vol. 35, no. 4

American

Civil Liberties

Union

Volume XXXV

SAN FRANCISCO, APRIL, 1970

50th Anniversary

Edward J. Ennis'

Speaks at May 11

Annual Meeting

Edward J. Ennis, national chairman of the board of the

American Civil Liberties Union, will be the main speaker

at the annual membership meeting and fiftieth anniversary

celebration of the organization to be held at the First Uni-

tarian Church, 1187 Franklin St., San Francisco, Monday

evening, May 11, at 8 o'clock.

Buffet Dinner

At 6:30 o'clock, preceding the

meeting, a buffet will be served

by a distinguished San Francisco

eaterer, for which tickets are

$10 per person. Please send your

reservations and check to the of-

fice (503 Market St. San Fran-

-cisco) NOW. While a reserva-

tion form appears elsewhere on

this page, it need not be used.

A check, properly identified, and

- specifying the number of reser-

vations desired, is sufficient.

Please enclose a return envelope.

No Admission Charge

The 8 o'clock general meeting

will be held in the Sanctuary of

the Church and no admission

will be charged. Refreshments

will be served after the meeting.

The public is invited.

Many High Court Appearances

Mr, Ennis, a New York lawyer,

succeeded Ernest Angell as AC-

LU chairman a year ago. As

ACLU gereral counsel since 1955

and Due Process Committee

chairman since 1964, he partici-

pated in many of the test cases

that shaped the course of the

Warren Court. In 1959, he ar-

gued United States v. Barenblatt,

in which the Supreme Court set

forth its basic positions on the

powers of Congressional commit-

tees against rights of witnesses

under the First Amendment.

Three years ago he argued Af.-

royim v. Rusk, which held that

the federal government could

not revoke United States citizen-

ship for voting in a foreign elec-

tion. More recently, he has par-

ticipated in Supreme Court tests

of foreign travel bans and film

and book censorship laws,

Served With Justice Dept,

From 1931-1946 Mr. Ennis

served with the U.S. Department

of Justice in various positions,

including Office of Solicitor Gen-

eral; Assistant U.S. Attorney

Southern District of New York;

General Counsel of the Immigra-

tion and Naturalization Service;

and during World War II Direc-

tor of Alien Enemy Control. He

has been Chairman of the Board

of Directors of the American

Immigration and _ Citizenship

Conference from 1957 until the

present time,

Mr. Ennis was born December

4, 1907. He holds a B.S. degree,

1929, from Seton Hall College,

and received his LL.B. from Co-

lumbia University in 1932.

EDWARD J. ENNIS

Love Book

Conviction

Affirmed

The Appellate Department of

the San Francisco Superior

Court has affirmed the 1967 ob-

scenity conviction of three book

store clerks who sold copies of

Lenore Kandel's poem `The

Love Book" to police officers,

Appeal Grounds

On appeal staff counsel Paul

Halvonik urged reversal on thir-

teen different grounds. Among

the errors assigned was the

trial court's ruling that testi-

mony about "The Love Book's"

effect on children was admiss-

able evidence, a ruling permit-

ting witnesses to testify that the

poem was "sacreligious" and the

trial judge's unique interpreta-

tion of the law which required

that the poem have social impor-

tance for the "average person"

rather than, as the code requires,

be utterly without redeeming so-

cial importance.

No Opinion

The Appellate Department

dealt with none of the assigned

errors and issued no opinion; it

simply entered an order stating

that there had been no errors

"prejudicial" to the appellants

at their trial. :

Halvonik has filed a motion

requesting the Superior Court

to certify the case to the State

Court of Appeal,

ACLU 50th Anniversary

Buffet Dinner Reservation

To: ACLU

503 Market St.,

San Francisco, Ca. 94105

Enclosed please find my check in the sum of $

to cover

--__________ reservations for the 6:30 P.M. buffet dinner to be held by

the A.C.L.U. at the First Unitarian Church, 1187 Franklin St., San Francisco,

Monday evening, May 11. A return envelope is enclosed for my dinner

tickets.

Name

Address.

Matching

Contributions

Concerned with the ACLU-

NC's current financial prob-

lems, Richard De Lancie,

former branch board member,

contributed shares of stock

worth about $2500, Mindful

that the branch still antici-

pates a deficit of $7,500 during

the fiscal year ending October

31, Mr. De Lancie has gen-

erously offered to give addi-

tional funds on a matching

basis, if the matching contribu.

tions would not otherwise

have been contributed.

We hope that there are

| some members of the branch

who are willing to accept Mr.

De Lancie's offer. If so, please

contact Ernest Besig, ACLU

executive director, at the of-

fice (433-2750).

Counsel Issue

Turned Down by

Supreme Court

Paul Edward Anderson, con-

victed of forgery by the Califor-

nia courts, unsuccessfully sought

habeas corpus in a federal dis-

trict court. On appeal to the

Ninth Circuit Court of Appeals

his court-appointed counsel with-

drew, stating in a letter to the

court that the case was without

merit, The court refused to ap-

point other counsel.

_ The Supreme Court had earlier

ruled that state courts could not,

consistent with the Sixth Amend-

ment's right to counsel, permit

such a withdrawal without af-

fording the indigent appellant

carefully detailed procedual

rights designed to ensure that

the attorney withdrawing was

justified. ACLUNC petitioned to

the U.S, Supreme Court, assert-

ing that a federal appellant

should be entitled to the same

procedural implementations of

the right to counsel] as a state

appellant. The high court, appar-

ently disagreeing, last month de-

nied the petition without com-

ment,

Teaching cent Credentials

State of Emergency

People's Park

~* Regulations

Under Attack

During the People's Park disturbance in Berkeley last

spring Governor Ronald Reagan, acting pursuant to a state

of emergency he had proclaimed three months earlier, issued

regulations banning "loitering" between 10 p.m. and 6 a.m.

in Berkeley and prohibiting any public assemblies in Berkeley.

First Test Suit

ACLUNC attempted to test the

validity of the Governor's regu-

lations by bringing a federal] civil

rights suit enjoining their en-

forcement. The suit requested an

immediate order temporarily re-

straining enforcement of the reg-

ulations and a permanent injunc-

tion after full hearing on the

merits.

