vol. 13, no. 4

American

Civil Liberties

~ Union-News

Free Press

Free Speech

Free Assemblage

"Eternal vigilance is the pics of liberty."

Vol. XI

SAN FRANCISCO, APRIL, 1948

No. 4

Alien leaves U. S. After Five

Months Detention By Immig.

After imprisoning Bolislava Migdalovsky, a

white Russian from Shanghai, for about five

months, the Immigration Service in San Fran-

cisco last month permitted her to leave volun-

tarily for Chile "under security measures." An

Immigration Service inspector accompanied her

as far as Miami, Florida.

Miss Migdalovsky overstayed her transit visa

- in order to meet her fiancee, after an Immigra-

tion Service inspector had assured her an ex-

tension of her visa would not be necessary since

she was overstaying only a short time. Never-

theless, she was arrested and ordered deported

to China. That country refused to reaccept her,

and our Government would not allow her volun-

tary departure for Chile until the ACLU inter-

vened in her behalf in February.

_ At that point, Miss Migdalovsky, whose fiancee

disappeared after she financed his Reno divorce

to the tune of $900, decided to try to stay in

the United States. She dropped the idea, how-

ever, when the Immigration Service again asked

the Chinese government to accept her return.

Rather than risk being returned to China, which

she had tried to leave for twelve years, Miss

Migdalovsky finally left for Chile. If she had

gambled, she would have won, because the Chi-

- nese government failed to issue travel docu-

_ ments for her reentry to China, and our govern-

ment would have had no recourse but to release

her from imprisonment. Such a situation arises

because of carelessness of the State Depart-

ment in issuing transit visas without seeing to it

that the alien has a passport permitting his

return to the country which he is leaving.

Thomas Committee Gets

$200,000 Despite Protests

The Thomas Un-American Activities Committee

won sweeping support in the Houde of Representa-

tives for its. unprecedented request for a $200,000

appropriation, despite the protests that culmin-

ated over the Committee's attack on Dr. Edward

U.. Condon, director of the National Bureau of

Standards. The ACLU has joined in protestifig

the appropriation, in view of the further evidence

of the Committee's `dangerous irresponsibility".

The House voted 337 to 37 for the big appropria-

tion.

The ACLU has commended Secretary of Com-

merce W. Averell Harriman for his refusal to

furnish the record of his department's loyalty

review board, which had cleared Dr. Condon of

charges of disloyalty. The Union expressed con-

cern that the loyalty review boards set up to hear

appeals might be "intimidated" by Congressional

pressure. It denounced the Committee's attack on

Dr. Condon as an "unworthy publicity stunt" to

secure approval of the appropriation.

California Japanese Fishing Case

Will Be Heard By Supreme Court

The California law denying commercial fishing

licenses to "aliens ineligible to citizenship" will be

reviewed by the U. S. Supreme Court which agreed

on March 15 to consider an appeal by the Japanese

fishermen. Their petition was supported by the

Department of Justice and individuals and organi-

zations, based on the theory that enforcement of

the law is an unconstitutional racial discrimina-

tion.

The ACLU first aided with a brief when the

case was before the California Supreme Court.

It will join in presenting the arguments before the

federal high tribunal in a brief.

In intervening in the case, Attorney General

Tom Clark wrote: "We have been duly mindful

that the federal government must take the lead in

securing the civil rights guaranteed to the people

by the Constitution."

Religion May Not Be Taught in Tax-Supported

Schools, High Court Rules; Decision Reprinted

In a historic 8 to 1 decision, the U. S. Supreme

Court on March 8 upheld the contention of Mrs.

Vashti McCollum of Champaign, Illinois, that the

community's plan of released school time for re-

ligious instruction violated the constitutional

guarantee of separation of Church and State.

"Here," said the Court, "not only `are the

state's tax-supported public school buildings used

for the dissemination of religious doctrines. The

State also affords sectarian groups an invalu-

able aid in that it helps to provide pupils for

their religious classes through use of the State's

compulsory school machinery. This is not sepa-

ration of Church and State. :

The prevailing opinion was written by Justice

Black, who was. supported by four members of

the court. In concurring in the result, Justice

Jackson wrote a separate opinion. He also joined

in an opinion by Justice Frankfurter, whose opin-

ion was also supported by Justices Burton and

Rutledge. Justice Reed was the sole dissenter.

Illinois is one of ten states where religious

classes on "released time" are held in school

buildings. In a dozen other states, children are

"released" from school on compulsory school

time to attend instruction held on private proper-

ty. States permitting pupils to attend religious |

classes outside of school buildings during school

time include California, Indiana, Iowa, Kentucky,

Maine, Massachusetts, Minnesota, New York,

Oregon, Pennsylvania, South Dakota and West

Virginia.

The ACLU filed a brief in the Supreme Court

supporting Mrs. McCollum's contentions. In the |

Union's opinion, "It is the use of school time,

under compulsory education laws, and not merely

the use of school property for religious purposes,

that brings `released school time' under the Court's

ban."

The Court rejected the notion "that historically

the First Amendment was intended to forbid only

government preference of one religion over an-

other, not an impartial governmental assistance

of all religions." The Court emphasizes that "a

state cannot consistently with the First and

Fourteenth Amendments utilize its public school

system to aid any or all religious faiths or sects

in the dissemination of their doctrines and

ideals... |."

