vol. 22, no. 5

American

Civil Liberties

Union

Volume XXII

May, 1957

Number 5

In This Issue

John Henry Merryman

At its monthly meeting April 4, the Board of Directors of

the American Civil Liberties Union of Northern California

_ unanimously elected John Henry Merryman, associate pro-

fessor of law and law librarian, Stanford University School

of Law, as chairman of the Board. Mr. Merryman will fill out

the term of office vacated by

Reverend Harry Meserve, who

left the Bay Area in January to

become a director of the Rocke-

feller Fund in New York City.

Mr. Merryman has been a

member of the ACLU board

since November, 1955. He has

been at Stanford since 1953. Prior

to that time, he taught at the

University of Santa Clara, Col-

lege of Law, and New York Uni-

versity School of Law. In 1953,

he was auditeur, l'Academie de

Droit Internationale de la Haye.

His degrees include: Doctor of

Juridical Science, 1955, New

York University; Master of Laws,

1951, New York University; Doc-

tor of Jurisprudence, 1957, Uni-

_ versity of Notre Dame; M. S.,

1944, University of Notre Dame;

B. S., 1943, University of Port-

He is a member of the Na-

tional Panel of Arbitrators

American Arbitration Associa-

tion, American Society of In-

ternational Law, former member

of the Governing Council, the

World Movement for World Fed-

eral Government.

Mr. Merryman lectures fre-

quently on. civil liberties, ' the

United Nations, and has written

books and articles on legal and -

non-technical subjects.

He is married, has three chil-

dren and lives in Menlo Park.

Censorship Flares in San

Erancisco ..-....,.. page 4

Current Sacramento Scene:

Civil Liberties Legislation page 3

Revision of Rule 17 on U.C.

Campus .... 2. 2. 3... page 2

Other Editors Write About

ACLU 2 2 page 2

STAFF COUNSEL

WANTED!

In the next few months, the

`position of Staff Counsel for

the ACLU of Northern Cali-

fornia will become vacant. At

that time, Lawrence Speiser,

who has held the job since Oc-

tober 8, 1952, will return to

the private practice of law.

The need is for a competent

young attorney with experi-

ence in the practice of law in

California, who is dedicated

to the cause of civil liberties.

It is a full-time job and the

holder of it will be expected

NOT to engage in private

practice.

The starting salary will be

in the neighborhood of $425

per month which may possibly

reach a top of $600 per month.

Applicants should write to

Ernest Besig, executive direc-

tor, American Civil Liberties

Union, 503 Market St., San

Francisco, giving brief per-

sonal histories and stating

their qualifications for and in-

terest in the position. Person-

al interviews will follow.

JOHN H. MERRYMAN

ACLU Condemns

San Quentin.

Lie Detector Tests

Lie detector tests for San

Quentin Prison personnel having

access to "Death Row" were pro-

tested by the ACLU last month

in a letter to W. O. Weissich,

District Attorney of Marin coun-

ty. Weissich is trying to discover

how Caryl Chessman's latest

book was smuggled out of "Death

Row." -

The ACLU's protest did not

question Weissich's investigatory

powers but it did challenge his

methods. "Under the circum-

stances," said a letter signed by

Ernest Besig, the Union's local

director, "the lie detector tests

are nothing more than a drag-net

method of law enforcement. In

the hope of finding the guilty

persons many innocent people

are being compelled to submit to

"While it is claimed that these

people have voluntarily submit-

ted themselves to such tests," the

letter went on to:say, "we think

that as a practical matter there

is little choice for them. The full-

time employees must either take

the tests or suffer black marks

on their records and possible

economic detriment. . . . Such

lawless enforcement of the law

does violence to American

concepts. of justice. .

How to Find a Rotten Apple

Weissich, in a written reply,

expressed his disagreement "with

most of the statements contained

in your letter," and said he

would continue the tests as origi-

nally planned. He is quoted in

the San Rafael Independent as

saying, "How can you find the

rotten apples in a barrel without

inspecting all the apples?"

In a further letter to Weissich,

the ACLU reminded the district

attorney that he was dealing with

human beings and not apples;

that under American law police

may not invade the freedom of

the individual without reasonable

cause; and that citizens are not

required to sacrifice personal

-Continued on Page 3

and state.

Said Mr. Bagshaw, "Theolo-

gians advise the writer that reli-

gion is necessarily sectarian and

that while they feel the main-

tenance of the cross on San

Rafael Hill has become an estab-

lished tradition of the commu-

nity and has the wholehearted

approval of the great majority

of the people in the area, never-

theless it would be offensive to

certain non-Christian minorities,

and to that extent constitutes a

discrimination and/or a_ pref-

erence.

"As stated before, the ques-

tion is not entirely free from

doubt. And also, the writer is

confident that if, as a matter of

policy, it was decided to permit

the cross committee to go for-

ward with

would probably be no formal

action taken to stop it. On the

other hand, this writer cannot

resist the conclusion that if

some non-Christian group sought (c)

permission to similarly erect a

non-Christian symbol, permis-

_sion would not be granted, or if_

it were, there would be much

formal action taken to obstruct

hte

Three Protests

The opinion resulted from

three letters addressed to the

Park Commission, including one

signed by Ernest Besig, execu-

tive director of the American

Civil Liberties Union. It urged

the Commission to secure legal

advice from the city attorney

and then to reconsider the proj-

ect in the light of any legal ad-

vice it received.

"The cross," said the Union's

letter, `is a symbol of Christi-

anity to which a substantial por-

tion of our citizens adhere. On

the other hand, there are many

adherents of non-christian reli-

gions, not to speak of those hav-

ing no religious faith residing

in your community. Under the

its project, there .

High Court Upholds

Tax Loyalty Oath

The State Supreme Court, in a 4-3 decision, has upheld

the constitutionality of the California law requiring loyalty

oaths from veterans and churches applying for tax exemption.

The ACLU of Northern California, which represented

ERECTION OF CROSS

ON PUBLIC PROPERTY

DEBATED IN SAN RAFAEL

On April 9, City Attorney A. E. Bagshaw of San Rafael,

in effect, ruled that erection of a permanent concrete cross

on San Rafael Hill, which is public property, discriminates in

favor of the Christian religion and, hence, violates a Califor-

nia constitutional provision establishing separation of church

circumstances the question nat-

urally arises whether a public

body may express a preference

for a particular religious faith by

granting something in aid of

such faith."

Art. IV, Sec. 30 of the Califor-

nia Constitution provides that

"Neither the Legislature, nor

any county, city ... or other

municipal corporation, shall ever

make an appropriation, or pay

from any public fund whatever,

or grant anything to or in aid

of any religious sect, church,

creed, or sectarian purpose .. ."

