vol. 19, no. 7

American

Civil Liberties

Union-News

"Eternal vigilance is the price af liberty."

Free Assen

Free Press

VOLUME XIX

SAN FRANCISCO, CALIFORNIA, JULY, 1954

NUMBER 7

Membership Campaign

Goes Over the Top

The ACLU's special membership campaign went

over the top last month by attaining 112 per cent

of its membership goal of 400, or exactly 449 new

members. Coupled with this tremendous success

in securing members is an almost equally success-

ful financial result of 99 per cent gf the goal, or

just $23.50 short of the goal of $2700. Moreover,

if outstanding pledges are paid, the drive could

reach 500 new members and $3000.

This year's membership campaign is much more

successful than last year's. Last year the Union

sought 450 new members and $3000. It finally set-

tled for 372 new members and $2514. That was

good, but obviously this year's results are ex-

cellent.

San Francisco Sets Pace

Mrs. B. Abbott Goldberg's San Francisco team

set the pace in new members and money received

with 113 and $698.50, respectively. In doing so, it

went over the top on both its quotas.

Possibly the outstanding achievement of the

campaign is the record of Mrs. Russell J. Merret's

Marin County Campaign Committee. While its

goal was 25 members, it secured 107 members.

And, instead of raising $170 it turned'in a whop-

ping $625. Marin County topped off its campaign

with another public meeting, this time at the home

_ of Vera L. Schultz in Mill Valley. .J. Campbell .

`Bruce, author of "The Golden Door," spoke elo-

quently of the inequities of the McCarran- Walter

Act.

Another noteworthy job was turned in by

Thomas Winnett's Berkeley team. They went over

the top on both their membership and monetary

goals by reason of fine organization and hard -

work.

Belated Start By Bridegroom

Bridegroom Wayne Loretz, chairman of the

Oakland team, was late in getting his team start-

ed because of his honeymoon. During the past

month, however, the committee reached 80 per

cent of its membership eon and 85 per cent of its

financial goal.

The campaigners in Los Altos, who prefer to

_ remain unknown, made 120 per cent of their mem-

bership goal and 97 per cent of their financial goal.

And, as previously reported, Fresno, led by Dr.

Hubert Phillips and Hayward, directed by attor-

ney Edward EF'. Newman, were successful in achiev-

ing both their membership and financial goals.

Gordon McWhirter's Sacramento committee, Mrs.

Richard Coblentz' San Mateo committee and Mig-

non Bowen's Santa Rosa committee have gone

_ over the top on their membership goals.

Membership Stands at New High :

By reason of the campaign, the estimated paid- -

up membership of the branch has been raised to

3440-a new high. At the same time last year,

the membership stood at 3114.

The purpose of the campaign was to raise $2700

to balance the Union's increased budget ($27,200).

The purpose has been achieved, and, for the first

time, the Union will meet the expenses resulting

from the doubling of its staff in October of 1952.

To all who contributed toward the success of the

campaign, the Union' wishes to express its deep

appreciation.

ACLU Challenges Oppenheimer

Decision On Due Process Grounds

The following is the text of a letter sent last

month to the Atomic Energy Commission present-

ing the American Civil Liberties Union's views on

the civil liberties questions raised in the Oppen-

heimer "security risk" case:

The American Civil Liberties Union He care-

fully studied the report of the Atomic Energy

Commission's special Personnel Security Board in

the case of Dr. J. Robert Oppenheimer. We share

in the gratitude that all Americans must feel for

the Board's finding that Dr. Oppenheimer is a

loyal citizen who, in the discharge of his highly

secret duties, acted with discretion. But we are

concerned with certain parts of the Board's deci-

sion that Dr. Oppenheimer's security clearance

should be revoked, parts which bear directly on

our single and special interest, civil liberties, and

which we respectfully urge the Commission to

consider in its deliberations on this vitally impor-

tant case.

As a non-partisan organization devoted solely to

defense of the Bill of Rights, it is outside the

ACLU Files Brief Opposing

Fulton Lewis Libel Indictment

The American Civil Liberties Union recently

filed a brief as "friend of the court'' in behalf of

. Fulton Lewis, Jr., well known radio commentator,

who has been indicted by the State of Maryland

for criminal libel.

The basis for the criminal libel indictment

against Mr, Lewis was a letter written by him to

Governor Theodore McKeldin, criticizing certain

County officials over their enforcement of local

liquor and traffic laws.

The Union maintained in its brief that the in-

dictment was in violation of personal guarantees

under the First Amendment. The brief urged the

court to dismiss the indictment, "since public af- -

fairs constitute a matter of general interest, it is

commonly held that any person may lawfully com-

ment upon the acts of public officials, criticise can-

didates for public office and report legislative and

judicial proceedings without liability so long as

he acts in good faith .

_ The Union further paar. in its brief that

it deplored the use of criminal libel to stifle the

expression of free speech.

