vol. 29, no. 2

American

Civil Liberties

Union

Volume XXIX

Youth Guidance Center

SAN FRANCISCO, FEBRUARY, 1964

The Personnel Board of the City and County of San

Francisco ruled last month that career probation officer

James Forstner must give up his civil service position at the

Youth Guidance Center because he grew a beard on the job.

The three-man Board, consisting of economist Hubert Soher,

attorney Richard Ham, and labor

official William Kilpatrick, heard

an appeal after Center Director

Thomas Strycula had held a

hearing concerning the reason-

ableness of his own order that

Forstner must shave. The Per-

sonnel Board gave no reasons

for its decision.

POINTS MADE BY ACLU

In oral arguments before the

Board as well as in a 26-page

brief, staff counsel Marshall

Krause (with the assistance of

volunteer attorney Ruth Rathke

on the brief) made these points:

The charge was that the beard

tended to identify Forstner with

"beatnikism" yet there was no

satisfactory explanation why oth-

er people in the department do-

ing similar work were allowed

to be bearded. There was no evi-

dence other than mere specula-

tive opinion on the part of

Youth Guidance personnel that

the beard would identify Forst-

ner_with beatnikism and there

was abundant testimony from

other professional persons such

as teachers, social workers, law-

yers, and psychiatrists that their

personal beards did not inter-

fere with their work.

REIGN OF PREJUDICE

Krause said that firing a

permanent civil service employee

on the basis of speculation

(Forstner never actually prac-

ticed as a probation officer with

a beard) would encourage the

reign of prejudice rather than

requiring judgments to be made

On empirical evidence. `The in-

dependence and vigor of the

civil service system is dependent

upon recognition of this premise.

Without it the employees of a

City Department can be turned

into a troop of French poodle

dogs who can be trimmed to ap-

pear in any fashion the boss de-

sires." The brief closed by say-

ing: "If Mr. Forstner is the very

first among his group to wear a

beard let that be one of his dis-

tinctions rather than a nit-pick-

ing blockade which forces him to

Civil Liberties

Seminar On

U.C. Campus

Recent Supreme Court develop-

ments in the fields of civil lib-

erties and civil rights will be re--

viewed in a University of Cali-

fornia Extension seminar to be-

gin February 19 on the U.C.

campus at Berkeley.

The seminar will be conducted

by attorney Coleman Blease and

will meet on Wednesday evenings

from 7 to 9 p.m. in Room 123,

Dwinelle Hall. Fifteen weekly

class meetings are scheduled; en-

rollment fee is $35.

Persons interested in the semi-

nar are welcome to attend the

Feb. 19 meeting without obliga-

tion to enroll. Further informa:

tion may be obtained from Lib-

. eral Arts Department, University

of California Extension, Berkeley

4; telephone TH 5-6000, ext. 4141.

choose between his career and

a demeaning surrender of the

right to control his own personal

appearance within the bounds of

propriety. The vitality of Mr.

Forstner's principles have led

him to stick to his guns in this

fight, and that is reason enough."

-A legal review of the dismissal

will soon be sought in the Su-

perior Court.

Packages of

Patients Opened

By Co. Hospital

Bruce McAllister and Vernon

Ryan, who are quarantined at the

County Hospital in Martinez as

tuberculosis patients, complained

to newspaper reporters last

month that incoming packages

for patients are being examined

without permission and without

a warrant. Their complaints were

relayed to the ACLU which then

filed an inquiry with Dr. George.

Degnan, Medical Director of the

hospital.

Dr, Degnan said he welcomed

the opportunity to clarify the

matter. He has asked the District

Attorney's office for a legal

opinion and there the matter

rests.

The ACLU has received no ex-

planation of the practice. Accord-

ing to newspapermen, however,

this is the county's way of inter-

cepting contraband that occasion-

ly comes into the hospital. It

should seem obvious, however,

that such a search should not be

made without a warrant,

Santa Clara

Valley Chapter

Meeting Feb. 28

The annual meeting of the

Santa Clara Valley chapter is

set for Friday night, February

28, 8:00 o'clock at the Edwin

Markham Junior High School,

2105 Cottle, in San Jose.

Main attraction of the meeting

will be a debate on the proposed

initiative amendment to repeal

the Rumford Act. Speaking for

the initiative will be Senator

Clark Bradley and a realty

spokesman, David H. Keyston,

Burlingame investment counselor

and against, Edward Howden, di-

rector of the State FEPC, and

Reed Searle, former candidate

for the Assembly in the 22nd

District.

The chapter's new board of

directors will be elected before

the debate on this important

question takes place-at 7:45 p.

m. All ACLU members-in the

area are urged to be present at

that time to be able to partici-

pate in the elections, after which

the meeting will be open to the

public.

Members interested in serving

on chapter committees this year

should get in touch with chair-

man Walter Howes at 291-8116

or 293-7150 before February 28.

~ general

Number 2

Slate Chapter

Conference On

February 29

ACLU chapters in northern

California will meet in an all-day

conference on February 29, Sat-

urday, at the Marin County Civic

Center.

- To date, four chapters have en-

thusiastically responded to the

conference call, designating a to-

tal of 40 delegates as partici-

pants in the program. Four more

chapters and the Sacramento

State College SCLU remain to be

heard from.

THE AGENDA

As the agenda stands current-

ly, the conference will meet in

assembly during the

morning session, discussing chap-

ter representation on the

ACLUNC Board, the question of

ACLU lobbying in the State legis-

lature and the initiative move

against the Rumford Fair Hous-

ing Act. In the afternoon, chap-

ter representatives will form into

small discussion groups to con-

Sider organizational and educa-

tional aspects of local community

work in civil liberties. ACLUNC

Board members and chapter of-

ficials will serve as panel and dis-

cussion leaders in the day's pro-

gram. Changes suggested by

chapters are being incorporated

into the agenda.

The Marin County chapter is

acting as host for the oceasion. A

no-host lunch costing $1.50 will

be served in the attractive cafe-

teria of the Civic Center. There

will be a social hour at the close

of the conference.

DIRECTIONS

Directions to the Center (con-

ference delegates, please note):

Golden Gate Bridge to Route 1015

after the San Rafael overpass,

take the first turn-off on the

right to San Pedro Road; there

turn left to enter the Civic Cen-

ter grounds and parking area.

The conference will open at

9:30 a.m. in the Board of Super-

visors chambers, on the third

floor, where the morning session

will take place.

Validate

Passport for

Cuban Trip

A graduate student at Stanford

University has had his passport

validated for travel to Cuba for

three weeks in February and

March. At first, the application

was promptly and curtly denied,

even though it was supported by

the chairman of the applicant's

Study Committee and by the

Dean of the Graduate Division.

Application was then made for

travel to Cuba as a journalist,

and it was supported by letters

from two magazines and from the

ACLU. In due course, the pass-

port was validated.