Show Cause Order Mooted

The request for a temporary

restraining order was heard by

Federal District Judge Robert

Peckham, Judge Peckham ob-

served that he thought the regu-

lations presented "grave consti-

tutional questions" but declined,

because of the magnitude of the

case, to issue a temporary re-

straining order. He did, however,

issue an order requiring the state

to show cause why the regula-

tions should not be declared un-

constitutional.

The hearing was set for May

26 and on May 25 the Governor

rescinded his regulations. The

state then argued the case was

moot.

Second "Emergency"

In October of 1968, during an-

other "emergency" in Berkeley,

almost identical regulations had

been adopted by the Berkeley

City Manager. They too had been

challenged in federal court, they

too had been rescinded on the

day before the hearing on the.

order te show esuse. The Octo-

ber suit had been pursued no

further but ACLUNC was deter-

mined. not to let the Governor

establish a pattern of banning as-

semblies until a hearing date

could be received from a federal

court. Thus staff counsel Paul

Halvonik resisted the mootness

claim of the Attorney General

and insisted that the citizens of

Berkeley were entitled to a decla-

ration of their rights, Federal

Judge Alfonso Zirpoli, however,

ruled the case moot.

Judge Zirpoli's ruling has been

Three-Judge Federal

Court To Hear Oath Case

In 1959 the California Legislature passed a statute re-

quiring all applicants for a teaching credential (needed for

teaching public kindergarten through junior college) to ex-

ecute a loyalty oath. In 1964, in a case brought by ACLU of

Southern California, the oath was declared invalid by a Su-

perior Court on the strength of

a U.S. Supreme Court decision

striking down a nearly identical

Washington oath. The state did

not appeal.

Revised Oath

Last year, over ACLU objec-

tion, the Legislature very slightly

revised the oath, so that it now

reads as follows:

"T solemnly swear (or affirm)

that I will support the Constitu-

tion of the United States of

America, the Constitution of the

State of California, and the laws

of the United States and the

State of California, and wil] pro-

mote respect for the flag and

respect for law and order and al-

legiance to the government of

the United States of America."

Hopelessly Vague

The penalty for violating the

terms of the oath is loss of the

credential. ACLUNC, viewing the

oath as hopelessly vague and, to

the extent its meaning can be

told overbroad in that it prob-

ably forbids many things (e.g.,

refusing to salute the flag, criti-

cizing the government) protected

by the Constitution, has filed a

suit in the federal court seeking

to have the oath declared invalid.

The plantiff is Kenneth P. Mac-

Kay, an Assistant Professor of

Meteorology at San Jose State

College, who lost a part-time job

at Cabrillo Junior College when

he refused to sign th oath. The

Defendants are Max Rafferty and

the other state officers charged

with the duty of enforcing the

oath,

Three-Judge Court

Last month, Federal Judge Al-

bert Wollenberg ordered that a

three-judge federal court be con-

vened to consider the oath. The

next hearing will occur this

month.

In connection with this suit,

the branch office would like to

be supplied with a written copy

of any loyalty oath, other than

the one above, currently being

required of any teacher,

appealed to the United States

Court of Appeals for the Ninth

Circuit, All briefs have now been

filed and the matter is awaiting

a hearing date.

Evading Court Review

On appeal, Halvonik and as-

sistant staff counsel Charles Mar-

son argue that the government

may not moot a case by volun-

tary cessation of unlawful ac-

tivity. The Supreme Court of the

United States has on many oc-

casions held that a case is not

moot when it involves a question

"capable of repetition, yet evad-

ing review." Since the regula-

tions in question have twice been

enforced in Berkeley it is obvi-

ous that they are capable of

repetition; it is equally obvious

that they have now twice evaded

review, ACLUNC urges the court

to address itself to the merits

of the regulations and hold the

regulations unconstitutional, The

Ninth Circuit has previously

ruled that statutes prohibiting

"loitering" are unconstitutional-

ly vague, If a law is vague it is

vague whether there is an emer-

gency or not and it is difficult

to understand how an emergency

can cure the constitutional in-

firmity, As to the ban on public

assemblies, the Constitution of

the United States guarantees the

right "peaceably to assemble." It

is not within the power of the

Governor to reseind this federal

constitutional right of all Berke-

ley citizens,

Preventing Peaceful Protest

Removing the constitutional

avenues of peaceful protest. will

merely exacerbate tensions; such

a course wil] not decrease vio-

lent incidents. Moreover, the Su-

preme Court of the United States

in a Civil War case (a disturb-

ance of somewhat larger propor-

tions than the People's Park epi-

sode) held that:

"No doctrine involving more

pernicious consequences was

ever invented by the wit of

men than that any of (the

Constitution's) provisions can

be suspended during any of the

great exigencies of govern-

ment."

If the Courts refused to permit

President Lincoln to suspend con-

stitutional guarantees it is diffi-

cult to see why they should give

Governor Reagan that power.

`Chicago Seven'

Subject of

April 29 Meeting

The Oakland Council of ACLU-

NC is holding a public meeting

to consider: "Contempt Outcome

of the Chicago Seven Trial."

Speakers for the evening will in-

clude ACLUNC staff counsel,

Paul Halvonik; University of

California Berkeley professor of

constitutional law, Robert O'-

Neill; and Hastings law profes-

sor, Paul Camera.

The evening's discussion will

center on behavior at the trial,

the contempt citations for both

defendants and lawyers, and the

overall effect of this trial on our

entire judicial process. The

speakers will present a variety

' of views on this issue, and a live-

ly debate is anticipated. The

meeting, which is free and open

to the public, will be held on

April 29th, 1970 at 8:00 p.m. at

the Sailboat House on Lake Mer-

ritt in Oakland.

Tribute for Watchdog

Of Liberties

During a period when civil rights in America were

threatened by a repressive attorney general, an organization

was formed which has been called Fascist by the Commu-

nists and Communist by the Fascists. It was the American

Civil Liberties Union, which this year, on its 50th anniver-

sary, enjoys the respect of nearly every informed American.

It was organized by Roger Baldwin, who, incidentally, is

celebrating his 86th birthday this year.

The union has protected the rights of numerous citizens

and in doing so it has contributed vastly to the education

of Americans about constitutional guarantees.

