenity is pri-
marily one of state concern. He
would limit federal regulation
to hard-core pornography and not
interfere with state decisions ex-
cept where a state action was
clearly the product of "prudish
over-zealousness."
Draft-Card Burning
In United States v. O'Brien
the Court held constitutional a
1965 law forbidding knowing de-
struction or mutilation of a draft
card. O'Brien destroyed his card
as a protest to the Vietnam War.
Warren's opinion said that this
statute does not abridge free
speech on its face, since it only
regulates conduct, not speech. It
listed the purposes of requiring
possession of draft cards which
destruction or mutilation obvi-
and said that
there were no other alternative
means that would be as effective
for these purposes, Therefore,
since (1) the government. has a
substantial interest in assuring
continued availability of issued
draft cards; (2) the amendment
is an appropriately narrow
means of protecting this interest,
and only condemns the independ-
ent non-communicative impact
of the petitioner's conduct; and
(3) the non-communicative im-
pact of the petitioner's act frus-
trated the government's interest,
the conviction was justified
even if it punished indirectly
the "symbolic" speech of O'
Brien, Douglas, on the ground
that the case called for a ruling
on the constitutionality of per-
manent conscription in the ab-
sence of a declaration of war,
dissented.
Public Employees
Pickering v. Board of Educa-
tion involved a teacher who was
dismissed for sending a letter to
a local newspaper criticizing the
Board and the district superin-
tendent of schools. He was dis-
missed on the ground that the
letter was "detrimental to the
efficient operation and adminis-
tration of the schools of the dis-
trict." The Court held that the
statute was unconstitutional as
applied. Marshall `said that al-
though it was necessary to bal-
ance between First Amendment
protection and the need for or-
derly school administration,
there was no showing here of the
letters impeding the teacher's
performance of his daily duties
nor interfering with the regular
operation generally. Therefore,
the school board's interest in
limiting this type of communica-
tion was not significantly greater
than that of any member of the -
public, The standard that should
have been followed was that of
New York Times v. Sullivan,
which dictates that in order for
a communication about public
bodies or figures to be unpro-
tected by the First Amendment
there must be a showing of know-
ledge of the falsity of what is
said, or reckless disregard of the
truth or the falsity.
Absention
In Zwickler v. Koota, the doc-
trine of "abstention" by Federal
courts until state courts have
had a chance to rule on an al-
legedly unconstitutional law was
severely limited. Brennan, ex-
pressing the views of eight jus-
tices, said that if a state statute
is not fairly subject to an inter-
pretation which will avoid or
modify the federal constitutional
question involved, it is the duty
of the federal court to decide
that federal question when it
is presented, even if the statute
has never been interpreted by a
state court. He pointed out that
in a First Amendment case to
force a plaintiff to suffer the
delay of state court proceedings
for declaratory judgment might
have an impermissible chilling'
effect on First Amendment free-
dom, and concluded that it was
error on the part of the district
court to refuse to pass on the
-appellant's claim for a declara-
tory judgment.
FREE ASSOCIATION
In two cases this term the Su-
preme Court upheld freedom of
association as against considera-
tions of loyalty and national se-
curity. In the first, Whitehill v.
Elkins, the Court held that a
loyalty oath required by the
amined as to whether they can
set aside their scruples, obey
their oath as jurors, and, in a
proper case, impose the death
penalty. Stewart, speaking for
five, reasoned that a jury which
excluded such people fell short
of the impartiality to which the
petitioner was entitled by the
Sixth and the Fourteenth
Amendments, because it did not
represent the views of a cross-
section of the community. He
carefully pointed out what this
case does not say: It does not
mean that those who say that
their reservations regarding capi-
tal punishment would prevent
- an impartial decision on the
guilt of the accused, or that they
could never vote for the death
penalty and would refuse even
to consider its possibility, can-
not still be excluded for cause.
The opinion expressly reserved
the issue of: whether the exclu-
sion of scrupled jurors results
in an unrepresentative jury on
the issue of guilt or substantially
increases the risk of conviction,
because there was insufficient
evidence on the matter, Nonethe-
less, most of those now on Death
Row in the various states re-
taining the death penalty will be
entitled to new trials on the is-
sue of punishment.
United States v. Jackson de-
clared unconstitutional that part
of the federal kidnapping act
which created an offense punish-
Review of
Significant
U. S. Supreme
Court Decisions
1967-68
By BARBARA KASS
ACLU Summer Fellow 1968 - Third Year Student
Univ. of California Law School
Maryland Board of Regents for
teachers at the state university
was void for overbreadth, The
second case was United States v.
Robel, where. the issue was the
constitutionality of a section of
the Subversive Activities Con-
trol Act of 1950 providing that
when a "communist action' or-
ganization was under final order
to register it would be unlawful
for any member of that organi-
zation to engage in any employ-
ment in any defense facility, Ro-
bel was a Communist Party mem-
ber working in a shipyard. The
Supreme Court, in an opinion
by Warren, reasoned that the
means chosen by the government
here to reduce the threat of
sabotage and espionage cut deep-
ly into the right of freedom of
association and thus required that
statute be drawn very precisely
to affect only those likely to en-
gage in such conduct. Brennan
concurred on the grounds that
the statute was an unconstitution-
al delegation of legislative power
to the Secreary of Defense, who
was empowered to designate de-
fense facilities with no provision
for an administrative hearing or
subsequent judical review, White
and Harlan dissented.