Association With Wife

Clearance

The Defense Department decided last month that a

Peninsula electronics engineer whose security clearance had

been suspended on August 27, 1962 because of "a close

continuing association" with his wife is not a security risk

and that "the granting of access to information classified at

the Secret level is clearly con-

sistent with the national inter-

est.' The actual restoration of

the security clearance will be

made in the near future "by the

Military Department having se-

curity responsibility for his em-

ployer's facility."

SIX DAYS OF HEARINGS

The final determination in the

case was made by a Defense De-

partment agency with the cum-

bersome name of Central Indus-

trial Personnel Access Authoriza-

tion Board. This board reviewed

the voluminous record of six days

of hearings held in San Fran-

cisco during March and April,

1863, and also had before it the

recommendations of the hearing

officer, which were not made

available to the employee. It took

almost nine months after those

hearings for a decision to be

reached.

Developments

On Housing

initiative

There were three important de-

velopments last month in the

move to nullify the Rumford Fair

Housing Act. First the California

Real Estate Association an-

nounced that it has enough sig-

natuvees to qualify. the initiative

for a place on the ballot. Second,

Superior Court Judge Irving Per-

luss of Sacramento refused to

grant an injunction against the

`initiative. Third, the California

Poll by Mervin D. Field shows

that the voters of the State are

pretty evenly split on the ini-

tiative.

The poll shows that at this

time only 51% of the voters

know about the initiative and

among this group, 40% approve,

while 40% disapprove the meas-

ure. A poll with respect to the

Rumford Act shows it is known

to 4 out of 5 voters in the State,

and that among those who know

about the law 46% disapprove

of it while 40% approve. In

southern California, only 33% ap-

prove, while in northern Cali-

fornia, 48% approve.

In refusing to grant an injunc-

tion against the initiative, Judge

Perluss declared "the initiative

law should not be interfered with

except in most unusual circum-

stances." Nathaniel Colley, repre-

senting the NAACP, charged that

the proposal would violate the

Federal Constitution. An appeal

will be taken to the State Su-

preme Court.

Case Against Street

Preacher Drop

ped

Lyle T. Maxwell, an unpaid preacher for the Full Gospel

Church, was arrested by San Francisco police and charged

with disturbing the peace while preaching to a group gath-

ered at Powell and Market Streets. When Maxwell appeared

in Municipal Court he was represented by ACLU staff

counsel Marshall Krause who

was prepared to defend Max-

well's rights to fredom of speech

and religion in a jury trial.

However, when the case was

called Assistant District Attor-

ney Martin McDonough moved

the court to dismiss the charges

on the ground that the evidence

was insufficient to show a pub-

lic offense. Judge Clayton Horn

granted the motion and all

charges were dropped.

Maxwell's case is another in-

stance of the police being more

ready to arrest the speaker

when a disturbance is brewing

rather than trying to control the

persons in the audience who are

causing the trouble. It is always

easier to arrest the speaker but

good police work would seem to

Yequire that his free speech

rights be protected even though

his speech may arouse opposi-

tion in his listeners,

Fortunately, in this case, the:

employee was not himself doing

any work that required access to

classified military information.

Otherwise, his employer would,

undoubtedly, have been unwilling

to keep a non-producing em-

ployee on the payroll for sixteen

months,

AFFILIATIONS DISCLOSED

The charges all related to the

employee's wife. As a matter of

fact, the employee had revealed

his wife's Communist affiliations

at the time of his employment,

more than four years ago. At

that time, he filed a written state-

ment with the personnel depart-

ment which said, in part, "Prior

to my acquaintance with my wife,

she was at one time a member

of the Communist Party. She had

ceased to be such when I met her,

and since that time neither of us

has had any political affiliations

at all."

The Government sought. to

make a present threat of the past

by alleging, but never proving,

that the wife has been on

intimate terms of friendship and

intends to continue on said terms

of friendship with (four named

persons, none of whom live in the

Bay Area), all of whom have a

long history of Communist activ-

ity and association, and may

still be members of the Com-

munist Party." The fact is that

such "intimate" relationships did

not exist.

ALLEGED STATEMENTS

It was also alleged that `"Dur-

ing 1960 she held beliefs and

made statements consistent with

the Communist Party line in that

she stated that persons who live

under communism are satisfied

with the Communist form of gov-

ernment and that anyone who

alleges that they are not happy

with communism is uninformed

or lying; that she supports the

seizure of United States owned

property in Cuba by the Castro

regime and believes that the

United States has no right to

maintain troops or retain proper-

ty in Panama." 2

ONE GOVERNMENT WITNESS

This last allegation was sup-

ported by the Government's only

witness, an emotional foreigner

whose limited understanding of

English made him a poor report-

er of an alleged dinner conver-

sation. If was this incident that

possibly triggered the security

investigation.

The Government also alleged

that "As late as 1961 (the wife)

refused to name her associates in

the Communist Party," and that

in 1961 she revealed for the first

time her association with four

Communist front groups. The

fact is that the wife did furnish

information to investigators and

that she gave them the names of

all front organizations she could

remember.

Outside the admitted Com-

munist associations that took

place before her marriage more

than ten years ago, the Govern-

ment had no substantial basis for

charging that the wife had any

present interest in Communism

or that she was sympathetic with

it. As a matter of fact, all of the

evidence pointed the other way.

The employee served in the

Army during World War II and

took part in the invasion of Ger-

many as a paratrooper. His case

was supported by the testimony

of many friends and associates,

AMERICAN CIVIL LIBERTIES UNION NEWS

Published by the American Civil Liberties Union of Northern California

Second Class Mail privileges authorized at San Francisco, California

ERNEST BESIG... Editor

503 Market Street, San Francisco 5, California, EXbrook 2-4692

Subscription Rates - Two Dollars a Year

Twenty Cents Per Copy

Ralph B. Atkinson

Dr. Alfred Azevedo

Prof. Arthur K. Bierman

Leo Borregard

Rev. Richard Byfield

Prof. James R. Caldwell

William K. Coblentz

Richard DeLancie

Rabbi Alvin I. Fine

Mrs. Zora Cheever Gross

Albert Haas, Jr.

Prof. Van D. Kennedy

Rey. Ford Lewis

Rey. F. Danford Lion

Honorary Treasurer:

Joseph S. Thompson

Honorary Board Member

Sara Bard Field

Mrs. Gladys Brown

Mrs. Paul Couture

John J. Eagan

Joseph Eichler

Morse Erskine

Dr. H. H. Fisher

Mrs. Margaret C. Hayes

Pref. Ernest Hilgard

Mrs. Paul Holmer

Mrs. Mary Hutchinson

Richard Johnston

Board of Directors of the American Civil Liberties Union

of Northern California

CHAIRMAN: Howard A. Friedman

VICE-CHAIRMEN: Dr. Alexander Meiklejohn

Helen Salz

Rev. Harry B. Scholefield

SECRETARY-TREASURER: John M. Fowte

EXECUTIVE DIRECTOR: Ernest Besig

Committee of Sponsors

Prof. Seaton W. Manning

John R. May

Prof. Charles Muscatine

Clarence E. Rust

John Brisbin Rutherford

Mrs. Martin Steiner

Gregory S. Stout

Stephen Thiermann

Richard J. Werthimer

Donald Vial

GENERAL COUNSEL

Wayne M. Collins

Roger Kent

Mrs. Ruth Kingman

Prof. Theodore Kreps

Prof. Carlo Lastrucci

Norman Lezin

Prof. John Henry Merryman

Rev. Robert W. Moon

Dr. Marvin J. Naman

Prof. Hubert Phillips

Prof. Wilson Record

Dr. Norman Reider

Prof. Wallace Stegner

Mrs. Theodosia Stewart

Rt. Rev. Sumner Walters

Let Our Civil Ri shits

Fall

Vhere They May

It is an old story in the United States but one which

always should be mentioned when it occurs. The story is the

readiness of the United States Supreme Court to support the

constitutional rights of individuals regardless of the political

or other philosophy of the individuals.

