vol. 10, no. 7

AMERICAN CIVIL LIBERTIES UNION-NEWS

FREE SPEECH FREE PRESS FREE ASSEMBLAGE

“Eternal is the price of liberty.”

Vol. X SAN FRANCISCO, CALIFORNIA, JULY 1945 No. 7

PROBATION AND $126 FINE FOR MARINE

The case of Pvt. Morton A. Carabel, the Mare ‘Island Marine whose imprisonment for nine months without charges being filed against him led to intervention by the local branch of the Union, is nearing a conclusion after the Commandant of the Mare Island Navy Yard last month dismissed two of the charges against Carabel and remitted a bad conduct discharge, ordered by a summary court martial, on condition that he maintain a satisfacory record for a period of six months. In addition, Carabel wil .sufferl loss of pay of $21 per month for a period of six months, or a total loss of pay of $126.

The Court martial sentence also carried 90 days extra police duty, but this part of the sentence was remitted by Carabel’s commanding officer before the case reached the Commandant of the Navy Yard. Carabel remains at the Mare Island hospital where he is being: treated for acute arthritis.

The two charges that were dismissed by the Commandant accused Carabel of absenting himself without leave for five days and also absenting himself without leave for 19 hours. He — was found guilty of possession of intoxicating liquor, of two falsehoods, and of improper wearing of a government uniform in the city of San Francisco.

The information concerning the sentence is unofficial, although it has been confirmed by Carabel to whom the sentence was read. In addition, however, Carabel is under the impression that the liquor charge was also dismissed by the Commandant. The A.C.L.U. has thus far been unsuccessful in procuring a copy of the Commandant’s decision, possibly because it. is reported to contain a criticism of the unconscionable delay in the filing of charges against Carabel. The case has been sent on for review by the Office of the Judge Advocate General of the U. S. Navy in Washington where the present sentence may be further modifed.

Whatever action the Judge Advocate General takes on the Carabel case, it will not solve the underlying issue unless some change is made in Navy Regulations to gugrantee all accused persons a speedy trial. The Union will continue to urge upon the Navy the adoption of a regulation that will insure an accused a trial within a reasonable time after an arrest is made.

Restrictive Covenants Enforced Against American Indians and Chinese

On June 13, Superior Judge Myron Westover of Los Angeles held that a restrictive covenant barring the use of certain property to any persons “whcese blood is not entirely that of the Caucasian or white race,” was applicable against American Indians. The defendants, Mr. and Mrs. C. L. Rodgers, were American Indians of the Nanticoke tribe. The husband’s father was white, but all the blood of Mrs. Rodgers is Indian. She received her Bachelor’s and Master’s degrees from New York University and also studied psychiatry in Vienna under Dr. Alfred L. Adler, and taught public school in New Jersey for from ten to twelve years, according to the opinion filed in the case. The court gave the defendants four months in which to find other quarters.

In San Francisco during the past month, Superior Judge Conlon upheld a restrictive covenant against a Chinese family, but on June 26 he set aside the judgment to allow additional evidence to be introduced.

Attorney General Kenny Refuses To Exercise His Power in Protecting Returning Japanese

Attorney General Robert W. Kenny last month refused to exercise his constitutional powers to end the terrorism against returning Japanese in Fresno county. Under the California Constitution, it becomes the Attorney General’s duty “to prosecute any violation of the law of which the superior court shall have jurisdiction” in any county where “any law of the State is not being adequately enforced.”

The A.C.L.U. of Northern California on June 3 had urged Mr. Kenny to file felony charges against Levi Multanen of Parlier, who admitted he had sent four blasts from a double-barreled shotgun into the walls of the home of Charles; Iwasaki on the night of May 22 while the latter, his wife, three children and a grandfather were inside the house. Multanen, on May 28, plead guilty to a misdemeanor charge of exhibiting a deadly weapon “in a rude, angry or threatening manner,” and was given a suspended sentence by Justice of the Peace L. B. Crosby, who admitted the decision was “a community ar- rangement.”

In the Union’s letter to the Attorney General, signed by Ernest Besig, local director of the Union, it was charged that “District Attorney James H. Theusen, in filing only a misdemeanor charge under Sec. 417 of the Penal Code, in the face of repeated acts of terrorism against persons of Japanese ancestry in Fresno county that. have gone unpunished, is not adequately enforcing the law.” The letter suggested that Multanen could still be prosecuted in the Superior Court under Sec. 245 of the Penal Code, which punishes assault with a deadly weapon by imprisonment in the State prison for a term not exceeding ten years. ‘‘And,” said the Union, “the facts may also warrant a charge under Sec. 217 of the Penal Code punishing assault to commit murder by a term in the State prison for not less than one nor more than fourteen years.”