Union's function to pass judgment on the merits

of the Board's majority decision, a. judgment

which would be difficult to make in the absence

of personal examination of witnesses or tran-

scripts of the hearings. We do have great respect

for the manner in which the Board has pursued

its long and arduous assignment, and while we

disagree with some aspects of its reasoning, we

are impressed by the thoroughness and sincerity

of its statement. We concur in the editorial views

expressed in The New York Times of June 3, 1954:

"The principal document ...is a classic ex-

ample of the manner in which `security charges

against a federal employee should be consid-

fered: :

Within the area of our particular specialty, v we

suggest that the Board's procedure failed in due

process, and in part infringes upon freedom of

opinion-principles which are the core of the dem-

ocracy our nation is striving to preserve against

a world-wide Communist conspiracy, and which

must be constantly exercised and reaffirmed if

we are to retain our faith in democracy, which is

the root of our security.

As we see it, the failure to observe due process

falls into three areas, which we will discuss seri-

atvm in question form:

A Total Evaluation Is Necessary

1. In reviewing Dr. Oppenheimer's continuing

associations with alleged Communists and their.

sympathizers as a basis for determining his secu-.

rity status, did the Board judge fully these asso-

ciations along with other facts about Dr. Oppen-

heimer's record, particularly the Board's own find-

ing of his loyalty and discretion?

The importance of studying the full picture of

a federal employees record in a security program

was underscored by the Union in its comment on

July 15, 19538, on the present Administration's

security program: "The order can also be im-

proved by the government's granting assurances

that before judgment is passed on the individual

worker, all the evidence, not merely organizational

affiliations, about that person and his particular -

job, will be fully evaluated."" The Union recog-

nizes that in the face of a widespread Communist

danger, there is need for tight security regula-

tions, and has not opposed the consideration of a

person's associations in judging his employability

(Continued on Page 2, Col. 1)

Moving?

One of the Union's toughest jobs is keep-

ing up with the many moves of its more than

3400 members and 200 subscribers to the

NEWS. Summer months particularly bring

changes of addresses, especially among those

engaged in academic pursuits.

Please don't depend upon the Post Office to

_ notify us of your change of address; they

don't always do it. If you are planning to

move, the Union would appreciate prompt no-

tice of your new address.

Results of Special Membership Campaign

(To June 24, 1954)

Membership Financial New Per Cent Money Per Cent

Goal Goal Members' of Goal Received of Goal

Berkeley 80 $540 86 106% $558.50 103%

Davis 10 68 1 10% 5.00 1%

Diablo Valley 10 68 1 10% 5.00 1%

Fresno 5 34 12 240% 60.00 176%

Hayward 5 34 8 160% 58.00- 170%

Los Altos 5 34 6 120% - 33.00 97%

Marin County - me 25 170 107 428% 625.00 368%

oMenlo Park 5 34 3 60% 15.00 44%

OMonterey Peninsula 10 68 2 20% 10.00 15%

Oakland 25 170 20 80% 144.50 85%

Palo Alto 20 136 13 65% 76.00 56%

Redwood City 5 34 4 80% 18.00 58%

Richmond 15 101 2 138% 11.00 11%

Sacramento 25 170 28 112% 143.50 84%

San Francisco 100 675 113 112% 698.50 103%

San Jose 10 68 4 49% 25.00 36%

San Mateo 5 34 4 140% 24.00 19%

Santa Cruz 5 34 3 60% 28.00 82%

Santa Rosa 5 34 5 100% 19.00 36%

oStockton 10 68 4 40% 20.00 29%

OMiscellaneous 20 126 20 100% 96.50 11%

400 $2700 449 112% $2676.50 99%

ONo local campaign committee.

Page 2

AMERICAN CIVIL LIBERTIES UNION-NEWS

ACLU Che

llenges Oppenheimer

Decision on Due Process Grounds

(Continued from Page 1, Col. 3)

in a truly sensitive agency-which the AEC cer-

tainly is-but it believes that such associations

should not be considered in a vacuum. Due proc-

ess, as guaranteed in the Fifth and Sixth Amend-

ments, requires that derogatory information must

be weighed under the light of all other evidence.

This is not only a matter of elementary justice to

the person under investigation, but is of para-

mount importance to the government. How else

but by a balanced review of all the facts can the

best judgment be applied and a correct determi-

nation be made? Perhaps the Board's decision

was made after balancing these associations with

its finding of loyalty and discretion, but the report

does not state so specifically. Thus, in the absence

of such a statement, a fair public reading of the

report might create the impression that a total

evaluation, which would include the fact that over

many years of work on government projects Dr.

Oppenheimer did not disclose any secret informa-

tion, was not made. Perhaps the difficulty here is

the rigid security criteria under which the Board

was forced to decide this case, as may be deduced

from its statement that a different reeommenda-

tion would have been made "if we are allowed to

exercise mature practical judgment without the

rigid circumspection of regulations and criteria

established for us." ,

Failure To Furnish Information

2. Did the denial of certain information to Dr.

Oppenheimer, prior to the hearing, which his

counsel considered important and which was later

revealed during cross-examination by the Board's

special counsel, interfere with the fair hearings

to which every person is entitled under our con-

stitution ?

While the Board's report describes the orderly

nature and completeness of the hearing, a real

element of doubt is created as to whether the

hearing was wholly fair because of the failure to

make this information available. The essence of

a fair hearing, both for the individual under in- .

vestigation and the government itself, is to have

every bit of information fully explored, for by

this process the full truth can emerge. We have

- noted the Board's statement that Dr. Oppenheim-

er had the opportunity of confronting and cross-

examining every witness that appeared before the

Board, and we laud this procedure, but the ques-

tion still remains if the information Dr. Oppen-

heimer's counsel desired wasn't equally important

for the preparation of his defense. Evidently, se-

curity considerations did not dictate the Board's

decision on this point, for the data was used by

the Board's special counsel in cross-examination.