The court recently voted unanimously to free segregation-

ists Edward R. Fields and Robert Lyons from a conviction

of violating an injunction of an Alabama court by proceeding

with plans for a pro segregation meeting.

Lyons and Fields benefited from a 1960 ruling, used as

precedent in this case, which was handed down to the ad-

vantage of a Negro. Thus justice was even edged.

The high court was more concerned with rights than

political views. It held that the Alabama court in convicting

Lyons and Fields violated their right to be protected by due

process of law.

It is significant that the American Civil Liberties Union

and the National Association for the Advancement of Colored

People lined up in support of the segregationists' freedom.

It was an unhappy alliance in one sense. Substantively the

two organizations are fighting for the opposite of what Lyons

and Fields stand for. But the NAACP and the ACLU always

have done battle for the uncrippled operation of the Bill of

Rights.

The ACLU particularly has been defamed occasionally

by the ill informed as Communist tainted because it has de-

fended the rights of Reds. Too frequently unnoticed are the

times it has gone to the defense of such organizations as the

Ku Klux Klan, the American Fascists, Nazis and other right-

ist groups on the limited issue of their civil rights.

The supreme court, especially in the last decade, has been

a strong buttress of the house of Democracy in its stern, even

handed dispensation of support for civil rights. Back of this

fearsome and magnificent impartiality is the faith expressed

by John Milton in the 17th Century:

"Though all the winds of doctrine were loose to play on

the earth, so truth be in the field, we do ingloriously, by

licensing and prohibiting, to misdoubt her strength. Let her

and falsehood grapple: who ever knew truth put to the worse

in free and open encounter?" - Editorial, The Sacramento

Bee, December 26, 1963.

Biennial Conference

The national office of the

ACLU announced recently that

the 1964 Biennial Conference of

affiliates will be held in Boulder,

Colorado, from Sunday, June 21,

through Wednesday, June 24. As

yet, no agenda has been released.

The ACLU of Northern Cali-

fornia will be represented by its

Executive Director, Ernest Besig.

ACLU NEWS

FEBRUARY, 1964

Page 2

Pledge Issue at

Fremont #.S.

A 16-year-old Fremont High

School student was threatened

with expulsion by the Dean of

Students last month because -he

refused on grounds of conscience

to recite the "under God" clause

of the Pledge of Allegiance.

ACLU action was made unneces-

sary by the timely intervention

of a lawyer member of the school

board who supported the stu-

dent's position, :

The following legal cases are now being handled by ACLU staff counsel Marshall Krause

with the assistance of volunteer attorneys where noted.

PEOPLE v. HILL AND SAND-

NESS-Everett Hill and William

Sandness were charged with loit-

ering under a remnant of the

vagrancy statute codified in the

California Penal Code as Section

647 (a) 2. They were lying on

the grass in a park across from

a parochial school at 10 o'clock

in the morning. A demurrer to

the constitutionality of the stat-

ute was sustained in the San

Francisco Municipal Court. by

Judge Clayton Horn on the basis

that the statute is vague, de-

prives defendants of the equal

protection of the laws and is an

unreasonable and arbitrary vio-

lation of personal rights and

liberties. The appeal of the dis-

trict attorney is now awaiting

decision before the Appellate De-

partment of the Superior Court.

The briefs and arguments were

handled by volunteer attorney

Hartly Fleischman.

NATURALIZATION OF MAD-

ELEINE LUESSE-The right of

Mrs. Luesse to become a natur-

alized American citizen was con-_

tested by the Immigration Serv-

ice on the basis that her belief

in Theosophy did not provide a

sufficient religious ground for

her refusal to bear arms for the

United States. After intervention

by Ernest Besig of the ACLU,

the Immigration Service with-

drew its previous recommenda-

tion and will recommend to the

United States District Court that

Mrs. Luesse's petition for natur-

alization be granted.

COUNTY OF CONTRA COSTA

v. SOCIAL WELFARE BOARD

AND CASSANDRA HENDER-

SON - The Superior Court in

Contra Costa County ruled that

the Social Welfare Department

exceeded its authority in order-

ing the County of Contra Costa

to continue aid to needy children

payments to Mrs. Henderson.

The court's ruling was based,

among other things, upon Mrs.

Henderson's refusal to submit to

a lie detector test to verify

whether she had told the district

attorney the truth concerning

who was the father of her ille-

gitimate child. The case is now

on appeal to the District Court

of Appeal where the ACLU has

filed a brief amicus curiae, pre-

pared by volunteer attorney

George Duke, attacking as un-

constitutional the denial of bene--

fits for failure to submit to the

lie detector test. The brief takes

the position that the test is so

unreliable that any use of the

results would violate due proc-

ess rights; that it is an unconsti-

tutional invasion of privacy and

dignity, an unreasonable search

and impairs the privilege against

self-inerimination.

BELS HA Wy. CITY OF

BERKELEY - Fireman Claude

T. Belshaw wrote a letter to the

editor of the Berkeley Gazette

stating his point of view on the

controversy involving d i f-

ferential pay rates for police-

men and firemen in the City.

City Manager John D. Phillips

suspended Belshaw without pay

for 30 days on the grounds that

the letter "reflected discredit

upon the City of Berkeley," was

an act "detrimental to the wel-

fare" of the fire department, and

violated the rule that employees

"shall refrain from adverse criti-

cism concerning the action of

any superiors." At a hearing be-

fore the Personnel Board of the

City of Berkeley Belshaw was

represented by staff counsel

Marshall Krause and volunteer

attorney Albert Bendich. The

Board, in a 3-1 decision, upheld

the City Manager by finding that

the rules were violated by Bel-

shaw's letter. A dissenting mem-

ber of the Board felt that the

`rules were vague and violated

First Amendment freedoms.

~ has

petition for a writ of mandate

challenging this decision will

shortly be filed in Alameda

County Superior Court.