It repeatedly has dumbfounded: and bewildered its critics

by coming just as vigorously to the defense of the rights of

reactionaries as of radicals. One of its most distinctive

performances was its defense during the war of contempti-

ble Fascists.

By such equality of defense the union made it clear the

constitutional protections are designed for every American

whether poor or rich, whether radical right or radical left.

- During the wild and profane excesses of the era of the

late Sen. Joseph R. McCarthy of Wisconsin, the union barely

escaped being blacklisted as a fellow-traveling organization.

It is easy to see how this could have happened, for too

many Americans believe only in rights and days in court

for those who think exactly as they do.

Sometimes it seems the union has performed miracles

by ardently defending those whose every thought it hated.

But in one sense in defending Communists and Fascists the

union was.defending more the American ideal of judicial

quality, and justice than the actual defendants. _

Indeed, every time a man: is unjustly treated and wins

the counsel of the union it is America itself which is being

defended, so may the union's next 50 years be as productive

for this nation as its first-Editorial, Sacramento Bee, Feb-

1 wil] be compared. Course par-

ruary 4, 1970.

`No Sitting on Carmel Lawns

Court of |

Appeal Upholds

Anti-Hippie Law

The California Court of Appeal has upheld, as constitu-

tional, a Carmel ordinance prohibiting persons from sitting

on any public lawn.

Ann Kessinger Parr, a Carmel merchant, had asked the

Court to prohibit the Monterey Municipal Court from trying

her for the offense, She was ar-

rested when she sat on the lawn

while attending a meeting in a

public park that was protesting

the ordinance,

Class Legislation

Ann Parr's attorneys, Herbert

Schwartz of Carmel, and staff

counsel Paul Halvonik, argued

that the ordinance was unconsti-

tutional, among other reasons,

because it was discriminatorily

inspired class legislation. A pre-

amble to the ordinance declared

that it was necessary because of

the "influx of undesirable and

unsanitary visitors sometimes

known as hippies . . ." This pre-

amble, ACLUNC contended,

made the discriminatory purpose

apparent; obviously everybody

who sat on a public lawn in Car-

mel would not be arrested under

the ordinance. The preamble

made it clear to law enforcement

officials that it was only de-

signed to reach "undesirables."

Court's Logic

The Court of Appeal held that

the law was not discriminatory

and that this was established by

the arrest of Mrs. Parr who is

not a hippie but a local mer-

chant, Since Mrs. Parr was ar-

rested. at a rally protesting the

ordinance on behalf of the hip-

pies, the Court's logic is similar

to a holding that an arrest of

white sympathizers under an

anti-black law validates the law

and establishes its neutrality.

The mention of "hippies" in the

preamble was described as "un-

fortunate" by the Court of Ap-

peal but not fatal to the ordi-

nance's constitutionality.

ACLU NEWS

APRIL, 1970

Page 2

Free Speech Issue

ACLUNC had also attacked

the ordinance as an_ infringe-

ment of First Amendment rights.

People are unlikely to attend a

public assembly if they have to

stand during the entire presen-

tation and Mrs. Parr was arrested

while attending a public assem-

bly. The Court's answer to that

was that "the only arrest alleged

is that of defendant, No speak-

ers claim to have been arrested."

Apparently the California Court

of Appeal has now held, in con-

trast to the federal courts, that

the First Amendment protects

only speakers and not the audi-

ence.

The California Supreme Court

will be asked to review and re-

verse the Parr decision,

Santa Cruz

Chapter Starts

New Program

The Santa Cruz Chapter has

scheduled a Civil Liberties Dis-

cussion Program, a series of

meetings to be held the third

Wednesday of each month from

7:30 to 9:30 in the evening.

Topics of interest to members

as well as the general public will

be discussed, with guest speakers

called in to participate.

The discussions will take place

at the Community Action Agen-

cy's Area Service Center, 1231

Broadway, in Santa Cruz at the

corner of Broadway and Sea-

bright. Admission is free, and

all are invited. For further in-

formation, contact Stan Stevens

423-7989,

Law and the

Campus

Community

Ephraim Margolin, member

of the ACLUNC Board of Di-

rectors and Chairman of its

Legal Committee, will repeat

a U. C. Extension course on

the Law and the Campus Com-

munity at the Santa Cruz cam-

pus of the University of Cali-

fornia.

Content

The course is open to any-

One interested and will ex-

amine the role of law in the

current campus crisis; the re-

lation of First Amendment

rights to such matters as pre-

censorship, protected and

privileged expression, time,

place and manner regulations,

libel, obscenity, fighting

words, curfew and states of

emergency, picketing and oth-

er demonstrations, symbolic

acts, and academic freedom.

It will also include problems

of internal disciplinary pro-

cedures (rights of those dis-

ciplined and rights of the in-

stitution) and problems in-

volving the outside commu-

nity. Grievance regulations in

effect on different campuses

ticipants will attempt to de-

velop legal guidelines for col-

leges to use in formulating

timely and effective standards

and goals.

Dates and Times

Sessions will be five hours

per day (two and one-half in

the morning, starting at 9 a.m.,

and two and one-half in the

afternoon, starting at 1:30

p.m.) on April 4 and 5, April

25 and 26, and May 16 and 17.

Applications for the course

in Santa Cruz should be re-

quested from Department B,

University Extension, Univer-

sity of California, Berkeley,

California, 94720.

Legislative Report

Major Loyalty

Oath Struggle

May Be Over

The legislative process gathered momentum in March as

the Senate leadership, seemingly destined to survive attacks

on its honesty, got down to business, and the more smoothly

functioning Assembly began the serious consideration of bills.

Fed. Court Hears

Woodland KH. S.

Long Hair Case

ACLUNC has filed in the Sac-

ramento federal court a suit to

reinstate a high school student

suspended for having long hair.

The student, Steve Wood of

Woodland, Yuba county, has

been suspended from Woodland

High School until he cuts his

(not very long) hair. The regula-

tion being enforced prohibits

hair below the collar or eyebrows

or over the ears.