CRIMINAL PROCEDURE
Jury Trial
Two major cases last term
were concerned with jury trial
in death penalty cases. In With-
erspoon v. Illinois, the Court
held that a man could not be
condemned to die by a jury chos-
en by excluding veniremen for
cause simply because they voiced
general objections to the death
penalty, or expressed conscien-
tious or religious scruples against
it. Potential jurors must be ex-
able by death only on the rec-
ommendation of the jury. In oth-
er words, if you waived a jury
trial you were guaranteed to es-
cape the death penalty. The
Court ruled this an impermissi-
ble burden on the exercise of
the constitutional right to a jury
trial.
In Duncan v. Louisiana, the
Court extended the right to a
jury trial in state courts to in-
clude all cases in which the de-
fendant would be entitled by the
Sixth Amendment to a jury trial
in federal court, The issue was
whether a jury trial was re-
quired for simple battery, a mis-
demeanor punishable by a maxi-
mum of two years' imprisonment
and $300 fine, White stated in
the majority opinion that the
states should use the criteria of
the federal courts to determine
which offenses rquired a jury
trial. This means that the petty
offenses which do not entitle one
to a jury trial are those punished
by a maximum of six months in
jail and a $500 fine. Black, joined
by Douglas, concurred on the
basis that the Fourteenth Amend-
ment required complete appli-
cation of the Bill of Rights to
the states. Harlan, joined by
Stewart, dissented on the ground
that a trial by jury in criminal
cases was not a requisite of fun-
damental fairness.
In Bloom v. Illinois, petitioner
had been convicted for crimin-
al contempt of court and sen-
tenced to jail for 24 months.
White reasoned that serious con-
tempt was so like other. serious
crimes that it should be sub-
ject to the jury trial provisions
of the Constitution. He said that
an even more compelling argu-
ment for a jury trial was the
need for protection against the
exercise of arbitrary official pow-
er in contempt cases. Respect of
judges and courts was not en-
titled to more consideration than
the interest; of the individual in
not being subject to serious
criminal punishment without the
benefit of the procedural protec-
tions that had been worked out
carefully over ihe years, How-
ever, he reaffirmed the principle
that the guarantees of the jury
trial did not apply to petty of-
fenses and stated that the pen-
alty actually imposed was the
best evidence of the seriousness
of the contempt offense. In a
companion case, Dyke v. Taylor
Implement Mfg. Co., Inc., the
petitioners had been convicted
of criminal contempt and given
a maximum sentence of ten days
in jail and a $50 fine. The Court
held that this was a petty of-
fense and that therefore there
was no federal constitutional
right to a jury trial.
Search and Seizure
In Terry v. Ohio, the Court,
though admitting that the pre-
valent police practice of `stop
and frisk'" was within the cov-
`erage of the Fourth Amend-
ment, held for the first time
that it could be justified in thy
absence of probable cause for an
arrest. In this case the afficer
saw men walking back and forth
in front of a store and believed
that they were "casing" it in or-
der to rob it tater, He stopped
them and found concealed wea-
pons on two of them in the
course of patting their outer
clothing, Warren, for eight jus-
tices, rejected the terminology
of "stop and frisk" and said that
the issue was whether the offi-
cer's action was justified in the
beginning and reasonable in
scope. Because there was no time
to get a warrant in this situation,
the police. conduct here is cov-
ered by the Fourth Amendment
clause that- prohibits unreason-
able searches and seizures, rather
than its warrant clause, Here it
was reasonable for the officer to
,investigate further the suspici-
ous conduct he had observed and,
in order to guarantee his own
safety, it was also reasonable
to conduct a limited search for
weapons, The search in these
circumstances must be limited
to the outer clothing, and the
officer must have reason to be-
lieve that he is dealing with an
armed and dangerous man. The
suspect's actions which cause the
officer to investigate further
must be such as to render the
police conduct "reasonable" by
objective criteria, Mere "good
faith" or a "hunch" is not suf-
ficient. Douglas dissented on the .
grounds that probable cause was
required for such a stop, In a
companion case, Sibron v. New
York, the Court held the seizure
of heroin unreasonable, since
the policeman had not limited
his search to one for weapons,
but rather reached directly into
`the suspect's pocket in order to
find the heroin. Future cases
in this area will turn on whether
the individual fact situations jus-
tified the officer's stopping of the
suspect for further investigation
in the absence of probable cause
for arrest,
In another case _ involving
search and seizure, Mancusi v.
De Forte, the Court held that a
union official could challenge a
warrantless search after the un-
ion's refusal to comply with a
subpoena requiring production
of documents for a union record.
Harlan's opinion said that it was
no longer required to have a
legitimate possession of the goods -
seized to object to a search and
seizure, but only to be legitimate-
ly on the premises and to have
the fruits of the search proposed
to be used against the person
objecting. He also said that it
did not matter that the union (c)
offical in this case shared an of-
fice with others.
To be concluded next month.
ACLU NEWS
OCTOBER, 1968
Page 3
Counsel for Indigents
Losers Must Pay
Attorney Fees
In San Mateo Co.
_ The Supreme Court of California was asked last month to
strike down a procedure in San Mateo County whereby con-
victed defendants in criminal cases are required to pay for
assigned counsel even though this counsel was assigned by
the court after a showing that the defendant was too poor to
hire his own lawyer. The pro-
cedure in San Mateo County is
that repayment of several hun-
dred dollars in counsel fees is
made a condition of probation
which the convicted defendant
must meet over a period of a
year while on probation. If he
fails to pay the money, proba-
tion can be revoked and he can
be sentenced on the original
charge.