PEOPLE v. PARHAM - Al-

vin N. Parham was convicted of

three counts of armed robbery in

Alameda County and sentenced

to three years in prison. At his

trial he was not allowed to see

written statements given to the

F.B.I. by alleged eye witnesses

to the crime on the ground that

these statements were privileged

from disclosure by an order of

the United States Attorney Gen-

eral. Also, incriminating evi-

dence had been introduced at his

trial which had been obtained

after a brutal and unprovoked

police clubbing. On appeal to the

California Supreme Court, the

conviction was affirmed on the

basis that the California courts

had no power over Federal offi-

cers and that the admission of

brutally obtained evidence was

only a harmless error. At this

point the ACLU entered the

case as counsel for Parham and

a petition for a writ of certiorari

been filed in the United

States Supreme Court taking the

position that Parham was denied

a fair trial and that the admis-

sion of the evidence could not

have been harmless, -

FORSTNER v. CITY AND

COUNTY OF SAN FRANCISCO

-James A. Forstner, a career

probation officer with permanent

civil service standing at the San

Francisco Youth Guidance Cen-

ter, was dismissed by Director

Thomas Strycula because he

eame to work with a beard.

Strycula said the beard' tended

to identify Forstner with "beat-

nikism" and ordered him to

shave. Forstner protested that

the beard did not interfere with

the performance of his duties,

that he had a right to wear it,

so long as it had no adverse con-

sequences, and that to deny him

this right violated his personal

integrity. He was thereupon fired

for insubordination. The Person-

nel Board of the City and County

upheld the firing and a petition

for a writ of mandate in San

Francisco Superior Court will

shortly be filed to obtain judicial]

review of the question.

PEOPLE v. CAMARA - San

Francisco resident Roland Ca.

mara was visited by a health in-

spector, on November 22, who

asked permission to inspect his

private apartment. When the in-

spector told Camara that there

had been no complaint and that

he had no warrant but that the

inspection was merely "routine,"

Camara refused entry. He has

now been charged with a misde-

~meanor in San Francisco Su-

perior Court and Judge Elton

Lawless overruled a demurrer to

the complaint. The ACLU will

now file a writ of prohibition

challenging the validity of Sec.

503 of the Municipal Housing

Code on the basis that it in-

fringes on the right to privacy

and the right to be free of search

and seizure in the absence of

some probable cause of a viola-

tion of law. `

HEILBERG y. FIXA - Leif

Heilberg's challenge to the Gov-

ernment's screening and label-

ing of "Communist Political

Propaganda" under 39 USC 4008

is now awaiting trial before a

three judge panel of the United

States District Court. Heilberg

claims that the Government has

no power to open, read, screen,

and label his mail even though

such examination is not applied

to first class mail and even

though the mail comes from com-

munist countries. He also claims

that the admitted listing by the

Pest Office Department of per-

sons who desire to receive "Com-

munist Political Propaganda" is

A a deterrent to his right of free

speech and association and could

be used against him if his loyalty

were challenged. The court con-

sists of Judges Bone, Wollenberg

and Zirpoli and has previously

denied the Government's motion

to dismiss on the basis of moot-

ness and on the basis that no

substantial constitutional ques-

tion is presented. Volunteer at-

torney Coleman Blease serves as

co-counsel.

SOSKOL V. PACIFIC TELE.

PHONE COMPANY - Edgar J.

Sokol had his business telephone

removed without notice or hear-

ing in October 1961 because a let-

ter from the police department

to the telephone company stated -

that he was using his telephones

to aid an illegal purpose. Sokol

never had the opportunity to

deny these charges and on a sub-

sequent hearing before the Pub-

lic Utilities Commission it was

found that the charges were not.

true. Without his telephones So-

kol's business was destroyed to

his damage in the sum of about

$30,000. He filed suit in the Su-

perior Court to recover this

amount from the telephone com-

pany which claimed it was im-

mune from such a law suit under

a 1948 decision of the Public

Utilities Commission. The ACLU

contended that this ruling was

unconstitutional but the Cali-

fornia Supreme Court held that

the P.U.C. must decide this ques-

tion and restrained the damage

action from proceeding until the

Commission rules. A Commission

hearing is scheduled for March.

Volunteer Leo Borregard is co-

counsel.

MASS V. BOARD OF EDU-

CATION - John W. Mass was

suspended from his tenure ap-

pointment at San Francisco City

College in December, 1953 and

with the help of the ACLU has

been attempting to regain his

position with back pay for the

past ten years. He was suspended

because he asserted his privilege

not to be a witness against him-

self at the Hearing of the House

Un-American Activities Commit-

tee. In 1956 the California Su-

preme Court held that he could

only be fired if he did not have

sufficient reason for using this

privilege. The Board of Eduea-

tion never brought the case to

trial on this issue and the District

Court of Appeals ordered the

Board's action to fire Mass dis-

missed for failure to prosecute.

But the Board of Education de-

clined to reinstate Mass, claim-

ing that his failure to renew his

teaching credential in 1956 `"`auto-

matically terminated" his em-

ployment. Mass then filed an-

other suit and Superior Court

Judge Byron Arnold ruled Mass

was entitled to some but not all

the relief prayed for. Both sides

appealed to the District Court of

Appeal where the case has been

argued and is now awaiting de-

cision.

MACK v. BOARD OF EDU-

CATION - Rita Mack and Wil-

liam Mack were both members

of the Communist Party. After

the Hungarian uprising they

quit and decided to become

teachers. In their Levering Act

oaths they stated that they had

not been members of any organi-

zation advocating violent over-

throw of the Government. The

State Board of Education claims

that they should have answered

this question "Yes" and revoked

their credentials for unprofes-

sional conduct. The Superior

Court upheld this decision and

the case is now pending in the

District Court of Appeals where

it has been briefed and argued.

The case presents the issue of

freedom to associate with a group

-Continued on Page 4

Beeause the January 22,

1964 decision of the F.C.C. in

the Pacifica Foundation case

eoneerns itself almost wholly

with important civil liberties

questions, and because of the

intervention by the ACLU

through this branch, its

chapters and the national of-

fice, on behalf of Pacifica,

and also because this im-

portant decision has re-

ceived only limited coverage

in the daily press, we are re-

printing herewith the F.C.C.'s

landmark opinion, except for

a few citations.

MEMORANDUM OPINION

AND ORDER -

By the Commission: Commis-

sioner Lee concurring and issu-

ing a statement.

1. The Commission has before

it for consideration the above

pending applications of the listed

broadcast stations licensed to

Pacifica Foundation. There are

three aspects to our considera-

tion: (a) certain programming

issues raised by complaints; (b)

issues of possible Communist

Party affiliation of principals of

Pacifica; and (cent) a question of

possible unauthorized transfer of

eontrol. We shall consider each

in turn.

2. The Programming Issues.

The principal complaints are

concerned with five programs:

-G) a December 12, 1959 broad-

east over KPFA, at 10 p.m., of

certain poems by Lawrence Fer-

linghetti (read by the poet him-

self); (ii) The Zoo Story, a re-

cording of the Edward Albee

play broadcast over KPFK at 11

p.m., January 13, 1963; (iii) Live

and Let Live, a program broad-

east over KPFK at 10:15 p.m. on

January 15, 1963, in which eight

homosexuals discussed their at-

titudes and problems; (iv) a pro-

gram broadcast over KPFA at

7:15 pm. on January 28, 1963,.

in which the poem, Ballad of the

Despairing Husband, was read

by the author Robert Creeley;

and (v) The Kid, a program

broadeast at 11 p.m. on January

8, 1963, over KPFA, which con-

sisted of reading by Edward

Pomerantz from his unfinished

novel of the same name. The

complaints "charge that these

programs were offensive or

"filthy" in nature, thus raising

the type of issue we recently

eonsidered in Palmetto Betg. Ce.,

33 F.C.C. 483; 34 F.C.C. 101. We

shall consider the above five

matters in determining whether,

on an overall basis, the licensee's

programming met the public in-

terest standard laid down in the

Communication Act. 1/ Report

and Statement of Policy Re:

Commission En Banc Program-

ming Inquiry, 20 Pike and Fischer,

R.R. 1901.