Federal Judge Philip C, Wil-

kins hag issued a Temporary Re-

straining Order reinstating Wood

in school until a hearing can be

held this month, Wood is an

honor student but not a track-

man,

The case is being handled

jointly by the ACLU branch of-

fice and by ACLU Sacramento

volunteer attorneys Larry Karl-

ton, Coleman Blease and Marcus

Vanderlaan,

S.F. Chapter

Projects, Comm.

Discussion

The San Francisco Council of

ACLUNC will hold a meeting on

Sunday, April 19 at 7:30 for

those members active or inter-

ested in becoming active in com-

mittees of the Council. The dis-

cussion will center on the func-

tions of the various committees

and on the possible projects that

may be undertaken. Persons

wishing to involve themselves

directly in some aspect of the

fight for civil liberties are urged

to attend. The meeting will.be

held at the Family Service

Agency, 1010 Gough.

Much of ACLU's legislative action last month concerned

loyalty oaths and conditiouis ot

government employment. A.B.

11, by Assemblyman Cullen, a

Democrat, would oust from state

employment anyone who "advo-

cates" the overthrow of the gov-

ernment by force and violence.

ACLU opposed the bill on the

ground, among many others, that

it punished abstract advocacy di-

vorced from any intent to cause

immediate overthrow or likeli-

hood of any effect. After a jest-

ing attempt by W. Craig Biddle

(R.-Riverside) to amend the bill

to entitle it the "Angela Davis

Act," it failed of passage by one

vote in the Criminal Procedure

Committee.

Loyalty Oath Struggle

Although it is too early to be

sure, it looks as if the major

loyalty oath struggle of the ses-

sion may be over. Assemblyman

Robert Burke (R.-Orange Coun-

ty) offered a bill and a consti-

tutional amendment designed to

require of all state employees

foreswearing advocacy of the

overthrow (etc.) and knowing

and active membership in any

organization advocating the same.

The legislation carried criminal

penalties. After supporting testi-

mony from a group from San

Marino called Operation House-

clean, and adverse testimony by

ACLU and other groups, the

Criminal Procedure Committee

killed both proposals by a 43

vote, ACLU emerged, perspiring.

Emergency Powers

A lengthy battle last year over

an expansion of the Governor's

powers in an emergency such as

the People's Park tragedy result-

ed in a victory for ACLU over

the Governor's Disaster Office.

They are back this year with a

watered down version (A.B. 560,

by Assemblyman Car] Britschgi

of San Mateo) which eliminates

all but two of ACLU's objections.

One is that the old and not very

stringent limitation on the gov-

ernor's law-making powers (``nec-

essary for the preservation of life

and property') has been deleted.

The other is the express addition

to the power of local agencies to

impose a curfew in defined emer-

gencies wherever "necessary" to

preserve law and order. Over

ACLU objection the bill has

passed out of the Assembly's

Governmental Organization Com-

mittee, but where it goes from

there is problematical,

Flags

Democrat Jack Fenton's bill to

punish those who display an

enemy flag under circumstances

likely to incite violence has died

in the Criminal Procedure Com-

mittee. A _ representative of

eleven veterans' organizations

pleaded for the hill on the

ground that the sight of a Viet

Cong flag was "very frustrating"

to veterans and might provoke

them to violence, This writer

suggested that the veterans

should obey the laws against vio-

lence rather than seeking legis-

lation punishing their potential

victims, Heated discussion en-

sued.

Rock Festivals

A.B. 148, by Eugene Chappie,

would have permitted loca] gov-

ernments in their total discretion

to require payment of (and up

to five million dollars of security

for) all costs incurred by gov-

-Continued on Page 4

Ralph B. Atkinson

Albert M. Bendich

Prof. John Edwards

Jerome B. Falk, Jr.

Robert Greensfelder

Rey. Aron S. Gilmartin

Evelio Grillo

Michael B. Harris

Francis Heisler

Neil F. Horton

Clifton R. Jeffers

Honorary Treasurer:

Joseph S$. Thompson

Honorary Board Member:

Sara Bard Field

Mrs. Gladys Brown

Mrs. Paul Couture

Mrs. Margaret C. Hayes

Prof. Carlo Lastrucci

John J. Eagan

Joseph Eichler

Dr. H. H. Fisher

Board of Directors of the American Civil Liberties Union

of Northern California

CHAIRMAN: Howard H. Jewel

VICE-CHAIRMAN: Prof. Van D. Kennedy

Helen Salz

SEC'Y-TREAS.: Howard A. Friedman

EXECUTIVE DIRECTOR: Ernest Besig

Anthony G. Amsterdam Bern Jacobson

Daniel N. Loeb

Ephraim Margolin:

Dr. John N. Marquis

John R. May

Richard L. Mayers

Martin Mills, M.D.

Regino Montes

Prof, Robert M. O'Neil .Don Vial .

Mrs. Esther Pike

Engene N. Rosenberg

Mrs. Muriel Roy

GENERAL COUNSEL: Wayne M. Collins

STAFF COUNSEL: Paul N. Halvonik

ASS`T STAFF COUNSEL and LEGIS. REP.: Charles C. Marson

ADMINISTRATIVE ASSISTANT: Mrs. Pamela S. Ford

CHAPTER DIRECTOR: Carol R. Weintraub

Committee of Sponsors

Mrs. Paul Holmer

Mrs. Mary Hutchinson Prof. Wallace Stegner

Prof. Wilson Record

Prof. Ernest Hilgard Dr. Norman Reider

Prof. John Searle

Warren H. Saltzman

Prof. H. K. Schachman

Mrs. Alee Skolnick

Stanley D. Stevens

Michael Traynor

Jerry Tucker

Justin Vanderlaan

Richard J. Werthimer

Joe J. Yasaki

Dr. Marvin J. Naman

Mrs. Theodosia Stewart

Rt, Rev. Sumner Walters

Richard Johnston

Roger Kent.