Lack of Confrontation

3. Did the Board's consideration of classified

material, to which Dr. Oppenheimer was not per-

mitted access, to any great degree impair the

hearing? :

The Board's carefully worded decision gives no

indication that its finding was based on this undis-

closed material, but there remains the question

whether the principle of confrontation was fully

observed. We understand the sensitive nature of

the material, but we ask whether, because of the

special importance of this case, under a plan to

safeguard security, the material could have been

made avdilable. We do not say for certain that it

should, but it is conceivable that disclosure of such

data might have assisted both Dr. Oppenheimer

and the Board to clarify testimony on which the

Board found him "less than candid." Perhaps not

all the material on which the Board may have

formed its decision was given to Dr. Oppenheimer

to rebut, and, if not, the due process requirements

of fair hearing were not met.

Apart from these three specific due process

questions, a related question is raised as to wheth-

er the Board's finding about Dr. Oppenheimer's

willingness to testify on the loyalty of Dr. Condon

and his recommendation of Dr. Bohm as a physi-

cist was based on irrelevancies which hardly fall

within the formal security regulations, and thus

pose the issue of whether, in fairness to Dr. Op-

penheimer, they should be used..

The Board's report judges adversely the state-

ment by Dr: Oppenheimer that despite Dr. Con-

don's bitter attack on him, he would testify as to

the latter's loyalty. But, if this statement is con-

sidered evidence of `unreliability or untrustwor-

thiness," what significance do we attach to the

statements of President Eisenhower and other na-

tional leaders, in recent days, which correctly em- -

phasize that we must not stigmatize as Commu-

nists those with whom we disagree merely because

we disagree with them? It may be argued that the

President's statement does not concern itself with

the question of security in such an agency as the

AEC, but we submit that Dr. Oppenheimer's abil-

ity to put aside whatever emotional feeling he had

about Dr. Condon's attack and testify on the basis

of facts and knowledge about his attacker's loy-

alty might be regarded as praiseworthy, for it

shows his ability to distinguish between emotion

and fact-and to act on that distinction-a trait

which is highly desirable, we should imagine,

where security is at stake.

The report also states that Dr. Oppenheimer

lacks a security consciousness because, in response

to the Board's question, he said he would recom-

mend Dr. Bohm for a physicist's position in Bra-

zil, without adding anything about Dr. Bohm's

security status. The irrelevancy of this statement,

which causes us to question the Board's wisdom

in using it to formulate its judgment, is shown by

the fact that the Board did not ask Dr. Oppen-

heimer about Dr. Bohm's security status. To crit-

icize Dr. Oppenheimer for failure to do some-

thing the Board itself failed to do is certainly

questionable. Moreover, the Board's judgment in

this instance does not square with its statement

that scientists should not make security judgment

but should leave it to others who are profession-

ally trained for such duties.

Freedom of Expression At Issue

~ We now turn to the question of how the Board's

report impinges on free expression. The basis for

this opinion is found in two of its statements con-

cerning Dr. Oppenheimer's connection with the

hydrogen bomb program.

1. "Following the President's decision, he did

not show the enthusiastic support for the

program which might have been expected

of the chief atomic advisor of the govern-

ment under the circumstances.

2. "We are concerned, however, that he may

have departed his role as scientific advisor

to exercise highly persuasive influence in

matters in which his convictions were not

necessarily a reflection of technical judg-

ment, and also not necessarily related to

the protection of the strongest offensive

military interests of the country."

"Enthusiastic Support" of Policy on

Security Criteria

In our view, the idea of `"`enthusiastic support"

of a government policy as a security criteria runs

. contrary to the whole democratic concept of a free

society based on free thought. The whole idea of

a democratic society envisions the working to-

gether of men with enthusiasm for and against a

policy, and even men without definite enthusiasm.

For it is this clash of views, this exercise of di-

versity, that has produced both the spiritual and

material advances of American democracy. The

atomic and hydrogen bombs were made because

free men, debating together within a security

framework, finally agreed. Dr. Oppenheimer was

one of those men. He held a belief, expressed it,

and acted upon it-all totally within the bounda-

ries of loyalty and discretion. Of course, it might

be entirely proper to discharge a man as a gov-

ernment advisor because his advice was no longer

desired in view of his failure to enthusiastically

support a program; this is a risk which any man

in public life can fairly be expected to run. But to

stigmatize the man as a security risk for failure

to overtly manifest such support runs counter to

all our traditions of freedom of belief and asso-

ciation.

While stating that Dr. Oppenheimer did not

openly oppose the H-bomb project after it was offi-

cially adopted as national policy and did cooperate

with the program, the report states that Dr. Op-

penheimer's lack of public enthusiasm for the pro-

gram had an adverse effect upon recruitment of

scientists. We do not comprehend how the respon-

sibility for such recruitment was Dr. Oppenheim-

er's. If his attitude had an adverse effect, was it

not the duty of the AEC to ask him to publicly

urge the cooperation of other scientists? If he

had failed to act on the request of his superiors,

then this might have been considered as evidence

of his being a security risk, but in the absence of

such a request we question whether it should be.