3. When the Commission re-

ceives complaints of the general

nature here involved, its usual

practice is to refer them to the

licensee so as to afford the lat-

ter an opportunity to comment.

When the Commission reviews,

on an overall basis, the station's

operation at the time of renew-

al, it thus has before it a com-

plete file, containing all the sides

ef any matter which may have

arisen during the license period.

Specifically, with respect to the

programming issue in this case,

the Commission, barring the ex-

1/ The Commission may also en-

force the standard of Section

1464 of Title 18 (dealing with

"obscene, indecent, or profane

Janguage''). See Sections 312(a),

(b); Section 503(b)(1)(E). In

our view, enforcement proceed-

ings under Section 1464 are not

warranted, and therefore, no

further consideration need be

given this section.

ceptions noted in the Program-

ming Statement (supra, at p.

. 1909), is not concerned with in-

dividual programs-nor is it at

any time concerned with mat-

ters essentially of licensee taste

or judgment. Cf. Palmetto Bets.

Co., supra, par. 22. As shown by

the cited case, its very limited

concern in this type of case is

whether, upon the overall exam-

ination, some substantial pattern

of operation inconsistent with

the public interest standard

clearly and patently emerges.

Unlike Palmette where there

was such a substantial pattern

(id. at par. 23; see par. 7, infra),

here we are dealing with a few

isolated programs, presented

over a four-year period. It would

thus appear that there is no sub-

stantial problem, on an overall

basis, warranting further in-

quiry. 2/ While this would nor-

mally conclude the matter, we

have determined to treat the is-

sues raised by Pacifica's re-

sponse to the complaints, be-

eause we think it would serve a

useful purpose, both to the in-

dustry and the public. We shall

therefore turn to a more detailed

consideration of the issues

raised by the complaints as to

these five programs. Because of

Pacifiea's different response to

the complaints as to (i) and (iv),

par. 2 above, we shall treat these

two broadcasts separately (see

pars. 6-7, infra).

4. There is, we think, no ques-

tion but that the broadcasts of

the programs, The Zoo Story,

Live and Let Live, and The Kid,

lay well within the licensee's

judgment under the public inter-

est standard. The situation here

stands on an entirely different

footing than Palmetto, supra,

' where the licensee had devoted

a substantial period of his broad-

east day to material which we

found to be patently offensive-

however much we weighted that

standard in the licensee's favor

-and as to which programming

the licensee himself never as-

serted that it was not offensive

or vulgar, or that it served the

needs of his area or had any re-

deeming features. In this case,

Pacifica has stated its judgment

that the three above-cited pro-

grams served the public inter-

ests and specifically, the needs

and interests of its listening

public. Thus, it has pointed out

that in its judgment, The Zoo

Story is a "serious work of dra-

ma" by an eminent and "pro-

vocative playwright"-that it is

"an honest and courageous play"

which Americans "who do not

live near Broadway ought to

have the opportunity to hear and

experience .. ." Similarly, as to

The Kid, Pacifica states, with

supporting authority, that Mr.

Pomerantz is an author who has

obtained notable recognition for

his writings and whose readings

from his unfinished novel were

fully in the public interest as a

serious work meriting the atten-

tion of its listeners; Pacifica

further states that prior to

broadcast, the tape was audi-

tioned by one of its employees

who edited out two phrases be-

eause they did not meet Pacifi-

ea's broadcast standards of good

taste; and that while "certain

minor swear words are used,...

these fit well within the context

of the material being read and

eonform to the standards of ac-

ceptability of reasonably intelli- -

2/ While, for reasons developed

in this opinion, it is unnecessary

to detail the showings here, we

have examined the licensee's

overall showings as to its sta-

tions' operations and find that

those operations did serve the

needs and interests of the li-

eensee's areas. Programming

Statement, supra, at pp. 1913-16.

In this connection, we have also

taken into account the showing

made in the letter of April 16,

1963.

gent listeners." Finally, as to the

: program, Live and Let Live, Pa-

eifica states that "so long as the

program is handled in good

taste, there is no reason why

subjects like homosexuality

should not be discussed on the

air"; and that it "conscientiously

believes that the American peo-

ple will be better off as a result

of hearing a eonstructive discus-

sion of the problem rather than

leaving the subject to ignorance

and silence."

5. We recognize that as shown

by the complaints here, such

provocative programming as here

involved may offend some listen-

ers. But this does not mean that

those offended have the right,

through the Commission's licens-

ing power, to rule such program-

ming off the airwaves. Were this

the case, only the wholly inof-

fensive, the bland, could gain

access to the radio microphone

or TV camera. No such drastic

curtailment can be countenanced

under the Constitution, the Com-

munications Act, or the Com-

mission's policy, which has con-

sistently sought to insure `the

maintenance of radio and televi-

sion as a medium of freedom of

speech and freedom of expres-

sion for the people of the Na-

tion as a whole" (Editorializing

Report, 13 F.C.C. 1246, 1248.) In

saying this, we do not mean to

indicate that those who have

complained about the foregoing

programs are in the wrong as to

the worth of these programs and

should listen to them. This is a

matter solely for determination

by the individual listeners. Our

function, we stress, is not to pass

on the merits of the program-

to commend or to frown. Rather,

as we stated (par. 3), it is the

very limited one of assaying, at

the time of renewal, whether the

licensee's programming, on an

overall basis, has been in the

public interest and, in the con-

text of this issue, whether he

has made programming judg-

ments reasonably related to the

public interest. This does not

pose a close question in the case.

Pacifica's judgments as to the

above programs clearly fall

within the very great discretion

which the Act wisely vests in the

licensee. In this connection, we

also note that Pacifica took into

aecount the nature of the broad-

east medium when it scheduled

such programming for the late

evening hours (after 10 p.m.,

when the number of children in

the listening audience is at a

minimum). 3/

6. As to the Ferlinghetti and

Creeley programs, the licensee

asserts that in both instances,

some passages did not measure

up to "Pacifica's own standards

of good taste." Thus, it states

that it did not carefully screen

the Ferlinghetti tape to see if it

met its standards "because it re-

lied upon Mr. Ferlifighetti's na-

tional reputation and also upon

the fact that the tape came to it

from a reputable FM _ station."

It acknowledges that this was a

mistake in its procedures and

states that "in the future Pacifi-

ea will make its own review of

all broadcasts . . ." With respect

3/ Pacifica states that it "is sen-

sitive to its responsibilities to its

listening audience and carefully

schedules for late night broad-

easts those programs which may

be misunderstood by children al-

though thoroughly acceptable to

an adult audience."