Mes. Ruth Kingman

Prof. Theodore Kreps

Seaton W. Manning

Rey. Robert W. Moon

Clarence E. Rust

Prof. Hubert Phillips

Norman Lezin

AMERICAN CIVIL LIBERTIES UNION NEWS

Published by the American Civil Liberties Union of Northern California

Second Class Mail privileges authorized at San Francisco, California

ERNEST BESIG .. . Editor

503 Market Street, San Francisco, California 94105, 433-2750

_ Subcription Rates - Two Dollars and Fifty Cents a Year

Twenty-Five Cents Per Copy a

Be 151

Branch Elections

Who's Who

Among New

Board Members

The last issue of the NEWS carried biographical sketches

about some of the newly elected members of the branch

board of directors. Since then, the following information has

been received about some of the others:

Clifton R. Jeffers received his

A.B. degree, magna cum laude,

from Tennessee State University

in 1956, In 1964 he not only re-

ceived his J.D. from Hastings Col-

lege of Law but scholastic honors

as well,

Mr. Jeffers is recently, an As-

sistant Regional Administrator

for Equal Opportunity of the

U.S. Department of Housing and

Urban Development, Region VI.

In that capacity he directs pro-

grams for equal opportunity of

employment, training, non-dis-

criminatory contract awards, and

open occupancy in all federally-

assisted housing. He is also re-

sponsible for administering com-

_ pliance with the Fair Housing

Law of the Civil Rights Act of

1968,

Prior to assuming his present

position, Mr. Jeffers was State

Deputy Attorney General, Cali-

fornia Department of Justice,

from 1964 to 1969. As Head of

the department's Consumer

Fraud Unit in San Francisco he

was responsible for enforcing

laws which prohibit fraudulent

and deceptive business practices.

Mr. Jeffers has been President

of San Francisco's National As- -

sociation for the Advancement

of Colored People and present-

ly serves as a member of its Ex-

ecutive Board. He is also on the

Board of Directors of the San

Francisco Planning and Urban Re-

newal Association, San Fran-

cisco Council of Churches, Multi-

Culture Institute and the Cali-

fornia Rural Legal Assistance

Foundation, as well as a Trustee

(and general counsel) of the

Third Baptist Church in San

Francisco.

Howard K. Schachman is Chair-

man of the Department of Mole-

cular Biology and Director of the

Virus Laboratory, University of

California, Berkeley. He was

born in Philadelphia in 1918. He

received his B.S. degree in Chem-

ical Engineering from M.I.T. in

1939, and his Ph.D. degree in

Physical Chemistry from Prince-

ton University in 1948,

Prof, Schachman has lectured

widely and has served as an edi-

tor for a variety of scientific

journals.

the California Section Award of

the American Chemical Society

(1958); the E. H. Sargent and Co.

Award for Chemical Instrumen-

tation; American Chemical So-

ciety (1962); the John Scott

Award of the City of Philadel-

phia (1964); and the Warren

Triennial Prize of the Massachu-

setts General Hospital (1965). In

1966 he was elected to member-

ship in the American Academy

of Arts and Sciences and in 1968

to the National Academy of

Sciences.

Richard J. Werthimer, 48, was

born in Chicago, Ill. He gradu-

ated from Carleton College;

Northfield, Minn. During the war

he was a lieutenant in the Navyen

aboard a destroyer, then worked

on the docks and in warehouses

in San Francisco, and also acted

as an organizer for ILWU. There-

after, he studied law at Hastings

College and since then has been

practicing law in San Francisco.

His wife, Jean, teaches English

at Merritt College. Mr, Werthi-

mer resides in Kentfield.

McClure's Play, "The Beard"

`Lewd' Law Inapplicable

In Theatre Performances

The State Supreme Court, ruling in a case involving a

performance of Michael McClure's play, `The Beard," has

ruled that actors performing in a play cannot be prosecuted

for committing a "lewd act" in a public place. The Court

thus adopted a rule of law urged by ACLUNC since 1966.

In that year Billy Dixon and

Richard Bright were-arrested in

San Francisco and charged with

committing a "lewd" act because

of their performance in "The

Beard."

Writ Granted

Then staff counsel Marshall

Krause successfully sought a

- writ from San Francisco Supe-

rior Court Judge Joseph Karesh

which prohibited the prosecution

of Dixon and Bright. Krause.

urged that the law prohibiting

lewd acts in a public place was

never intended to apply to the-

atrical performances and could

not constitutionally be so ap-

plied. The reason that the Dis-

trict Attorney had arrested the

actors under the "lewd act' law

instead of the obscenity law is

that. California's law prohibiting

the distribution of obscene mat-

ter does not include live perfor-

mances within the definition of

"matter."

Ruling Reversed

Judge Karesh's ruling was re-

versed by the California Court

of Appeal which held that the

"lewd act" law could be applied

to a theatrical performance by

reading the standards of the ob-

scenity law into it. ACLUNC,

contending that this ruling dis-

torted the intent of the legisla-

ture, asked the Supreme Court

of California to review the de-

cision, It declined to do so by a

4-3 decision. But a few months

later it did agree to hear another

case involving "The Beard"

which was the product of a Los

Angeles performance and arrest.

The Supreme Court's "The

Beard" decision means that plays

in California are absolutely free

of censorship. As long as the

actors do not actually perform

some illegal act on the stage

they can be arrested neither for

committing a lewd act nor for

exhibiting obscenity.

S. F. Case Dismissed

In a remarkable coincidence

San Francisco Municipal Court

Judge Harry Low dismissed the

charges that had been pending

against Dixon and Bright since

1966 some six hours before the

State Supereme Court filed its

decision. Paul Halvonik made

the motion to dismiss on the

grounds that the arrest was stale

and that the question whether

"The Beard" could legally be

performed in San _ Francisco

`would shortly be settled by the

Supreme Court in any event.

He is the recipient of .

CLIFTON R. JEFFERS

HOWARD K. SCHACHMAN

ACLU Brief

Helped `Chicago

Secure Bail

Ramsey Clark, former Attorney

General of the United States, and

Burke Marshall, former Chief of

the Justice Department's Civil

Rights Division, signed a "friend

of the court" brief filed by the

American Civil Liberties Union

and its Illinois Divison, which

urged that the Chicago 7 and

their attorneys be released on

bond pending appeal.

The brief was filed in the Sev-

enth Circuit Court of Appeals.

Eighth Amendment

The brief stressed that the de-

nia] of bail by Judge Julius Hoff-

man was in violation of the

Eighth Amendment of the U.S.

Constitution and the Federal Bail

Reform Act of 1966, The Eighth

Amendment decrees that ``exces-

sive bail shall not be required."

The ACLU argued that bail can

only be denied for the "strongest

reasons."