In commenting on the Union’s request to the press, the Attorney General took the position that Fresno county was doing a good job in trying to protect the returning Japanese, that it was doing more than any other county in fighting terrorists and that the local authorities should be “encouraged rather than superseded.”

Thereafter the Attorney General agreed to discuss the Fresno county situation with representatives of various organizations, but when they met with him on June 12, he refused to discuss the ticklish Multanen case on the ground that the Union’s letter had been released to the press and he had already taken a public position thereon which was final. Mr. Kenny was ready to discuss the problem of returning Japanese generally, so long as no reference was made to the Multanen case.

In discussing the general subject, Mr. Kenny complained that his office was not securing prompt information from the victims of the terrorism, and Miss I. Ishida of the Japanese American Citizens League at once undertook to improve the liaison between the Attorney General’s office and the Japanese in California. At the same time, the Attorney General suggested there would be great value in offering a reward for information leading to the arrest, conviction and sentencing of terrorists, and the A.C.L.U. agreed it would make such an offer. At some appropriate time, such an offer, guaranteed by the national office of the Union, will “be made jointly by the A.C.L.U. of Northern California and the Southern California branch. Finally, in response to questioning, Mr. Kenny contended there .was no need at any time for his office to supersede local officers in prosecuting acts of terrorism against returning Japanese Americans. He took the position that if his office were able to secure sufficient evidence in a case the local district attorney would do his duty in prosecuting. Dr. Buell: Gallagher then reminded the Attorney General that the District Attorney in Contra Costa county had refused to prosecute in the Homer Turner case, therefore necessitating intervention by the Attorney General’s office, but Mr. Kenny brushed the matter aside as an exception. It might be remembered, too, that in 1935, in the Santa Rosa tar and feather party case, the Attorney General was finally compelled to supersede the District Attorney when the latter declined to prosecute. In any case, it seems quite clear that Mr. Kenny does not intend to exercise his constitutional powers to the fullest in protec.ing — returning Japanese.

The delegation that visited the Attorney Gegl eral was composed of the following persoy Ernest Besig, director, A.C.L.U. of Northerti California; Laurence I. Hewes, regional director of the American Council on Race Relations; Galen Fisher of the Fair Play Committee; Dr. — Buell G. Gallagher, Chairman of the Race © Relations Committee of Northern California Council of Churches; Joseph James, President of the San Francisco branch of the N.A.A.C.P.; Miss I. Ishida of the J.A.C.L.; and, Secretary Gibson of the San Francisco Council for Civic Unity.

Angling Club Will Reconsider Limitation Of Membership to "White Caucasians’

A recent change in the by-laws of the Golden Gate Angling and Casting Club of San Fran- cisco, limiting its membership to “white Cau-. casions,” has caused the A.C.L.U., of Northern California to file protests with the organization and to discuss the question informally with the President of the San Francisco Park Commission. While the club is a private organization, it enjoys a favored position at the Club House and casting pools in Golden Gate Park, which were erected with public funds. In fact, in 1939, the Park Commission gave the Club a lease under which it “assumed a sort.of supervisory control.” Later, the lease was cancelled — but there was no substantial change in the Club’s relationship to the public facilities.

The Club’s new by-law springs from an incident earlier this year in which expulsion proceedings were brought against Henry Fujita, a person of Japanese ancestry, solely because of his race. The Union has suggested to the Club that it is perfectly free as a private organization to limit its membership to “white Caucasians,” but, if it does so, it ought to be required to give up its favored position or “supervisory control” of the public facilities.

The Union has now received assurances from Charles Barfield, President of the Club, that he personally favors repeal of the by-law, and he states he has ‘every reason to believe that the majority of our board of directors are of the same view. The matter will be presented at the very earliest opportunity for the action of the board after which, as required by the constitution, it will be presented to the members at large at a meeting for that purpose.” Because many of the members are on vacation, it is thought that a quorum cannot be assembled until sometime in September.

Page 2

AMERICAN CIVIL LIBERTIES UNION-NEWS

U. S. SUPREME COURT EXTENDS FREEDOM OF PRESS CONCEPT IN AP CASE

Although freedom of the press as traditionally understood was not involved in a government injunction against the Associated Press sustained by a 5 to 3 decision of the Supreme Court on June 18, the majority opinion, according to the American Civil Liberties Union, threw a new light on the freedom of the press that may prove important in the future. Attorneys for the A.C.L.U. pointed out that the opinion by Justice Black holds for the first time that the government has an obligation under the First Amendment not merely to refrain from interfering with the freedom of the press but also to protect it actively from private restraints.

The high court sustained an anti-trust injunction issued by a federal court in New York ' City last year ordering the news agency to abandon a by-law allowing competitors to influence the election of new members. The Supreme Court rejected the contention of the Associated Press that in the case of news. agencies the anti-trust act conflicted with the constitutional guarantee of a free-press.

