vol. 19, no. 5

American

Civil Liberties

Union-News

Free Press

Free Assemblage

Free Speech

"Eternal vigilance is the price of liberty."

VOLUME XIX

SAN FRANCISCO, CALIFORNIA, MAY, 1954

Number 5

Campaign Nets 117 New

Members In Excellent Start

The Union's special membership drive got off

to an excellent start last month. On the basis

solely of new memberships received in the mails

up to April 27, about 29% of the campaign goals

of 400 new members and $2,700 had been achieved.

Exactly 117.new members and $795 have reached

the Union's office.

Thus far, no report meetings have been held

by area campaign committees. It is at such meet-

ings that campaign workers turn in the member-

ships they have secured by personal solicitation.

At the same time last year, despite an earlier start,

_ only 96 new memberships had been received by

the office. :

San Francisco, under the leadership of Mrs. B.

Abbott Goldberg, is setting the pace for cam-

paign areas with 28 new members and $275.50

towards goals of 100 new members and $675.

Berkeley's well organized team of workers, led by

Thomas Winnett, has been credited with 23 new

memberships and $131 towards goals of 80 and'

$040.

Marin county, sparked by Mrs. Russell J.

Merret, has already secured 70% of its goals, or

17 new members and $129. Fresno, under the

leadership of Dr. Hubert Phillips, has gone over

the top con its membership quota of 5, and is within

$4 of its financial quota of $34. It has secured 6 -

new members and $30.

Palo Alto-Stanford area, under the leadership

of Howard Lewis, Jr., has gotten a good start to-

ward it's goals of 20 members and $136 by secur-

ing 8 new members and $50.

Wilson M. Dokken of Sacramento canvassed

his friends and associates and came up with 5

new members besides 5 separate contributions

of $1, and a total of $21. For that reason, Sacra-

mento, under the leadership of Gordon McWhirter,

today stands with 8 new memberships and $36

towards its goals of 25 new members and $170.

Returns at this time from other organized

campaign areas are too light to report. A complete

report on the results of the membership campaign

will appear in the June issue of the "News."

Despite 113 April membership expirations, the

Union's paid-up membership climbed to a new

high of 3,222 on April 27, or about 150 ahead of

the same time last year. The branch hopes to end

the fiscal year on October 31 with a membership:

of 3,600.

Our good neighbor, the Southern California

branch of the ACLU, launched an organized mem-

bership campaign on April 26 in 37 areas. The

branch hopes' to secure 1,000 new members, to

bring its membership over the 4,000 mark and

to raise its income from $19,000 to $25,000. Here's

hoping its campaign goes over the top!

Remaining North Richmond

Raid Victims Cleared

On March 31 charges were dismissed against

the remaining defendants arrested in the February

27-28 North Richmond police raids.

The 22 defendants were charged with vagrancy,

"in wandering from place to place without any

lawful business." San Pablo Judicial District

Judge, Joe Martin Turner, dismissed the charges

after a deputy sheriff, as the prosecution's only

witness, admitted he could not identify the de-

fendants.

Twenty of the defendants were represented by

Philip Millspaugh, Richmond attorney, and one

defendant by William Moses, also of Richmond.

ACLU Staff Counsel Lawrence Speiser represent-

ed the one defendant who had not arranged for

counsel by trial time.

Damage suits for false arrest and for damage

to businesses which were the victims of the raid

are being contemplated by some of the parties.

The American Civil Liberties Union of North-

ern California last month released a letter from

President Robert Gordon Sproul of the Univer-

sity of California which, in effect, denies that Wil-

liam Wadman, University Security Officer, serves

as a "thought policeman" on the U. C. campus.

How The Issue Arose

The issue arose over an article that appeared

in the ACLU's monthly paper last February dis-

closing a portion of the testimony of Richard E.

Combs, counsel for the California Senate Commit-

tee on Un-American Activities (the Burns Com-

mittee), before the Jenner Committee on March

19, 1953. In that testimony Mr. Combs declared

that security officers in various California col-

leges maintain a liaison with the Burns Committee

to help them get rid of Communist faculty mem-

bers. He also claimed that "applicants for posi-

Gems from Security Charges

What makes federal employees security

risks? A partial answer to that question lies

_ in a couple of charges taken from separate

_ security proceedings. In the first case, which

~ has just arisen, the following charge appears:

"That during the 1930's in California

you are reported to have made speeches

in which you supported Mooney, Billings,

Sacco and Vanzetti."

The Union tried to find out what was bad

in supporting these persons but the security

officer claimed that "security considerations"

did not permit him to say any more. |

The second charge taken from another

pending case is a clear warning to all good

citizens to be careful where they park their

cars. The charge reads .as follows: "An in-

formant is reported to have advised that

demonstrations or meetings of the American

Peace Mobilization movement were held on

the evening of September 4 and 6, 1940, and

on the afternoon of September 5, 1940, (in

specified places in Washington, D. C.). The

informant is further reported to have advised

that a Plymouth automobile bearing Virginia

license. ..... , registered in the name of... .

..-, Was observed either parked in close prox-

imity to one or more of the meetings or driv-

en by someone who had conversations with

members of the movement."