Full and Free Debate Necessary

The importance of free and full debate within

government councils, even of matters of the high-

est security importance is also involved in the

Board's statement that only technical judgment

should be given by scientists working on govern-

ment programs, even though it acknowledges (c)

"that any man, whether specialist or layman, of

course, must have the right to express his deep

moral conviction; must have the privilege of voic-

ing his deepest doubts." However, the emphasis

in the Board's report on Dr. Oppenheimer's de-

parture from his role as scientific advisor does not

consider the fact that the democratic principle of

freedom of belief is characteristic of the scientific

mind. To such a mind, all life is interrelated and

all thought about life must be given expression,

ACLU Appeals Conviction of

Two Catholic "Objectors'

The ACLU of Northern California is appealing

the U. S. District Court conviction on May 13 of

two Catholic conscientious objectors, Arthur Duf-

fy and George Lillis, who refused induction into |

the armed forces. Both men were novitiates at a

Christian Brothers seminary.

In making their claims for C. O. status, both

Duffy and Lillis declared:

"War is a conditional right of states and must

be morally just: (1) All other means such as

papal arbitration must have been tried and

have failed; (2) The methods must be rightly

used. There must be no mass destruction of

non-combatants; (3) War must arise from

the demands of justice and charity and not

from economic necessity; (4). War must be

certainly just in cause, instigation, means,

methods and ends; (5) Lawful authority

must declare war; (6) The war must be de-

clared. -

The claims of both Duffy and Lillis were reject-

ed after the local draft board was informed by

the Department of Justice Hearing Officer that

"there_is nothmg in the teachings of the Catholic

church which would give foundation" to their

claims.

Federal District Judge O. D. Hamlin ruled

that the Selective Service Board had not arbi-

trarily classified the defendants 1-A and sentenc-

ed them to nine months in Federal prison. He also

rejected a motion for bail pending appeal. This

motion has been renewed in the Ninth Circuit

Court of Appeals. It was argued on June 28 by

attorney Gean Cannon and ACLU Staff Counsel

Lawrence Speiser, but no decision had been hand-

ed down when this issue of the News went to

press.

At the trial, the men were represented by Mr.

Cannon. He contended that the Selective Service

Boards failed to consider all of the material in the

files which indicated that Catholics could be C.

O.'s, and that they were being deprived of due

process of law, because of a failure to produce the

FBI investigatory files in order to determine

whether fair resumes of the adverse information

had been presented. He also contended that the

Hearing Officer's determination as to Catholic

- doctrine concerning war was based on an unsign-

-ed, unverified statement, allegedly from the local'

`Archbishop's office.

Police Ban on `One Summer

Of Happiness' is Lifted

"One Summer of Happiness" returned to the

United Artists Theatre in Richmond, Calif.,. last

month following a protest by the ACLU of North-

ern California against the banning of the picture

by a police officer last May 27. Showing of the

film was stopped when the officer declared it was

"objectionable." The showing on June 17 and 18

was advertised "for adults only."

The Union's protest to the Chief of Police charg-

ed that Police Sergeant Delmer T. Priest had `set

himself up as the judge of what motion pictures _

the community of Richmond may see... He has.

arrogated to himself the role of Richmond's movie

censor."

The Union's letter, signed by Ernest Besig, lo-

cal director, declared that Sergeant Priest's job

"is to enforce the laws of the State... If the the-

ater management has in some way violated such

laws, including the obscenity statutes, he may

make an arrest and the issue may be decided by a |

judge and jury. As things stand now, however,

Sergeant Priest stands in the strange position of

being accuser, judge and jury.

"We think it is regrettable," said the letter,

"that the management of the theatre capitulated

to Sergeant Priest's intimidation because it merely

encourages similar action in the future. We trust,

however, that you will reprimand the officer for

his lawless enforcement of the law and give as-

surances to the public that Richmond will not tol-

erate a censor.

if the truth is to prevail. To ask that a scientist

categorically divorce the whole experience and

judgment of his life from his technical service

would paralyze those qualities of mind which

serve his country. To suggest that a scientist-

or any other man-cut himself into isolated pieces

for fear of being found a security risk, not only

threatens his right of expression, but, in the long

run, will injure the program on which his scien-

tific judgment is desired. The government has the

right to reject any of these points of view and to

make the final decision, but it will not obtain the

best advice, which is what it wants, if it throws

up such a barrier to expression.

AMERICAN CIVIL,.LIBERTIES UNION-NEWS ._

Page 3

State Supreme Court Refuses

To Hear Church Oath Cases

The State Supreme Court on June 16, 1954, re-

fused at this time to consider the validity of the

loyalty oath required as a condition for continued

church tax exemptions. The oath had been chal-

lenged by two Bay Area churches, the First Meth-

odist Church of San Leandro and the First Unita-

rian Church of San Jose, in suits filed on their

behalf by the American Civil Liberties Union.

The cases had been filed directly with the State

Supreme Court and sought writs of mandate or-

dering the local county assessors to grant the

churches the tax exemptions provided in the State

Constitution, even though they refused to sign

the loyalty . oaths on grounds of religious con-

science.

The Court refused to issue the writs by a vote

of 5 to 1. Justice Shenk, speaking informally for

the majority, since in this situation no opinions

are rendered, nor even a hearing held, stated that

there was an adequate remedy at law, by having

the churches pay the taxes that will be assessed

against them under protest and then suing for a

refund in the County Superior Courts. This could

not take place until next fall when the taxes are

levied.