Penalty for Exercising Right
ACLUNC attacks this proced-
ure on several grounds. First,
under the Sixth Amendment,
"the practice of requiring a con-
victed defendant to pay for the
County's cost in furnishing ap-
pointed counsel is nothing less
than a penalty charged to a per-
son guilty of a crime for his
exercise of a constitutional right.
The government has no right te
discourage the exercise of a con-
stitutional right or penalize ir
any manner its use, ACLUN_1946 ACLUN_1946.MODS ACLUN_1947 ACLUN_1947.MODS ACLUN_1948 ACLUN_1948.MODS ACLUN_1949 ACLUN_1949.MODS ACLUN_1950 ACLUN_1950.MODS ACLUN_1951 ACLUN_1951.MODS ACLUN_1952 ACLUN_1952.MODS ACLUN_1953 ACLUN_1953.MODS ACLUN_1954 ACLUN_1954.MODS ACLUN_1955 ACLUN_1955.MODS ACLUN_1956 ACLUN_1956.MODS ACLUN_1957 ACLUN_1957.MODS ACLUN_1958 ACLUN_1958.MODS ACLUN_1959 ACLUN_1959.MODS ACLUN_1960 ACLUN_1960.MODS ACLUN_1961 ACLUN_1961.MODS ACLUN_1962 ACLUN_1962.MODS ACLUN_1963 ACLUN_1963.MODS ACLUN_1964 ACLUN_1964.MODS ACLUN_1965 ACLUN_1965.MODS ACLUN_1966 ACLUN_1966.MODS ACLUN_1967 ACLUN_1967.MODS ACLUN_1968 ACLUN_1968.MODS ACLUN_1968.batch ACLUN_1969 ACLUN_1969.MODS ACLUN_1969.batch ACLUN_1970 ACLUN_1970.MODS ACLUN_1971 ACLUN_1971.MODS ACLUN_1972 ACLUN_1972.MODS ACLUN_1973 ACLUN_1973.MODS ACLUN_1974 ACLUN_1974.MODS ACLUN_1975 ACLUN_1975.MODS ACLUN_1976 ACLUN_1976.MODS ACLUN_1977 ACLUN_1977.MODS ACLUN_1978 ACLUN_1978.MODS ACLUN_1979 ACLUN_1979.MODS ACLUN_1980 ACLUN_1980.MODS ACLUN_1981 ACLUN_1981.MODS ACLUN_1982 ACLUN_1982.MODS ACLUN_1983 ACLUN_1983.MODS ACLUN_1984 ACLUN_1984.MODS ACLUN_1985 ACLUN_1985.MODS ACLUN_1986 ACLUN_1986.MODS ACLUN_1987 ACLUN_1987.MODS ACLUN_1988 ACLUN_1988.MODS ACLUN_1989 ACLUN_1989.MODS ACLUN_1990 ACLUN_1990.MODS ACLUN_1991 ACLUN_1991.MODS ACLUN_1992 ACLUN_1992.MODS ACLUN_1993 ACLUN_1993.MODS ACLUN_1994 ACLUN_1994.MODS ACLUN_1995 ACLUN_1995.MODS ACLUN_1996 ACLUN_1996.MODS ACLUN_1997 ACLUN_1997.MODS ACLUN_1998 ACLUN_1998.MODS ACLUN_1999 ACLUN_1999.MODS ACLUN_ladd ACLUN_ladd.MODS ACLUN_ladd.bags ACLUN_ladd.batch add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log ACLUN_1946 ACLUN_1946.MODS ACLUN_1947 ACLUN_1947.MODS ACLUN_1948 ACLUN_1948.MODS ACLUN_1949 ACLUN_1949.MODS ACLUN_1950 ACLUN_1950.MODS ACLUN_1951 ACLUN_1951.MODS ACLUN_1952 ACLUN_1952.MODS ACLUN_1953 ACLUN_1953.MODS ACLUN_1954 ACLUN_1954.MODS ACLUN_1955 ACLUN_1955.MODS ACLUN_1956 ACLUN_1956.MODS ACLUN_1957 ACLUN_1957.MODS ACLUN_1958 ACLUN_1958.MODS ACLUN_1959 ACLUN_1959.MODS ACLUN_1960 ACLUN_1960.MODS ACLUN_1961 ACLUN_1961.MODS ACLUN_1962 ACLUN_1962.MODS ACLUN_1963 ACLUN_1963.MODS ACLUN_1964 ACLUN_1964.MODS ACLUN_1965 ACLUN_1965.MODS ACLUN_1966 ACLUN_1966.MODS ACLUN_1967 ACLUN_1967.MODS ACLUN_1968 ACLUN_1968.MODS ACLUN_1968.batch ACLUN_1969 ACLUN_1969.MODS ACLUN_1969.batch ACLUN_1970 ACLUN_1970.MODS ACLUN_1971 ACLUN_1971.MODS ACLUN_1972 ACLUN_1972.MODS ACLUN_1973 ACLUN_1973.MODS ACLUN_1974 ACLUN_1974.MODS ACLUN_1975 ACLUN_1975.MODS ACLUN_1976 ACLUN_1976.MODS ACLUN_1977 ACLUN_1977.MODS ACLUN_1978 ACLUN_1978.MODS ACLUN_1979 ACLUN_1979.MODS ACLUN_1980 ACLUN_1980.MODS ACLUN_1981 ACLUN_1981.MODS ACLUN_1982 ACLUN_1982.MODS ACLUN_1983 ACLUN_1983.MODS ACLUN_1984 ACLUN_1984.MODS ACLUN_1985 ACLUN_1985.MODS ACLUN_1986 ACLUN_1986.MODS ACLUN_1987 ACLUN_1987.MODS ACLUN_1988 ACLUN_1988.MODS ACLUN_1989 ACLUN_1989.MODS