Ex-Communists Must Turn

informers to Gain Passports

Mrs. R. B. Shipley, Director of the Passport

Division, is making it difficult for ex-Commun-

ists to secure passports. Previously, it was suffi-

cient for the applicant to file an affidavit admit-

ting his past sins and explaining when and why

he had become a reformed character. It was cus-

tomary also to furnish other affidavits support-

ing the applicant's declaration that he was no

longer a Communist but was opposed to them,

Apparently, this procedure. no longer satisfies

Mrs. Shipley. In a recent case, she asked for a

further affidavit in which the applicant was asked

to state `whether you have cooperated with ap-

propriate agencies of the Government concerned

with Communist matters and, if not, whether you

are willing to do so." In other words, Mrs. Shipley

won't take the ex-Communist's word that he is

a changed character unless he is willing to tell

all either publicly or privately.

Of course, there is an appeal from Mrs. Ship-

ley's decision but it is a painful, time consuming

and expensive business. This is just one more ex-

ample of the high handed manner in which the

all-powerful Mrs. Shipley has run her office for

many years.

Pres. Sproul Defines Responsibilities of

William Wadman, U.C.

Security Officer

tions are referred to us, their names are, and if

we do not have any documentation concerning

their Communist activity over a long period of

time, we make that available to the university as

a guide to indicate whether or not the individual

should be employed."

President Sproul explained that Mr. Wadman's

activity as security officer is limited to personnel

engaged in work on defense contracts and that

his liaison with the Burns Committee concerns

itself solely with such personnel.

The ACLU said that the entire matter will be

given further consideration by a special com-

mittee.

Text Of Letter

The text of President Sproul's letter follows:

"In order to correct what would seem to be a

misunderstanding on the part of the American

Civil Liberties Union and yourself, I should appre-

ciate your consideration of the following state-

ment and its possible publication:

"The loyalty, integrity, and competence of

members of the faculty of the University of Cali-

fornia are established first by expert faculty com-

mittees, and finally by the highest administrative

officers. No other employee of the University is

charged with these duties.

Wadman's Duties

"The specific duties of the University's Secur-

ity Officer are: The operation and maintenance of

a central security file covering only personnel en-

gaged in classified governmental research on the

several campuses of the University.

"As regards liaison between University admin-

istration and the California State Senate Com-

mittee on. Un-American Activities (Burns Corns

- mittee), the Security Officer has no responsibility

regarding faculty members not engaged in classi-

fied governmental research. This latter is the re-

sponsibility solely of administrative officers

whose names have been publicly announced."

Indictment of Fulton Lewis

Abridges Freedom of Speech

The American Civil Liberties Union last month

condemned the criminal libel indictment filed

against Fulton Lewis, Jr. by the state of. Mary-

land as a serious interference with freedom of

speech. Mr. Fulton Lewis, Jr., a radio commen-

tator, was indicted on February 26 by a grand

jury of St. Mary's County for criminal libel. The

indictment charged that the libel occurred in a let-

ter Lewis wrote to Maryland Governor Theodore

McKeldin "unlawfully and maliciously devising

and intending to traduce, defame, and villify'" the

trial magistrate and the substitute trial magis-

trate of St. Mary's County and to "bring the ad-

ministration of justice by them to contempt."

Lewis' letter to Governor McKeldin stated that

Judge J. D. Hurry, Sr. "is completely incompetent,

physically as well as mentally, and has rarely been

able to sit on the bench since he took office." It

also attacked the substitute magistrate's `mental,

philosophical, and temperamental equipment" as

so "inadequate" as to contribute to the "disinte-

gration and demoralization of law enforcement

throughout this section." Lewis also charged that

the court was lax in enforcement of traffie laws,

particularly drunken driving offenses. Lewis has

been engaged in a controversy with the law-en-

forcement officers of the county over enforcement

of liquor laws. :

The ACLU in its statement said "the indict-

ment brought against Mr. Lewis is a shocking

abridgement of free speech and the right of a

citizen to petition the government for redress of

grievances. Basic to our democratic faith is the

right of a citizen to criticize governmental func-

tions and to be privileged in his petitioning for

- the correction of such abuses."

Page 2

. AMERICAN CIVIL LIBERTIES UNION-NEWS

Federal Habeas Corpus Writ

Under Attack by 42 States

The Philadelphia ACLU is challenging the

contention of Pennsylvania, joined by 41 other "

states, that Federal courts cannot constitutionally

grant writs of habeas corpus in cases of state

jurisdiction. A federal law, passed in 1867, specifi-

cally gives the lower federal court the power to

issue writs of habeas corpus whenever it rules that

liberty has been restrained in violation of federal

law.

This important legal dispute grows out of the

case of Theodore Elliott, who was sentenced to (c)

death after pleading guilty on a charge of murder.

The court, in imposing the death penalty rather

than life imprisonment, was guided by the report

of a court-appointed psychiatrist that Elliott

"shows no evidence of being mentally ill." The

psychiatrist, a Dr. Drayton, was himself com-

mitted to a mental hospital shortly after his re-

port, which was at variance with a long series of

earlier reports on Elliott who had a protracted

history of mental deficiency.

After having exhausted other remedies, El-

liott's court-appointed counsel took the case to

the federal courts, seeking a writ of habeas corpus

`on the grounds that Elliott will be, executed in

violation of due process of law, since the: only

evidence at the trial was the report of a psychia-

trist later found to be mentally ill. The petition for

habeas corpus was argued before the Court of

Appeals in Philadelphia last December, at which

time the Attorney General of the Commonwealth,

in opposing the petition, argued that the 1867

Federal law empowering the federal courts to

issue writs of habeas corpus against the states is

unconstitutional.

The court, reserving a decision on the petition,

asked both sides to file further briefs, and at this

point the Philadelphia ACLU filed an amicus brief

to answer-the Commonwealth's contention. Mean-

while, 41 states have joined Pennsylvania in ques-.

tioning the constitutionality of the 1867 law, the

first time such an argument has ever been made.