Justice Frankfurter and the other three justices

who dissented in the Everson case, which per-

mitted free bus transportation for parochial

school students, joined in another opinion that

was devoted largely to putting the "Champaign

program of 1940 in its historic setting." Having

done so, Justice Frankfurter examined the Cham-

paign released school time plan and comes to the

conclusion that `Religious education so conducted

"Naturel Herald," Nudist Magazine,

Allowed to Go Through the Mails

The Post Office Department announced last

month that the May-June, 1947, issue of the

nudist publication, Naturel Herald, published in

Sacramento by Ivan A. Brovont, had: been ruled

mailable after a hearing before a special trial

examiner last December 18. The decision was

. qualified with two conditions: 1. that the maga-

zine be mailed in envelopes or complete covers;

and 2, that it be sent only to bona fide sub-

scribers.

Naturel Herald was banned from the mails

solely because it contained the pictures of nude

men, women and children. There was nothing

vicious about these pictures. If the undraped

body is obscene, then the Post Office Depart-

ment was justified in its action.

The ACLU contended there was nothing

obscene about the magazine and extended its

support to the publisher.

on school time and property is patently woven

into the working scheme of the school. The Cham-

paign arrangement thus presents powerful ele-

ments of inherent pressure by the school system

in the interest of religious sects. The fact that

this power has not been used to discriminate is

beside the point. Separation is a requirement to

abstain from fusing functions of Government and

of religious sects, not merely to treat them all

equally."

Proponents of released school time may find

some solace in Justice Frankfurter's declaration

that `We do not consider, as indeed we could not,

school programs not before us which, though

colloquially characterized as `released time,' |

present situations differing in aspects that may

well be constitutionally crucial. Different forms

which `released time' has taken during more than

thirty years growth include programs which, like

that before us, could not withstand the test of the

Constitution; others may be found unexception-

able. We do not now attempt to weigh in the

Constitutional scale every separate detail or vari-

ous combination of factors which may establish

a valid `released time program.' We find that the (c)

basic Constitutional principle of absolute separa-

`tion was violated when the State of Illinois, speak. --

ing through its Supreme Court, sustained the

school authorities of Champaign in sponsoring -

and effectively furthering religious beliefs by its .

educational arrangement."

Following is Justice Black's opinion in full, ex-

cept for footnotes:

This case relates to the power of a state to

utilize its tax-supported public school system in

aid of religious instruction insofar as that power

may be restricted by the First and Fourteenth

Amendments to the Federal Constitution.

The `appellant, Vashti McCollum, began this

action for mandamus against the Champaign

Board of Education in the Circuit Court of Cham-

paign County, Illinois. Her asserted interest was

that of a resident and taxpayer of Champaign and

of a parent whose child was then enrolled in the

Champaign public schools. Illinois has a compul-

sory education law which, with exceptions, re-

quires parents to send their children, aged seven

to sixteen, to its tax-supported public schools

where the children are to remain in attendance

during the hours when the schools are regularly

in session. Parents who violate this law commit a

misdeameanor punishable by fine unless the chil-

dren attend private or parochial schools which

meet educational standards fixed by the State.

District boards of educations are given general

supervisory powers over the use of the public

school buildings within the school districts.

Ill. Rev.,Stat. ch. 122, 0x00A70x00A7 123, 301 (1943).

Appellant's petition for mandamus alleged that |

religious teachers, employed by private religious -

groups, were permitted to come weekly into the

school buildings during the regular hours set apart

for secular teaching, and then and there for a

period of thirty minutes substitute their religious

teaching for the secular education provided under

the compulsory education law. The petitioner

charged that this joint public-school religious-

group program violated the First and Fourteenth

Amendments to the United States Constitution.

The prayer of her petition was that the Board of

Education be ordered to "adopt and enforce rules

and regulations prohibiting all instruction in and

teaching of all religious education in all public

schools in Champaign District No. 71, ... and -

`in all public school houses and buildings in said

district when occupied by public schools."

The board first moved to dismiss the petition

on the ground that under Illinois law appellant

had no standing to maintain the action. This mo-

(Continued on Page 4, Column 2)

Page 2

AMERICAN CIVIL LIBERTIES UNION NEWS

Michigan One-Man Grand

Jury Outlawed by High Court

A system, unique in Michigan, under which a

single judge sitting in secret acts as grand jury

inquisitor, prosecutor and sentencing magistrate,

was outlawed by the U. S. Supreme Court on

March 8, as a denial of due process. The ACLU

participated in the appeal through Osmond K.

Fraenkel, who assisted William H. Gallagher,

Detroit lawyer, who has long challenged the sys-

tem. The Supreme Court had once before declined

to review, and the further test case was then

brought.

The opinion described the extraordinary pro-

cedure in Michigan as follows: "In the case before

us the petitioner was called as a witness to testify

in secret before a one-man grand jury conducting

a grand jury investigation. The investigation be-

came `a trial,' the grand jury became a judge,

and the witness became an accused charged with

contempt of court-all in secret. Following a

charge, conviction and sentence, the petitioner was

led away to prison-still without any break in the

secrecy. Even in jail... his lawyer was denied an

opportunity to see and confer with him. :

__ "And that was not the end of secrecy. His lawyer

filed in the State Supreme Court this habeas

corpus proceeding. Even there the mantle of

secrecy enveloped the transaction and the State

Supreme Court ordered him back to jail without

ever having seen a record of his testimony, and

without knowing all that took place in the secrecy

of the judge's chambers.