The Bail Reform Act of 1966

states that a "person arrested for

a non-capital offense shall be ad-

mitted to bail." Justice Felix

Frankfurter encouraged liberal-

ization of the rule governing bail

pending appeal in 1956:

"",... inasmuch as appeal from a

conviction is a matter of right,

the risk of incarceration for a

conviction that may be upset is

normally to be guarded against

by allowing bail unless the ap-

peal is so baseless as to be de-

served to be condemned as

`frivolous or is sought as a de-

vice for mere delay'."

First Amendment Issue

The ACLU brief pointed out

that "not only is bail pending ap-

peal required by the normal op-

eration of the Bail Reform Act, it

is especially required where the

statute in issue (the Anti-Riot

- Act) arguably violates the First

Amendment."

Judge Hoffman had denied bail

charging that the defendants

were "too dangerous to be on the

streets." William Kunstler's and

Leonard Weinglass' jail sentences

had been stayed until May 4th, to

allow them to work on the appeal.

The Court of Appeals, without

dissent, released the defendants

~ and their attorney on bail.

William Ehlert

Objector's Case

Goes to U.S.

Supreme Court

In June of 1964 William Ehlert received an order to re-

port for induction into the Armed Services from his local

Selective Service Board. Before his induction date he wrote

to the Board requesting conscientious objector status, stating

that he had been "unable to make a decision of such moment

until faced with the absolute ne-

cessity to do so." Selective Serv-

ice regulations permit a_ local

board to consider a classification

after mailing of an order to re-

port for induction if there has

been a change in circumstances

"beyond the registrant's control."

But Ehlert's board declined to re-

open his classification because, in

their opinion, a claim of consci-

entious objection `was not a

change in your status which was

beyond your control."

Ehlert refused to submit to in-

duction, was indicted and tried in

Federal District Court for viola-

tion of the Selective Service laws. -

The Issue

At the trial the central issue

was whether the crystallization

of Ehlert's claim of conscientious

objection after receipt of an in-

duction order was a change in

status over which he had no con-

trol. In a case arising out of New

York the United States Court of

Appeals for the Second Circuit

had held that one cannot control

his conscience and that therefore

a late maturing conscientious ob-

jection claim is a circumstance

over which a registrant has no

control. Federal District Judge

Alfonso Zirpoli held adversely to

Ehlert but observed that had he

been sitting in the Second Circuit

he would have been bound to ac-

quit Ehlert.

Eight To Five Vote

Ehlert appealed his conviction

to the United States Court of Ap-

peals for the Ninth Circuit where

a three-judge panel reversed his

conviction, The judgment, how-

ever, was recalled and a rehear-

ing set before all of the judges of

the United States Court of Ap-

peals for the Ninth Circuit. That

court, by an eight to five vote,

upheld the conviction.

Review Sought

Ehlert then brought his case to

ACLUNC which has petitioned

the United States Supreme Court

to review and reverse his convic-

tion,

The petition on Ehlert's behalf

to the highest Court urges it to

grant review, among other rea-

sons, to bring uniformity to fed-

eral law in the draft area, As the

petition observes: "had the peti-

tioner been tried in New York he

would have been acquitted, But

he was tried in San Francisco

and instead stands convicted. A

verdict that is dictated by geog-

raphy is manifestly an unfair ver-

dict."

Bad Rule

The uniform rule. that should

be adopted, it is urged, is the one

obtaining in the Second Circuit.

There are two infirmities in the

rule announced by the Ninth Cir-

cuit in Ehlert's case, In the first.

place "it is predicated on the as-

sumption that one may choose

the time when his scruples

-against participation in' war ma-

` ture into a concrete conscientious

objection against participation in

war. Such a premise is at odds

with the very notion of con-

science, A conscience that makes

known its presence only at pro-

pitious moments is hardly worthy

of the name, A conscience simply

cannot be cut to fit a temporal

mold."

"No Man's Land"

In the second place, the rule

creates a "no. man's land": for a

number of conscientious object-

ors, A claim of conscientious ob-

jection advanced prior to the

mailing of an induction order

will be considered by the local

Selective Service Board. A De-

partment of Defense directive re-

quires the military to consider

post-induction claims of conscien-

tious objection but only when the

claim has matured after induc-

tion into the Armed Forces. Un-

der the Ninth Circuit rule claims

like Ehlert's are too tardy for

consideration by the local board

and too early for consideration

by the Army, they thus receive

no consideration whatsoever. This

"no man's land," the petition

notes. is authorized by no statute |

of Congress and is an "invidious

discrimination" inconsistent with

the due process clause of the

Fifth Amendment to the United

States Constitution.

Staff and Volunteer Gonnsel

The Ehlert petition was pre-

pared by staff counsel Paul Hal-

vonik and Charles Marson and

cooperating attorneys Stanley

Friedman of San Francisco and

Neil Horton of Berkeley,

Hirsute Runners Lose

In U.S. District Court

Chief Federal District Judge George Harris has ruled

constitutional a school regulation prohibiting male students

from participating in the Redwood School's athletic programs

if their hair extends below the back of their collar.

The decision was a great disappointment to the athletes

and to ACLUNC. Federal District

Judge Robert Peckham last Sep-

tember, in another ACLUNC

case, held unconstitutional an

identical regulation that prohib-

ited students from attending high

school. Judge Harris ruled, how-

ever, that this was distinguisha-

ble because the Redwood High

rule was only a barrier to ath-

letic programs and not to re-

quired classes,

Judge's Argument

The plaintiffs lost to the times

rather than because of any in-.

firmity in their factual showing.

They had established beyond any

question that hair longer than

that prohibited by the regulation

did not interfere with perform-

ance. But Judge Harris held that

"in these parlous (sic), troubled

times when discipline in certain

quarters appears to be an ugly

word, it should not be considered

unreasonable nor regarded as an

impingement of constitutional

prerogatives, to require plaintiffs

to bring themselves within the

spirit, purpose and intendments

of the questioned rule."