Justice Jesse Carter, who dissented, pointed out

that under the suggested procedure the constitu-

tionality of the tax exemption loyalty oath would

probably not reach the State Supreme Court for

at least two years. He stated that, under all the

circumstances and because of the great public im-

portance of the question, he did not feel the legal

remedy was adequate and the writ should have

been issued. If this were done, a decision on the

constitutionality of this law could have resulted

in three or four months. Chief Justice Phil Gib-

son did not participate in the decision.

In the petitions for the writs A. C. L. U. Staff

Counsel, Lawrence Speiser and Macklin Fleming,

`volunteer A. C. L. U. atorney, had anticipated |

the procedural objections and had argued that the

usual legal remedy was not adequate. because the

churches would just have to pay unforeseen taxes

with which they are ill prepared to cope; that

there will be a multiplicity of suits crowding the

courts, with needless delay and expense to all par-

ties, and that the constitutional questions raised

by this law are many and would ultimately have

to be settled by the State Supreme Court.

In consequence of the court's decision, the.

churches will pay their taxes when levied and then

sue to recover them. The Union is also consider-

ing filing, as soon as possible, an action for declar-

atory relief on behalf of one of the churches-

similar to the cases filed on behalf of four veterans

last month, in an attempt to get a decision on the

merits of the law as swiftly as possible.

Richmond Teaching Couple

Latest Dilworth Act Victims

Two Richmond teachers, John and Inez Schuy-

ten, are the latest victims of the Dilworth Act to

be represented by the ACLU of Northern Califor-

nia, Both were fired for refusing to answer ques-

tions before the California Senate Fact Finding

Commitee on Un-American Activities (the Burns

Committee) at a special secret session in Martinez

on May 8 of which they were given less than 24

hours notice. Because of the shortness of the no-

tice, they were unable to obtain counsel to rep-

resent them at the hearing presided over by State

Senator Nathan Coombs, the sole committee mem-

ber present.

John Schuyten, 37, taught science and engineer-

ing at Contra Costa County Junior College. His

wife, Inez, 42, was a junior high school social stu-

dies and English teacher in the Richmond High

School District.

The` governing bodies of both schools voted to.

~ suspend the Schuytens on May 14, and to initiate

dismissal proceedings. John Schuyten would have

gained tenure rights on the following day.

Complaints were filed in the Superior Court in

Martinez on June 23 asking approval of the dis-

missals on the ground that the Schyutens violated

the Dilworth Act in refusing to answer questions

about whether they ever had been members of the

~Communist Party. Both refused to answer ques-

tions as to membership in the Communist Party

from 1946 "to and including part of the year

1950," on the grounds of the First and Fifth

Amendment. They insisted, however, that they

`had "never committed a disloyal or subversive

act.

A defense fund has been eotplched by fellow

teachers in order to pay the costs of the inevit-

ably long court battle in which the Dilworth Act's

constitutionality will be challenged, as in the case

of John W. Mass. The defense fund already totals

$535. Further contributions will be welcomed.

Send all contributions to the ACLU, 503 Market

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

the "Schuyten Defense Fund."

Oath From Housing

San Francisco Superior Court Upholds

The San Francisco Board of Education's dis-

missal of John W. Mass, San Francisco City Col-

lege English professor, was upheld by Superior

Court Judge Milton D. Sapiro on June 24. In a

five-page opinion, Judge Sapiro upheld the con-

stitutionality of the Dilworth Law, which provides

that school district employees who refuse to an-

swer questions of Congressional or State Legisla-

tive committees. concerning Communist Party

membership since September 10, 1948, shail be dis-

missed. Mass had refused to answer such ques-"

tions asked by the House Committee on Un-Ameri-

ean Activities when he was called before it in De-

cember 1953.

Nevertheless, Mass had noted on the reverse

side of his Levering Act oath that he had been a

Communist from 1947 to 1949 and that he had.

taught at the California Labor School in San Fran-

cisco between 1946 and 1950. Also, at the time the

Board of Education suspended him he expressed

a willingness to answer certain of their questions

under oath. The Court's opinion ignored these

facts.

The court's decision also ignored the Union's

contention that the State may not delegate its

authority to a Congressional Committee. Granting

for the sake of argument that the State, as em-

ployer, may validly compel a teacher to answer

questions about his past associations, may the

Federal Government intrude into the local educa-

tional field?

Judge Sapiro held that:

""A teacher's employment in the public schools

is a privilege, not a right. A condition implicit

in that privilege is loyalty to the government

under which the school system functions, It

is the duty of every teacher to answer proper

questions in relation to his fitness to teach

our youth when put to him by a lawfully con-

stituted body authorized to propound such

questions."

Observing that one of Mass' former pupils had

pleaded for him by pointing to the school motto:

Senate Comm. Excises Loyalty

Bill

The Senate Banking and Currency Committee

has eliminated from a housing bill the House

approved McCormack Amendment requiring loy-

alty oaths for occupants of all federally-assisted

housing, both public and private.

Action came after the American Civil Liberties

Union wrote members of the Committee strongly

opposing the amendment.