"In view of this nation's historic distrust of

secret proceedings, their inherent dangers to free-

dom, and the universal requirement of our federal

and state governments that criminal trials be

public, the Fourteenth Amendment's guarantee

that no one shall be deprived of his liberty without

due process of law means at least that an accused

cannot be thus sentenced to prison."

Right Of Labor Unions

To Express Political

Opinions Upheld

The U. S. District Court in Washington, D. C.,

on March 15, ruled against the Department of

- Justice in the test case brought by the govern-

ment under the Taft-Hartley Act over the ques-_

~ tion of the right of labor unions to express political

opinions and take part in political campaigns. The

case had been initiated by the arrest of Philip

Murray of the CIO under the criminal provisions

of the act. The government is taking an imme-

diate appeal to the U. S. Supreme Court. .

Federal Judge Ben Moore pointed out that the

"plain terms" of the law deprives unions and their

members of the constitutional right to free speech,

press and assembly. Referring to the expenditure

for political publicity for which the organization

was indicted. the justice remarked that labor's

constitutional rights "at no time .. . are so vital

as when they are exercised during, preceding. or

following an election. If they were permitted only

at times when they could have no effect in influ-

encing public opinion and denied at the very

time and in relation to the very matters that are

calculated to give the right value, they would lose

their precious character with which they have

been clothed from the beginning of our national

life... . There is the right of the people to be in-

formed of the views represented by conflicting

interests and opinions. How are they to get such

information concerning the views of laboring men

and women if the organization in and through

which such persons are united in a common pur-

pose is forbidden to publish any views whatso-

ever?" ;

A similar test case involving Walter Reuther

and the UAW is pending.

ACLU Opnoses So-Called

Eaual Riehts Amendment

; Denouncing the so-called Equal Rights Amend-

ment as a "shot-gun method" of preventing the

discrimination against women which would do

more harm than good, the ACLU lent its support

to the alternative "Status of Women Bill" in Con-

gressional hearings last month. The Union's state-

ment, presented to the House Judiciary Commit-

tee, was signed by the Union's officers and by

Judge Dorothy Kenyon, chairman of the Union's

Committee on Women's Rights.

The Status of Women Bill (HR 2007), accord-

ing to the Union's statement, offers "effective

means for removing legal and administrative bars

to the advancement of women, while preserving

legislation justified by genuine sex differences."

The Bill would set up a commission to assure con-

tinuing effort to remove unjustified discrimination

against women.

Un-American Tenney Comm. Smears Fairfax

Progressives and Elsa Gidlow in Particular

On March 11 the Tenney Un-American Com-

mittee, reported to the California Legislature

concerning its one-day hippodrome in Fairfax on

October 23, 1947, in the Elsa Gidlow case. The

report is nothing less than a vicious and un-

principled smear, which demonstrates conclusi-

vely how totally irresponsible and dangerous the

un-American Tenney Committee really is.

The report was well timed. Ever since July 11,

1947, when Miss Gidlow was ousted from her

non-salaried. job on the. Planning Commission

until she disproved charges of Communism and

Un-American activities filed against her by the

one-man Committee on Un-American Activities,

Councilman Leslie Grosbauer, she has demanded

a hearing. The Council eventually promised the

hearing and after repeated delays, Justice Jesse

Carter of the State Supreme Court accepted the

Council's unanimous invitation to hear the case.

The hearing was finally scheduled for March

19, but two days before, the Council, without

apologies to Justice Carter, and by its usual

3 to 2 vote, rescinded its prior action on the

strength of the Tenney Committee report.

As a result, Miss Gidlow is denied an opportu-

nity to answer the charges made against her,

since the Tenney hearings did not permit any

presentation of evidence by her. It shows too

how the unscrupulous Tenney Committee worked

hand in hand with local politicians to deny Miss

Gidlow what every true American regards as

a fundamental right-an opportunity to defend

herself against an accusation. The report that

accomplished the trick is a monstrous and

wicked Hitlerian kind of a smear.

On the witness stand at the Tenney Com-

mittee hearings, Miss Gidlow not only denied

being a Communist but stated she could not see

`much distinction between Communism and Fasc-

ism. (Imagine a Communist saying that!) She

declared she was opposed to dictatorship and

a police state. The Committee, however, merely

reports her as saying she was "definitely op-

posed to the Communist Party."

In the face of such declarations, the Commit-

tee nevertheless found that Miss Gidlow was

knowingly affiliated with five Communist fronts

. (it fails to say it was seven to ten years ago),

and from that "a pattern of Communist fellow-

traveling immediately follows." She could not

plead innocence; says the Committee, because

Miss Gidlow allowed her name to be used by

avowed Communists as a member of the Schnei-

derman-Darcy Defense Committee prior to the

war. "No person in his good senses," says the

Committee, `would knowingly rush to the de-

fense of the enemies of his country." By the

same token, Wendell Willkie, who successfully

defended Schneiderman before the U.S. Supreme

Court, was devoid of good sense. In any case,

a person who knowingly defends the rights of a

Communist, the Committee suggests, must be a

fellow-traveler. Now, such talk is clearly sub-

versive, Certainly, "The Constitution of the

United States,' as the Supreme Court has said,

"is a law for rulers and people, equally in war

and in peace, and covers with the shield of its

protection all classes of men, at all times and

under all circumstances."

But the Committee goes even further than

that. It suggests obliquely that Miss Gidlow

must be a Communist because important Com-

munists are not issued membership cards, and

the real test of membership is activity. As evi-

dence of Miss Gidlow's Communist activity, the

report points to the `Rockwell-Gidlow axis in

the City of Fairfax ... a familiar maneuver

of Communist Party strategists." Mr. Rockwell,

it should be noted, appointed Miss Gidlow to the

Planning Commission at the time he was Mayor.