The ACLU brief, prepared by Lois Forer and

David Berger, members of the Philadelphia ACLU

Committee on Police Practices and Criminal Jus-

tice, quotes Supreme Court Justice Harlan's opin-

ion of 1885 (Ex Parte Royall), `"Fhat the petition-

er is held under the authority of a State cannot

affect the question of the power or jurisdiction

of the Circuit Court to inquire into the cause of

his commitment, and to discharge him if he be

restrained of his liberty in violation of the Con-

stitution."

Recourse to the federal courts, the ACLU

points out, is indispensable as a restraint upon the

states' denial to prisoners of due process of law.

"States will frequently refrain from unconstitu-

tional action," the brief states, "simply because

federal courts exist which will take counteraction

to enforce federally protected rights ... Striking

proof in support of this is found in the statement

of the First Assistant District Attorney of Phila-

delphia County that `The administration of crim-

inal justice in Philadelphia hag been greatly im-

proved by our knowing the doors of the United

States District Court are open to any man whom

we try unconstitutionally.'

"Pennsylvania, no less than other states, has

from time to time denied prisoners due process of

law. Only as a result of federal intervention has

there been any correction of these abuses in

Pennsylvania and other states..."

Academic Freedom

A Hundred Years Ago

"A Baltimorean, writing to us awhile previous

to the last Presidential election, says:

"I see that the Trustees of the University of

North Carolina have dismissed Prof, Hedrick for

writing a letter in favor of Republican principles.

Oh, what an inglorious source of reflection for

an American citizen! To think, to know that our

boasted liberty of speech is a myth, an abstrac-

tion. To see a poor professor crushed under the

feet of the tyrannical magnates of slavery, for.

daring to speak the honest sentiments of his heart.

Where is fanaticism now, North or South? Oh,

my country, my country, whither art thou tend-

ing? Truly we have fallen upon degenerate days.

_ God grant that they may not be like those of

ancient Greece and Rome, the forerunners of our

country's ruin."

The Impending Crisis of the South: How to Meet

It, by Hinton Rowan Helper; Burdick-Bros., N. Y.,

1857, at p. 374.

o,

ACLU Hits Breakdown of Dismissals in

The American Civil Liberties Union recently

sals under the federal employee security pro-

gram, charging that it has led to widespread con-

fusion and an increase in public tension.

The ACLU stated the breakdown is not based

on the reasons for the discharge, but on "deroga-

tory and unevaluated information." This proce-

dure, it added, has led many people to believe that

there are more loyalty risks in government than

the facts show and to accept greater restrictions

in the name of national security.

In a letter to Philip Young, chairman of the

Civil: Service Commission, the ACLU said that

the confusion and increase in public tension re-

sulted from recent Administration statements

that "dismissals under the security program are

equivalent to proof of disloyalty and subversion."'

While noting that there has been, in recent

weeks, a conscious effort by the Administration

to correct this impression, "great harm has al-

ready been done in stigmatizing loyal Americans

who have left government service on security

grounds totally removed from any question of

loyalty or subversion. The harm is not only to

these individuals, but to the spirit of civil liber-

ties - the principles of free speech and associa-

tion, due process and equality cannot flourish

throughout the country if the public is continually

dinned with fearful warnings that thousands of

government employees today are disloyal."

How Many Security Risks Have Been Dismissed

Centering attention on Young's recent press

statements and congressional testimony on the

much-discussed question of how many security

risks have been dismissed, the ACLU letter said,

"We had hoped you would disclose a breakdown

of the types of dismissals that would clarify for

the public the meaning of the term `security risk'

without establishing a stigma that will unduly

penalize former government employees .. . How-

ever, the breakdown discussed . . . is not in terms

of reasons for dismissals, but in terms of deroga-

tory and unevaluated information in the file of

each dismissed employee ... An employee may be

discharged for wholly non-loyalty reasons, even

Charge FBI Agent Revealed

Secrets to Influence Election

The ACLU on March 30 requested the FBI-

in San Francisco to investigate a complaint that

one of its Special Agents had revealed information

from FBI files in order to influence the outcome

of a Bay Area election.

Thus far, no acknowledgment has been received

of the complaint even though a follow-up letter

was sent to the FBI on April 17. The Union's

local Executive Committee feels that the issue is -

a serious one and has instructed the director to

press the matter.

e

o

1% 0% Mo 0% ote 0% 0% oe oho 0% 00 0% 9% 0% 0% 0% 6% 0% 1% 0s 4% 5% 0% 0% 0% 5% 00 0% 0% Ma 0% 0% o%e oe 0% eee,

0, ah GP %9 9% Ct UO M9 UP UO M9 MP MONO HO U0 99 08 U0 O00 UEP 9 100 UO U9 MEO O01 HO 960 U9 90 U0 M0 HO UU

2,

%s

"

e

0

Executive Committee =:

American Givil Liberties Union

Mo 9%

200%,

%s

Me

oe

2,

eo Me

eo

oo

Oo, @,

Se "8

0% 0f0 0%

: of Northern California =

3 Sara Bard Field =

0x00B0 Honorary Member S

% Rt. Rev. Edw. L. Parsons %

% Chairman %

5 Dr. Alexander Meiklejohn :

% Helen Salz oe

S _. Vice-Chairmen %

= Fred H. Smith, IV /

a Secretary- Treasurer' %

a Ernest Besig 8

% Director Ry

2 Lawrence Speiser %

. Staff Counsel So

Philip Adams =

Arthur P. Allen =

Albert Brundage and

Prof. James R. Caldwell We

Wayne M. Collins

Rabbi Alvin Fine and

= Rey. Oscar F. Green :

eaton W. Manning and

% William M. Roth : "