The ACLU letter said that while the organiza-

tion "has never objected to positive oaths, such

as are required by elected officials, we believe

that loyalty oaths are negative and seriously vio-

late the First Amendment right of speech and

association."

Replacing the present Gwinn foe ndracnt

which requires loyalty oaths of occupants of cer-

tain low-rent federally-aided housing, the McCor-.

mack proposal demanded that any person living

in any housing unit constructed with federal aid

swear that he did not belong to any organization

that-for the purposes of the housing law-the

Attorney General designated as subversive.

ACLU, which has supported pending legal tests

of the Gwinn Amendment's constitutionality in

New Jersey and New York, summarized its views

on that law and loyalty oaths in federal-aided

housing by asserting:

"1, The Gwinn Amendment restricts free speech

and association in the absence of any danger

whatsoever from the evil it purports to remedy."

Members of proscribed organizations living in

federally-aided housing should not be considered

more dangerous than those occupying private

housing. `The singling out of persons living in

federal-assisted housing is discriminatory treat-

ment, contrary to the American concept of equal-

ity before the law.

"2. Since the Supreme Court has held that

mere membership in a group designated as sub-

versive by the Attorney General cannot constitute

grounds for disqualifying a person as a govern-

ment employee, such membership should not dis-

qualify him from federal-aided housing."

The Union told the Senate committee that the

constitutionality of the Gwinn Amendment will

be argued soon before the New York Court of

Appeals in a test case now pending.

"We have every hope that the court's decision

will invalidate the amendment and we urge that

your committee withhold approval of the McCor-

mack Amendment so as not to broaden the scope

of the Gwinn Amendment and to compound the

unconstitutional evils which have already occur-

red," the Union wrote.

Dismissal of John W. Mass

"The Truth Shall, Make You Free," Judge Sapiro

said:

"The court would ask how can the truth be

revealed if he who possesses it refuses to an-

swer when legitimately questioned? This de-

fendant had the opportunity to assist the con-

stituted authorities in ferreting out the steps

by which a free government may be under-

mined, the minds of its citizens captured and

liberties destroyed. The defendant would not

cooperate. If he had responded and told the

truth, he would not be before this court. As he

did not reveal the truth, he is not free to teach

American youth, for he has shown himself

lacking in the fundamental requirement of

acceptance of law, a fundamental so neces-

sary in the preservation of the rights of free

people."

Judge Sapiro not only upheld the validity of the

Dilworth Act, but also declared that Mass `"`was

guilty of unprofessional conduct, evident unfitness

for service, insubordination and refusal to obey

the school laws of the State."

Mass was represented by Lawrence Speiser,

ACLU Staff Counsel. The decision will now be ap-

pealed to the California District Court of Appeal

and ultimately to the State Supreme Court. To

that end, a defense fund of $677.75 has thus far

been raised. Additional funds are needed to pay

the costs of printing the transcript of the record

and briefs. Send all funds-to the ACLU, 503 Mar-

ket St., San Francisco, and earmark them "For

the John Mass Appeal. "

V.A. Clears S.F. Council for

Civic Unity of Red Charges

The Veterans Administration revealed in Wash-

ington on June 23 that it is withdrawing a charge

of membership in the San Francisco Council for

Civic Unity from the specifications in a security

proceeding against one of its employees, who is re-

presented by the ACLU of Northern California.

"By retracting its charge that the San Fran-

cisco Council for Civic Unity is `reported . . . di-

rected by the Communist party,'" said the San

Francisco Chronicle on June 25, "the Veterans Ad-

ministration has in effect confessed to a reckless

piece of wrongdoing.

"We agree with Representative Jack Shelley

that the key issue in this discreditable perform-

ance is the misuse by a security officer of a Gov-

ernment agency of unevaluated allegations against

the council. Unverified, undocumented suspicions

were accepted without investigation to determine

if they were factual.

"The Council for Civic Unity is now publicly

vindicated, but the system which led to its unwar-

ranted defamation is not....

"And something remains to be said for the VA

employee who was suspended for `associating'

with council members. We don't know who he is,

but we note that after responding to this and

other charges still outstanding against him he has

not yet had a hearing, after more than six months

off the job. The VA had better get around to*fin-

ishing this inquiry which it has conspicuously

bungled."

Threaten Non-Signers of

Tenant's Oath with Eviction

Tenants of federal housing projects in Rich-

mond, who have refused to sign affidavits saying

they do not belong to organizations listed by the

U.S. Attorney General as subversive, are again

being threatened with eviction by the Richmond

Housing Authority.

Robert D. Lee, executive director of the Hous-

ing Authority, announced that word has been re-

ceived that the Government had prevailed in sev-

eral test cases in the East. (There has been no

decision on the constitutionality of the Gwinn

rider by any top state court.-Ed.) The Housing

Commissioners voted on June 17 to instruct Dana

Murdock, its attorney, to proceed with the evic-

tion of those tenants who have not complied with

the law. Lee said the first cases would be against

two or three families in permanent low-rent hous-

ing. Thus far, however, no evictions have been

started.

The Northern California ACLU filed an injunc-

tion proceeding against the Richmond Housing

Authority in April of 1953, but the case has lain

dormant pending the outcome of an ACLU spon-

sored case in New Jersey. That case has been

stalled. and the national ACLU has urged the af-

filiates to reactivate their own cases. Local ACLU

attorneys are studying whether to proceed with

the injunction suit or to await an eviction case

which could reach the U.S. Supreme Court in

e

shorter time.