Protests had also been sent to

the Commission by Dr. Martin

Katzman and Mrs. Joseph Gut-

stadt of San Rafael.

"The proposed cross is not : a

universal symbol of belief in God

or even of Christianity," said

Bagshaw, "but rather is the sym-

bol of a particular religious

group and hence, the mainten-

ance of such a cross on a public

park is in violation of the con-

stitutional provisions hereinbe-

fore referred to."

Bagshaw also stated that

"while the cross is not publicly

displayed as a symbol by all

- Christian faiths, nevertheless all

Christian faiths believe in the

crucifixion and the cross is sig-

nificant of that faith, even if not

so displayed. "If Christian

faiths are to be permitted to so

display their symbols upon pub-

lie lands, then the same priv-

ilege must be given to non-

Christian faiths, or there does

exist a discrimination and a

preference."

The matter is still pending be-

fore the Park Commission. Nev-

ertheless, following issuance of

the city attorney's opinion, door-

to-door solicitation of funds

scheduled for Palm Sunday was

eancelled. The 48-foot cross

would be erected at a cost of

about $9000.

NORMAN THOMAS TO SPEAK

AT MARIN COUNTY POTLUCK

Norman Thomas, noted civil libertarian, author, lecturer,

and one-time Socialist Party candidate for the U. S. presidency,

will speak in Marin County May 28, at the home of Roger Kent,

200 Woodland Avenue, Kentfield.

The meeting is under the auspices of Marin Chapter of ACLU,

and is scheduled for 8 P.M. Tickets are $1.10 each.

Norman Thomas is one of the founders of ACLU and has

served on its national board since 1920. He is famous for his

free speech fights, including the textile strike at Passaic in

1926; the successful campaign against I-Am-The-Law-Hague; and

against the Klu Klux Klan. He campaigned six times for presi-

dent on the Socialist Party ticket, was former secretary of the

Fellowship of Reconciliation, is author and lecturer on con-

scientious objection and socialism.

Prior to Mr. Thomas' address, cocktails and potluck dinner

will be served, beginning at 6 P.M. Those who plan to attend

the potluck, should consult the following schedule for food:

Last names beginning with A through H should bring a `hot

(main) dish; I through N, dessert; O through Z, salad.

Tickets for the May 28 meeting may be purchased at: SAN

RAFAEL, Cottage Book Store; MILL VALLEY, Moshers Shoe

Store and Dimitroffs; SAUSALITO, The Mart; TIBURON, The

Fitzhughs; NOVATO, Hiller Shoe Store, and Mrs. Alice Yarish,

Novato ADVANCE. To obtain tickets by mail, write ACLU, 229

Rosemont Avenue, Mill Valley, and enclose a check for $1.10 for

each ticket, with a self-addressed, stamped envelope. x

two churches and two veterans

who were challenging the law,

has announced that it will carry

the matter to the United States

Supreme Court.

The California court's ruling,

announced on Wednesday, April

24, reversed lower court rulings

of eight judges in Contra Costa,

Alameda, and Los Angeles Coun-

ties, but upheld the holding of

one judge in San Francisco

County.

The high court acted on ap-

peals, involving two veterans and

four churches-the First Unitari-

an Churches of Los Angeles and

Berkeley; the First Methodist

Church of San Leandro; and the

People's Church of San Fernando

Valley. The First Methodist

Church of San Leandro and the

Berkeley Unitarian Church cases

were handled by ACLU Staff

Counsel Lawrence Speiser with |

the aid of Oakland attorneys Wil-

liam T. Belcher and J. Richard

Johnston. The two veterans cases

involved Speiser and Daniel

Prince: In these actions, Speiser

represented himself and Mr.

Prince with the aid of Richmond -

attorney Joseph L. Landisman

and San Francisco attorney Ralph

Wertheimer.

MAJORITY OPINION

The suits involved the validity

of a 1952 constitutional provision

passed by California voters as

well as a 1953 legislative imple-

menting act which required a

statement from applicants for

the church and veteran's exemp-

tion (but not householders) that

they did not advocate the forceful

overthrow of the United States

Government nor the support of

a foreign government in the

event of hostilities.

The court's majority opinion

was written by Justice John W.

Shenk and concurred in by Jus-

tices B. Ray Schauer, Homer R.

Spence, and Marshall F.!McComb.

They declared "it may properly

be said that the primary purposes

of the voters in enacting the con-

stitutional provision was to pro-

vide for the protection of the

state's revenues from impairment

from those who would seek to

destroy it by unlawful means."

Justice Shenk held that the

provisions did not violate the con-

stitutional rights to freedom of

speech and freedom of religion

and stated: "The First Amend-

ment embraces two concepts-

freedom to believe and freedom

to act. The first is absolute, but

in the nature of things, the sec-

ond cannot be. Conduct remains

subject to regulation for the pro-

tection of society. In the present

case, it is apparent that the limi-

tation imposed by (the constitu-

tional provision) as a condition of

exemption from taxation, is not

a limitation on mere belief but

is a limitation on action-the ad-

`vocacy of certain proscribed con-

duct. What one may merely be-

lieve is not prohibited. It is only

advocates of the subversive doc-

trines who are affected. Advoca-

cy constitutes action and the in-

`stigation of action, not mere be-

lief or opinion." Justice Shenk

continued, by saying "It must be

said that such advocacy from.

whatever source poses a threat

to our government." He conceded

that the laws involved placed a

limitation on speech but ruled

the limitation was only a condi-

tional one and in any case, not

a substantial one.

DISSENTING OPINION

Dissenting were Justice Roger

Traynor, Chief Justice Phil S.

Gibson who concurred in one dis-

senting opinion and Justice Jesse

W. Carter, who wrote a separate

dissenting opinion. Justice Tray-

nor wrote that "a restraint cn

free speech is not less a restraint

when it is imposed indirectly

through withholding a privilege

-Continued on Page 4

Bay Area Editorials

(Ed.'s note: reprinted from the SAN FRANCISCO CHRON-

ICLE, April 4, 1957)

American C ivil Liberties

Union Fights for

Every Citizens Freedom

In essence, the American Civil Liberties Union is a group

of American citizens organized to protect their human rights.

This it sets out to do through a vigilant and ceaseless ef-

fort to protect every citizen's civil liberties, to defend every

citizen's constitutional freedoms, to enlist more citizens in the

unending struggle. `

It is the expressed opinion of President Eisenhower that

these efforts help materially to "translate into reality the

religious and democratic ideals of America."