- Prof. Laurence Sears __ S

" Prof. Wallace E. Stegner

Stephen Thiermann A

Kathleen Drew Tolman

Employee Security Program

though his file contains derogatory information

criticized the government's breakdown of dismis-~" relating to loyalty. The impression is created by

this breakdown that mere information in the files

is sufficient cause for discharge, which is mislead-

ing; as you know, the purpose of fair hearings |

under the security program is to evaluate and

judge the file information. The failure to make

explicit that derogatory file information is not

tantamount to discharge impairs the spirit of civil

liberties by leading many people to believe that

there are more loyalty risks in government that

the facts show and thus to accept more and more

curbs on civil liberties in the name of national

security."

Other Criticisms Of Security Program .

Other criticisms of the program include: (1)

the indefinite standard used for judging an em-

ployee's security risk status, that his employment

`be clearly consistent with the interests of na-

tional security," which has resulted in security

officers handing down more adverse rulings. The

fact that there is no outside review of the cases,

and the final decision must be made by the agency

head, makes it extremely difficult for the subordi-

nate security officer to exercise independent judg-

ment; (2) the use of such new criteria as "relia-

bility" and "trustworthiness" in considering an |

employee's security status has resulted in `"`flag-

rant abuse of discretion . . . in which the loosest

kind of personal association has been used as the

basis for dismissals," including characterizing of

family associations as evidence of unreliability;

(3) employees, instead of being processed under

the security program, have been dismissed on

economy grounds. `These `Reduction in Force' dis-

missals deny employees their right to a hearing

guaranteed by the program and offer agencies a

convenient way to discharge employees whose

personal political opinions may be disliked." .

Brief Trial Held

In John Mass Case

An almost uneventful twenty minutes, on

April 12, 1954, was all that was necessary for the

trial of San Francisco City College teacher, John

Mass. Presiding Superior Court Judge Milton Sa-

piro of San Francisco heard the case arising from

dismissal proceedings initiated against Mass be-

cause of his appearance before the Velde Commit-

tee last December when he refused to answer

questions relating to his past Communist Party

membership. 4

The admission of most of the evidence at the

trial was stipulated to by attorneys for both

parties, Irving G. Breyer, representing the San

Francisco Board of Education, and ACLU Staff

Counsel, Lawrence Speiser, for Mass. The com-

plete transcript of Mass's testimony before the

House Un-American Activities Committee went

into the record.(R) oo

Only One Conflict

_ The only conflict arose over efforts by Mass's

attorney to introduce the Board of Education

meeting minutes of December 8, 1953, when the

Board voted to, initiate the dismissal proceeding.

Breyer objected to what he termed was irrelevant

material in the minutes, but Judge Sapiro ad-

mitted the transcript with the observation that he

was capable of ignoring any irrelevant matter.

Judge Sapiro refused, however, to allow the intro- _

duction of letters written by Superintendent Her-

bert C. Clish which were circulated to all Board

members and which disclosed that the sole reason

he had moved to suspend Mass was because of the

Dilworth Act. Breyer has contended that if the

Dilworth Act were not on the books, Mass would

still be subject to dismissal, in any case, for unpro-

fessional conduct.

It was agreed that legal briefs would be sub-

mitted in the case. The Board of Education open-

ing brief was filed on April 16. It defends the

constitutionality of the Dilworth Act and also

urges that Mass should be fired irrespective of

the Dilworth Act. The 13 page brief relies heavily

upon two attached opinions which were rendered

in similar cases in Southern California and which

upheld the firing of five teachers.

The ACLU will file a brief on Mass' behalf,

after which oral arguments will be heard by J udge

Sapiro, -

Defense Fund Grows

Thus far, 80 persons have contributed exactly

$593.75 toward the expenses of the court pro-

ceedings. Further contributions are needed. Make

all checks payable to the ACLU, 503 Market St.,

San Francisco 5, Calif., and earmark them for the

"John W. Mass Appeal."

AMERICAN CIVIL LIBERTIES UNION-NEWS

Page 3

ACLU Files Brief in Los

Angeles Smith Act Case

The ACLU of Northern California and the

Union's national office last month filed a friend

of the court brief in the U. S. Court of Appeals

in the Los Angeles Smith Act case.

The brief argues that the trial judge failed to

find a clear and present danger in the case, with-

out which the convictions cannot stand. The gov-

ernment's brief argues that the conspiracy here

is "the same conspiracy" as was involved in the

Dennis (New York) case, but there is no finding

of this fact by either the court or the jury.

"...if the Dennis case decision is to be deter-

Ininative of the clear and present danger question

in all other Smith Act cases involving Communist

Party members," says the brief, "then the effect

will either be a conclusive presumption of the

existence of a clear and present danger or of shift-

ing to the defendants the burden of proof to show

that there was no clear and present danger, in

violation of the ancient rule that defendants are

innocent until proven guilty. Proof of a clear and

present danger must be made before a prosecution

can stand; without such proof, the defendants

could not be constitutionally convicted. Failure to

prove the existence of such a danger-beyond a

reasonable doubt-would be a fatal flaw."