Why is this a Communist maneuver? Well, ac-

cording to the Committee, a Communist was suc-

cessful in having himself appointed to the Los

Angeles Planning Commission. Apparently that

proves the Communists are taking over Plan-

ning Commissions, so anyone getting himself

appointed to a Planning Commission must be a

Communist.

Typical of any smear story, the Committee's

report relies upon insinuations, innuendos, dis-

tortions, halt-truths and falsehoods.

For example, there is the small matter of the

Committee's statement that Ernest Besig, local

director of the Union, was ``subpenaed" to tes-

tify. The truth is that Mr. Besig demanded that

he be permitted to answer the libellous charge

of Councilman Leslie Grosbauer that the ACLU

was a Communist organization. The Committee

also reported that according to the testimony of

Leslie Grosbauer, Ernest Besig attended a dinner

party at the home of a Capt. Henry Hemingway

in Fairfax, together with Miss Gidlow. Council-

man May Hax and a Mrs, Isabel Quallo. The

"decorations for the occasion," says the report,

"featured various shades of red." The story is

highly inaccurate. Ernest Besig attended no

dinner party at the home of Capt. Hemingway.

After a Council session, however, Mr. Besig was

invited to Capt. Hemingway's home for a social

hour. There were no decorations-red or other-

wise.

One of the five Communist organizations with

which Mis Gidlow was found to be "affiliated in

one capacity or another" was the John Reed

~ Club. As a matter of fact, Miss Gidlow testified

and the record will show very clearly, that she

refused an invitation to join that Club because

she could not subscribe to its principles.

The Committee also found that Miss Gidlow

belonged to the Western Writers Conference. It

is true that this group was taken over by the

Communists, but at the time Miss Gidlow was a

member it was not Communist dominated, and

she withdrew when it did come under Commun-

ist domination. Of course, the Tenney Commit-

tee could not be expected to make such a dis-

tinction; otherwise it could not prove that Miss

Gidlow was a "Red."

Then, Miss Gidlow was alleged to have been

affiliated with Black and White, which the Com-

mittee glibly declares was a Los Angeles Com-

munist publication. The publication is an obscure

one that lasted only a few issues in 1939, to

which Miss Gidlow contributed some verse and

permitted the use of her name. Her connection

with the venture was most tenous. And, whether

or not the publication ever peddled Communism,

the Tenney Committee failed to establish. In any

case, it was never charged that there was any-

thing Communistic about Miss Gidlow's poems.

The only other organization with which the

Committee finds fault, besides the Schneider-

man-Darcy Defense Committee, is the Inter-

Professional Association to which Miss Gidlow

belonged in 1937. That was the San Francisco

group which the late John D. Barry headed for

so many years. It was undoubtedly a Commun-

ist front, but it is also quite possible that most

of the people who belonged to it in the early

years were unaware of it.

Miss Gidlow, the report notes, also "admitted"

she knew a Communist. That's the way the

Committee put it. Apparently, it's a crime to

know a Communist, as far as the Tenney Com-

mittee is concerned.

The same sort of a smear, which we have

not the space to analyze, is directed against

attorney John Rockwell, a member of the Fair-

fax City Council, who appointed Miss Gidlow to

her unpaid job on the Planning Commission.

Mr. Rockwell has himself denounced the report

as a "maze of pointed insinuation, false innuen-

does, biased opipion and misleading conclusions." |

The real purpose behind the Fairfax Com-

munist scare is to discredit the Fairfax Resi-

dents and Taxpayers Association which has con-

cerned itself with questions of taxation, graft in

garbage disposal. etc., and which has had grow-

ing success in eliminating a political clique that

has run things as it liked for many years. The

Tenney Committee, of course, as is its practice,

has allied itself with the reactionary elements

in the community. .

Todav, the Council is still split 3 to 2 on most

issues. But the terms in office of the majority

(Campbell, Grosbauer and Wells) are all expir-

ing, and an election will be held on April 13.

Seeing the handwriting on the wall. Grosbauer

and Wells are not running for reelection. Mavor

Campbell, however, is trying again on a ticket

with stooges of his old cronies. An opposing

ticket is said to stand an excellent chance of

defeating the reactionarv ticket. We mention all

of this onlv because the Tennev smear campaign

was intended to defeat progressive political

forces in Fairfax.

The Committee's report is in sharp contrast

with the statement made by Sen. Hugh Burns,

acting committee chairman, to a San Francisco

Examiner reporter at the conclusion of the Fair-

fax hearings. "Miss Gidlow." said Sen. Burns,

"is probably more to be pitied than to be blamed.

I would say that she had been used by the

Communists." Without further evidence, Sen.

Burns and the Committee now reach the con-

clusion that Miss Gidlow is affiliated with Com-

munist fronts, a fellow traveler, and probably

a party member without a card.

The Communists have a well-earned reputa-

tion for character assassination. On the basis

of the Fairfax smear, the members of the

Tenney Committee would make excellent Com-

munists,

AMERICAN CIVIL LIBERTIES UNION NEWS

Page 3

Jury Takes Twenty Minutes

To Acquit In `Furia' Case

A Superior Court Jury in San Francisco took

exactly twenty minutes on March 15 to acquit

Henry Pincus, manager of the Larkin Theatre,

who was charged with contributing to the delin-

quency of two minors in showing the Italian

film "Furia." At a previous trial, the jury

failed to agree.