4/ The program containing this

passage was a taped recording of

Mr. Creeley's readings of selec-

tions from his poetry to students

at the University of California.

KPFA broadcasts many such

poetry readings at the Univer-

sity, which are recorded by a

University employee for the

school's archives (and made

available to the station).

to the Creeley passage (i.e., the

poem, Ballad of a Despairing

Husband) 4/, Pacifica again states

that in its Judgment it should

not have been broadcast. It "does

not excuse the broadcast of the

poem in question" but it does

explain how the poem "slipped

by" KPFA's Drama and. Litera-

ture Editor who auditioned the

tape. It points out that prior to

the offending poem, Mr. Creeley,

who "has a rather flat, monoto-

nous voice,' read 18 other per-

fectly acceptable poems - and

that the station's editor was so

lulled thereby that he did not

eateh the few offensive words on

the 19th poem. It also points

out that each of the nine poems

which followed was again per-

feetly acceptable, and that be-

fore re-broadcasting the poem

on its Los Angeles station, it de-

leted the objectionable verse.

7. In view of the foregoing, we

find no impediment to renewal

on this score. We are dealing

with two isolated errors in the

licensee's application of its own

standards-one in 1959 and the

other in 1963. The explanations

given for these two errors are

eredible. Therefore, even assum-

ing, arguendo, that the broad-

easts were inconsistent with the

public interest standard, it is

clear that no unfavorable action

upon the renewal applications is

called for. The standard of pub-

lic interest is not so rigid that

an honest mistake or error on

the part of a licensee results in

drastic action against him where

his overall record demonstrates

a reasonable effort to serve the

needs and interests of his com-

munity (see note 2, supra). Here

again, this case contrasts sharply

with Palmette where instead of

two isolated instances, years

apart, we found that the patent-

ly offensive material was broad-

east for a substantial period of

the station's broadcast day for

many years. See par. 3, supra.

8. We find, therefore, that the

programming matters raised with

respect to the Pacifica renewals

pose no bar to a grant of renew-

al. 5/ Our holding, as is true of

such holdings in this sensitive

area, is necessarily based on, and

limited to, the facts of the par-

ticular case. But we have tried

to stress here, as in Palmetto, an

underlying policy-that the li-

censee's judgment in this free-

dom of speech area is entitled

to very great weight and that the

Commission, under the public

interest standard, will take ae-

tion against the licensee at the

time of renewal only where the

facts of the particular case, es-

tablished in a hearing record,

flagrantly call for such action.

We have done so because we are

charged under the Act with "pro-

moting the larger and more ef-

fective use of radio in the pub-

lic interest (Section 303 (g), and

obviously, in the discharge of

that responsibility, must take

every precaution to avoid inhib-

iting broadcast licensees' efforts

at experimenting or diversifying

their programming. Such diver-

sity of programming has been

the goal of many Commission

policies (eg., multiple owner-

5/ One other programming as-

peet deserves emphasis. Com-

plaint has also been made con-

cerning Pacifica's presentation of

"far-left" programming. Pacifica

has stated that it follows a policy

of presenting programs covering

- the widest range of the political

or controversial issue spectrum

-from the members of the Com-

munist Party on the left to mem-

bers of the John Birch Society

on the right. Again, we point out

that such a policy (which must,

of course, be carried out consist-

ently with the requirements of

the fairness doctrine) is within

the licensee's area of program-

`ming judgment.

t

ship, development. of UHF, the

fairness doctrine). Clearly, the

Commission must remain faith-

ful to that goal in discharging

its functions in the actual area

of programming itself.

9. Communist Party Affiliation

Issue. Under the public interest

standard, it is relevant and im-

portant for the Commission toe

determine in certain cases wheth-

er its applicants, or the prineci-

pals of its applicants, for broad-

cast licenses or radio operator

licenses, are members of the

Communist Party or of organiza-

tions which advocate or teach

the overthrow of the Govern-

ment by force or violence.

[Lengthy citations omitted.}

The Commission therefore has

followed a policy of inquiring as

to Communist Party membership

in those radio licensing situa-

tions where it has information

making such inquiry appropriate.

Because of information coming

to the Commission's attention

from several sources, the Com-

mission requested information

from Pacifica Foundation on this

score. On the basis of informa-

tion obtained from Government

sources, the Foundation, and

our own inquiry, we do not find

any evidence warranting further

inquiry into the qualifications in

this respect of Pacifica Founda-

tion. :

10. The Unauthorized Transfer

of Control. Until September 30,

1961, control of Pacifica was

vested in Executive Members,

who elected a Committee of Di-

rectors, who in turn elected of-

ficers and controlled the Foun-

dation's activities. On September

30, 1961, the Executive Member-

ship and the Committee of Direc-

tors were abolished. In their

place, Pacifica is controlled -

pursuant to its by-laws - bya

Board of Directors, which elects

officers and controls the Foun-

dation's activities. The new by-

laws which accomplished this re-

sult were appropriately reported

to the Commission at the time

they. were adopted. However, no

application for consent to a

transfer of control was then

filed.

11. This matter was brought

to Pacifica's attention by a letter

of February 7, 1963. The h-

censee's response of April 26,

1963 takes the position that no

transfer of actual control had

in fact taken place. However, in

the event that the Commission

deemed an application for -con-

sent to transfer of control to be

necessary, Pacifica simultaneous-

ly filed such an application

(BTC-4284). Pacifica argues that

in actual practice, control had

been in the so-called Committee

of Directors, and that this prac-

tice had been formalized in an

ar:endment to the by-laws of Oe-

tober 20, 1960, which read, in

relevant part:

"Except as hereinafter pro-

vided, the powers of this cor-

poration shall be exercised, its

property controlled, and its af-

fairs conducted by a Commit-

tee of Directors which shall

eonsist of twenty-one Execu:

tive Members of this corpora-

tion."

The new Board of Directors,

elected on September 30, 1961,

was identical with the then exist-

ing Committee of Directors, and

the officers of the Foundation

likewise remained the same.

12. Although the September .

- 30, 1961 revision in the by-laws

does appear to have been only

the formal recognition of a de-

velopment in the actual control

of Pacifica which had occurred

over a period of years, and al-

though there may well be merit

in Pacifica's contention that

changes in the composition of

its Executive. Membership (or,

-Continued on Page 4

ACLU NEWS

FEBRUARY, 1964

Page 3.

Continued from Page 2-

without being accountable

the group's alleged purposes.

BROWN v. UNITED STATES

-Archie Brown is an admitted

and well known member of the

Communist Party. He also serves

on the 35 man executive board of

Local 10 of the ILWU. Under a

Federal statute the co-existence

of these two statuses is made a

crime even though neither by

itself is a crime, Brown was con-

victed in the United States Dis-

trict Court and his appeal is now

pending before the Court of Ap-

peais sitting en banc. The Amer-

ican Civil Liberties Union has

filed a brief amicus curiae on be-

half of Mr. Brown, taking the

position that the statute (Sec. 504

of 29 USC 504) is a bill of at-

tainder on its face and as applied

in this case. The brief also takes

the position that the statute de-

nies Mr. Brown due process of

law by not allowing him to chal-

lenge on a personal basis its un-

derlying assumption concerning

members of the Communist

Party.