The Union's brief also makes the point that

"Punishing advocacy that does not incite to action,

irrespective of intent, violates the First Amend-

ment's guarantee of freedom of speech." The trial

court refused to instruct the jury that there could

be no conviction for advocacy unless it was so

formulated as to induce action and was calculated

to incite to action rather than discussion. The

Union contended that "the question of intent

should not be reached at all until there has been

a finding with regard to the character of the

utterances.

"Thus the First Amendment protects all utter-

ances that are merely abstract. In such case spec-

ulation with regard to intent is improper. Only

where the language is reasonably capable of con-

struction as incitement to action and is So inter-

preted by the jury can the question of intent be

reached."'

The brief bears the names of attorneys Osmond

Fraenkel and Herbert Monte Levy of New York

and Wayne Collins, Clarence Rust and Lawrence

Speiser of California.

Official Returns of ACLU

National Committee Election

At the foot of this article are the official returns

of the recent ACLU election for members of the

National Committee.

Thirty-one persons stood for election to the

25 vacancies. In addition, the national board

elected three of the six unsuccessful candidates

to one-year instead of the usual three-year terms

thereby bringing the National Committee to its

full strength of 75 persons.

Only 2,998 general members voted, although

29,000 persons were eligible to vote. The limited

interest may be explained by the ignorance of the

~ voters about the records of the candidates on civil

liberties issues. As a solution, the office received

the suggestion from a number of persons that the

members should be advised of how the National

Committee members vote on the rare issues that

are presented to them for consideration.

Roger N. Baldwin - - - - - 4082

Henry Steele Commager - - - 3833

A. Philip Randolph- - - - = 38688

Robert M.Hutchins- - - - - 3673

Quincy Howe - - - - - - 8648

Lilian E.Smith - - - - = 3593

Melvyn Douglas - 5 = =) 8582

Karl Menninger = = ==. = = 3568

Harry Emerson Fosdick- - - - 3560

Palmer Hoyt -- - - - = = 8400

Robert K.Carr- - .- - - - 8387

Abram L. Harris - - - `% + 93368

Frederick May Eliot - - - - 3273

James R. Caldwell - - - - - 8255 cent

Albert Sprague Coolidge = - = $219

J. Frank Dobie- - - -"- -. 8165

William W. Waymack - - - - 8011

Rt. Rev. Edward L. Parsons- - - 2969

William Lindsay Young- - - - 2963

George R. Stewart - - - ,- - 2939

George 8. Counts - - - - = 2906

John Nevin Sayre - - - - = 2865

Gerald Johnson- - - - - = 2834

Benjamin H, Kizer -. - - = = 2728

Donald R. Murphy - - - - - 2684

E. B. MacNaughton - = = = 2606

Robert Mathews - - - = - 2546

Edward C. Tolman- - - - - 2483

Marion Wright = =i =. 2585

Oscar Stauffer- = .- = = = 2372

Odell Shepard So = eS 2860

Norman Thomas, speaking for the American

Civil Liberties Union, last month testified before

a House Judiciary Committee against outlawing

the Communist Party.

Mr. Thomas, one of the ACLU's founders in

1920, said that while the Communist movement is

"indeed conspiratorial," the Communist Party, as

that part of the movement "which holds conven-

tions, adopts platforms, nominates and endorses

candidates, is engaged in a legitimate and essen-

tial feature of our democratic way of life. Neces-

sarily it is doing certain things openly; its state-

ments and its candidates can be judged by the

electorate as they judge those of other parties. It

is basic to our democracy that it provide an order-

ly way for men to make changes, even changes by

their nature revolutionary. Only'so are we Amer-

icans able to say to voters: `We offer in the ballot

not only an alternative to the bullet for achieving

change, but one vastly less self-defeating in ob-

taining desirable results. That means we must

scrupulously protect the right of men to form

radical parties and in them advocate their cause

and seek support. To outlaw the Communist or

any other party engaged in legitimate political

activities, however objectionable its program may

seem to a majority, is to deny a basic democratic

principle and invite subversive and ultimately vio-

lent action in place of the political action which

the government has outlawed."

illinois Church-State Case

Moves Closer to Decision

_ The case of Mrs. Dorothy Larson, a mother

of the Lutheran faith who has claimed that her

children attend a public school which is, in fact, a

Catholic parochial school, is moving closer to a

final decision. McHenry County Circuit Judge Ber-

nard Decker has ruled that recent changes insti-

tuted by the Johnsburg, Illinois school authorities

were not sufficient to make the case moot. Judge

Decker has also ruled. favorably on the appeal of

the County Superintendent of Schools and the

State Superintendent of Public Instruction that

they be dismissed as defendants in the suit, The

Illinois ACLU, which is backing the case, now

hopes the issue will be tried on its merits in the

`near future.

Sectarian Teaching

In her original complaint, Mrs. Larson charged

that all teachers at the Johnsburg school wore

Catholic robes, that school time was devoted to

the study and recitation of Catholic prayers, that

teachers encouraged pupils to adopt a particular

religious philosophy, that many text books are

parochial texts promoting the Catholic religion

and the classrooms have been profusely decorated

with symbols of the Roman Catholic faith.

After the Larson suit was filed in June, 1953,

all the nuns resigned from the school and the local

diocesan authorities announced that a regular

parochial school would be opened in the fall. At

- this point the local school board argued that since

the Johnsburg school was free of sectarian teach-

- ers, the case was moot.

The action by Judge Decker that the case was

not moot upheld the Illinois ACLU argument that

the defendants `"`sought to avoid a legal decision

on their misuse of public office and public funds

by making changes (in the public school program)

after the suit was filed."