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.

os 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 8, 1879.

Subscription Rates-One Dollar and Fifty Cents a Year.

Fifteen Cents per Copy -151 =

Housing Loyalty Oaths

Opposed In N.Y. High Court

The requirement that occupants of low-rent,

federally-aided housing projects must sign loyalty

oaths was scored last month by the American

Civil Liberties Union in a brief filed with the

New York State Court of Appeals in Albany.

The Union submitted a "friend of the court"

brief challenging the constitutionality of the

Gwinn Amendment on the grounds that it violates

the free speech and due process guarantees of

the First and Fifth Amendments to the Constitu-

tion. The court is now considering the suit of

Rebecka Peters, a resident of the Williamsburg

housing project, against the New York Housing

Authority. Mrs. Peters appealed to the high court

from a decision of the Appellate Division revers-

ing a ruling by the New York Supreme Court that

the Amendment was unconstitutional. Under the

law, the city housing authority has the respons-

ibility for administering the amendment, which

requires oaths of non-membership in any of the

organizations listed by the Attorney General as

subversive. |

No Basis for Restricting Association

The ACLU brief argues that in the "absence of

a clear and present danger," Congress may not

restrict free speech and association, adding that

no conclusive proof of the danger has been shown.

"For what is the danger that is to be feared

from persons who are members of organizations

cited by the Attorney General taking up their

residency or continuing it in low-rent public hous-

ing... Congress itself has apparently found no

danger from the residency of such persons in

other federally-assisted housing projects, for it has

not made the same provision for housing aided by

the Federal Housing Administration, by the Vet-

erans Administration, by the National Mortgage

Association, by the Department of Agriculture,

by the Home Loan Bank Board, by the Federal

Home Loan Banks, or for housing which is itself

government-owned, such as the TVA and the

Atomic Energy Commission.

Answering the Housing Authority argument

that the housing projects are breeding places for

Communists and subversive elements because the

projects' halls were used for meetings of the or-

ganization, the ACLU said, "if the law is to at-

tempt to deal with such activities, it inhibits not

only whatever illegal activities there may be there

by such organizations, but also inhibts their per-

fectly legal activties, including the exercise of

the right of free speech in assembly halls.

"If subversion is being bred there and it is

illegal, it should be punished by the criminal

law." , e

The ACLU brief continued that there had been

no congressional finding, following a hearing, of

the danger of recruitment of subversives in th

federally-aided housing projects.

Rule of "Conclusive Guilt"

The ACLU said the housing residents' due pro-

cess was infringed because the Gwinn Amend-

ment lays down a rule of "conclusive guilt

established by mere association, without even the

requirement that the member of the organization

`have knowledge of the alleged subversive purpose

of the organization." Such a conclusion is arbi-

trary, the ACLU brief charges. To buttress its

position, the ACLU pointed to the decision of the

U.S. Supreme Court upsetting an Oklahoma teach-

ers loyalty oath for failing to establish that the

person signing the oath know that the organiza-

tion on the Attorney General's list was subversive.

The Gwinn Amendment must also fall, the

ACLU said, because the Attorney General's list,

on which it is based, was prepared without ade-

quate standards and because the organizations

listed were not given an opportunity, at a hear-

ing, to disprove the charges.

No Relationship to Public Welfare

The ACLU also challenged the Amendment on

the grounds that it bears "no responsible relation

to the public welfare. The public welfare remains

at precisely the same degree whether mem-

bers of organizations on the Attorney General's

list live in housing projects, in tenements or in

skyscrapers ... While it undoubtedly fills the

emotional needs of those of us who, like the

- authors in their brief, detest communist totali-

tarianism, emotional satisfaction hardly serves as

the criterion for determining relationship to pub-

lic welfare."

Following the reversal of his decision by the

Alameda County Appellate Department of the Su-

perior Court, Municipal Judge Redmond C. Staats,

Jr., of Berkeley acquitted Reuel S. Amdur on a

charge of setting up a sidewalk table at Sather

Gate without a permit. Amdur was arrested Feb-

ruary 7, 1953. The conviction was reversed last

February.

Amdur was denied a permit to set up a sidewalk

table to collect signatures and to distribute litera-

`ture protesting the death penalty in the Rosen-

berg case. He described himself as a Thoreauan

anarchist. Lawrence Speiser, ACLU staff counsel,

represented Amdur throughout the proceedings.

In acquitting Amdur, Judge Staats handed down

the following memorandum opinion:

Inasmuch as this matter has been in the courts

for over one year and because of the frequent dis-

cussion and application of the principles involved

in the case, this Court which rarely, if ever, gives

opinions along with its decision, feels obliged to

render a brief memorandum in an attempt to clar-

ify the issues.

In the original trial the Court found, and it still

finds, that the City Council refused to act on the

defendant's application for a permit to place a

table on the city sidewalk on the ground the ap-

plication was not made in good faith. Any other

finding would be contrary to the evidence even

though it does appear that on other occasions the

Council denied similar applications on. other

grounds. The Appellate Court, however, has ruled

that the ordinance gives no such authority to the

Council and that it was bound to act on the appli-

Committee Loses Kathleen D.