With notable success, the Northern California chapter of

this non-profit, non-partisan, non-sectarian organization has

been fighting the fight for freedom of speech, freedom of the

press, freedom of assembly, due process of law, equality be-

fore the law. It has exerted constant and inestimably valuable

influence by providing legal counsel without charge to those

whose liberties are infringed, by testing the constitutionality

of repressive laws, by maintaining an informed public opinion.

This substantial contribution to a free America is sup-

ported entirely by local dues and contributions; no founda-

tions or fund-raising agencies supply funds, nor does the

national organization. Hence it is of deep and direct im-

portance to all Northern Californians that the local chapter

attain the goal of its current campaign to add 600 new mem-

bers to its membership of 3500, and $5000 to its extremely

modest budget.

ACLU chapter headquarters are at 503 Market Street, San

- Francisco; the telephone number is EXbrook 2-4692.

(Ed.'s note: reprinted from PALO ALTO TIMES, April

12, 1957)

Civil Liberties in Double Jeopardy

When we speak of civil liberties we mean the right of

every American, under the constitution, to equality under the

-- law, due process of law, free speech, free assembly, and a

- free press.

These liberties are threatened by two enemies.

One is the Communist philosophy that the state is sup-

reme and an individual has no rights except those the state

finds it advantageous to give him. Operating on this basis,

totalitarian governments can move swiftly and ruthlessly.

They believe our concern for the will of the people and the

rights of the people is a weakness that will bring about our

downfall. ;

This philosophy has infiltrated many groups that believe

themselves patriotic. It has planted doubts in many minds.

Their doubts handicap the struggle required to preserve the

rights on which our republic was founded.

A kindred enemy jis fear-fear that if we practice the

freedoms we profess we will be giving subversive agents a

chance to destroy us. Victims of this fear think they can save

Amerita by destroying the faith which gave birth to America.

Those who honestly hold to this faith have an opportunity

to bani together in its defense through the American Civil

Liberties Union, a national nonpartisan organization defend-

ing the Bill of Rights for everybody. oe

The quality of the ACLU is indicated by the fact that John

H. Merryman, professor of law at Stanford, is chairman of

the Northern California branch.

It wants members, yes. But it does not want members who

re afraid of liberty or are committed to any such liberty-

denying doctrine as Communism or the Ku Klux Klan. It

needs and wants the support of men and women who have

the courage of the founders' convictions.

Northern California ACLU headquarters are at 503

Market Street, San Francisco.

(Ed.'s note: reprinted from LOS GATOS TIMES-SARATO-

GA OBSERVER, April 4, 1957)

Everyone's Freedom

- One of the most valuable organizations in our country is

now conducting a campaign for members and funds-the

American Civil Liberties Union. :

The organization, devoted to the maintaining of the free-

doms guaranteed in the Constitution, has performed great

service to the country in maintaining those liberties, and de-

fending those who have been, for one reason or another, de-

prived of freedom of speech, freedom of worship, freedom

of assembly, due process of law and equality before the law.

The Union provides legal counsel without obligation to

those whose liberties are violated and tests in court, the con-

stitutionality of repressive laws, wherever they originate. _

As someone once said, liberty is always unfinished busi-

ness-the efforts of those who attempt to repress liberty in.

some form or another are always with us-and it is only

through organizations such as the Union that these attempts

are fought.

While the Union has no drive as such, they do want mem-

bers and limited funds. Address of the Northern California

chapter is 503 Market St., San Francisco.

Membership Drive

Limps to One-third

Of Year's Goal -

ACLU's Fifth Annual Spring

Membership Drive, which began

March 15, and seeks a goal of 600

members and $5000, has inched

toward the half-way mark with

243 members and $1568 as of

April 25.

The drive is being conducted

in 23 communities in northern

California, by personal solicita-

tion and a series of neighborhood

coffee meetings, to which mem-

bers and prospects are invited.

A total of 619 persons have at-

tended 14 such meetings, at

which ACLU and its plans for the

year ahead, have been discussed.

Most of the speaking engage-

ments have been filled by Ernest

Besig,

John Henry Merryman.

The results to date of|the drive,

by communities, is: BERKELEY:

38 members, $236; (Goal: 100

members; $750) DAVIS: 2 mem-

bers, $10.25, (Goal: 15 members,

$112) DIABLO VALLEY: 0 mem-

bers, $0; (Goal 15 members,

$112); FRESNO; 3 members, $20;

(Goal: 20 members, $150); HAY-

WARD: 9 members, $50; (Goal:

10 members, $75); LOS ALTOS

MOUNTAIN VIEW: 15 mem-

bers, $75; (Goal: 15 members,

$112); MARIN COUNTY:13 mem-

bers, $71 (Goal: 75 members,

$525); MENLO PARK and ATH- -

ERTON: 10 members, $91 (Goal:

20 members, $150); MODESTO:

1 member, $5; (Goal: 10 mem-

bers, $75); MONTEREY PEN-

INSULA: 2 members, $110 (Goal:

20 members, $150); OAKLAND:

6 members, $36.50 (Goal: 30

membelrs and $221) PALO

ALTO: 16 members, $92 (Goal:

30 members, $221); REDWOOD '

CITY, SAN CARLOS and WOOD-

SIDE: 5 members, $25 (Goal: 10

members, $75) RICHMOND - EL

CERRITO: 12 members, $66

(Goal: 10 members, $75) SAC-

RAMENTO: 9 members, $77

(Goal: 25 members, $175) SAN

FRANCISCO: 34 members, $202

(Goal: 125 members, $1000) SAN

JOSE: 14 members, $78 (Goal: 10

members, $75) SAN MATEO: 44

members, $247 (Goal: 10 mem-

bers, $75) SANTA CRUZ: 6

members, $30; (Goal: 10 mem-

bers, $75) SANTA ROSA: No

members, no money; (Goal 5

members, $35) STANFORD: 5

members, $35 (Goal: 10 members,

$75) STOCKTON: 1 member, $10

(Goal: 15 members, $112) WAT-

SONVILLE: 0 members, $0

(Goal: 10 members, $75).

The final report for the drive

will be in the June ACLU NEWS.

f

Lawrence Speiser and

Resign Dropped: -

University of California

By PETER FRANCK

former president, Student Civil

Liberties Union, and Member

of Committee on Rule 17,

University of California

University of California Presi-

dent Robert G. Sproul last month

announced a revision of the Uni-

versity's Regulation 17, which

will allow greater freedom of

discussion of controversial issues

on the campuses of the Univer-

sity. This action constituted

adoption, with minor changes, of

modifications proposed by an ad

hoe student committee on the

Berkeley campus.

Rule 17, as it is popularly

known, has been a prime bone

of contention between students

and the administration of the

University ever since its adopt-

ion in the mid-thirties. Univer-

sity officials at the time feared

that the institution was becom-

ing a "hot-bed of Communism"

in the view of the general public.