ACLUN_1990 ACLUN_1990.MODS ACLUN_1991 ACLUN_1991.MODS ACLUN_1992 ACLUN_1992.MODS ACLUN_1993 ACLUN_1993.MODS ACLUN_1994 ACLUN_1994.MODS ACLUN_1995 ACLUN_1995.MODS ACLUN_1996 ACLUN_1996.MODS ACLUN_1997 ACLUN_1997.MODS ACLUN_1998 ACLUN_1998.MODS ACLUN_1999 ACLUN_1999.MODS ACLUN_ladd ACLUN_ladd.MODS ACLUN_ladd.bags ACLUN_ladd.batch add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log ACLUN_1946 ACLUN_1946.MODS ACLUN_1947 ACLUN_1947.MODS ACLUN_1948 ACLUN_1948.MODS ACLUN_1949 ACLUN_1949.MODS ACLUN_1950 ACLUN_1950.MODS ACLUN_1951 ACLUN_1951.MODS ACLUN_1952 ACLUN_1952.MODS ACLUN_1953 ACLUN_1953.MODS ACLUN_1954 ACLUN_1954.MODS ACLUN_1955 ACLUN_1955.MODS ACLUN_1956 ACLUN_1956.MODS ACLUN_1957 ACLUN_1957.MODS ACLUN_1958 ACLUN_1958.MODS ACLUN_1959 ACLUN_1959.MODS ACLUN_1960 ACLUN_1960.MODS ACLUN_1961 ACLUN_1961.MODS ACLUN_1962 ACLUN_1962.MODS ACLUN_1963 ACLUN_1963.MODS ACLUN_1964 ACLUN_1964.MODS ACLUN_1965 ACLUN_1965.MODS ACLUN_1966 ACLUN_1966.MODS ACLUN_1967 ACLUN_1967.MODS ACLUN_1968 ACLUN_1968.MODS ACLUN_1968.batch ACLUN_1969 ACLUN_1969.MODS ACLUN_1969.batch ACLUN_1970 ACLUN_1970.MODS ACLUN_1971 ACLUN_1971.MODS ACLUN_1972 ACLUN_1972.MODS ACLUN_1973 ACLUN_1973.MODS ACLUN_1974 ACLUN_1974.MODS ACLUN_1975 ACLUN_1975.MODS ACLUN_1976 ACLUN_1976.MODS ACLUN_1977 ACLUN_1977.MODS ACLUN_1978 ACLUN_1978.MODS ACLUN_1979 ACLUN_1979.MODS ACLUN_1980 ACLUN_1980.MODS ACLUN_1981 ACLUN_1981.MODS ACLUN_1982 ACLUN_1982.MODS ACLUN_1983 ACLUN_1983.MODS ACLUN_1984 ACLUN_1984.MODS ACLUN_1985 ACLUN_1985.MODS ACLUN_1986 ACLUN_1986.MODS ACLUN_1987 ACLUN_1987.MODS ACLUN_1988 ACLUN_1988.MODS ACLUN_1989 ACLUN_1989.MODS ACLUN_1990 ACLUN_1990.MODS ACLUN_1991 ACLUN_1991.MODS ACLUN_1992 ACLUN_1992.MODS ACLUN_1993 ACLUN_1993.MODS ACLUN_1994 ACLUN_1994.MODS ACLUN_1995 ACLUN_1995.MODS ACLUN_1996 ACLUN_1996.MODS ACLUN_1997 ACLUN_1997.MODS ACLUN_1998 ACLUN_1998.MODS ACLUN_1999 ACLUN_1999.MODS ACLUN_ladd ACLUN_ladd.MODS ACLUN_ladd.bags ACLUN_ladd.batch add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log A
substantial number of persons
charged with crimes will wish
. to avoid the additional penalty
of payment of counsel and will
refuse appointment of counsel,
even though indigent, because of
this consideration. ACLUN_1946 ACLUN_1946.MODS ACLUN_1947 ACLUN_1947.MODS ACLUN_1948 ACLUN_1948.MODS ACLUN_1949 ACLUN_1949.MODS ACLUN_1950 ACLUN_1950.MODS ACLUN_1951 ACLUN_1951.MODS ACLUN_1952 ACLUN_1952.MODS ACLUN_1953 ACLUN_1953.MODS ACLUN_1954 ACLUN_1954.MODS ACLUN_1955 ACLUN_1955.MODS ACLUN_1956 ACLUN_1956.MODS ACLUN_1957 ACLUN_1957.MODS ACLUN_1958 ACLUN_1958.MODS ACLUN_1959 ACLUN_1959.MODS ACLUN_1960 ACLUN_1960.MODS ACLUN_1961 ACLUN_1961.MODS ACLUN_1962 ACLUN_1962.MODS ACLUN_1963 ACLUN_1963.MODS ACLUN_1964 ACLUN_1964.MODS ACLUN_1965 ACLUN_1965.MODS ACLUN_1966 ACLUN_1966.MODS ACLUN_1967 ACLUN_1967.MODS ACLUN_1968 ACLUN_1968.MODS ACLUN_1968.batch ACLUN_1969 ACLUN_1969.MODS ACLUN_1969.batch ACLUN_1970 ACLUN_1970.MODS ACLUN_1971 ACLUN_1971.MODS ACLUN_1972 ACLUN_1972.MODS ACLUN_1973 ACLUN_1973.MODS ACLUN_1974 ACLUN_1974.MODS ACLUN_1975 ACLUN_1975.MODS ACLUN_1976 ACLUN_1976.MODS ACLUN_1977 ACLUN_1977.MODS ACLUN_1978 ACLUN_1978.MODS ACLUN_1979 ACLUN_1979.MODS ACLUN_1980 ACLUN_1980.MODS ACLUN_1981 ACLUN_1981.MODS ACLUN_1982 ACLUN_1982.MODS ACLUN_1983 ACLUN_1983.MODS ACLUN_1984 ACLUN_1984.MODS