Justice Black for the court maintained that “the First Amendment, far from providing an argument against the application of the Sherman Act, here provides powerful reasons to the contrary. That amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom.

“Freedom to publish means freedom for all and not freedom for some. Freedom to publish

| OPEN FORUM.

“= FRESNO SHOOTING

Editor:—Whenever I look at the holes left by buckshot which ripped through my home I begin to wonder whether peace officers really mean it when they say the equal protection of the law will be given to all.

For shooting through my home with a gun ‘ Levi Multanen received a six months’ suspended sentence upon his plea of being guilty. This is the first arrest in 21 shooting incidents against returned evacuees of Japanese ancestry in California since January 2, 1945. There have been four attacks in my area within a week.

But in my own case and others, there are some things I can’t understand, for instance:

1. Why wasn’t Multanen’s companion arrested? .

2. Why isn’t Multanen’s shotgun and highpowered rifle confiscated? The sheriff told me Multanen did it.

4, Why isn’t Multanen arrested for felony? He could have killed someone in my house.

5. Why does the County Attorney who is. trying to take away our lands do the prosecut- ting of these shootings?

6. Why does Justice Crosby have to consult the voters before giving out a decision?

{7 Why doesn’t the Army do something to protect us? We cooperated in the evacuation. Why can’t they cooperate in our return? Many of us who have sons or brothers in the army have been victims of these shootings.

8. Why doesn’t the Mayor of Fresno and : other so-called fair play and democratic groups’ do something about these outrages? They just: talk pretty words.

9. Why doesn’t the War Relocation Authority put a stop to these shootings? They just’ say there won’t be MANY MORE.

10. Why does the Attorney General of Cali-' fornia, Robert W. Kenny, say “one of the first. jobs of a police chief or law enforcement offi-. cer is to keep his job’? The first job of a peace officer is to enforce the law. That’s why he was elected. Is that why Attorney General’ Kenny and Governor Warren do nothing but hold their jobs?

As an American citizen, voter, and taxpayer, I’d like the answers. It seems to me as if we can’t master lawlessness, then lawlessness is going to master us, beginning with Fresno.—. Charles K. Iwasaki, Reedley, Calif. is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not. Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.” Justices Reed, Douglas, Rutcision, with Frankfurter concurred in the decision, with Frankfurter and Douglas writing separate opinions dealing with the question of whether the AP is a public utility.

Justice Roberts wrote a dissent supported by Chief Justice Stone maintaining that the government failed to prove that the AP by-law fell under any of the specific practices barred by the Sherman Act, holding that the majority decision was “government by injunction with a vengeance.” Justice Murphy in another dissent warned of the danger of government intervention in the realm of freedom of the press, and held that the case could not be decided without more positive factual proof that the AP was actually monopolizing the news. He warned that “if unsupported assumptions and conjectures as to the public interest and competition among newspapers are to warrant a relatively mild decree such as this one, they will also sustain unjust and more drastic measures.”

The court’s decision was on the appeal of the AP against an injunction by the lower courts. An appeal by the Department of Justice asking that the injunction be not merely affirmed but broadened was unanimously rejected by the court. The Civil Liberties Union did not file a brief, holding at the time the case first arose that “we must reject the AP argument that the action was attempting to restrict freedom of the press. We must also reject the Government’s claim that it was promoting freedom of the press in bringing the suit.”

LOS ANGELES RADIO STATION SUED FOR DAMAGES FOR POLITICAL CENSORSHIP

Damages of $6,000 were asked from radio station KFAC in Los Angeles, Calif., in a suit instituted in the Los Angeles Federal District Court during May by attorneys representing Myra Tanner Weiss, Socialist Workers Party eandidate for mayor in the recent election, and the American Civil Liberties Union. The suit maintains that a speech scheduled for delivery by Miss Weiss on April 1 was censored by station officials in violation of federal law. Miss Weiss was told her speech could not be broadcast unless she cut out all references to Charlotta Bass, independent Negro candidate for the L. A. City Council, whom Miss Weiss was supporting.

Executive Committee

American Givil Liberties Union of Northern California

Hon. Jackson H. Ralston Honorary Chairman Sara Bard Field Honorary Member Rt. Rev. Edw. L. Parsons Chairman Dr. Alexander Meiklejohn — Helen Salz Vice-Chairman Joseph S. Thompson Secretary-Treasurer Ernest Besig Director Philip Adams John H. Brill H. C. Carrasco Wayne M. Collins James J. Cronin, Jr. Rev. Oscar F. Green Morris M. Grupp Margaret C. Hayes Prof. Ernest R. Hilgard Ruth Kingman Ralph N. Kleps Dr, Edgar A. Lowther Mrs. Bruce Porter Clarence E. Rust Rabbi Irving F. Reichert Dr. Howard Thurman Kathleen Drew Tolman