A group of ACLU representatives saw the film

and found it neither obscene nor harmful for

minors. :

Prosecution of Mr. Pincus resulted from the

activities of a Rev: Mr. Ray V. Pedrotti, pastor

of the Westminster Presbyterian Church in San

' Francisco, Mr. Pedrotti, it appears, works hand

in hand with two police officers-Valentine and

Keyworth, who, since 1943, have acted as police

censors for San Francisco. District Attorney

Edmund G. Brown says he has an arrangement

with the Police Department whereby one of his

deputies reviews a film before an arrest is made.

In this case, Deputy District Attorney Vincent

Mullins, who was the unsuccessful prosecutor,

saw the picture and recommended the prose-

cution.

Recent unsuccessful obscenity prosecutions in

San Francisco, include the motion pictures `"`Nar-

cotics" and "The Outlaw;' the Sally Rand show, |

and Edmund Wilson's best-selling novel, "The

Memoirs of Hecate County."

"Furia" has recently run into trouble in

Chicago where. it was banned on the recom-

mendation of the Catholic clergy. The picture is

currently on the forbidden list of the Roman

Catholic Legion of Decency, whose recommenda-

tions appear to be the guide for many police

censors.

As a result. of the activities of the local cen-

sors, "Furia" will apparently enjoy a long run.

It has been exhibited for two weeks and is still

going strong.

The Union is particularly concerned with ad-

vance censorship exercised by the San Francisco

police censors. In many cases, before a picture

is shown, the police either induce the exhibitor

not to show a film or to cut. portions that are

objectionable to them. In that fashion, a picture

called "Mom and Dad," which is on the Legion of

Decency forbidden list, was kept out of San

Francisco. Early this year, an obscenity prose-

eution involving this picture was unsuccessful in

New Orleans, La, |

Hollywood Writers to Receive

Union's Support In

Contempt Case

Following the refusal of 'the U. S. Supreme

Court to review the conviction of Leon Josephson

for contempt of Congress in refusing to testify

last year before the Thomas Un-American Activi-

ties Committee, the ACLU has announced that it

will seek another test of the constitutionality of

the Committee in the case of the Hollywood

screen-writers. The ten screen writers were cited

for contempt last fall for refusal to answer ques-

tions about their membership in the Communist

Party and the Screen Writers Guild. Recently a

District of Columbia Court refused to quash the

indictment, and they must now stand trial.

The ACLU will enter the case only if it reaches

the Supreme Court on appeal. Its concern is with

the constitutional question first raised in the

Josephson case, and emphasized by Justice

Charles E. Clark in his dissenting opinion in the

Circuit Court of Appeals. He held that the legis-

lation establishing the Thomas Committee was so

vague in calling for an investigation of "un-Ameri-

can" and "subversive" activities, as to threaten

constitutionally-protected freedom of opinion.

A new organization to fight "censorship in the

art'"', and..aimed particularly at the Thomas Com-

mittee, and the Tenney Committee in California,

was formed last month in New York by a group

of writers and actors, under the chairmanship of

Christopher La Farge. Arthur Garfield Hays,

counsel of the ACLU, is a member of the sponsor-

ing.committee.

Los Angeles County Loyalty Check

Again Upheld by Superior Court

_ Superior Judge Clarence M. Hanson of Los

Angeles on March 5 upheld the validity of the

"loyalty check" of 20,000 civil service employees

voted by the Los Angeles Board of Supervisors.

_ The ruling was made on amended complaints in

two separate cases, one of which is being

handled by the Southern California Branch of

the ACLU.

A similar ruling was made last January by

Superior Judge Frank G. Swain on the original

complaints filed in these cases. An appeal will

now be taken.

Union Offers Libe! Suit Against Tenney for

Calling It C.P. Front, If He Will Waive Immunity -

The Tenney Un-American Committee on March

25 filed a lengthy report which named almost

400 alleged "Communist front" groups. Included

in the list was the American Civil Liberties

Union.

The State Senate authorized the printing of

fifteen thousand copies of the report, but they

will not be available for distribution until about

the 10th of April. In the meantime, the Union

learned, through a story by Mary Ellen Leary,

San Francisco News political reporter, that the

following reference was made to the Union in

the report:

"The report states," said Miss Leary, "that

Ernest Besig, director of the Northern Califor-

nia branch of the American Civil Liberties Union,

`appears to be a sincere, conscientious American

whose reasoning leads him to the defense of

most any one, regardless of the accusation.' But,

continues the report, `no doubt at all is left in

the mind of a reasonable person' that the Ameri-

ean Civil Liberties Union has a `Communist

front character.' "'

After learning of the Tenney Un-American

Committee's attack upon the Union, Ernest

Besig, Northern California director, issued the

following statement:

Charges of the Tenney Committee that the

American Civil Liberties Union was a "Com-

munist front" brought a rejoinder from Ernest

Besig, Northern California director, that if Mr.

Tenney would waive his legislative immunity

from suit, the ACLU would be happy to sue him

for libel and thus give him an opportunity to

prove his charge. The Union said it had wired

Mr. Tenney to that effect, besides demanding an

immediate retraction and an opportunity to be

heard.

