vol. 33, no. 8

American

ee eee:

Union

Volume XXXII

SAN FRANCISCO, AUGUST, 1968

No. 8

Sacramento Report

Right of Privacy

Upheld in State

Legislature

Privacy, a right essential to the preservation of a free

society, has received a great deal of attention in the 1968

session of the California legislature.

Two bills,

AB 598 (Biddle) and SB 1090 (Wedworth)

which would have legalized police wiretapping and electronic

eavesdropping, have been reject-

ed by the Assembly's committee

on Crimina] Procedure,

Federal Law

One of the most notorious pro-

visions of the Federal omnibus

erime bill, signed into law by

President Johnson in June, is the

one permitting court approved

wiretapping and eavesdropping.

But that provision of the Fed-

eral law does have its brighter

side. It prohibits wiretapping and

eavesdropping by state and lo-

eal officials unless there is a

state law which substantially

complies with the procedures

set forth in the federal law.

No Police Wiretapping

AB 598 and SB 1089 were pat-

terned after the federal law and

would have permitted extensive

invasions of privacy in Califor-

nia, invasions the police main-

tained that they had the power

to make before the federal law

preempted the field. The Crim-

inal Procedure Committee's re-

fusal to enact wiretapping legis-

lation means that no police wire-

tapping or eavesdropping, other

than that performed by federal

officials, is legal in California.

Unofficial wiretapping and eaves-

dropping was outlawed in the

1967 session of the legislature.

Non-Criminal Searches

Another bill which, as orig-

inally drafted, had a great po-

Nick Cipy Wins

Reinstatement

To Teamsters

On July 12 Federal District

Court Judge Lloyd H. Burke en-

tered a judgment in favor of

Nick Cipy against International

Brotherhood of Teamsters sus-

taining the position taken by

Cipy's ACLUNC attorneys that

Cipy was deprived of constitu-

tional rights by being expelled

from the union, The case was

handled by volunteer attorney

Jerrold Levitin who proved to

the satisfaction of Judge Burke

that Cipy was expelled from the

~ Teamsters' Union in violation of

his constitutional rights to cri-

ticize union officials. Cipy had

charged that the union officials

were corrupt and this charge led

to his expulsion from the union

in a decision finally affirmed by

presently-jailed Teamster presi-

dent James R, Hoffa. The union

claimed that Cipy was expelled

for persistence in making

"groundless" charges.

Judge Burke held that so far

Cipy had not suffered any mo-

netary damages by being ex-

pelled from the union but or-

dered that unless he was rein-

stated to full membership in the

union on or before July 26, 1968,

the sum of $50 per day be paid

by the union until reinstatement

is consummated. Mr. Cipy has

already received several awards

of damages through NLRB pro-

ceedings after the union refused

to send him out on jobs through

its hiring hall.

tential] for permitting state in- -

vasion of privacy is SB 1089

(Wedworth). SB 1089 is the At-

torney General's attempt to deal

with ACLUN(C's victory in the

United States Supreme Court

ease of Camara v. Municipal

Court of San Francisco, Camara

held that non-criminal searches,

those used to promote compli-

ance with administrative regula-

tions, must meet Fourth Amend-

ment standards, including a war-

rant procedure. SB 1089 pro-

-Continued on Page 3

Presidio Admits

Rough Handling

Of Prisoner

Col. Robert E. McMahon, Com-

manding Officer of the Presidio

of San Francisco, admitted on

May 16 that one of the Stock-

ade guards "did roughly handle"

Private Christopher King but re- -

jected claims of brutal treat-

ment.

King was allegedly beaten in

the boiler room of the Presidio

Stockade when he would not al-

low his hair to be cut. "One of

the guards," said Col.. McMahon,

"in reacting to Private King's be-

havior did roughly handle the

prisoner rather than summon

the aid of additional custodial

personnel to assist him. Appro-

priate action has been taken to

preclude future incidents of this

nature."

Following earlier ACLU ac-

tion on alleged mistreatment of

Stockade prisoners the behavior

of guards reportedly improved.

Just recently, however, the AC-

LU has again received complaints

of brutal treatment of prisoners

by Stockade guards.

A detailed report of the King

case appears in the June 1968 is-

sue of the NEWS.

ACLU Challenges Curfew

In Berkeley and Richmond

ACLU attorneys, led by an active group of volunteers

from the Berkeley-Albany Chapter, are closely watching the

criminal cases i the municipal courts in Berkeiey and Rich-

mond involving alleged curfew violations during civil dis-

turbances in those cities last month. After examination of the

pertinent ordinances and authori-

zations for the curfews in the two

areas, the ACLU's Board of Di-

rectors authorized legal chal-

lenges on the grounds that these

curfews are broader than neces-

sary to handle an emergency and

as delegating legislative powers

to administrative personnel with-

out any proper standards or

guidelines.

Dictatorial Powers

As an example, under the cur-

few ordinance of the City of

Berkeley the City Manager may

at any time declare a state of

emergency and proceed to write

any penal laws he wishes and

have these enforced by the po-

lice department and the courts.

This kind of delegation of legis-

lative authority is clearly danger-

ous to values fundamental to

freedom and provides a simple

method for the deprivation of all

liberties of a population in a

whole city. The fact that essen-

tial liberties such as freedom of

speech and assembly, freedom of

movement, and freedom to leave

your own home may be dis-

pensed with so easily, should

give pause to those who believe

that civil liberties are solidly ce-

mented in our country.