In pointing out the importance of obtaining a

final, legal decision in the Larson case, the ACLU

brief stressed the following points:

"The plaintiff has a right to protection against

future violations. This can only be assured by a

court decision on the legality of the challenged

acts,

Same Conditions In 30 Other Schools

"Since these practices are prevalent in 30

other schools, the dismissal of the case would

mean that other citizens would have to file sep-

arate suits, but might never obtain a decision

clearly setting forth their rights.

"State officials have admitted that they do

not know whether these practices are illegal. But

they have consistently refused to take action to

determine their legality."

In an attempt to prove that the changes in the

administration of the Johnsburg Elementary

School were not made in good faith, the amended

complaint presented the following facts:

"School directors unlawfully removed public

property from the Johnsburg Elementary School

to the newly established St. John's Catholic Paro-

chial School. School directors have deliberately

discouraged registration in the Elementary School

for the term 1953-54. The school was deliberately

under-staffed. Only one teacher was hired to teach

8 grades until Mrs. Larson found another teacher

who was subsequently hired under pressure from

the community."

Norman Thomas, Testifying for ACLU,

Hits Bills Outlawing Comm

unist Party

The proposed bills, Mr. Thomas said, "are of

different orders of badness and probable unconsti-

tutionality . . . some provisions of some of these

bills violate the constitutional provision against

bills of attainder; and others violate the First

Amendment."

No Power To Deprive Communists Of Citizenship

He criticized the provisions seeking to strip

Communists of citizenship:

"I do not believe that Congress has constitu-

tional power - or moral right - to deprive Com-

munists - or Fascists - as such of citizenship.

As recently as 1951, a Federal District Court, rely-_

ing on preceding Supreme Court decisions, de-

clared: `It is the view of this Court, that while the

Constitution gives the Congress plenary power

over citizenship by naturalization, it leaves Con-

gress no power whatever to interfere with Ameri-

can citizenship by birth.' "

Asserting that outlawing of the Communist

Party might make it "a little more difficult to find

and recruit underground workers," Mr. Thomas

said outlawry would make it far harder, "not only

for the public, but even for the FBI, to keep tabs

on Communist thought and activity; it would

make it easier for Communists to practice deceit.

As long as there is an open and legal Communist

Party there must be avowed Communists to run

it. The existence of the Party to some extent pro-

vides almost automatically, the `disclosure' which

the McCarran Act clumsily seeks, In the familiar

illustration, it is part of the iceberg above the"

water which shows where the danger lurks."

Outlawry Would Cause Sympathy for Communists

The ACLU spokesman testified that outlaw-

ing the Party would only increase sympathy for

it. " . . . within recent months there is not more

but less understanding of the real evils of Com-

munism in the United States, not less but more

sympathy with it. That is one of the direct and

more unfortunate results of McCarthyism. The

outlawry of the Party will strengthen this move-

ment of sympathy among thousands of persons

who doubtless will not voice it openly, but whose

secret Sympathy would, nonetheless, be hurtful

to the growth of sound understanding of Com-

munism and its threat to freedom .. . Outlawry

. would give Communism the appeal of both -

mystery and martyrdom to thousands of Ameri-

cans, especially American youth."

Mr, Thomas concluded that outlawry would

discredit American democracy abroad and add to

the suspicion of the U.S. which already hampers

our foreign policy. "Communism in many Euro-

pean countries is too strong to be outlawed by

existing governments. The attempt might invite

serious riots, if not rebellion; it would certainly

recoil on the government. Other nations, like Great

Britain, would regard outlawry of a Communist.

_ Party as preposterous. For us Americans to do

what other democracies won't do or can't do would

bring upon us contempt for hysteria rather than

respect for strength."

Malin Leaves for England

On Two-Month Lecture Tour

Patrick Murphy Malin, executive director of

the American Civil Liberties Union, left for Eng-

land last month where he will spend the next two

months lecturing on American civil liberties.

Mr. Malin's trip is at the invitation of Ruskin

College of Oxford University and the English

Speaking Union of the Commonwealth, and he

will also speak before numerous business, labor,

educational, and professional groups, including

the Royal Institute of International Affairs and

the Workers Educational Association. In all, he _

will deliver between 25 and 30 lectures before aca-

demic and non-academic audiences in cities in Eng-

land, Wales, and Scotland between April 21 and

June 15, , :

In discussing his trip abroad, Mr. Malin em-

phasized that his talks would cover civil liberties

problems concerning both non-security and secur-

ity issues. Four main topics will be treated: (1) a

general survey of American civil liberties, (2) se-

curity-loyalty programs and congressional inves-

tigations, (3) schools and the mass media, and (4)

race relations and labor. "The success of this

country in preserving and extending civil liberties

is the most important single factor for the future

of democracy and peace in the world," he said.

"And outside of the people in the United States,

it is most important that the people of Britain

understand both our problems and our degree of

success and failure in dealing with these problems.

I hope that my talks will, in some small measure,

lead to this improved understanding."

Mr. Malin said that his trip is purely private

and is not being conducted under government

auspices.

Page 4

AMERICAN CIVIL LIBERTIES UNION-NEWS

American Civil Liberties Union-News

Published monthly at 503 Market Street., San Francisco 5,

Calif., by the American Civil Liberties Union

, of Northern California.

Phone: EXbrook 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 and Fifty Cents a Year.