For almost twenty years stu-

dents have been protesting the

rule and asking for its change or

repeal. ee

A change in the rule has long

been high on the list of goals of

the Student Civil Liberties Un-

ion on the Berkeley Campus, and

the Rule had generally been rec-

ognized as an infringement of

the civil liberties of students.

Rule 17

Specifically, Rule 17 violated

the freedom to hear ideas of all

kinds freely presented by their

best advocates. It had this effect

because of a provision that only

student groups "recognized" by

`the University could hold meet-

ings on campus, together with a

policy of not recognizing political

and religious groups-the very

groups most likely to sponsor

controversial speakers; and be-

cause of a requirement that at

any meetings dealing with con-

troversial issues two or more

sides had to be presented by "a

panel of qualified speakers,"

which often was an impossibility

to fulfill. ;

The revised rule drops these

restrictive provisions.

Reasons for Change

There are probably two main

reasons for the change having

been made now, after twenty

years of seemingly futile protest.

In the first place, to simplify,

1957 is not 1934. The political

activity of students is on a much

quieter and less controversial

level today than it was in the

Bishop Parsons Is 89

Rt. Rev. Edward L. Parsons,

former chairman of the Board

of Directors of the ACLU of

Northern California, and still a

member of the board, will cele-

brate his 89th birthday on May

18. Congratulations, Bishop,

and many happy returns of the

day!

Another octogenarian on the

local board is Dr. Alexander

Meiklejohn, who celebrated -his

85th birthday last February.

Ed's Note: Reprinted from San Francisco NEWS, April 6, 1957.

Defense of Liberty

The great principles of individual freedom written into

our Constitution should need no defense-but they frequent-

ly do.

In times of stress, when tempers flare and submerged

hatreds rise to the surface, there are always those ready to

deny to others the same freedoms of speech and thought and

action that is guaranteed to themselves.

Among the most vigilant of champions of those freedoms

is the American Civil Liberties Union.

A nonprofit organization, it serves as a sort of public de-

fender of individual liberties. Sometimes the causes it es-

pouses are unpopular and the individuals it defends aren't

the sort on whom society looks with admiration.

But the yardstick of freedom isn't popularity or conform-

ity with public opinion. It is the ideal of civil liberties, as

expressed n the Constitution.

The task of the American Civil Liberties Union is to up-

hold that deal and to protect human rights. It has done its

job well.

The American Civil Liberties Union of Northern Califor-

nia currently is seeking new support. Specifically, it wants

600 new members and $5000 added to its modest budget. Its

offices are at 503 Market St. Its telephone number is EXbrook

2-4692.

As an outstanding defender of our basic rights, it deserves

the fullest support.

Revises Rule Seventeen

thirties. Thus there is much less

reason for the University to fear

damage to: its name from contro-

versial meetings held on its cam-

puses.

Certainly of no less importance

is the manner in which the

student committee worked to

achieve the change. It realized

that one of the reasons for the

failure of previous efforts was

their essentially negative char-

acter-they were protests against

a bad situation, but contained no

concrete proposals. In order to

avoid making the same mistake,

the Rule 17 Committee, as it

came to be called, decided that it

had to draft a proposal which

would ensure the maintenance

of free speech, and yet safeguard

the University's security.

This, it seems, they were suc-

cessful in doing. It was apparent

that their proposal had to guard

the University against any im- -

putation of sponsorship or endor-

sement of meetings or speakers

sponsored on the campus by non-

recognized groups. To achieve

this they proposed the adoption

of the method which had enabled

Stiles Hall ( the University

YMCA) to keep its facilities open

to all student groups. Stiles Hall

had found that it could ensure

accurate representation of the

`sponsorship of meetings held in (c)

its building, if it required pub-

licity. materials to be submitted

for approval before being issued.

Under the new Rule 17 this will

be done by the office of the Dean

of Students.

Finally, the committee suc-

ceeded because it was able to

get support for its proposal from

virtually the entire Berkeley

campus (and because there was

no opposition from the other

campuses). The committee itself

was composed of respected stu-

dent leaders from all segments

of the campus. The Representa-

tive Assembly of the Faculty

strongly endorsed the proposal.

And last but definitely not least,

the committee received active

support from Berkeley Chancel-

lor Clark Kerr.

EDITOR'S NOTE: It was in

November 1951 that the last pub-

lic issue arose under Rule 17. At

that time, the ACLU protested

refusal of the University of Cali-

fornia to permit Max Schacht-

man, veteran leader of the Inde-

pendent Socialist League to par-

ticipate in a debate with Prof.

Francis Herrick of Mills College.

Dean Stone defended the ban-

ning of Mr. Shachtman on two _

grounds: 1, that the require-

ments of Rule 17 were not met;

and 2, that the organization Mr.

Schachtman represents is on the

Attorney General's list. The

- ACLU contended that citizens

and especially students should

have the right to hear persons

who are in the forefront of con-

troversy even though they are

associated with groups that are

are on the Attorney General's

list or some other list.

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By Ken Davis

BERKELEY, April 23- Dean .

Stone, of the University of Cali-

fornia, says that plans are being

made for a conference to be held

in 2 or 3 weeks, on Rule 17 with

student leaders on all campuses.

The purpose of the conference

is to learn how students feel Rule

17 should be implemented.

After the student conference,

the deans of all the California

campuses will decide upon a con-

sistent university policy for the

implementation of Rule 17. It has

already been decided that a com-

mittee will be appointed to pass

on student group applications for

speakers on campus. According

to plans, the ruling will go into

effect next fall.

Copies of Rule 17 are available

in the University bulletin.

ACLU NEWS

May, 1957

Page 2

ae

' subsequently

US. Coast Guard

Postpones Action

In Security Cases

Efforts of the Coast Guard to

nullify a Federal court order re:

quiring them to issue validated

documents to screened seamen

and to grant them security hear-

ings BEFORE banning them from

their jobs have been stymied.

The Coast Guard, in an effort

to circumvent the court's ruling,

changed its regulations about a

year ago by requiring seamen to

answer questionnaires concern-

ing their political opinions and

associations. The regulations pro-

vide that upon failure to answer

the questionnaire, the seamen's

papers were to be revoked. The

court had declared that papers

could not be revoked without

hearings at which the seamen

were confronted by their accu-

sers.

Following protests, the Coast

Guard promised that its regula-

tions would be amended to pro-

vide that upon the failure of the

seamen to submit replies to the

questionnaire, the Commandant

may issue a notice of hearing. So

far, no hearings have been held

despite the failure of seamen to

return the questionnaires.