Postmaster Loses "Preparing For Marriage” Case

Post Office Department censors took a beating in the U. S. Court of Appeals for the District of Columbia when the court held in a unanimous decision that the pamphlet “Preparing for Marriage” by Dr. Paul Poponoe was not obscene, and that Postmaster General Frank C. Walker had exceeded his powers in attempting to ban it from the mails without a hearing. The American Civil Liberties Union whose Washington counsel, Charles Horsky, represented Poponoe in court, hailed the decision for “going a long way toward liberalizing the antiquated obscenity law passed during Grant’s adminis- tration, and for putting a constitutional check on censorship by personal whim of the Postmaster General.” 7

The court passed on two separate questions: whether the pamphlet was obscene, and whether any material can be banned from the mails without a hearing. On the question of obscenity Justice Henry W. Edgerton pointed out that the old obscenity. statute “assumes that the stimulation of the senses by writing or print is an evil.” He admitted that the Poponoe pamphlet contained phrases that might “stimulate the senses of some people”. But more than this, he said, is necessary to bring a work within the statute; “otherwise no work on anatomy and no dictionary could be sent through the mails, and much of our most respected literature would be barred.”

The statute does not intend, he held, that “we shall reduce our treatment of sex to the standards of a child’s library in the supposed interest of a salacious few, nor does it bar trom. the mails an obscene sentence or an obscene phrase. The standard must be the likelihood that the work will so much arouse the salacity of the reader to whom it is sent as to outweigh any literary, scientific, or other merits it may have.”

Dealing with the necessity for hearings Justice Thurman Arnold held that the border-line between obscenity and decency changes with the times, and that “the determination of whether a publication violates such changing standards certainly is one which should noz be undertaken without a hearing.” He said that mailing privileges are often revoked in cases where the prosecuting officers are not sure enough of their case to risk criminal prosecution under the obscenity law, and held that this was the situation in the Poponoe case. He pointed dut that Poponce and his publishers had been prevented for a long time from mailing a publication “which we now find contains nothing offensive to current standards of public decency,” and concluded that “a full hearing is the minimum protection required by due process to prevent that kind of injury.”

The case reached the Court on appeal by the government against an injunction issued by the District Court restraining the Post Office Department from banning the pamphlet on both the above grounds.

ACLU OPPOSES PEACE-TIME DRAFT BEFORE HOUSE COMMITTEE

Passage now of legislation for peace-time conscription was opposed at hearings on June 8 before the House Committee on Post-War Military Policy, by Ernest Angell, New York attorney, on behalf of the American Civil Liberties Union. Mr. Angell is a member of the Union’s Board of Directors, chairman of the Committee on Conscientious Objectors, and an American Legionnaire.

Mr. Angell made four points to the committee under the chairmanship of Rep. Clifton A. Woodrum. He said it was obvious that any form of compulsory service violates persone! liberties and that “only the gravest considerations can justify the resort to such general compulsion as universal military training in time of peace.”

He said this was no time to make such an important decision as the “emotions which are aroused during a war are not those on which a seasoned, long-range judgment can safely be based.” Considerations of national defense do not require a decision now, he said, since “it is evident that at the conclusion of the greatest war in history no immediate threat will confront the United States.’ In conclusion Mr. Angell pointed out that “millions of men in the armed forces should have the opportunity to participate in this debate, men who have borne the greatest burden of this war. A democratic decision cannot be reached without them.” He urged that any bills for post-war conscription be tabled until hostilities after the termination of

‘phiet

AMERICAN CIVIL LIBERTINS UNION-NEWS

Page 3

Ban On P. O. Censorship Urged After "Esquire" Decision

Postmaster Frank C. Walker and the chairmen of the House and Senate Judiciary Com- mittees were urged on June 5 by the American Civil Liberties Union to act favorably on pending bills to transfer postal censorship from the Post Office Department to the courts. The ACLU telegraphed Walker and the Committeemen following decisions of the U. S. Circuit Court of Appeals for the District of Columbia on June 4 restoring second-class mailing rights to “Esquire” magazine, and on May 28 revoking a mailing ban on Dr. Paul Poponoe’s pam“Preparing for Marriage.” Postmaster General Walker to whom the bills have been referred was urged to give them a favorable report in the light of his declaration after the “Esquire” decision that postal officials now face an “impossible task” in administering postal law. :

In making public the telegrams to Walker and to Senator Pat McCarran and Rep. Hatton W. Summers, the committeemen, Roger N. Baldwin, ACLU director said: ‘We have been fighting Post Office censorship for the last twenty years. The Poponoe decision on May 28 finally ended the Postmaster General’s power to bar from the mails books, pamphlets, and single issues of periodicals by personal whim without any hearing. The “Esquire” decision has now ended his power to penalize and curtail magazines he doesn’t like by revoking secondclass mailing privileges. But the fight won’t be over until the whole question of obscenity is taken out of the hands of postal officials and put before juries where it belongs.” He pointed out that this had already been done successfully in the Customs Service in relation to imported literature.