BURKS vy. POPPY CON-

STRUCTION CO. - Mr. and Mrs.

Seaborn Burks, Jr. were unable

to buy the home of their choice

because the owner of a subdi-

vision did not want Negroes to

live in the development. They

brought suit under the Unruh

Act in the landmark case in the

State Supreme Court establishing

the validity of this Act. The case

is now awaiting trial in the Su-

perior Court on the issue of

damages,

GOLDBERGER AND SUKE.-

NIK v. LEWIS - Harold Gold-

for

berger and Herbert Sukenik

were walking on Twin Peaks

Blyd., San Francisco, late at

night when they were stopped by

a police officer. When Gold-

berger and Sukenik, who are

both physicians, gave the officer

what he considered "smart" an-

swers, he arrested them for vag-

rancy and they spent the night

in jail. The criminal charges

were

since there was no evidence of

any vagrancy conduct. To estab-

lish the principle that police of-

ficers should be required to obey

the law, this action for damages

against Mr. Lewis and the City

and County of San Francisco will

be brought to trial on February

17 in San Francisco Superior

Court.

FORT vy. CIVIL SERVICE

COMMISSION - Psychiatrist

Joel Fort is the Director of an

Alcoholism Treatment Center for

the County of Alameda, a civil

service position. During the last

election he acted as chairman of

the speaker's bureau for the re-

election of Governor Brown in

his home county of Contra Costa.

The Civil Service Commission

charged him with violating the

rules against political activities

by civil servants and he was

fired. The Superior Court re-

instated Dr. Fort but the County

has appealed to the District

Court of Appeals where the case

is now pending. The ACLU ap-

pears as amicus curiae on behalf

of Dr. Fort in a brief written by

Arthur Brunwasser. The brief

argues that Dr. Fort's activities

were protected by the First

Amendment and that the pro-

vision prohibiting political activi-

ties is so broad and unreasonable

as to be unconstitutional,

GREAT WESTERN BROAD-

CASTING CORP. - This case

now pending before the National

Labor Relations Board involves

the interpretation and constitu-

tionality of a statute which is al-

leged to prohibit members of a

union on strike against a tele

vision station in Sacramento from

distributing handbills asking the

general public not to patronize

companies which continue to ad-

ACLU NEWS

FEBRUARY, 1964

Page 4

immediately dismissed -

vertise on this struck station. The

ACLU's brief, written with the

aid of volunteer attorney Thomas

Schneider, takes the position

that if the statute were

interpreted as prohibiting circu-

lation to the general public of

handbills concerning the facts of

a labor dispute, it would be un-

constitutional as conflicting with

freedom of speech and press.

POLAND vy. CALIFORNIA -

John Jefferson Poland was ar-

rested at a labor camp in Man-

teca, California and charged with

trespassing. He was acting as an

organizer for the Agricultural

Workers Organizing Committee,

AFL-CIO and wanted to hand out

informational handbills at a priv--

ate camp which was the home of

over 500 Mexican workers. Po-

land was convicted of trespassing

and his conviction affirmed by

the Appellate Department of the

Superior Court of San Joaquin

county. A petition for certiorari

has been on file in the United

States Supreme Court since Jan-

uary, 1963 but has not been acted

upon. The petition was prepared

with the aid of volunteer attor-

ney Donald Cahen. At the re-

quest of the Court, the Solicitor

General of the United States

filed a memorandum agreeing

with Poland's constitutional con-

tention, but urged that action on

the case be suspended until a

treaty covering the problem, and

which is now being negotiated

with Mexico, is concluded.

UNITED STATES v. 18

PACKAGES - Over 12,000 nud-

ist magazines imported by Dr.

Earl Sass have been seized by

Customs authorities under 19

USC 1305. The Government con-

ceded most of these magazines

were not obscene but contended

that they could be forfeited be-

cause they were packaged with

magazines alleged to be obscene.

Federal Judge William Sweigert

ruled that the statute did not au-

thorize the Government to detain

any magazines which it conceded

were not obscene and ordered

such magazines turned over to

Dr, Sass. However, the United

States attorney has appealed this

ruling to the United States Cir-

cuit Court and that Court has

stayed the execution of Judge

Sweigert's order. A trial is now

being awaited in the District

Court on the issue of whether

any of the magazines are _ ob-

scene. A decision of the Circuit

Court as to whether all of the

magazines may be forfeited if

some are found obscene will

probably come down before the

trial.

LET POY WONG - Let Poy

Wong, "the man without a coun-

try" agreed voluntarily to leave

the United States rather than

face a long trial on the issue of

whether he was a legal resident.

The Immigration Service claimed

that he came to this country un-

der false papers, giving his date

of birth as three years younger

than he actually was. Now the

Social Security Administration

has refused to accept the date of

birth used by the Immigration

Service for purposes of Mr.

Wong's application for old age

benefits. A hearing before a hear-

ing officer on the issue of Mr.

Wong's age has been scheduled.

Northern Calif.

Report Now

(R)

Available

Last month, the ACLU of

Northern California mailed about

6200 copies of its 4-page report

covering a three-year period,

from July 1, 1960 to June 30,

1963. Members of the ACLU are

each entitled to a free copy. If

you failed to receive your report,

please notify the office.

Printing costs were about 20c

per copy. Mailing and handling

charges bring the sale cost per

copy to 30c.

Berkeley

Organizing

Meeting Mar. 5

The temporary board of the

proposed Berkeley Chapter of

the ACLUNC has called a meet-

ing of the Berkeley, Albany, Ken-

sington membership in the cafe-

teria of the Washington School,

Grove and Bancroft streets,

Berkeley, at 8 p.m. on Thursday,

March 5,

THE AGENDA

There are three items on the

agenda: 1. The adoption of By-

Laws; 2. The election of a Board

of Directors; and, 3. A talk by

Prof. Joseph Tussman.

A Nominating Committee

headed by attorney John R. Walk-

er, has proposed election of 21

board members from the follow-

ing list of 33 persons: Judy

Balderston, Albert M. Bendich,

Dr. Irving Berg, Dr. Neal Blum-

enfeld, Babette Chamberlain,

Robert Cole, Helen C. Douglas,

Henry Elson, Philip Elwood,

Prof. Joseph Fontenrose, Peter

Franck, Rev. Sam Garrett, Jay

Gittelsohn, Rabbi Joseph Gum-

biner, Prof. Leon Henkin, Rudy

Hurwich, Ruth Lyon, Carol Ma-

dore, Rev. Norman Mealy, John

Martin, Sally Muse, Marshall

Palley, Richard Patsey, Jan

Platt, Dr. Erie Plaut, Henry

Rhodes, Marianne Smith, Prof.