- Indeed, in several cases where

the seamen have filled out the

political questionnaire, no action

has been taken by the Comman- ~

dant. The ACLU finally wrote to

the Commandant in March and

he promised action, but thus far

nothing has happened.

Action Postponed

In the meantime, since last

November, two seamen who re-

ceived validated documents in

conformity with the Federal

court's order have sought rein-

statement to active membership

in the Marine Engineer's Bene-

ficial Association. Action on their

petitions was postponed for three

months pending an investigation

and, at the end of that time, a

resolution was again adopted to

`set up an investigating commit-

tee.

That committee, it was indi-

cated by the union's business

agent, will examine into the "re-

putations" of the two men. Ap-

parently, the union intends to

deny them reinstatement on the

ground that they have the reputa-

tion of being "Commies." The

`men will not be allowed counsel

at the union hearings.

Under the union's by-laws,

members who secure withdrawal

cards must be reinstated if they

have not worked on their licenses

during the period they held with-

drawal cards. Action of the

MEBA is consistent with reports

on the waterfront that the unions

are now doing the _ security

screening for the Coast Guard.

TOP GOURT ACCEPTS

CITIZENSHIP GASE

The U. S. Supreme Court has

agreed to review the case of Al-

bert L. Trop, whom the State

Department claims has lost his

citizenship because of his war-

time conviction for desertion.

Trop, a native-born American,

was a 20-year-old soldier when he

escaped from confinement in -

Casablanca, where he was held

for .a breach of discipline. He

surrendered the next day, was

convicted by a

court martial of desertion and

dishonorably discharged.

When Trop applied for a pass-

port in 1952, the State Depart-

ment declared he had lost his

American nationality by a 1940

statute. - `

The statute states that a citi-

zen may lose his citizenship if he

deserts the Armed Forces or

leaves the U. S. with the intent

to evade the draft act.

The Trop case parallels that of

the Northern California ACLU

case of Rufus Bean, who al-

though never convicted of de-

sertion, is threatened with loss

of citizenship because he al-

legedly left the U. S. with the in-

tent to evade selective service.

School Discrimination Ends

In Bernal Housing Project

Discrimination against `public school children at the

Bernal Housing Project, San Francisco, was ended, in part,

last February, and will be totally eliminated by September

of 1959.

The issue arose when a resident of the project complained:

last July that his son, who had

attended first grade at the Le

Conte School, just across the

street from the project, was re-

quired to attend second grade at

the Hawthorne School (about

four blocks away) in September

1956. The parent stated that the

school department had advised

him that LeConte School was

crowded and that project chil-

dren were not allowed to attend

the school beyond the first grade.

Board of Education Policy

The Board of Education policy,

as adopted August 4, 1936, and

which governs present practice,

reads: "Pupils in elementary

schools shall be enrolled in the

school which is nearest or most

convenient to their homes."

Despite this policy, when the

project was completed July 13,

1953, it was decided by the school

department, in view of the heavy

enrollment at Le Conte School,

to send the kindergarten and

first grade children across the

street to Le Conte (the project

being within the LeConte dis-

trict), and the second to sixth

grade children to Hawthorne

School. It is the usual practice,

however, to adjust school district

lines when the building of new

residences results in an increase

in the school population in any

given district. Why this was not

done in the LeConte district is

not clear unless the school de-

partment was relying on the ex-

pected erection of a parochial

school to siphon off many of the

children at Le Conte and, there-

fore, make room for the project

children.

The protesting parent was al-

lowed to have his child attend

the second grade at Le Conte

last September, but, of course,

that didn't solve the problem.

Dr. Harold Spears, Superinten-

dent of Schools, finally promised

that the matter would be re-

studied after the opening of the

school year. As a result, begin-

ning with the February term of

school, Le Conte was opened to

project children up to the third

grade. These third graders will

continue to attend LeConte, so

long as they continue to reside in

the district, and, thus, Le Conte

by 1959 will take care of all pro- .

ject children.

San Quentin

Lie Tests

Continued from Page 1-

freedom for the security of the

state.

`Although extensive notes on

Chessman's new book were found

by the warden last February,

headlines about the investiga-

tion of smuggling have appeared

only since the U.S. Supreme

Court agreed to hear oral argu- .

ments on Chessman's appeal on

May 13.

Rabbi Julius A. Liebert, one

of the prison's four chaplains, is

quoted as saying that he will re-

fuse to take a lie detector test.

"If the work of a man of God is

not enough-be he rabbi, priest

or minister-he might just as

well take off his clerical gowns

and bury them," said Rabbi Lei-

bert. The Rev. Byron Eshleman,

chief chaplain and a full-time em-

ployee, has. already taken a lie

detector test. :

AMERICAN CIVIL LIBERTIES

~ UNION-NEWS_-

Published by the American Civil Liber-

ties Union of Northern California,

503 Market Street, San Francisco 5,

California, EXbrook 2-4692.

Editor: Ernest Besig

151

Nominations,

Please

_ The terms of the following

members of the Board of Direc-

tors of the ACLU of Northern

California expire next October

31: Laurent Frantz, Berkeley,

writer for law publishing com-

pany; Alice G. Heyneman, Ber-

keley, active in women's groups;

Prof. Van D. Kennedy of the

University of California, Ber-

keley; Rt. Rev. Edward L. Par-

sons, San Francisco, retired

Bishop of California, Episcopal

Church, and former chairman of

the board; Attorney Clarence E.

Rust of Oakland, board member

since 1938; and Stephen Thier-

mann, Palo Alto, regional director

of the American Friends Service

Committee. In addition, there are

five vacancies on the board. '

The By-laws provide that "Ev-

`ery year, the May issue of the

ACLU NEWS shall carry an invi-

tation to the ACLU membership

to suggest' names to the nominat-

ing committee, and such names

must reach the Union's office not

later than May 31 in order to re-

ceive consideration. The nomin-

ating committee shall consider

such suggestions but shall not

make any nominations until after

May 31."

Please send your suggestions

for Board members to the ACLU,

503 Market St., `San Francisco 5,

Calif., giving as much biograph-

ical information about your can-

didates as possible. .In making

your suggestions, please bear in

mind that Board members must

be ready to defend the civil liber-

ties of all persons without dis-

tinction, and that they are ex-

pected to attend noon meetings

in San Francisco the first Thurs-

day of every month besides serv-

ing on committees.

State Department

Refuses to Renew

Worthy Passport

_ WASHINGTON, Week of April

8-The State Department last

month refused to renew the pass-

port of William Worthy, Jr., re-

porter for the Baltimore AFRO-

AMERICAN.