Justice Thurman Arnold wrote the unanimous opinion of the D. C. Appeals Court in the “Esquire” case, expressing the hope “that this is the last time that a government agency will attempt to compel the acceptance of its literary or moral standards relating to material admittedly not obscene.” The Postmaster General had’ maintained the magazine “bordered on the obscene.”

Justice Arnold held the revocation of ‘“Esquire’s” second-class privileges was an illegal and unconstitutional interference with freedom of the press, and said the magazine stood to lose $500,000 a year in higher postal rates if the revocation were enforced. He said that Congress had never delegated the Postmaster General to ‘determine what is good for the public to read and then force compliance with his ideas by putting editors who do not follow them at a competitive disadvantage.” Quoting an in- scription on the New York General Post Office, Justice Arnold concluded that “post office officials should experience a feeling of relief if they are limited to the more prosaic function of seeing to it that ‘neither snow or rain nor heat nor gloom of night shall stay these couriers from the swift completion of their appointed rounds’.”

The American Civil Liberties Union and the American Newspaper Publishers Association both filed briefs supporting “Esquire” in the Appeals Court.

SUPREME COURT OUTLAWS RACIAL BIAS IN RAILWAY MAIL ASSOCIATION

In a unanimous decision on June 18 the U. 8. Supreme Court held that the Railway Mail Association can not under the New York State civil rights law limit its membership to white government postal clerks. The American Civil Liberties Union, which filed a brief supporting the New York law, said that while the case itself was of limited importance the decision “marked one more judicial blow .at racial discrimination inside trade unions.” The Railway Mail Association had appealed to the U. S. Supreme Court on the ground that the New York law guaranteeing racial equality did not apply to an association of federal employees engaged in interstate commerce.

The high court’s opinion by Justice Reed held that denial of membership in unions on the basis of race, creed, or color deprives employees of ‘all means of protection from unfair treatment arising out of the fact that the terms imposed by a dominant union apply to all employees whether union members or not. In their very nature racial and religious minorities are likely to be so small in number in any particular industry as to be unable to form an effective organization for security settlement of their grievances and consideration of their group aims with respect to conditions. of employment. The fact that the employer is the government has no significance from this point of view.”

U. S. SUPREME COURT UPHOLDS REFUSAL "TO ADMIT PACIFIST TO BAR BY 5-4 VOTE

In a five to four decision the U. S. Supreme Court on June 11 upheld the refusal of the fllinois Supreme Court to admit Clyde W. Summers to the bar on the sole ground that he was a conscientious objector. Julien Cornell, New York attorney who represented Summers. on behalf of the American Civil Libertiés Union said the decision constituted “a stunning blow to religious liberty in the United States,” and that a petition for rehearing would be filed. The majority opinion of the court by Justice Reed, supported by Chief Justice Stone and Justices Frankfurter, Jackson, and Roberts, held that ‘“‘the United States does not admit to citizenship the alien who refuses to pledge mili‘tary service. It is impossible for us to conclude that the insistence of Illinois that an officer who is charged with the administration of justice must take an oath to support the constitution of Illinois and Illinois’ interpretation of that oath to require a willingness to perform military service, violates the principles of religious freedom which the Fourteenth Amendment secures against state action, when a like interpretation of a similar oath as to the federal constitution bars an alien from national citizenship.”

The minority dissent by Justice Black, supported by Justices Douglas, Murphy and Rut- ledge, said it was beyond doubt that Summer’s religious beliefs were the only reason for his rejection, and continued: “It may be, as many people think, that Christ’s Gospel of love and submission is not suited to a world in which men still fight and kill one another. But I am

24 Bundists Freed In Draft Law Case

Twenty-four members of the German American Bund convicted of advising members to evade the draft were freed by a 5 to 4 decision of the U. S. Supreme Court on June 11. They have been serving sentences since 1942 while their appeal was pending. The case turned on a Bund official order issued in October 1940 holding that military service for Bund members was not justified until a provision in the draft act of 1940 was repealed, forbidding the replacement of any drafted employees by “any person who is a member of the Communist Party or the German-American Bund.” The Bund order concluded: “Every man, if he can, will refuse to do military duty until this law and all other laws of the country or the States which confine the citizenship rights of Bund members are revoked!”’