ACLUN_1985 ACLUN_1985.MODS ACLUN_1986 ACLUN_1986.MODS ACLUN_1987 ACLUN_1987.MODS ACLUN_1988 ACLUN_1988.MODS ACLUN_1989 ACLUN_1989.MODS ACLUN_1990 ACLUN_1990.MODS ACLUN_1991 ACLUN_1991.MODS ACLUN_1992 ACLUN_1992.MODS ACLUN_1993 ACLUN_1993.MODS ACLUN_1994 ACLUN_1994.MODS ACLUN_1995 ACLUN_1995.MODS ACLUN_1996 ACLUN_1996.MODS ACLUN_1997 ACLUN_1997.MODS ACLUN_1998 ACLUN_1998.MODS ACLUN_1999 ACLUN_1999.MODS ACLUN_ladd ACLUN_ladd.MODS ACLUN_ladd.bags ACLUN_ladd.batch add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log ACLUN_1946 ACLUN_1946.MODS ACLUN_1947 ACLUN_1947.MODS ACLUN_1948 ACLUN_1948.MODS ACLUN_1949 ACLUN_1949.MODS ACLUN_1950 ACLUN_1950.MODS ACLUN_1951 ACLUN_1951.MODS ACLUN_1952 ACLUN_1952.MODS ACLUN_1953 ACLUN_1953.MODS ACLUN_1954 ACLUN_1954.MODS ACLUN_1955 ACLUN_1955.MODS ACLUN_1956 ACLUN_1956.MODS ACLUN_1957 ACLUN_1957.MODS ACLUN_1958 ACLUN_1958.MODS ACLUN_1959 ACLUN_1959.MODS ACLUN_1960 ACLUN_1960.MODS ACLUN_1961 ACLUN_1961.MODS ACLUN_1962 ACLUN_1962.MODS ACLUN_1963 ACLUN_1963.MODS ACLUN_1964 ACLUN_1964.MODS ACLUN_1965 ACLUN_1965.MODS ACLUN_1966 ACLUN_1966.MODS ACLUN_1967 ACLUN_1967.MODS ACLUN_1968 ACLUN_1968.MODS ACLUN_1968.batch ACLUN_1969 ACLUN_1969.MODS ACLUN_1969.batch ACLUN_1970 ACLUN_1970.MODS ACLUN_1971 ACLUN_1971.MODS ACLUN_1972 ACLUN_1972.MODS ACLUN_1973 ACLUN_1973.MODS ACLUN_1974 ACLUN_1974.MODS ACLUN_1975 ACLUN_1975.MODS ACLUN_1976 ACLUN_1976.MODS ACLUN_1977 ACLUN_1977.MODS ACLUN_1978 ACLUN_1978.MODS ACLUN_1979 ACLUN_1979.MODS ACLUN_1980 ACLUN_1980.MODS ACLUN_1981 ACLUN_1981.MODS ACLUN_1982 ACLUN_1982.MODS ACLUN_1983 ACLUN_1983.MODS ACLUN_1984 ACLUN_1984.MODS ACLUN_1985 ACLUN_1985.MODS ACLUN_1986 ACLUN_1986.MODS ACLUN_1987 ACLUN_1987.MODS ACLUN_1988 ACLUN_1988.MODS ACLUN_1989 ACLUN_1989.MODS ACLUN_1990 ACLUN_1990.MODS ACLUN_1991 ACLUN_1991.MODS ACLUN_1992 ACLUN_1992.MODS ACLUN_1993 ACLUN_1993.MODS ACLUN_1994 ACLUN_1994.MODS ACLUN_1995 ACLUN_1995.MODS ACLUN_1996 ACLUN_1996.MODS ACLUN_1997 ACLUN_1997.MODS ACLUN_1998 ACLUN_1998.MODS ACLUN_1999 ACLUN_1999.MODS ACLUN_ladd ACLUN_ladd.MODS ACLUN_ladd.bags ACLUN_ladd.batch add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log ACLUN_1946 ACLUN_1946.MODS ACLUN_1947 ACLUN_1947.MODS ACLUN_1948 ACLUN_1948.MODS ACLUN_1949 ACLUN_1949.MODS ACLUN_1950 ACLUN_1950.MODS ACLUN_1951 ACLUN_1951.MODS ACLUN_1952 ACLUN_1952.MODS ACLUN_1953 ACLUN_1953.MODS ACLUN_1954 ACLUN_1954.MODS ACLUN_1955 ACLUN_1955.MODS ACLUN_1956 ACLUN_1956.MODS ACLUN_1957 ACLUN_1957.MODS ACLUN_1958 ACLUN_1958.MODS ACLUN_1959 ACLUN_1959.MODS ACLUN_1960 ACLUN_1960.MODS ACLUN_1961 ACLUN_1961.MODS ACLUN_1962 ACLUN_1962.MODS ACLUN_1963 ACLUN_1963.MODS ACLUN_1964 ACLUN_1964.MODS ACLUN_1965 ACLUN_1965.MODS ACLUN_1966 ACLUN_1966.MODS ACLUN_1967 ACLUN_1967.MODS ACLUN_1968 ACLUN_1968.MODS ACLUN_1968.batch ACLUN_1969 ACLUN_1969.MODS ACLUN_1969.batch ACLUN_1970 ACLUN_1970.MODS ACLUN_1971 ACLUN_1971.MODS ACLUN_1972 ACLUN_1972.MODS ACLUN_1973 ACLUN_1973.MODS ACLUN_1974 ACLUN_1974.MODS ACLUN_1975 ACLUN_1975.MODS ACLUN_1976 ACLUN_1976.MODS ACLUN_1977 ACLUN_1977.MODS ACLUN_1978 ACLUN_1978.MODS ACLUN_1979 ACLUN_1979.MODS ACLUN_1980 ACLUN_1980.MODS ACLUN_1981 ACLUN_1981.MODS ACLUN_1982 ACLUN_1982.MODS ACLUN_1983 ACLUN_1983.MODS ACLUN_1984 ACLUN_1984.MODS ACLUN_1985 ACLUN_1985.MODS ACLUN_1986 ACLUN_1986.MODS ACLUN_1987 ACLUN_1987.MODS ACLUN_1988 ACLUN_1988.MODS ACLUN_1989 ACLUN_1989.MODS ACLUN_1990 ACLUN_1990.MODS ACLUN_1991 ACLUN_1991.MODS ACLUN_1992 ACLUN_1992.MODS ACLUN_1993 ACLUN_1993.MODS ACLUN_1994 ACLUN_1994.MODS ACLUN_1995 ACLUN_1995.MODS ACLUN_1996 ACLUN_1996.MODS ACLUN_1997 ACLUN_1997.MODS ACLUN_1998 ACLUN_1998.MODS ACLUN_1999 ACLUN_1999.MODS ACLUN_ladd ACLUN_ladd.MODS ACLUN_ladd.bags ACLUN_ladd.batch add-tei.sh create-bags.sh create-manuscript-bags.sh create-manuscript-batch.sh fits.log In sum,