"As far as we know," said Mr. Besig, "the

Union has not been the subject of any hearings

held by the Tenney Committee, nor have any

officers of the Union ever been requested to

testify before it concerning the aims, purposes:

and activities of the Union. Consequently, there

can be no evidence before the Committee to sup-

port its reckless and ridiculous charge. Unfor-

tunately, the Committee appears to be more

intent on headline-hunting than in making an

honest and careful investigation.'

The Union declared that the Committee's

Civil Rights In Occupied

Territory Under Scrutiny

Concerned over continuing reports of restric-

tions on civil rights in American-occupied Ger-

many, Austria, Japan and Korea, the ACLU has

enlisted the help of a group of consultants who

have served in those countries to formulate pro-

posals for reform, to be submitted to the Wash-

ington officials in charge.

The transfer of administration of the German

occupation from the Army to the State Depart-

ment on July 1st, and the present development of

Bi-Zonal and possibly Tri-Zonal governmental

bodies in western Germany, make more pressing,

in the view of the Union, the clarification of the

rights of the inhabitants with respect to the occu-

pying powers.

In Korea, which Roger N. Baldwin, director of

the Union, visited last year in connection with his

investigation of civil liberties in Japan, suppression

of rights has become more serious in view of the

decision of the UN to proceed with formation of a

government, with or without participation by

Russian-dominated northern Korea.

Censorship of mail and the press remains a

major infringement of freedom in all occupied ter-

ritories. The right to appeal against arbitrary

actions of the occupation authorities is another

pressing need. Facilities for travel into and out

of occupied countries should be increased, accord-

ing to the ACLU, which recalled the withholding

from Dr. Holmes, its board chairman, of a prom-

ised permit to enter Japan last December.

Union Supports `Mayflower' Rule

The ACLU's recently adopted policy favoring

retention of the so-called "Mayflower" rule, which

prohibits radio stations from taking sides in con-

troversial issues, was presented in hearings before

the Federal Communications Commission March

2nd, by Lawrence L. Fly, former chairman of the

Commission, now a member of the ACLU Board

of Directors.

Mr. Fly defended the rule, which he helped orig-

inally to frame, against the contention of the radio

industry, that their freedom of speech is curtailed.

Advocacy of a point of view by a radio station

would tend to curtail the freedom of the public to

hear all points of view, he said. He distinguished

charge that it was a "Communist front' was

at variance with a statement of its own counsel,

and with declarations of the Dies Committee,

Pres. Truman and Gov. Thomas E. Dewey. On

Oct. 24, 1947, Mr. Richard E. Combs, the Com-

mittee's counsel stated for the record, in Fair-

fax; that "we have never characterized the

American Civil Liberties Union as a Communist

front organization."

On Oct. 23, 1939, the Dies Committee, through

its chairman, declared for the record, that "This

committee found last year, in its reports, there

was not any evidence that the American Civil

Liberties Union was a Communist organization."

On the occasion of the Union's twenty-fifth

anniversary celebration in December, 1945, Pres.

Truman declared, `The integrity of the Ameri- .

can Civil Liberties Union and of its workers in

the field has never been, -and, I feel, never will

be questioned, Officers, directors and members

of the Union have performed outstanding serv-

ice to the cause of freedom."

At the same time, Gov, Thomas E. Dewey de-

clared: `In the quarter century of your existence

you have established an enviable record. You

have established, also, beyond all possible doubt,

proof that the American Civil Liberties Union

is an essential part of American life .. . It has

been inspiring to observe that the Union has

stood unwavering on the principle of defending

everybody's rights without distinction."

"The record proves," said the Union's state-

ment, "that for years the Tenney Committee has

been an instrument of self-seeking publicity, a

forum of irresponsible charges and its methods

those of a prosecution without protection for the

accused. We think the Tenney Committee should

be abolished as a threat to freedom of political

opinion. In our estimation, the Tenney Com-

mittee has done more to build up Communism

in California than any other agency we know."

In the meantime, the California Senate voted

the Committee an additional $15,000 to carry

on its activities. It has another $15,000 left from

an earlier appropriation. With this $30,000 of the

taxpayer's money, California may be sure that

Mr. Tenney and his fellow Un-Americans will

attempt to influence the coming elections by a

generous smear campaign. :

Deportation Drive On Alien

Communists Scored By ACLU

A wave of arrests of leading Communists for

deportation as undesirable aliens under the im-

migration laws, brought protest last month from -

the ACLU to the Attorney General. More than

thirty foreign-born Communists have been arrest-

ed recently, and in several cases bail has been

refused.

A letter signed by Arthur Garfield Hays as

counsel for the Union admitted that the law seems

to justify such action, but urged that a test of its

constitutionality should be expedited and for that

purpose "a single arrest would have been suffi-

cient." In addition he protested holding deportees

without bail as "shocking to the American sense

of justice."

"We are not concerned with the defense of

Communists," wrote Mr. Hays, "but object on

principle to deportation or any other penalty for

volitical beliefs. Resort to the deportation statutes

in a wholesale manner might lead to the charge

that these people are being persecuted."

The ACLU offered its aid to the Committee for

the protection of the Foreign-born in testing in

the courts the legality of deportations of Com-

munists solely for belief or membership. The com-

mittee represents many of those now held. While

decisions of Courts of Appeals sustain the Attor-

ney General, no decision has ever had the sanction

of the Suvreme Court. The Court has never held

that the Communist Party advocates "overthrow

of the government by force and violence," the

language of the statute. Under the law Commun-

ists are not mentioned by name, as are anarchists

and believers in polygamy. but have been held

deportable as advocates of the overthrow of gov-

ernment by violence. Communists contest that

characterization, pointing to a provision in the

Party's constitution for the expulsion of any such

advocates.