The State Department an-

nounced its decision because

Worthy's "recent travel to and

within Communist China was

contrary to known and existing

U. S. foreign policy and other-

wise prejudicial to the interests

of the U. S.,"; that Worthy "will

not abide. by geographical limita-

tions of general applicability

which may be placed on the pass-

port."

Recently, before a hearing of

the Senate Subcommittee on

Constitutional Rights, Worthy

testified that the State Depart-

ment had put pressure on his

editor to order him home, and on

Columbia Broadcasting Company

to keep him off the air. Worthy

made special broadcasts for CBS

while abroad.

C. W. Mackay, editor of the

AFRO-AMERICAN, confirmed

Worthy's statement, saying that

he was called to Washington and

asked to recall Worthy, which he

refused to do.

Deputy Undersecretary . of

State Robert Murphy denied that

the State Department had ap-

plied pressure to CBS to refrain

from showing Worthy's films

from mainland China. He said

he made inquiry of William

Paley, head of CBS, and "an old

friend of mine," but denied that

this constituted pressure.

The American Civil Liberties

Union, counsel for the case, an-

nounced that the ruling will be

appealed to the Department's

Passport Appeals Board, and, if

necessary, to the courts.

@

Calif. Bar Rebukes

House Committee

The House Un-American Activities Committee, which has

done a considerable amount of citing for contempt in its own

stormy 19-year history, is now getting an eye for an eye

from the Board of Governors of the State Bar of California.

In a severe protest on March 27, 1957 to the Speaker of -

the House of Representatives, the Chairman and Counsel of

the House Un-American Activities Committee, and to each

Congressman and Senator from the State of California, the

State Bar, which represents all California lawyers, con-

demned the proceedings of the committee.

"Improper" Proceedings

Said President Joseph A. Ball, of Long Beach and spokes-

man for the group, that the proceedings of the committee

and the conduct of the committee's counsel was `improper

and lacking in the dignity and impartiality which should

govern the conduct of agencies of the United States." The

statement continued that "grossly offensive' remarks .. .

"of such a character (posed) a threat to the right to appear by

counsel and to the proper independence of the Bar."

The Board of Governor's criticism resulted from its re-

view of the reporter's transcript and tape recordings of the

proceedings conducted by the Un-American Committee last

December 6-8 in Los Angeles. The State Bar did not comment

on the San Francisco sessions, which followed on December

10 and 11. ,

Among the glaring defects of due process of law in the

hearings, the report points out: that counsel appearing for

witnesses were not permitted to address the Committee, or

to make objections to the manner in which the proceedings

were being conducted; that one attorney, appearing for a wit-

ness was referred to by the Committee counsel as "comrade,"

following identification by an "undercover member of the

Communist Party' who testified at the hearing; when at-

torneys objected for the record, they were ejected from the

hearing, although in the opinion of the State Bar, they were

not "disrespectful, unruly or boisterous." | aS

Nation Comments

Commenting editorially on the California Bar Association

statement, THE NATION (April 13, 1957) has written, "The

right to have the `Assistance of Counsel' is guaranteed by the

Constitution; Congressional committees exhibit contempt for

the right when they attempt to intimidate counsel. Perhaps

`the courts cannot compel Congressional committees to con-

duct their hearings fairly, but they can refuse to sustain con-

tempt convictions arising out of hearings in which the right

to counsel has been denied or unduly restricted, or where

there is an attempt to intimidate counsel." - `

"Tt is further resolved," said the bar report, ``that a copy

of this statement be transmitted to the president of the Amer-

ican Bar Association with the request that the matter be ap-

propriately considered by that Association, with the end in

view of formulating proposals to the Congress for a system

of committee procedure which will adequately protect the

rights of witnesses and of counsel appearing for witnesses. _

Report from Sacramento:

Civil Liberties Bills

The chief action on the State

declared that Chaucer's Canter-

legislative front during the past

month was adoption by the As-

sembly of an FEPC proposal, and,

on the other side of the ledger,

adoption by the Senate of a bill

to ban certain books from school

libraries.

The FEPC bill, A.B. 2000, by

Augustus F. Hawkins, was adopted

by a vote of 61 to 15, and now

faces almost certain defeat in a

Senate committee.

The bill to ban certain books |

from public school libraries, S.B. |

1839, was adopted in the Senate

by a vote of 24 to 11. It now goes

to the Assembly Committee on

Education. Polls of that commit-

tee indicate that the bill will be

defeated.

CTA Opposes Bill

After its adoption by the Sen-

ate, the powerful California

Teachers Association said it

would oppose the school library

bill, because it would set up a

sereening system that "would be

-almost impossible to administer

satisfactorily." The bill prohibits

books which are contrary to "the

principles of morality, truth, jus-

tice and patriotism," or which

teaches "idleness, profanity and

falsehood" or which are in con-

flict with "the principles of a

free government."

Henry Madden, Fresno State

College librarian and president

of the California Library Asso-

ciation, Prof. LeRoy Charles Mer-

ritt of the Library School at U.C.,

Lyman McBride of the Marin

County Board of Education, John

-Despol, labor lobbyist, and oth-

ers, spoke against the bill before

the Senate Committee.

Adversaries of the legislation

bury Tales could be barred under

the bill, and Hitler's Mein Kampf

and Marx's Das Kapital outlawed

_eyen as reference works. Steven-

son's Treasure Island, it was

noted, is peopled by an immoral

set of pirates, and Twain's Tom

Sawyer was idle and profane.

Tax Loyalty Oath

A bill, A.B. 2214, to repeal the

tax exemption loyalty oath re-

quired of churches and other tax

exempt organizations and veter-

ans, introduced by Assemblyman

John O'Connell of San Francisco,

was dropped in favor of a pro-

posal to substitute a law provid-

ing that "Any person who know-

ingly claims exemption for him-

self or for any organization in

violation of the Constitution

would be guilty of a felony." The

Constitution forbids tax exemp-

tion for persons or groups advo-

cating violent overthrow of the

government. The matter was re-

ferred to a sub-committee. The

fate gf this proposal is very. un-

certain.

Yae Governmental Efficiency

and Economy Committee of the

Assembly has given a favorable

recommendation to A.B. 367,

which declares it to be "the pol-

icy of the State that the rental of

real property which has been

leased or sold after acquisition in

a redevelopment project or which

has been improved as a part of a

redevelopment project shall not

be restricted on the basis of race,

color, religion, or national origin

of any person." The bill is now

awaiting action by the Assembly.

ACLU NEWS

May, 1957

Page 3

Customs Censorship Arouses ACLU -

ACLU Protests Destruction

Of Mail Labeled by Customs as

`Foreign Political Propoganda'

_ The ACLU of Northern California last month protested

to the Customs Bureau in Washington against the seizure and

destruction of foreign magazines and newspapers, which are

alleged to contain "foreign political propaganda, without

notice to addressees. The protest was signed by Ernest Besig,

executive director of ACLU.