Justice Roberts for the majority held that the order might actually have been translated. to read: “Each man, if he properly can, will refuse to do military service, etc.”’ and that in this form it could be taken to mean that Bundists should try to test their rights in the courts. This did not, he said, constitute advice to evade the draft law. Justice Black in a concurring opinion held that the amendment to the draft law put the Bund members in the position of being subject to the draft yet denying them re-employment upon return from army service. Justices Frankfurter and Murphy supported Justice Roberts, and Justice Rutledge wrote another concurrence. —

Chief Justice Stone in a dissent, supported by Justices Reed, Douglas and Jackson, held' that the defendants were guilty since the Bund order was published after enactment of the draft act, and “counselled members to violate the statute by evading military service, notwithstanding the order’s suggestion that the refusal to do military duty might cease whenever repeal occurred.”

SUPREME COURT TURNS DOWN APPEAL AGAINST RESTRICTIVE COVENANT

A petition for a hearing before the U. S. Supreme Court of a case involving a real és- tate contract barring Negroes from ownership or residence in a restricted area of the District of Columbia was denied by the court on May 28. Justices Murphy and Rutledge opposed the denial; Justices Reed and Jackson did not participate. The petition was filed in the case of Clara Mays, Negro government employe, who had previously lost an appeal in a two to one decision of the D. C. Court of Appeals, barring her from property which she had bought.

not ready to say that a mere profession of belief in that Gospel is a sufficient reason to keep otherwise well-qualified men out of the legal profession, or to drive law-abiding lawyers of that belief out of the profession, which would be the next logical development.” Attorney Cornell pointed out that the majority opinion relied on the fact that applicants for citizenship are required to take an oath to bear arms. This requirement may come before the Supreme Court again in the near future, regardless of the outcome of the petition for a rehearing. The Civil Liberties Union is preparing to aid an appeal to the Supreme Court in the case of pacifist James Girouard, refused citizenship in the U. S. Circuit Court at Boston on June 1st after he had indicated that he would accept non-combatant service but would not bear arms. The Circuit Court’s refusal was based upon decisions of the Supreme Court fifteen years ago in the MacIntosh and Schwim.mer case in which the court interpreted Congressional intent to bar from citizenship those who would not promise to bear arms.

Chief Justice Harlan F. Stone who voted against Summers supported in 1931 the dissent by the then Chief Justice Hughes holding that a pacifist should be admitted to citizenship be— cause “in the forum of conscience duty to a moral power higher than the State has always been maintained . . . without demanding that. either citizens or applicants for citizenship shall assume by oath an obligation to regard allegiance to God as subordinate to allegiance to civil power.”

Florida Licensing Law for Labor Unions Invalidated

A Florida law requiring labor union agents to be licensed by the state and labor unions to register before they could function was declared invalid as conflicting with the Wagner Act in a 7-2 decision by the U. S. Supreme Court on June 11. Attorneys for the American Civil Liberties Union who had filed a brief as a friend of the court urging that the law be declared unconstitutional expressed “some disappointment”’ with the narrowness of the grounds of the decision.

Justice Black for the majority held that Congress in the Wagner Act had “attached no conditions whatsoever” to the freedom of employees © in choosing their bargaining agents, and that the Florida law by attempting to make licensing a condition for acting as an agent was interfering with this “full freedom.” The court held that the section of the law requiring unions to register with the state did not conflict with the Wagner Act, but that any attempt to prevent a union from functioning as a penalty for not registering was in conflict with the act. An injunction forbidding a Jacksonville, Fla., local of the Plumbers Union, AFL to function wa declared invalid.

ACLU attorneys said it would appear from reports of the decision that the registration feature of the law might be legal if some penalty were invoked that did not interfere with unions continuing to function.

Chief Justice Stone in a separate opinion concurred with the majority in finding licensing of agents illegal, but held that registration by unions did not conflict with the Wagner Act. Justices Frankfurter and Roberts in a dissenting opinion held that “Congress by protecting employees in their right to choose representatives . . . did not impliedly wipe out the rights of States under their police powers to require qualifications appropriate for union officials having fiduciary duties.”

On the same day in a unanimous opinion by Chief Justice Stone the court declined to rule on an Alabama law requiring unions to file complete annual statements, barring “executive, supervisory” employees from membership in unions, and forbidding unions to collect money for work permits. The court held that since the law had not yet been applied, facts were lacking on which to judge whether it conflicted with the Wagner Act. The ACLU had filed a brief urging the court to declare the annual statements and the ban on supervisory employees unconstitutional. It did not oppose the ban on work permits.

The Florida law reached the Supreme Court. on appeal from the Florida Supreme Court by the AFL, the Alabama law on two separate appeals by the AFL and the CIO.

Page 4

AMERICAN CiVIL LIBERTIES UNION-NEWS

American Civil Liberties Union-News Published monthly at 216 Pine Street, San Francisco, 4, Calif., by the American Civil Liberties Union of Northern California. Phone: EXbrook 1818 ERNEST BESIG ....... Editor Entered as second-class matter, July 31, 1941, at the Post Office at San Francisco, California; under the Act of March 3, 1879.