Tolman; Harry Meserve Stays

Last month the Executive Committee of the

ACLU of Northern California regretfully accepted

the resignation of Kathleen D. Tolman, of Berke-

ley, who had recently found it difficult to attend

meetings because of ill health.

Mrs. Tolman served on the Executive Commit-

tee ever since December, 1938, or most of the life

of the local branch, which started in 1934. She has

been one of the Union's most enthusiastic, faithful

and valued supporters.

While the Committee lost the services of Mrs.

Tolman, the Rev. Harry C. Meserve, pastor of the

First Unitarian Church of San Francisco, will not

leave San Francisco as previously announced, Mr.

Meserve decided not to accept the post as minister

of historic King's Chapel in Boston. Consequently,

he will continue to serve on the Union's Executive

Committee.

Said the San Francisco Chronicle in commenting

on Mr. Meserve's decision: `""We know not what:

' proper Bostonians may think, but certainly no

San Franciscan finds anything strange about the

testament of the Reverend Harry C. Meserve, who

withdrew his acceptance of a prestigious Unitar-

ian pulpit in Boston because he `could just not

face' the necessity of leaving this city.

"Mr. Meserve has been minister of the First

Unitarian Church here since 1949, and the bonds

that hold him are all the more remarkable for hav-

ing grown so strong in only five years. We suspect

they will continue to grow even stronger, because

his congregation and the community have no less

affection and appreciation for him than he has

for them."

Prof. Stephen Pepper

Defines `Academic Freedom'

"Academic freedom is simply the name for free-

dom of thought, discussion, study and informa-

tion in the domain of education. Freedom in these

respects is a right of every citizen of a free dem-

ocracy.

"But infringement upon any of these freedoms

is particularly serious in the college and univer-

sity. A teacher afraid to say what he thinks de-

prives hundreds of the fruit of his thinking. When

a researcher finds it wiser not to publish his re-

sults, the whole public is the loser.

"Most people recognize these obvious maxims,

but do not recognize that freedom of thought costs

something, too. The cost is the recognition of the

need for error. Most beliefs are only half true.

Many of men's firmest beliefs have proved untrue,

and some of our present beliefs are unquestionably

of this sort. 5

"So freedom of thought exists only where there

is freedom to err. And there is no tolerance unless

there is tolerance of what we believe to be false.

This is the price we have to pay for the truth and

this is part of academic freedom. A university as

a laboratory for ideas requires tolerance of error

in sifting out the truth."-Stephen C. Pepper,

University of California, Professor of Philosophy. -

euel Amdur Finally Acquitted in

erkeley's "Sidewalk Tab

le Gase"'

cation regardless of whether there was any bad

faith on the part of the defendant.

(The Appellate Court stated: `We find no rea-

sonable basis for considering the motives of an

applicant in deciding whether a permit should or

should not be granted. The approval of such a

standard would contribute an open invitation to

discrimination." The Appellate Court also stated

that "the conclusion is inescapable that on both

occasions one of the primary considerations gov-

erning those members of the council who voted on

the first occasion to deny applicant's permit, and

on the second to refer it to the file, was the fact

that they disagreed with the views which, accord-

ing to his application, appellant wished to ex-

pound. However distasteful the political philos-

ophy of the applicant may have been to members

of the City Council, no question of a clear and ~

present danger being involved, this was not a

proper standard to be applied in determining

whether the council should grant or deny the per-

mit, except insofar as it may have had a bearing

upon the question of public safety or conveni- |

ence." -E.d. ) soe

The question then arises as to whether the

Council had any valid ground for denying the per-

mit. It does have the right by ordinance to pro-

hibit the obstruction of the sidewalks, provided

there is not an unreasonable interference with the

right of free speech, religion, assembly, or peti-

tion. No such right is involved here and the de-

fendant's desire for the table as a convenience to

distribute literature would place no duty on the

city to grant him a permit.

It appears from the evidence admitted in the

last trial session that on approximately twenty

occasions in the four years preceding the defend-

ant's application that the Council granted such ~

permits to others as a convenience for distributing

literature. Having opened the door, may the Coun-

cil close it according to its own discretion?

The answer is no.

Shortly after the Civil War the Federal Consti-

tution was amended to provide in part that: "No

state shall deny to any person within its jurisdic-

tion the equal protection of the laws." This amend-

ment made it clear that in this country no state

government nor any of its subdivisions could

either by enacting into law or by applying laws

already enacted favor one group of persons over

others, The Council having granted permission

could not deny that same permission to the de- (c)

fendant unless there was some reasonable basis.

for differentiating from the others.

. His political or personal views are not such a

reason.

It was suggested by a few members of the

Council that if the permit was granted there was.

a possibility of a riot or a breach of the peace and

the permit should be denied for that reason. Yet

no evidence of past disturbances or the possibility

of this threat was offered. In fact, the evidence

showed that except for the `arresting officer the

defendant and his table attracted little interest of

very few, if any, persons. In addition, Capt. Laird

of the Berkeley Police Department testified that

his department was quite able to take care of any-

thing which might occur. There was, therefore,

no evidence of any danger to the peace and quiet

of the community, let alone a clear and present

danger which must be present before a denial of

the permit would be justified.

The Court finding that there is no valid ground

for denying the permit, it follows that the Coun-

cil was bound to issue the permit, and the defend-

ant is found "not guilty."

4d

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