we are trifling with basic con-
stitutional rights in a demeaning
struggle to squeeze an infinitesi-
mal (relative to government ex-
penditures) amount of money
from an impoverished group of
our citizens. Just as initial ap-
pointment of counsel cannot be
conditioned on payment, pay-
ment may not be exacted at a
condition of withholding a jail
sentence."
Condition of Probation
These quotes are taken from
a petition for writ of habeas cor-
Pus filed in the California Su-
preme Court on September 24
in behalf of Jenifer Grey Allen.
who has been required to pay a
sum of money for her court-ap-
pointed attorney as a condition
of her probation. Miss Allen
had been going to college, but
now having the obligation to pay
a large sum of money, has been
required to go to work in order
to earn this money and avoid
jail. Even if we concede that
Miss Allen did receive valuable
services from the County and
could be required to be gain-
fully employed as a condition of
her probation, there is no get-
ting away from the argument
that many persons will seek to
avoid this extra expense by de-
clining an appointment of coun-
sel which will, in turn, defeat
the purpose of the Sixth Amend-
ment,
No Standards
Miss Allen also argues that the
procedures in San Mateo County
are applied haphazardly and
without any standards. There is
no way of telling which defend-
ants will be required to pay for
court-appointed counsel and
which will not and there is no
telling on what basis a particu-
lar judge makes such an order.
Next, the habeas corpus ap-
plication points out that in coun-
ties where there is a public de-
fender there is a requirement
that he shall defend "without
expense to the defendant' (Gov-
ernment Code Sec. 27706(a).
Thus a defendant in a county
with a public defender is guar-
anteed not to have to pay for as-
signed counsel, whereas counties
without a public defender may
require such payment. There is
no rational basis for such a dis-
crimination.
No: Precedent
The Supreme Court has dis-
cretion to turn down Miss AI-
len's application without reason,
as has already been done by the
Court of Appeal, but ACLU is
hoping that an order to show
cause will issue on the matter
so that the legal question can
be settled in California. There is
no court decision anywhere in
the nation approving of such a
reimbursement requirement for
court-appointed counsel.
Growing Academic
Freedom Crisis at U.C.
The Regents of the Univ. of California last month limited
guest lecturers to one appearance a quarter in courses for
university credit unless they hold appointments as. instruc-
tors. Moreover, the Academic Senate is required to formulate
"a set of explicit academic standards for the planning, staff-
ing, conduct and evaluation of
experimental courses" and re-
port by January, 1969.