Fifteen Cents per Copy -151-5

OPEN FORUM

Tax Exemption Oath |

Editor: It seems to me that the constitutional

amendment and statute requiring a loyalty oath as

a prerequisite to tax exemptions were designed

to put the taxpayer entitled to an exemption but

opposed to the oath in the following dilemma: if

he takes the oath, his civil liberties have been to

that extent curtailed, as intended; if he refused

to take the oath, he must pay the tax and is to

that extent less able financially to support opposi-

tion to measures such as these.

Being entitled to a veteran's exemption, I have

decided to take the oath and claim the exemption

and to donate the financial'gain derived from the

exemption to the American Civil Liberties Union

and the Friends Committee on Legislation. My

net gain from the exemption, after allowance for

income tax deductions which I would take were

I to pay the property tax represented by the ex-

emption, will be about $60. My resulting contribu-

tion to the ACLU will therefore be $30.

Although the property tax would not fall due

- until December, 1954, and April, 1955, I shall try

to make the donation in installments during 1954.

-Enclosed is the first installment of $10. You need

not earmark this money for any particular pur-

pose unless you choose to do so.

My wife joins with me in this gift and the rea-

sons behind it.-G. B. C.

(Editor's note: In addition to the above gift, -

. the ACLU last month received three contributions

totaling $9 toward the expenses of the pending

test suit.) (

April "News" Wins Praise

Editor: The April News is so interesting in

every column of all its pages that Iam writing you

a special note. I have appreciated earlier issues and

noted your stand on all important events. How-

ever, this April issue calls for a special message.

Interracial Custody Case

Before Wash. High Court

_ In what may be a unique and possibly prece-

dent-setting interracial custody case, the Wash-

ington State Supreme Court has listened to ex-

tended arguments by Washington ACLU lawyers

who seek a reversal of a lower court's decision

that an interracial marriage prejudiced the best

interest of children.

A divorce court awarded Mrs. Shirley Mae

Lesser, white, the custody of her infant children

after her divorce from Alvin Edward Lesser. Sub-

sequently, Mrs. Lesser remarried a Negro, and

Mr. Lesser asked the court to change the custody

award to him because "`the new home environment

was detrimental to the children's best interest."

The lower court examined the new home situa-

tion and could find no evidence of conditions

harmful to the children's welfare. However, it

. did award the father custody on the grounds that

`the interracial marriage did, in fact, prejudice the

children's best interest.

Mrs, Lesser, in a legal brief prepared with the

aid of the Washington ACLU, appealed the lower

court's decision, stressing the following points:

1. The State's right to determine what is best

for the child (the doctrine of "parens patriae'') is

not completely unrestricted and is subordinate to

the constitutional rights and privileges of citizens.

2. The Fourteenth Amendment to the Federal

- Constitution guarantees the right of a person to

marry with whomever he may please, subject only

to restrictions not bearing on this case. |

3. The decision of the trial court `imposes a

drastic and severe punishment on the mother, not

warranted by law . . . The effect, in reality, is a

positive restriction on the inherent right to marry

guaranteed by the Constitution."

4. "A manifest abuse of discretion by the trial

court occurred when it based its decision on con-

sideration pertaining to the color of the skin of

the step-father."

5. No evidence was presented to the lower

court which would prove that the mother's remar-

riage would do sociological, psychological or econ-

omic damage to the welfare of the children.

Methodist Church Challenges

`Loyalty Oath' Requirement

The First Methodist Church of San Leandro,

on April 9, filed a suit in the California Supreme

Court challenging the constitutionality of Cali-

fornia's new tax law requiring a "loyalty oath" in

order to secure tax exemption. It was the first test

of the law to be filed.

The suit sought a writ of mandate against the

Alameda County tax assessor and urged that he

be ordered to grant the church tax exemption,

even though it has refused to sign the "loyalty

oath" which contains a declaration that the appli-

cant for tax exemption `does not advocate the

overthrow of the Government of the United States

or of the State of California by force or violence

or other unlawful means nor advocate the sup-

port of a foreign government against the United

States in event of hostilities."

The petition to the court was signed by the

Rev. Robert W. Moon, minister of the church. The

case is sponsored by the ACLU of Northern Cali-

fornia and its staff counsel, Lawrence Speiser,

will represent the Church together with attorney

Macklin Flemming of San Francisco. The Union's

Southern California branch will also support the

case.

The petition contends mainly that the "loyalty

oath" violates the First and Fourteenth Amend-

ments to the Constitution by abridging religious

liberty and freedom of speech. It is also argued

that the law imposes an unconstitutional condition

upon the enjoyment of a privilege.

As the "News" goes to press, the State Su-

preme Court has not yet decided whether it will

issue an order to show cause directed to the

county assessor forcing him to appear and explain

why he has not granted tax exemption to the First

Methodist Church.

The ACLU is: planning to file further test

suits on behalf of the First Unitarian-Universalist

Church of San Jose, as well as for war veterans.

_ Another test suit was filed late last month in

the Los Angeles County Superior Court in behalf

of Nathaniel L. Bliss, World War II veteran. The

suit was filed by A. L.. Wirin, counsel for the

Southern California branch of the ACLU.

Speech Right Upheld After

5-Year Court Battle In L. A.

Irwin Edelman, arrested in 1949 under an ob-

scure and seldom-used Los Angeles anti-vagrancy

ordinance, has finally won a 2-1 reversal of his

original conviction in the Appellate Division of

. the California Superior Court.

The case came to the attention of the Southern

California Branch of the ACLU, which appeared

as a "friend of the court" through its counsel, A.