Subscription Rates—One Dollar a Year. Ten Cents per Copy.

Bridges Decision Avoids Larger Issue

A 5 to 8 decision of the U. S. Supreme Court on June 18 cancelling the deportation order against west coast labor leader Harry Bridges was criticized by the American Civil Liberties Union for it failure to deal with the constitutional issue. The A.C:L.U., which had filed a brief supporting Bridges expressed disappointment that the court had not endorsed the view voiced by Justice Murphy in a concurring opinion “that aliens resident in the United States are constitutionally entitled to the full protection of the Bill of Right.’’ Some general gain was seen in the decision in limiting the power of the government to “prosecute persons affiliated for purely legal purposes with alleged illegal or seditious organizations.’’

The majority opinion by Justice Douglas, supported by Justices Reed, Rutledge, and Black, with Murphy concurring, dealt with two charges against Bridges: that he was “affiliated” with organizations advocating the overthrow of the government: and that he was a member of the Communist Party. The majority found the evidence as to his membership too flimsy to stand up. On the question of affiliation the court held that “individuals, like nations, may cooperate in a common cause over a period of months or years though their ultimate aims do not ‘coincide. Certainly those who joined forces with Russia to defeat the Nazis may not be said to have made an alliance to spread the cause of Communism. An individual who makes contributions to feed hungry men does not bhe| come ‘affiliated’ with, the Communist Cause be cause these men are Communists.”

On this ground the court threw out the de| portation order, holding that “when we turn | to the facts of this case we have little more than a course of conduct which reveals cooperation with Communist groups for the attainment of wholly lawful objectives.”

Chief Justice Stone in a dissent, supported by | Justices Roberts and Frankfurter, did not deal —

with the question of affiliation, holding that Bridges ought to be deported as a member of the Communist Party, since it was adequately shown that he had “long and continuously associated with Communists and Communist party crganizations and had exhibited a sympathetic attitude toward the Communist party and its program.” Justice Jackson disqualified himself.

Justice Murphy in his concurrence expressed a view urged by the Civil Liberties Union in its brief when he said: “Our concern with this case does not end in the fate of Harry Bridges, an alien whose constitutional rights have been grossly violated. The liberties of 3,500,00 other aliens in this nation are also at stake. It would be a dismal prospect for them to discover that their freedom in the United States is dependent upon their conformity to the popular notions of the moment. But they need not make that discovery. The Bill of Rights belongs to them as well as to all citizens.”

HIGH COURT REFUSES REVIEW OF ALCATRAZ PRISONER’S CASE

The U. S. Supreme Court last month declined to review the petition of Louis Burall, an Algatyvaz prisoner, for a writ of habeas corpus. ‘he case raised two questions: (1) Whether a federal judge to whom a petition for a writ af habeas corpus is presented may refuse to take any judicial action whatsoever thereon and refer the case to the District Court for assignment to any member of the court; and (2) Whether a defendant is entitled to representation by counsel at his preliminary hearing before a U. S. Commissioner. The matter was handled by Attorney Wayne M. Collins of the A.C.L.U. of Northern California.

JUSTICE HOLMES: “If there is any principle 3f the Constitution that more imperatively calls for attachment than any other it is the principle of free thought—not free thought for those who agree with us but freedom for the thought we hate.

District Court Enjoins Use of M ilitary Force To Prevent Return of Nisei To California

The army has no power to enforce military orders on the civilian population in the absence of martial law according to a decision of Judge Pierson M. Hall of the U. S. District Court at Los Angeles on June ist in the cases of three Japanese Americans excluded from the west coast by individual military orders, The Jap-anese Americans were represented by the American Civil Liberties Union. The judge issued an injunction restraining Major General H. C. Pratt, Western Defense Commander, from using military force to prevent Elmer Yamamoto, Dr. George Ochikubo, and Kiyoshi Shigekawa, three excluded Nisei, from going anywhere they wish in the United States, including California.

Judge Hall held that it was unnecessary for him to pass on the constitutionality of the individual exclusion orders themselves, since he ruled that military orders can legally be enforced only by civil authorities, and that therefore anyone disobeying such an order has a ‘right to trial in a federal court with full opportunity to prove the order unconstitutional. The judge pointed out that the Commanding General had claimed on the witness stand that he had the right to remove by military force “at any time of the day or night any person or all persons who might violate any order or proclamation of the Commanding General’, and said that if such powers were legal “then an effective way has been found for actually suspending the writ of habeas corpus without appearing to do so.’ He added that a Commanding General, under the powers claimed, could practically do away with civil government anywhere in the United States by declaring a military area and removing “the judges of the courts and the civil authorities.” Neither Congress nor the President delegated powers to the army to use “military force to execute the orders of the military commander on civilians by a squad of soldiers, but preserved the right of civilians to be tried by a jury in civilian courts with all the safeguards inherent in such procedure, and made such prosecution the exclusive means of enforcement.”