The ACLU stated that the Attorney General's

"numerous recent proceedings against well-known

Communists resident in the U. S. for many years,

"appear to be the result of political pressure rather

than fair-minded enforcement of the law''.

radio from the press, in that it "enjoys temporary

and privileged access to a public domain."

Page 4

AMERICAN CIVIL LIBERTIES UNION NEWS

American Civil Liberties Union-News

Published monthly at 461 Market St., San Francisco 5,

Calif., by the American Civil Liberties Union

of Northern California.

Phone: ExXbrook 2-3255

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

-151 a.

U.S. Supreme Court Agrees

To Review "Hecate" Case

The conviction of New York distributors of

"Memoirs of Hecate County," Edmund Wilson's

best-seller portraying the sex life and morals of

Gotham suburbanites, will be reviewed by the

U. S. Supreme Court, it was announced on March

15. The Court's action in reviewing a conviction

under state obscenity laws is unprecedented. Re-

view will be based on the contention that New

York state violated the free press guarantee of

the Constitution in outlawing the volume. Attor-

neys raise for the first time in the U. S. Supreme

Court the argument that the same test of "clear

and present danger" adopted by the court should

be applied to both political and artistic means of

expression, and that an honest work of art should

not be considered as presenting such a danger to

public morals.

New York City's Special Sessions Court de-

clared the work "obscene, lewd, lascivious, filthy,

indecent and disgusting'', and fined Doubleday and

Co., publishers, $1,000. Two justices voted for

conviction without comment, and the third filed a

written dissent. New York appellate courts af-

firmed the decision without opinion.

The ACLU, which had offered its legal services

to both author and publishers when the book was

first seized, but without acceptance, reported that

it would file a brief as a friend of the court. The

case is being handled for the publishers by Whit-

ney North Seymour, a member of the Union's

Board of Directors. (c)

The publishers' position was adopted by Justice

Nathan D. Perlman's dissent in the lower New

York court in which he said; "to suppress what

may appear bad in a book is also to suppress what

is good therein. The public is entitled to the benefit

of the writer's insight and that right may not be

lightly disregarded by excluding from considera-

tion all interests but those of the young and im-

mature."

"Memoirs of Hecate County'"' has been in trouble

elsewhere. A Los Angeles jury found it obscene

but it was cleared in a jury trial in San Francisco.

The book was also seized in Philadelphia. It was

not placed on sale in Boston by reason of a private

agreement between the publishers and the Watch

and Ward Society.

The Supreme Court has under consideration

another section of the New York obscenity law

prohibiting publications devoted to "police news,

deeds of bloodshed, lust or crime", in the "Head-

quarters Detective Case," which has been before

the Court for almost three years without decision.

Another New York prosecution for obscenity

arose on March 15th when the Society to Main-

tain Public Decency (successor to the Society for

the Suppression of Vice). raided the publishing

office of the Creative Age Press in New York

City and seized copies of "The Gilded Hearse," a

novel about the publishing business by Charles O.

Gorham, The ACLU has offered its cooperation to

the publishers who will be represented by Morris

Ernest, ACLU counsel.

Honest Editor Retracts Charge That

Union Is A "Communist Front'

Attacks on the ACLU as a "Communist front",

because of its long record of defense of radicals

against repression, are now rare. Even rerer is a

frank confession of error after such an attack.

_ The editor of the "San Gabriel Sun" in California

recently distinguished himself in both respects.

The Southern California Branch of the ACLU

helped organize a San Gabriel Valley Committee.

The day before its organizing meeting, the local

weekly paper ran a front page editorial with the

warning "Don't go to this meeting!" and declared

that the record of the ACLU "`on behalf of radicals,

agitators, and demagogues leaves no question of

its affiliation with Communists and their fol-

lowers."

After protests by the local committee, the editor

courageously published an apology in his next

issue, admitting that his accusation was "entirely

without foundation." He gave the ACLU full

credit "as the only organization fighting for the

constitutional right of all persons without regard

to their political, religious or other beliefs," and

congratulated the local committee on the success

of the meeting.

Religion May Not Be Taught in Tax-Supported

Schools, High Court Rules; Decision Reprinted

(Continued from Page 1)

tion was denied. An answer was then filed, which

admitted that regular weekly religious instruction

was given during school hours to those pupils

whose parents consented and that those pupils

were released temporarily from their regular

secular classes for the limited purpose of attend-

ing the religious classes. The answer denied that

this coordinated program of religious instruction

violated the State or Federal Constitution. Much

evidence was heard, findings of fact were made,

after which the petition for mandamus was denied

on the ground that the school's religious instruc-

tion program violated neither the federal nor state

constitutional provisions invoked by the appellant.

On appeal the State Supreme Court affirmed.

396 Ill. 14. Appellant appealed to this Court under

28 U.S. C. 0x00A7 344 (a), and we noted probable juris-

diction. 332 U. S. 122.

The appellee presses a motion to dismiss the

appeal on several grounds, the first of which is

that the judgment of the State Supreme Court

does not draw in question the "validity of a statute

of any State" as required by 28 U.S. C. 0x00A7 344 (a).