According to an exclusive

story in the San Francisco

CHRONICLE, April 10, about

one publication in twenty

that enters San Francisco

from abroad is rejected by

the Custom Service and turn-

ed over to postal authorities

for destruction. The deter-

mination as to what is ``for-

eign political propaganda" is

made by Stephen K. Louie,

head of the Restricted Mail

Division, and his five assis-

tants. Louie, who holds an ac-

countant's degree from Gol-

den Gate College, says he is

guided in his work by Cus-

toms Bureau regulations, and

by his supervisor, who makes

periodic visits from his office

in New York.

"I also know by reading

current publications of world

events what is the truth and

what is not the truth," Louie

is quoted as saying.

"Taking the mail without

notice to the addressees is an

arbitrary exercise of power,"

said Besig. "It seems incon-

ceivable to us that any fed--

eral agency would seize and

destroy mail without giving

the addressees an opportun-

ity to show that a mistake is

being made or to urge that

an exception be allowed. Af-

ter all, when the Customs

presently seizes books it

gives such notice to addres-

' sees. We can see no basis to

deny similar treatment to

persons destined to receive

magazines and newspapers."

The Customs Bureau, in

response to the _ protest,

claimed the matter falls un-

der the jurisdiction of the

Post. Office Department,

even though its employees

decide what is "foreign po-

litical propaganda." There-

fore, the matter was referred

to the general counsel of the

Post Office Department.

1938 Law

Seizures of printed mat-

ter are made under a 1938

law, not enforced until the

Eisenhower administration,

which defines "foreign politi-

cal propaganda as ``any oral,

visual, graphic, written, pic-

torial or other communica-

tion or expression" which

the distributor "believes will

or he intends to, prevail

upon, indoctrinate, convert,

induce, or in any way influ-

ence...the recipient with

reference to the political or

public interests, policies' or

relations of a government of

a foreign country, or with

reference to the foreign poli-

cies of the United States..."

Mr. MacPhee, the local Col-

lector of Customs, has admit-

ted that a strict, literal inter-

pretation of the law might

bar almost everything ever

written about foreign coun-

tries or about U. S. foreign

policy.

The basic question under-

lying this entire business is

what right the Federal Gov-

ernment has to determine

what its citizens may read.

While, to a certain degree,

the government may be a

protector of the citizen's mo-

rals, it certainly has never

been conceded to have any

right to decide what political

ideas are good for the people.

ACLU Opposes Censorship

By Richmond Police

The ACLU of Northern Califor- .

nia has protested the adoption of

a proposed ordinance in Rich-

mond which grants police officers

powers to seize alleged obscene

books, pictures, etc., which any

person may possess, keep or con-

trol. Under this proposal, it would

be possible for police officers to

seize a book from a man's library

or to take a picture from his wall.

The ordinance was prepared by

an assistant city attorney at the

`request of Chief of Police Charles

Brown, who is presently resisting

a suit to return to Joseph Pan-

coast a film which is alleged to

be obscene. After Pancoast was

acquitted on a charge of showing

an obscene film, he demanded its

return, but Brown refused to do

so and the former filed suit in the

Municipal Court. It is alleged that

Brown wants to rush through the

proposed ordinance in order to

defeat the pending suit. Under

state law, possession of the film

is not punishable and he may

have to return it.

"There is no question," said

the ACLU in a letter to the Rich-

mond City Council, "that a muni-

cipality may enact legislation in

the interest of the general wel-

fare, public health and safety of

the community. But such legisla-

tion must have a reasonable rela-

tion to the objects to be at-

tained."

posal

Constitutionality Questioned

"In this case, however," the

letter went on to say, "there is

no substantial public interest

that is being protected. The leg-

islation is NOT directed at the

sale, circulation or exhibition of

obscene matter in order to pro-

tect public decency. It is merely

concerned with invading the pri-

vacy of the individual citizens

without any clear and present

danger being shown to the com-

munity. Consequently, this pro-

interferes unreasonably

with the liberty of citizens of

Richmond and, hence, is uncon-

stitutional."

Joseph Genser, President of the

Richmond Bar Association, in-

formed the Council that local

lawyers questioned the constitu-

tionality of the proposal but

wanted an opportunity to study

it. It was also opposed by City

Librarian Coit Coolidge.

City Attorney Thomas M. Carl-

son told the Council he had a

serious question about the con-

stitutionality of the proposal.

"It's not up to the mayor or the

chief of police to say `Thou shalt

not!' When you give anyone the

power to determine what I']l have

in my house you go pretty far."

At this writing, action on the.

proposal is still pending.

Customs Releases

First Class Mail

From USSR

The Customs Service in San

Francisco last month released to

the addressee a sealed manila en-

velope from the Soviet Union

whose contents it had at, first

sought to inspect.

- Stephen K. Louie, in charge of

the Restricted Mail Division of

Customs, insisted that the enve-

lope should be opened because it

was believed to contain "foreign

political propaganda." Basis for

this conclusion was the country

of origin of the mail.

After the ACLU objected,

Chester S. MacPhee, collector of

customs, assured the ACLU that

both the post office and customs

respect the privacy of the seal on

first-class mail. Nevertheless, he

wanted permission to inspect the

contents of the envelope because,

by reason "of its size and bulk"

it was believed to contain duti-

able merchandise. However, the

Post Office Department, in trans-

ferring the envelope to customs,

had neglected to stamp thereon,

as required by regulations, "Sup-

posed liable to customs duty."

The Customs Service was thus

left in the dark as to why the post

office had forwarded the enve-

lope to it.

Decision Left to Washington

The ACLU said it did not ap-

pear that Customs was acting in

good faith because first it sought

permission to open the envelope

on the untenable ground that it

was believed to contain foreign

political propaganda; then with-

out the necessary instruction

from the post office it wanted

permission to open the envelope

because it was believed to con-

tain dutiable merchandise. In or-

: der to resolve the issue, Mr. Mac-

Phee said he would ask the Cus-

toms Bureau in Washington for

a ruling.

In the meantime, the ad-

dressee received a manila enve-

lope from the Soviet Union which

contained a magazine, "Soviet

Woman." It turned out that this

wasn't the same envelope that

Customs had been holding, but

the incident, of which Customs

was apprised, caused Leo O'Reil-

ly, assistant collector, to exam-

ine the envelope they were hold-

ing and recommend its release to

Mr. MacPhee. Mr. O'Reilly was of

the opinion that it did not con-

tain dutiable merchandise, and it

was subsequently released.