A. L. Wirin of the Union’s Southern California Branch, who argued the case hailed the de‘noteworthy and courageous”, and said it was the first time any Pacific Coast judge had handed down an opinion favorable to the rights of Japanese Americans. He said the opinion might have a larger importance in defining the limits of military power in regard to the general population in such matters as curfews, dimouts, transfers of property, or any other military regulations.

According to the ACLU, Japanese Americans excluded by individual army orders are lable 'to prosecution upon return to the west coast, under a law passed by Congress in 1942 making it a crime to disobey a military order. Doubt:is expressed, however, that district attorneys would be willing to prosecute because of the judicial set-backs in previous cases on the Atlantic coast challenging the validity of military exclusion orders.

Project Director at Tule Lake Metes Out Heavy Sentence to 16-Year-Old

During the past month the A.C.L.U. has had a number of complaints concerning arrests at the Tule Lake Segregation Center. A couple of the complaints involve 16-year-old boys. In one instance Thomas T. Imagawa was sentenced to the Project Jail for 370 days, although 120 days of the sentence were suspended. wearing a sweat shirt, and a headband. Such acts are apparently in violation of a special project regulation, promulgated by the project director on March 16, 1945, which provides that ‘The wearing of any insignia, emblem or garment symbolic of or indicating any form of Japanese nationalism or Japanese nationalistic organizations, is prohibited.”

Violations of the regulation are not tried before a judge and jury but before the very man who established the regulation. And, there is ‘no limitatio: on the punishment he may mete out. The regulation simply provides that “Any person found guilty of violating any of the above regulations will be subject to disciplinary action which may include confinement in jail, fine or other disciplinary action.” Apparently, the project director could have handed. down a ten-year sentence for the above acts if he had wanted to do so.

The A.C.L.U. received complaints from the families involved and offered to take the matter to the courts, but ever since a wire was sent to one of the boys in the project stockade requesting full information, no letters have been received from any of the complainants in the Center. The Unior is continuing its investigations.

A.C.L.U. Queries The Southern Pacific Company On Its Racial Policies

The A.C.L.U. of Northern California has requested the Southern Pacific Company to ad- vise the Union as to its policies with reference to the handling of golored passengers. The reason for the inquiry grows out of an incident that occurred the latter part of May.

One Miss Georgia Lloyd, a white person, sought space on the Daylight from Los Angeles to San Francisco on May 28. The agent informed Miss Lloyd they had space available only for May 29. When Miss Lloyd pressed her request for a ticket on the May 28 train the agent engaged in a long conversation over the telephone with the central. reservation office. Thereafter, the agent explained that one seat was available on the May 28 train, but it was next to a Negro. Since this made no difference to Miss Lloyd, she was given the seat and on May 28 sat next to a Negro lady from Berkeley. If the Southern Pacific Company does not discriminate against Negroes and other colored

Several Suppressive Measures Adopted By The California Legislature

California’s “Little Dies Committee” has been continued for another two years by the recent session of the State Legislature, at a cost of $20,000, and the equally obnoxious Senate Committee on Japanese Problems has likewise been continued for two years.

‘The crime committed by the boy consisted of — “The Legislature finally adopted, on the last day of the session, S.B. 629, by Senator Tenney and others. This bill amends the Civic Center Act by defining ‘subversive elements” and then . prohibiting their use of school buildings as meeting places. That is no more than is done by existing law. In addition, however, the bill allows school boards to require affidavits of any person or organization applying for the use of a civic center, “stating facts showing whether or not such person or organization is a subversive element.” Since the bill permits affidavits to be required from “any members of such organization,” it would be entirely possible for a school board to require all of the members of an organ- ization to file affidavits, a requirement almost impossible of fulfillment. In this way, a board could limit the use of a civic center to groups of which it approved. The Union will urge Governor Warren to veto the bill.

The State Senate sustained Governor Warren’s veto of S.B. 407, which would have re- quired state employees and office holders to answer the question, “If necessary, are you willing to take up arms in defense of the United’ States of America?

Legislation setting up a State F.E.P.C. and a bill establishing a committee to investigate race discrimination were finally defeated in the closing days of the session. A bill to repeal a law permitting separate schools for colored children was adopted by the Assembly but never got out of the Senate Education Committee. A case testing the constitutionality of the law is pending in the courts in Southern California.

people, what reason would its central reservation office have to procure information concerning the race of a passenger? The company responded to the Union’s letter but begged the question. Another letter was then written to the Company to which a telephone response was received. No satisfactory explanation was offered for the procedure in the particular case, — and the conversation wound up with a promise of a further investigation.

BENJAMIN FRANKLIN — “Abuses of the freedom of speech ought to be repressed, but © to whom dare we commit the power of doing it?”