This contention rests on the admitted fact that

the challenged program of religious instruction

was not expressly authorized by statute. But the

State Supreme Court has sustained the validity of

the program on the ground that the Illinois

statutes granted the board authority to establish

such a program. This holding is sufficient to show

that the validity of an Illinois statute was drawn

in question within the meaning of 28 U. S. C. 0x00A7

344 (a). Hamilton v. Regents of U. of Cal., 293

U.S. 245, 258. A second ground for the motion to

dismiss is that the appellant lacks standing to

maintain the action, a ground which is also with-

out merit. Coleman v. Miller, 307 U. S. 433, 443,

445, 464. A third ground for the motion is that

the appellant failed properly to present in the

.State Supreme Court her challenge that the state

program violated the Federal Constitution. But

in view of the express rulings of both state courts

on this question, the argument cannot be success-

fully maintained. The motion to dismiss the appeal

is denied. :

Although there are disputes between the parties

as to various inferences that may or may not

properly be drawn from the evidence concerning

the religious program, the following facts are

shown by the record without dispute. In 1940

interested members of the Jewish, Roman Catho- |

lic, and a few of the Protestant faiths formed a

voluntary association called the Champaign Coun-

cil on Religious Education. They obtained per-

mission from the Board of Education to offer

classes in religious instruction to public school

pupils in grades four to nine inclusive. Classes

were made up of pupils whose parents signed

printed cards requesting that their children be

permitted to attend; they were held weekly, thirty

minutes for the lower grades, forty-five minutes -

for the higher. The council employed the religious

teachers at no expense to the school authorities,

but the instructors were subject to the approval

and supervision of the superintendent of schools.

The classes were taught in three separate religious

groups by Protestant teachers, Catholic priests,

and a Jewish rabbi, although for the past several

years there have apparently been no classes in-

structed in the Jewish religion. Classes were con-

ducted in the regular classrooms of the school

building. Students who did not choose to take the

religious instruction were not released from public

school duties; they were required to leave their

classrooms and go to some other place in the

school building for pursuit of their secular studies.

On the other hand, students who were released

from secular study for the religious instructions

. were required to be present at the religious classes.

Reports of their presence or absence were to be

made to their secular teachers

Th foregoing facts, without reference to others

that appear in the record, show the use of tax-

supported property for religious instruction and

the close cooperation between the school authori-

ties and the religious council in promoting reli-

gious education. The operation of the state's com-

pulsory education system thus assists and is

integrated with the program of religious instruc-

tion carried on by separate religious sects. Pupils

compelled by law to go to school for secular

education are released in part from their legal

duty upon the condition that they attend the reli-

gious classes. This is beyond all question a utiliza-

tion of the tax-established and tax-supported pub:

lic school system to aid religious groups to spread

their faith. And it falls squarely under the ban of

the First Amendment (made applicable to the

States by the Fourteenth) as we interpreted it in

Everson v. Board of Education, 330 U. S. 1. There

we said: `Neither a state nor the Federal Govern-

ment can set up a church. Neither can pass laws

which aid one religion, aid all religions, or prefer

one religion over another. Neither can force or

influence a person to go to or to remain away

from church against his will or force him to pro-

fess a belief or disbelief in any religion. No person

can be punished for entertaining or for professing

religious beliefs or disbeliefs, for church attend-

ance or non-attendance. No tax in any amount,

large or small, can be levied to support any reli-

gious activities or institutions, whatever they may

be called, or whatever form they may adopt to

teach or practice religion. Neither a state nor the

Federal Government can, openly or secretly, parti-

cipate in the affairs of any religious organization

or groups, and vice versa. In the words of Jeffer-

son, the clause against establishment of religion

by law was intended to erect `a wall of separation

between church and State.'" Id. at 15-16, The

majority in the Everson case, and the minority as

shown by quotations from the dissenting views in

our notes 6 and 7, agreed that the First Amend-

ment's language, properly interpreted, had erected

a wall of separation between Church and State.

They disagreed as to the facts shown by the

record and as to the proper application of the First

Amendment's language to those facts.

Recognizing that the Illinois program is barred

by the First and Fourteenth Amendments if we

adhere to the views expressed both by the major-

ity and the minority in the Everson case, counsel

for the respondents challenge those views as ditta

and urge that we reconsider and repudiate them. ~

They argue that historically the First Amendment

was intended to forbid only government prefer-

ence of one religion over another, not an impartial

governmental assistance of all religions. In addi-

tion they ask that we distinguish or overrule our

holding in the Everson case that the Fourteenth

Amendment made the "establishment of religion"

clause of the First Amendment applicable as. a

prohibition against the States. After giving full

consideration to the arguments presented we are

unable to accept either of these contentions.

To hold that a state cannot consistently with

the First and Fourteenth Amendments utilize its

public school system to aid any or all religious

faiths or sects in the dissemination of their doc-

trines and ideals does not, as counsel urge, mani-

fest a governmental hostility to religion or reli-

gious teachings. A manifestation of such hostility

would be at war with our national tradition as

embodied in the First Amendment's guaranty of

the free exercise of religion. For the First Amend-

ment rests upon the premise that both religion

and government can best work to achieve their

lofty aims if each is left free from the other within

its respective sphere. Or, as we said in the Everson

case, the First Amendment has erected a wall

between Church and State which must be kept

high and impregnable.

Here not only are the state's tax-supported

public school buildings used for the dissemination

of religious doctrines. The State also affords sec-

tarian groups an invaluable aid in that it helps to

provide pupils for their religious classes through

use of the state's compulsory public school

machinery. This is not separation of Church and

State. -

The cause is reversed and remanded to the State

Supreme Court for proceedings not inconsistent

with this opinion. .

' Reversed and remanded.

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