U.S. Attorney's Question:

To Howl or

Not To Howl

The ACLU of|Northern Califor-

nia has entered the second case

to arise in several months involv-

ing the seizure of an allegedly

obscene publication by the San

Francisco Collector of Customs,

Chester R. McPhee. The publica-

tion seized was one entitled

"Howl and Other Poemg" by Allen

Ginsberg. It was published in

England and 519 copies which

were addressed to the City Lights

Pocket Book Shop were seized.

Lawrence Ferlinghetti, owner

of the book shop, has refused to

agree to return the books to Eng-

land or allow them to be destroy-

ed by the Collector of Customs,

and has requested the ACLU to

represent him in all proceedings.

As yet, it is still not clear wheth-

er the San Francisco United

Attorney's office will bring con-

demnation proceedings. That of-

fice has referred the matter to

the Attorney General's office in

Washington for a decision as to

whether they should proceed in

the matter. In the event there is

a decision by the United States

Attorney's office not to prosecute

a condemnation proceeding, the

books will be released to the ad-

dressee.

`Aphrodite' Fl

Fisate

In Censorship Limbo

The Customs Service in San Francisco has seized three

copies of "Aphrodite" by Pierre Louys, on the ground that

they are obscene. The books are printed in French. After

being asked by the ACLU to reconsider the matter, the cen-

sors disagreed and a ruling is now heing sought from the

Customs Bureau in Washington.

The three volumes were or-

dered by Cody's Books of Ber-

keley and were shipped from

England. Customs did not indi- (c)

cate what was obscene about the

books but merely charged that.

they violated Sec. 305 of the Tar-

iff Act of 1930.

William F. Cody, the booksell-

er, turned to the ACLU for as-

sistance and Ernest Besig, execu-

tive director, wrote a letter to

Chester R. MacPhee asking for

"reconsideration of the ruling. In

doing so, Mr. Besig pointed to

a conversation he had had with

Leo O'Reilly, the assistant col-

lector of customs.

Who Determines Obscenity?

"He told me," said the letter,

"that the Customs Service had no

list of books which it barred from

entry and that the question of

obscenity was determined by the

four top men in the office, includ-

ing myself, who advised you on

the matter. I have no doubt," the

letter went on to say, "that these

four are all learned gentlemen

but I am wondering to what ex-

tent they read French. It appears

that the books in question are

written in the French language,

or at least that is what Mr. Cody

tells me. If that be true, would

you please advise me on whose

judgment these particular books

were determined to be obscene."

In reply, MacPhee advised the

ACLU that "the initial detention

was made on a translation accom-

plished by a customs translator

in the Customs Mail Division.

Upon receipt of your letter fur-

ther translation by another cus-

toms translator was. accomplished

and additional consideration was

given to the books.

"We did not agree unanimous-

ly that the books were unques-

tionably obscene,' Mr. MacPhee

went on to say. "They are, there-

fore, being submitted to the Bu-

reau of Customs in one

D. C., for their opinion."

Supreme Court Rules

On Tax Oaths

Continued from Page 1-

rather than directly through taxa-

tion, fine, or imprisonment." He

compared the tax exemptions in-

volved as being comparable to

the privilege of using the mails

at less than cost, pointing out that

those who received tax exemp-

tions are thereby in a more favor-

able position economically in

which to express their ideas. Jus-

tice Traynor emphasized that the

clear and present danger test was

not repudiated in Dennis vs.

United States which involved the

criminal] trial of eleven commu-

nist leaders, but that the United

States Supreme Court in that case

"merely bent it to the special sit-

uation of a critical time and the

diabolic strategy of the Commu-

nist Party."

Justice Traynor declared: "The

state provisions in question pe-

nalize advocacy in a totally differ-

ent context from that in the Den-

nis case. The penalty falls indis-

criminately on all manner of ad-

vocacy, whether it be a call to

action or mere theoretical proph-

ecy that leaves the way open for

counter-advocacy by others.

"There is no evidence in the

present case that plaintiff church

or its members advocate the over-

throw of the government by force -

or otherwise. It is one thing for

a court to sustain convictions aft-

er it has concluded following a

full trial that it is dealing with an

organization wielding the power

of a centrally-controlled interna-

tional Communist movement; it

is quite another to deprive a

church of a tax exemption on the

ground that it will not declare

that it does not advocate over-

throw of the government."

MONITOR OF THOUGHT

In his dissent, Justice Traynor

continued by stating: "The issue

thus narrows to whether a state

can properly restrain free speech

in the interest of promoting what,

appears to be eminently right

thinking. A state with such power

becomes a monitor of thought to

determine what is and what is not

right thinking. Great as a state's

police power- is,

United States Supreme Court has

yet to sanction its breaking into

people's minds to make them or-

derly." He pointed out that "ad-

vocacy does not occur in an intel-

lectual vacuum. Usually it an-

however, the -

swers or challenges other advoca-

cy. And, the loyalty oath here

impedes not only advocacy itself

but discussion short of advocaey

that may be of the utmost value,

since often it is impossible to dis-

tinguish `teaching or advocacy in ~

the sense of incitement from

teaching or advocacy in the sense

of exposition or explanation.' "

CARTER'S OPINION

Justice Carter in his separate

dissenting opinion elaborated on |

his belief that the loyalty oath

provision violated the presump-

tion of innocence and traced the

historical fight against loyalty

test oaths. Justice Carter agreed

that non-advocates of these docu-

ments are being penalized for

their refusal to take the loyalty

oath. "It should be emphatically

. stated or understood that not one

of the churches or veterans here

involved has been so much as ac-

cused of subversive activities. But

through their refusal to take the

unconstitutional (as I believe)

oath, they are penalized in ad-

vance for something they have

not done and will, in all probabil-

ity, never do."

Justice Carter said that the leg-

islation "bears no relation what-

soever to the objective to be

achieved. Presumably that objec-

tive is to stamp out, by any means

at hand, the promulgation of un-

popular ideas. While the idea of

the overthrow of the government

of this country by force and vio-

lence in either peace or war is as

abhorrent to me as it is to the

majority of Americans, J am ata

complete loss when it comes to

imagining any reasonable theory

on which the legislation in ques-

tion can be considered an effec-

tive way of preventing such ac-

tion." Justice Carter ends his

opinion in ringing terms by stat-

ing that "devotion to American-

ism often calls for something

other than conformity. The plain-

tiffin the present case knew that

to protect the Constitution,. in-

deed merely to invoke its protec-

tion for all Americans, required

courage, and that hardihood to

challenge a wrong done under

color of authority was as indis-

pensible to good citizenship as

would be, in other circumstances,

unquestioning obedience."

ACLU NEWS

May, 1957

Page 4