Kenneth M. Stampp, Julian Stan-

ford, Martha Stanley, Ward Tab-

ler, Cecil Thomas, and Stephen

Warshaw.

RESULTS OF POLL

Of the almost 1100 persons who

were polled with respect to estab-

lishing a chapter, 415 returned

the questionnaires. Of this num-

ber, 172 persons, not all in good

standing, indicated their willing-

ness to participate actively in the

work of a chapter. Under branch

board regulations, at least 15 per

cent of the membership in a

given area must be willing to

participate actively before a

chapter will be chartered.

PETITION FOR CHARTER

When the organizational steps

are concluded on March 5, the

local board will petition the

branch board for the granting of

a charter. Under the ACLUNC

By-Laws, "The Union by a ma-

jority vote of its Board of Direc-

tors may grant a charter to any

petitioning local group in north-

ern California which has given

satisfactory evidence of vitality,

leadership and devotion to the

objectives and program of the

Union."

Letters...

... to the Editor

Heartfelt Gratitude

Editor:

This message is from the

Peninsula engineer and his wife

whose security problems were de-

scribed in this paper a year ago

last Fall. (Clearance suspended

because he maintained an asso-

ciation with his wife.) The news

columns of this issue carry the

story of the victory achieved by

the ACLU and Mr. Besig after

many, many unpleasant hours of

preparation and hearings.

We are writing this letter to

all of you to say that we are well

aware that it is your personal

concern and your constant finan-

cial contributions which have

made this happy ending possible.

We are under no illusions as to

what the outcome would have

been had we not had your assist-

ance and the help of the magnifi-

cent attorneys you maintain,

Therefore, to each and all of

you, as well as to Mr. Besig him-

self, we wish to express our

heartfelt gratitude. By your sup-

port you have once again won,

won another in the unending

chain of battles that give life

and breath to our concept of

freedom. Be as proud as we are

grateful; you are

Americans, -D. P.I.

wonderful

Government Thwarted

Foreign Propaganda

Case

10 to Trial

Efforts of the United States Attorney (representing the

Postmaster, the Postmaster General, the Collector of Cus-

toms, and the Secretary of Treasury) to prevent Lief Heil-

berg's challenge to the validity of the program for screening

and labeling mail matter coming from Communist countries

were defeated last month when

defendants' motion to dismiss

was denied. The ruling of the

three-judge district court spe-

cially convened to hear the con-

stitutional challenge was that

"the Court cannot say that the

case is moot, nor that it fails to

present a true controversy and

a substantial question of consti-

tutional law."

_WICTORY FOR HEILBERG

This was a victory for Heilberg

and his ACLU attorneys because

the government contended that

by delivery in open court of the

particular mail Heilberg wanted

there was no longer a contro-

versy. However, the ACLU sub-

poenaed Postmaster Fixa who

admitted that in the foreign

propaganda unit of the post of-

fice there is a card file listing

names in alphabetical order of

those persons who have _indi-

cated a desire to receive `"Com-

munist political propaganda."

Heilberg then testified that he

brought his suit precisely be-

cause he did not want to be so

listed but now found himself

listed against his will.

OBJECTIONS TO "LISTING"

Heilberg also stated that he

feared being listed as a person

desiring to receive "Communist

political propaganda' because he

is an alien who might apply for

citizenship and the listing might

be a factor used against him. He

also stated that he feared that

groups like the House Commit-

tee on Un-American Activities

might use the listing to harass

him. In the past under a similar

program cancelled by Executive

Order of President Kennedy

names of persons receiving mail

have been given to HCUA by

Post Office and Customs wit-

nesses.

FCC Opinion in

Pacifica Foundation Case

Continued from Page 3-

for that matter, of its present

Board of Directors), should not

be regarded as transfers of con-

trol, the September 30, 1961 re-

vision in the by-laws did trans-

fer legal control. Prior to that

date, the Executive Membership

elected directors, who elected of-

ficers. After that date, the direc-

tors themselves have elected new

directors, as well as officers. The

fact that the legal control vested

in the Executive Members did

not, in practice, amount to actual

control, does not mean that its

existence can be ignored-any

more than the legal control of a -

51% stockholder in a commer-

cial corporation can be ignored

because he fails to exercise it.

{Citations omitted.}

13. On the other hand, it is

clear that Pacifica did not seek

to conceal or misrepresent any

facts concerning those who con-

trol its affairs, and that the fail-

ure to file involved was an ex-

cusable one. We therefore grant

the pending application for

transfer of control.

14. Conclusion. In view of the

foregoing, IT IS ORDERED,

This: 22nd day of January, 1964,

that the above-entitled applica-

tions of Pacifica Foundation

ARE GRANTED as serving the

public interest, convenience and

necessity.

Concurring Statement of

Commissioner Robert E. Lee

I concur in the action of the

Commission in granting the sev-

eral applications of Pacifica

Foundation. However, I feel con-

strained to comment on at least

one program coming to our at-

tention insofar as it may or may

not reflect these stations' pro-

gram policies.

Having listened carefully and

painfully to a 1% hour tape re-

cording of a program involving

self-professed homosexuals, I

am convinced that the program

was designed to be, and suc-

ceeded in being, contributory to

nothing but sensationalism. The

airing of a program dealing with

sexual aberrations is not to my

mind per se a violation of good

taste nor contrary to the public

interest. When these subjects are

discussed by physicians and so-

ciologists, it is conceivable that

the public could benefit. But a

panel of eight homosexuals dis-

cussing their experiences and

past history does not approach

the treatment of a delicate sub-

ject one could expect by a

responsible broadcaster. A mi-

crophone in a bordello, during

slack hours, could give us simi-

lar information on a related

subject. Such programs, obvious-

ly designed to be lurid and te

stir the public curiosity, have

little place on the air.

I do not hold myself to be

either a moralist or a judge of

taste. Least of all do I have a

clear understanding of what may

constitute obscenity in broad-

easting.

The first right of a citizen

Is the right

To be responsible,

JOIN TODAY

GSH

AMERICAN CIVIL LIBERTIES UNION

OF NORTHERN CALIFORNIA

Patcon Membership |. 2. 50k ceases secs cecsss ss S100

Sustaining Membership... ........ceccecsccessne

Business and Professional Membership ......0-eccece6

50

25

Family Membership... 6.44... ses eee ce (2

Associate Membership. . 3.3... si en sees ec ees 10

Annual Membership .

oeoe ee

oee7e@e7eo7e@ G20 686 (c) and OO OG -

Junior Membership (under 21) fe eis elee se

ACLU News Subscription Co a

NAME CHESS HSHSHHLOHESSHHSHLSHHRHOHTHHTHHSHSHTHSSHEHHROEHROHTHSCHEOEHTHHAOHHBE

ADDRESS Se eFFEFHKRSKEFSSHEHOSHKHOAEHSKEHEKRSEKHEHEHEBHOHSSOSCHSEEHSETFFCHSHHHHEHESESE

TELEPHONE NUMBER......2sseceee--

AMT. ENCLOSED......s000

0x00A703 Market Street

Sen Francisco, 0x00A7