Interference With Courses
Also, the press reports that
on the recommendation of Presi-
dent Charles Hitch, the Regents
voted to require the Academic
Senate to study how it might
share its responsibility for initi-
ating courses and curricula with
the chancellors and president
of the university, In the last
analysis, this would enable the
Regents to determine the con-
tent of courses at the university,
even though it is a faculty func-
tion. In consequence, the Uni-
versity is faced with its gravest
academic freedom crisis since
the loyalty oath controversy.
Cleaver Case Statement.
Following is the ACLUNC
statement submitted to the Re-
gents Los Angeles meeting with
respect to the problems arising
ACLU NEWS
OCTOBER, 1968
Page 4
out of the Eldrige Cleaver issue:
The American Civil Liberties
Union of Northern California
calls attention to the fact that.
protest to the proposed use of
Eldrige Cleaver to give some
lectures in a class at Berkeley
raises important questions of
academic freedom.
One Point of View
It is our understanding that
Mr. Cleaver, an articulate, mili-
tant spokesman for black revo-
lution, was merely asked to give
a few -lectures. He would thus
bring to a class studying social
change the representation of one
special point of view. Other
points of view, we understand,
would also be studied. Clearly,
Mr. Cleaver is an expert in his
field and clearly the position he
represents is one we all need to
know more about. It is essential
that students at the University
be confronted with various
points of view and it is equally
important for the welfare of a
ACLUNC Annual
Dues Raised
From $8 to $10
The ACLUNC board of direc-
tors last month voted to raise
the so-called "Annual" dues
from $8 to $10. At the same
time, the price of a subscription
to the ACLU News has been
raised from $2 to $2.50 per year.
The student membership con-
tinues at $3 and the "Mr. and
Mrs." or "Family" membership
at $15 per year.
In raising the dues, the branch
followed the example of the na-
tional office which raised its so-
called "Basic" dues from $6 to
$10 per year. Faced with a
$250,000 deficit this year, the na-
tional office hopes to solve some
of its financial problems with
an increase in dues.
The ACLUNC also has finan-
cial problems but they are not
quite as serious as those of the
national office. This year's defi-
cit in the Operating Fund which
was expected to be in the neigh-
borhood of $17,000 may end up
at $12,000 It results from the
legislative program which was
undertaken before money was on
hand to pay for it.
The local increase in dues
should result in a $5,000 increase
in Operating Income. If member-
ship growth continues, the defi-
cit in the coming fiscal year,
beginning November 1, should
be held to about $7,000. Of
course, there are always pres-
sures for new programs. If new
programs are undertaken it is
hoped that they will be funded
separately.
"The Trial of
Eliz. Gurley
Flynn by ACLU'
The transcript of the proceed-
ings before the national ACLU
board on May 7, 1940 in which
Elizabeth Gurley Flynn was oust-
ed as a member of that body by
a vote of 10 to 9 has been pub-
lished as a book entitled "The
Trial of Elizabeth Gurley Flynn
by the American Civil Liberties
Union." The book was edited by
Corliss Lamont, one of the nine
dissenters, and he has also writ-
ten an introduction.
Miss Flynn was charged with
membership in the Communist
Party and in two other charges
with making derogatory state-
ments about the ACLU board
and its members in the New
Masses and the Daily Worker.
The action against Miss Flynn
was based on the ACLU's "loy-
alty test" of February 5, 1940,
which ACLUNC strongly op-
posed.
That resolution was replaced
by two new statements in May,
1968. Mr. Lamont doesn't think
these statements are a great im-
provement over the "loyalty test"
since they require directors and
staff not only to be "unequivo-
cally committed to the object
of this Union" but also "to the
concept of democratic govern-
ment and civil liberties for all
people." Mr. Lamont interprets
"all people" to mean "all people
throughout the world." This, he
says, brings the ACLU "back to
the 1940 Resolution and enable
it, for instance, to bar as officers
those who give moral support
to some foreign state, perhaps
one recently freed from colonial-
ism, that considers certain non-
democratic controls justified."
democratic society to have po-
litical militants, of whatever col-
or or politics, confronted by the
tough, demanding questions of
our University students.
Freedom of Inquiry
Therefore the American Civil
Liberties Union of Northern
California urges the Regents of
the University of California to
stand firmly by the traditional
position of academic freedom
and re-assert that only a Univer-
sity allowed to be free to face
facts can remain truly a Uni-
versity.
Dictatorial Power
ACLU Challenge
Ends Berk's State
Of Emergency
Labor Day weekend in the City of Berkeley was, accord-
ing to City Manager Hanley, a "public calamity." Whatever
the characterization, a number of unfortunate incidents oc-
curred in Berkeley during the holiday
period. On Friday
night, after the conclusion of a lawful public assembly on
Telegraph Avenue, a group of
vandals broke some windows and,
when police officers arrived, a
policeman was shot in the leg.
On Sunday another peaceable
Assembly on Telegraph was in-
terrupted by an explosion in a
building two blocks away. Origi-
nally thought to be the result of
a bomb, the explosion may have
been caused by a gas main or
some other non-malicious source.
Dictatorial Power
Hanley's conclusion that Berke.
ley was the victim of "public
calamity" may have been poeti-
cally accurate but it was legally
disastrous. Hanley, under the
rubric of "public calamity," in-
voked a civil disaster ordinance,
which, he maintained, gave him
the power to pass "Rules and
Regulations" that made Prague
look like Hyde Park.