Appeal Under Consideration

Plaintiffs were represented at

their trial by Paul Halvonik and

volunteer attorney - Robert Mc-

Creadie of Novato. It is likely

that they wil] appeal the decision

to the United States Court: of Ap-

peals,

ACLU NEWS

APRIL, 1970

Page 3

Chicano Issue

ACLU Support

For Election

Contestants

In 1968 the City of Alviso held an election to determine

whether that city should consolidate with the City of San

Jose. The election was of great significance to the substan-

tial Chicano population in Alviso because if the consolidation,

were successful their chances for an effective voice in gov-

ernment was greatly diminished.

Proponents of consolidation did

win the election but by only nine

votes,

Illegal Votes

Suit was brought by Jesus Ca-

nales and other Alviso Chicanos

to invalidate the election. A num-

ber of election frauds were al-

leged and a number of irregulari-

ties were proved, Perhaps most

significant, it was established

that nine votes (the margin of

victory) had been cast illegally.

Moreover, the nine voters had all

signed the petition to place the

consolidation election on the bal-

lot.

Illegal Votes Split

The Chicanos lost their contest

in the Santa Clara County Supe-

rior Court, The Superior Court

Judge held that there was no evi-

dence that the nine illegal votes

had been cast in favor of consoli-

dation and, following earlier Cal-

ifornia precedents, he distributed

the illegal votes equally to each

side. Consolidation thus remained

the victor by four and a half

votes.

Review Granted

The California Court of Appeal

upheld the Superior Court and .

the contestants' attorney, Eph-

raim Margolin of San Francisco,

petitioned the California Su-

preme Court for review. That

Court has agreed to hear the con-

test and ACLUNC has filed a

friend of the court brief in sup-

port of the contestants.

ACLUNC Brief

The ACLUNC brief, prepared

by Neil Horton of Berkeley and

staff counsel Paul Halvonik, con-

tends that the Fourteenth

Amendment's command of "one

man, one vote" requires an elec-

tion to be set aside whenever con-

testants have established that

Farm Labor Problems

there is a "substantial likelihood"

that the number of illegal votes

cast exceeded the number of

votes by which the election was

carried, In other words, when it

appears likely that an election

was stolen the fundamental right

of franchise has been violated.

Election Should Be Voided

In a case where the evidence

simply establishes that the num-

ber of illegal votes equals or ex-

ceeds the margin of victory, it is

not necessary to conclude that

the election result does not likely

reflect the will of the majority.

When, for example, the votes

are illegal because cast by per-

sons not currently residents of

the county, there is no reason to

assume that these nonresidents

favored one side of a proposition

more than another. But when

there is evidence linking the il-

legal votes with the successful

side of the election, the election

should be voided. Establishing

that all of the illegal voters

signed the petition for consolida-

tion should be a sufficient show-

ing, Indeed, it is difficult to see

how contestants can make any

greater showing. It is too facile

-to say that the contestants could

have asked the illegal voters how

in fact they voted. Such a ques-

tion would provide the witness

with too tempting an opportunity

to perpetuate a fraud, there be-

ing no extrinsic evidence by

which contestants could impeach

perjurious testimony. Such a rule

would make any contest of an

election in which the illegal have

usurped the victor virtually im-

possible. "It would," the brief

concludes, "place the cherished

right of the franchise beyond vin-

dication."

Dixon Leafletting Case

To Highest State Court

Robert Wallace, John Pamperin and Madeline Mintzer at-

tended the Dixon May Fair, an annual state fair, in 1968.

They were distinguishable from other patrons by their leaf-

lets and picket signs which discussed the relationship of the

University of California to farm labor problems. They pick-

eted and passed out their leaflets

in front of a tomato harvesting

machine, A deputy sheriff was

sent to tell them to leave when

fair officials discovered their

presence, The deputy told them

that they must leave because

there was a rule against passing

out leaflets, but that they were

free to return if they left their

leaflets outside of the fair-

grounds. The picketers refused

to leave and were arrested for

trespassing on the fairgrounds,

An appeal to the Superior

Court resulted in an affirmation

of their conviction.

ACLUNC volunteer attorney

Marcus Vanderlaan of Sacra-

mento and staff counsel Paul

Halvonik then filed a petition

for writ of habeas corpus on

their behalf in the State Court

of Appeal. The Court of Appeal

issued an order staying the exe-

cution of the sentences meted

`out by the trial court and set

the case for argument last No-

vember. Last month the court

decided to deny the writ of hab-

eas corpus on the ground that

ACLU NEWS

APRIL, 1970

Page 4

ists),

the petitioners' conviction may

rest upon Me tact that ney `ob.

siructeu" patrons and not on the

faut tnat wey were exercising

Ficst AMenument rights at the

fairground.

`he Court of Appeal made

this conciusion in spite of the

fact that the arresting officer

testified that he did not see the

picketers physically obstructing

anyone (indeed he saw no physi-

cal contact between patrons and

petitioners) and that members

of the public who wished to in-

spect the tomato harvester could

freely do so by avoiding the area

in which the picketers were

standing.

Vanderlaan and Halvonik have

asked the Supreme Court of

California to review the decision.

They contend that there is no

question of "obstruction" pre-

sented by the record and that if

there is the possibility that the

conviction rests on unconstitu-

tional grounds (and no one has

denied that such a possibility ex-

the conviction must be

reversed, State fairgrounds can-

not be used only to promote

those views and ideas which the

state endorses.

Army Backs Down

On Surveillance

Of Civilians

The Army claims that they will

no longer publish a list of indi-

viduals who "might be involved"'

in a riot. One week after the

Union filed suit against the Ar-

my to prevent Army surveillance

of protected civilian political ac-

tivity, the Army sent a letter to

Cornelius E. Gallagher, chair-

man of the House Invasion of

Privacy Subcommittee, saying

that they would destroy all cop-

ies of their civil disturbance list,

which the New York Times re-

ported to contain names of 18.5

million Americans.

The Union will continue to

press its suit to try to ensure

that all surveillance of civilians

is discontinued by Army per-

sonnel.

Employment Ban

On Homosexuals

Challenged

In two separate petitions filed

recently in the United States

Supreme Court, the American

Civil Liberties Union seeks to

challenge the constitutionality

of federal statutes and regula-

ions which unfairly restrict the

employability of homosexuals.

Employment with a private firm

is at issue in one case and the

other involves a civilian em-

ployee of the Department of the

Army.