L. Wirin, because the city ordinance was "drawn

so loosely that any individual could be picked up

and held as `dissolute' should a law officer frown

at his presence within the borders of Los An-

geles." Edelman, in making a sidewalk political

address in 1949, was charged with being a "lewd

and dissolute" person and given the 90-day sen-

tence provided under the city code. He was re-

leased after 45 days. Edelman's attorney contend-

ed at the time that the unsolicited remittance of

the remaining 45-day sentence was a not-too-well

concealed legal "gimmick" by the Court to fore-

stall a test case of the real free speech issue in-

volved.

Last May, Edelman again mounted the soapbox

to attack the Supreme Court's ruling in the Rosen-

berg case. He was promptly picked up for "`fail-

ure to register" with the Los Angeles Chief of

Police. In the course of the lower court trial, Edel-

`man's lawyer attempted to introduce evidence

pointing out that the 1949 contest was essentially

a free speech case. The Municipal Court ruled

otherwise and required Edelman to register as a

"lewd and dissolute" person within 48 hours.

The ACLU at this point joined in the Superior

Court appeal. The real issue was finally pro-

claimed by Justices Bishop and Shaw who stated

that what was really involved was not Edelman's

"lewdness," "dissoluteness," or "failure to regis-

ter" but Edelman's right to speak in Los Angeles

Pershing Square or any other place. The Court

concluded that Edelman has been wrongly treated,

under the First Amendment, and thereby set the

record straight, not only on the current contro-

versy but on the 1949 decision as well.

A Bargain Offer!

The Union will sell the remaining six

copies of its supply of J. Campbell Bruce's

"The Golden Door," the shocking story of

the application of the McCarran-Walter Act,

at the bargain price of $2.25, or a saving of

$1.50 over the bookstore price of $3.75.

Orders should be sent to the American

Civil Liberties Union, 503 Market St., San

Francisco 5, Calif., together with a check.

ACLU Issues Pamphlet on

`Academic Due Process'

Full and fair procedures for dealing with aca-

demic freedom cases in schools, colleges and uni-

versities are set forth in a pamphlet, "Academic

Due Process," published last month by the Ameri-

can Civil Liberties Union. : :

Pointing out that the teacher, institution, and

community are involved in such cases, the booklet

declares:

"All of these interests are best guarded by the

application of a clear, orderly, and fair procedure

to the adjudication of a case ... The principle em-

bodied in the legal concept of confrontation should -

govern academic due process. The teacher should

be informed of all the charges and all the evidence

against him; he should have full opportunity to

deny, to refute, and to rebut."

Justice Must Be Based On Order

It adds that "the best academic due process

is possible only when the institution and the

teacher both believe that justice must be based

upon order. Good procedure in academic freedom

cases has the same excellent power that legal due

process has in the courts - it substitutes the rule

of law for the rule of men." |

The pamphlet, prepared by ACLU's Academic

Freedom committee, suggests that informal con-

ciliation be attempted first, with the teacher and

administrative authorities seeking to settle the

problem through exchange of views and facts. The

pamphlet especially stresses that throughout the

whole case all parties should refrain from intem-

perate publicizing.

"Exposition of the teacher's point of view may

persuade an administration not to review his com-

petence and integrity," the pamphlet says. ""Expo-

sition of the administrition's point of view may

persuade a teacher to recognize his duty to cooper-

ate with his institution, and to indicate how he

may do so without sacrifice of principle." -

Specification of Charges

Where hearings are necessary, the pamphlet

recommends, the teacher should be informed of ~

the charges against him and have an opportunity

to be advised by counsel and an academic col-

league.

, Summary suspension or dismissal of a teacher

holding tenure should be ordered "only when seri-

ous violation of law or immoral conduct is admit-

ted, or proved before a competent court," accord

ing to the pamphlet. ``All other charges should

first be heard in formal hearing."'

In the absence of a defect in academic due

process, it adds, conclusions of the hearing com-

mittee should be considered as final by the admin-

istration and governing board in all matters re-

lating to the teacher's competence and integrity.

A teacher should have the right of appeal in event

of a finding unfavorable to him. a

In cases of non-tenure teachers, when improper

consideration is given to non-academic matters -

such as race, religious or political beliefs and asso-

ciations - such instructors should receive similar

protections of academic due process, the pamphlet

recommends.

Fair Procedure For Students

Noting the absence generally of safeguards to

protect the freedom of inquiry and expression of

students, the ACLU booklet also suggests: .

It is most desirable that each educational insti- .

tution should have in its governing regulations a

comprehensive and exact set of rules establishing

academic due process in student cases. Where such

rules do not exist, an appropriate committee (with -

effective student representation) should be ap-

pointed for their formulation."

The pamphlet sells for 10 cents. Copies are

available at the ACLU, 503 Market Street, San

Francisco.

MEMBERSHIP APPLICATION

American Civil Liberties Union of No. Calif.,

503 Market St.

San Francisco 5, Calif.

1. Please enroll me as a member at dues of

$205 for the current year. (Types of mem. |

bership: Associate Member, $3; Annual Member,

$5; Business and Professional Member, $10;

Family Membership, $25; Contributing Member,

$50; Patron, $100 and over. Membership includes

subscription to the "American Civil Liberties

Union-News" at $1.50 a year.)

2. I pledge 0x00A7$............ per month........ OF $2: er yr.

3. Please enter my subscription to the NEWS ($1.50

per year)

Enclosed please find $..........sscsests- Please bill

mee oe

Name

Street 922 ee

City and Zone .....

Occupation =... =