Legal Effort
To Stop Punitive
Induction Fails
ACLUNC's record in keeping
punitively-reclassified draft eligi-
bles free from threat of crimi-
nal punishment was shattered
last month when Federal Dis-
trict Judge Alfonso J. Zirpoli
refused to issue a preliminary in-
junction preventing the induc-
tion of Joel M. Kugelmass into
the armed services. Kugelmass is
a student at Brandeis University
and had been reclassified from
2S to 1-A because he returned
`his draft card to his local board
as a protest to the war in Viet-
nam.
Student Classification
Unfortunately, in a letter ac-
companying his draft card, he
stated that he did not want a
student classification or any oth-
er classification, nevertheless,
ACLU counsel were able to ob-
tain restraining orders prevent-
ing the Selective Service System
from ordering Kugelmass to re-
port for induction for a period
of approximately five months.
Previous Ruling
Judge Zirpoli based his denial
on the fact that the Ninth Cir-
cuit Court of Appeals several
years ago decided a case wherein
they held that there was no il-
legality in punitively reclassify-
ing a registrant who turned in
his draft card in violation of Se-
lective Service regulations re-
quiring a registrant to carry a
draft card. ACLU staff counsel
Marshall Krause argued that this
same question is now before the
United States Supreme Court in
the case of David Oestereich v.
Selective Service System and
would be argued this fall. Judge
_Zirpoli nevertheless felt bound
to follow the previous decision.
Civil Trial Scheduled
- After the denial of the pre-
liminary injunction Mr. Kugel-
mass was faced with the prob-
lem of whether or not he was
to report for induction. Since he ~
had a number of technical defen-
ses to the validity of the induc-
tion order in addition to the bas-
ic defense that the punitive sys-
tem is unconstitutional, Kugel-
mass decided not to report for
induction and to test the validity
of the induction order in court.
A civil trial on this matter is now
scheduled for November 18 and
will precede any criminal trial
arising out of the failure to re-
port for induction.
Meetings Banned
Hanley's Rules, ratified by the
City Council at its Tuesday meet-
ing, made all meetings in public
places throughout Berkeley ille-
gal and prohibited anyone from
"loitering" in Berkeley from
8:00 p.m. to 6:00 a.m. Literally
read, the Rules prohibited the
City Council from meeting, made
attendance at churches unlawful,
proscribed labor picketing and
made it dangerous to wait for a
bus, The Rules were selectively
enforced and the City Council
was permitted to meet, people
worshipped unmolested and, un-
less selling the Berkeley Barb,
it was fairly safe to stand on
Streets outside the Telegraph
area. -
Chapter Project
The legal challenge to the
Rules and Regulations and the
ordinance which Hanley main-
tained gave him the power to
promulgate such rules was hhan-
dled primarily by ACLUNC's
Berkeley-Albany chapter. They
sought an order restraining the
enforcement of the rules from
Federal Judge Burke on Friday,
September 6. Unfortunately, the
volunteer attorneys, Lee Cake
and Larry Duga of Berkeley,
were unfamiliar with Federal
procedures and their original
complaint did not properly 4l-
lege jurisdiction by the Feder-
al Court. Judge Burke gave them
until Monday to submit an
amended complaint and _ set
Wednesday as the date for hear
ing the legal arguments. Cake
and Duga, with the assistance of
Paul Halvonik, spent the week-
end redrafting the complaint.
The amended complaint was
filed on Monday. On Tuesday,
the day before the federal hear-
ing, Berkeley decided the ca-_
lamity was over and rescinded its
repressive rules. The federal
hearing, therefore, was called off.
STATEMENT OF OWNERSHIP,
MANAGEMENT AND CIRCULATION
Date of filing: Sept. 21, 1968.
Title of publication: AMERICAN
CIVIL LIBERTIES UNION NEWS.
Frequency of issue: Monthly,
_ Location of known office of publi-
cation: 503 Market St., San Francisco,
Calif. 94105.
Location of the offices of the pub-
lisher: 503 Market St., San Francisco,
Calif. 94105.
Name and address of publisher:
American Civil Liberties Union of No.
Calif., Inc., 5083 Market St., San Fran-
cisco, CA 94105.
Name and address of editor: Ernest
`Besig, 503 Market St., San Francisco,
CA, 19105.
Managing editor: None.
Owner (If owned by a corporation,
its name and address must be stated
and also immediately thereunder the
names and addresses of stockholders
owning or holding 1 percent or more
of total amount of stock): American
Civil Liberties Union of Northern
California, Inc., 503 Market St., San
Francisco, CA 94105. aS
Stockholders: None.
Known bondholders, mortgagees,
and other security holders: None.
Extent and nature of circulation:
Average No. copies each issue .
during preceding 12 months:
Total No. coupies printed ....11,350
Paid circulation:
Sales through dealers and
Canriers,: Cts ee -_
Mail subscriptions ...............-.
Total paid circulation .
Free distribution: ........
Total distribution ........... te
Office use, left-over, etc. .... 800
TROUT ATS ices Ss en S850)
Actual number of copies of single
iene published nearest to filing
date:
Total No. copies printed ....10,200
Paid circulation:
Sales through dealers and
carriers, etc, ........ a
Mail subscriptions .
Total paid circulatio
Free distribution sae
Total distribution =. 2. .....= 9,608
Office use, left-over, etc. ... 592
10,200
I certify that the statements made
by me are correct and complete:
ERNEST BESIG,
Editor