First Case :

In the first case, Robert Larry

Adams was employed by a pri-

vate firm as an electrical tech-

nician for five years, during

which time he held a security

clearance permitting access to

classified materials. At his em-

ployer's request, Mr. Adams ap-

plied for a Top Secret clearance.

Two years later, while being in-

terviewed in connection with his

application, Mr. Adams acknowl-

edged homosexuality. One year

later, his original security clear-

ance was revoked and he was

forced to take a leave of ab-

sence. At a Central Board hear-

ing, it was determined that it

was not consistent with the na-

tional interest for Mr. Adams

to have access to classified in-

formation - despite the fact

that there had been no finding

that he had ever misused any

classified information during his

almost eight years of employ-

ment.

Second Case

In the second case, Richard L.

Schlegel was employed for over

11 years as an Administrative Of-

ficer with the Department of the

Army. As in the above situation

Mr. Schlegel's superiors suggest-

ed that he apply for a Top Sec-

ret clearance, and when a rou-

tine request was instituted, the

reply came back that Mr. Schle-

gel was under investigation for

participation in homosexual ac-

tivities. He was then removed

for "immoral and indecent con-

duct," and his removal was up-

held on the basis that "(i)f ac-

tivities of this kind are allowed

to be practiced in a government

department, it is inevitable that

the efficiency of the service will

in time be adversely affected...

and that his removal would pro-

mote the efficiency of service."

Due Process Issue

The ACLU petitions state that

both Adams and Schlegel were

deprived of due process rights

under the Fifth Amendment, and

that the government may not

deny a.security clearance to a

private individual nor dismiss

a federal employee solely on

grounds that the individual has

engaged in homosexual activity

with a consenting adult in pri-

vate. The petitions also refer to

several studies which contradict

the common assumption that ho-

mosexuals are more liable to

blackmail and hence security

risks. Furthermore, the petitions

No Action by P. O.

Long-Haired

Postal Employee

Sues for Job

ACLUNC has brought suit against the Post Office and the

United States Civil Service Commission on behalf of William

E. Cain, a postal employee who has been on "non-duty, non-

pay" status since December of 1968.

Mr, Cain was removed from active duty as a carrier as-

signed to San Francisco's Dia-

mond Heights Station after a

Post Office "Appearance Review

Board" determined that his ap-

pearance was "unsatisfactory,"

because of the length of his hair.

Mr, Cain's hair reaches to his

shoulders and, he was informed,

this was not in conformance with

"good business practices, as re-

quired of all employees by Postal

Bulletin 20656." Bulletin 20656,

however, says nothing about

"good business practices" nor

does it prohibit long hair. It sim-

ply provides that hair must be

kept neat and clean, Cain has al-

ways kept his hair neat and clean,

Appeal Stymied

Cain appealed the determina-

tion of the "Appearance Review

Board" through the Kafkaesque

bureaucratic channels of the Civil

Service System. The Board's de-

termination was upheld first by

Postmaster Lim P. Lee and then

by the Regional Director, Ken

Dyal. Dyal made his ruling in

March of 1969 and Cain appealed

to the Board of Appeals and Re-

view, Bureau of Personnel, Post

Office Department in Washing-

ton, D.C, There the case stopped.

In spite of letters from Cain's at-

torney, staff counsel Paul Hal-

vonik, demanding that some sort

of decision be made, the Board

has neither affirmed or reversed

the year-old decision of Regional

Director Dyal. Since Cain had

made a good faith effort to ex-

haust his administrative reme-

dies, Halvonik determined that

suit could be brought without

further awaiting the decision of

the Board of Appeals and Review.

ACLU Contentions

The federal suit asks that Cain

be reinstated in his position as a

carrier with full rights of senior-

ity and that he be paid his wages

from December of 1968 until the

time of his reinstatement. Cain

must be reinstated, the complaint

states, because his removal from

active carrier was unlawful and

claim that to close off occupa-

tional opportunities to individu-

als solely because of a homo-

sexual preference is to discrimi-

nate unjustly against an already

persecuted minority.

ALE

"The jaws of power are always

open to devour, and her arm is

always stretched out, if possible,

to destroy the freedom of thing-

ing, speaking, and writing." -

John Adams, from Dissertation

on the Canon and Feudal Law,

August 1765.

The first right of a citizen

Is the right

To be responsible

unconstitutional. In the first

place, the postal bulletin relied:

upon by the defendants does not

prohibit long hair but only hair

that is not neat and clean, and

there is no evidence to show that

Cain's hair has not been kept in a

neat and clean fashion. Moreover,

there is no evidence in the record

that Cain's hair length had any

effect whatsoever on his job per-

formance or in any way brought

discredit upon the federal gov-

ernment; there is absolutely no

rational reason for prohibiting

him from wearing his hair as he

pleases, Finally, their complaint

contends that the actions of the

defendants have invaded Cain's

"constitutional rights under the

First Amendment to express him-

self and seek his own identity by

adopting a hair fashion which, to

him, best projects the image of

his personality."

The Cain suit, as far as

ACLUNC knows, is the first

"haircut" suit on behalf of a

postal employee, :

Major Loyalty

Oath Struggle

May Be Over

Continued from Page 2-

ernment in connection with `"as-

semblies of 5000 persons or

more" - for rock festivals, and

possibly Vietnam Moratorium ac-

tivities. The bill, opposed by

ACLU and several youthful wit-

nesses, did not succeed in gain-

ing the approval of Jack Knox's

Local Government Committee.

The author then withdrew the

bill for possible amendments at

a later date, A similar effort is

slowly making its way through

the Senate, The outcome is still

-in doubt.

Prospects for This Month

Several major battles will take

place this month, Wiretapping

will be on, A bill by Senator

Nejedly of Richmond is awaiting

consideration on the Senate floor,

and another by Assemblyman

Biddle will be heard in Assem-

bly Criminal Procedure. Mari-

juana penalties will be reviewed.

The Legislature will decide

whether to make it a crime to

insult a peace officer, Bussing of

students for the purposes of in-

tegration without parental con-

sent may be prohibited. And leg-

islation both to abolish the death

penalty and to expand it to

bombers will be heard.-Charles

`C, Marson, Assistant Staff Coun-

sel and. Legislative Representa-

tive.

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