Racial Discrimination

The ACLU is particularly con-

cerned with the operation of the

curfew in the Richmond area. A

large number of complaints have

been received all verifying the

allegation that police officials in

Richmond enforced the curfew

against black people and did not

enforce it against whites. White

persons on the streets were told

to go home; black persons were

arrested. Also independently

verified by the cross-checking of

many complaints is the allega-

tion that police officials in Rich-

mond used racial epithets against

members of minority groups.

Many of the curfew violation

cases in Berkeley and Richmond

have been dismissed by prosecu-

ting officials, but ACLU will

continue to represent defendants

charged with curfew violations

until a legal decision on the mat-

ter can be obtained.

Police Brutality Charged

ACLU's Berkeley-Albany Chap-

ter has indicated in a public

statement that any persons who

feel that they were vicims of po-

lice brutality, and there are many

such persons, have a right to sue

for damages in either state or

federal courts and should give

serious consideration to the pur-

suit of such remedies. Because

such damage actions involve dis-

puted facts, the ACLU itself can-

not handle them except in ex-

traordinary circumstances. How-

ever, the Police Complaint Cen-

ter of the Berkeley Chapter is

taking statements from all per-

sons who believe themselves vic-

tims of improper police conduct

and such persons are urged to

contact the Center at 548-0921

from 8-10 p.m. Monday through

Thursday.

Muslims Win

Right to Wear

Beards in Navy

Muslims serving in Vietnam

with U.S. Naval Mobile Construc-

tion Battalion Forty will be per-

mitted to wear their beards. The

decision was sent to ACLUNC by

Commander W. F. Daniel, Com-

manding Officer on June 25,

The Muslim members of the

unit had been court martialed,

reduced in rate, fined two-thirds

of their pay and restricted for

over 60 days. At the time the

ACLU intervened in their behalf

they were faced with another

court martial.

Under Islamic law, Muslims

are enjoined to "Oppose the

polytheists, clip the mustaches

and keep the beards." The Mus-

lims insisted on the right to

practice their religion.

Navy regulations provide that

"The face shall be kept clean

Recorded Telephone Messages

State High Court

`Supports Right

Of Anonymity

On July 19 the Supreme Court of California unanimously

ruled in the case of Huntley v. Public Utilities Commission

that the right of free speech was abridged by a Commission

requirement that persons using recorded telephone messages

disclose their names and addresses in the message. The

opinion of the California Su-

preme Court was a strong af-

firmation and recapitulation of

free speech principles which will

strengthen the protections ac-

corded to civil liberties by the

judiciary threughout the state.

_ The fact that all seven justices

joined in the opinion written by

Justice Peters is another indica-

tion of the importance of the

decision since, in most previous

free speech issues coming before

the California Supreme Court,

there is a divided opinion.

_ Criticism of Messages

The case arose in 1966 when

there were numerous complaints

to various telephone companies

concerning the strong right-wing

political message which could be

obtained by dialing the numbers

in various cities advertised un-

der the listing "Let Freedom

Ring." These messages were con-

sidered harmful by a number of

thoughtful groups such as the

Anti-Defamation League. In re-

sponse to these criticisms the

Bell Telephone System an-

nounced that it would require

that persons sponsoring recorded

telephone message services in-

clude their names and addresses

in the message, and regulations

to this effect were approved by

the regulating, commissions in 46

states. Only in California was

the regulation challenged.

Content of Speech

The challenger was a Berkeley

resident named Fred A. Huntley

who ran a recorded message ~

service which he called "Let

Freedom Ring" but which he

claimed was independent from

other similar programs. The

ACLUNC agreed to furnish coun-

sel for Huntley and itself be-

came a co-petitioner in the case,

objecting to the identification

requirement. The ACLUNC was

represented by volunteer attor-

ney H, Reed Bement and staff

counsel Marshall W. Krause.

Several days of hearings were

held on the issues and several

briefs were filed. It was pointed

out that the telephone company

retained the name and address

of the subscriber which are

available to anyone inquiring for

a legitimate purpose. The only

evidence adduced in the hear-

ings was that a number of per-

sons did not like the content of

Mr. Huntley's messages, but

there was no evidence that the

stating of Huntley's name and

address would do anything else

except subject him to harass-

ment from his political oppo-

nents,

P.U.C. Issues Regulation

Nevertheless the Public Utili-

ties Commission accepted the

regulation proposed by the Pa-

cific Telephone and Telegraph

Company (a subsidiary of the

Bell System) and the ACLU and

Huntley filed a petition for a

review of this decision with the

California Supreme Court.

The Road to Truth

Justice Peters' decision starts

out with a strong defense of free

speech theory based on the prin-

ciple that only through unre-

stricted clash of views may the

truth be exposed and accepted.

shaven, except when a mustache

and/or beard is worn. The mus-

tache and beard shall be kept

short and neatly trimmed and no

eccentricity in the manner of

wearing these shall be permit-

ted."

He points out that "Freedom of

speech encompasses more than

simply the right to be protected

from censorship of content. It

extends to communication in its

most fundamental sense. The

First Amendment embraces both.

the right to disseminate infor-

mation and necessarily the right

to receive it. Improper restraints

on communication may vary in

form and degree, but all have

the effect of restricting the dis-_

-Continued on Page 4

Alcoholism

Case Taken to

Court of Appeals

In June of this year the Uni-

ted States Supreme Court sur-

prised prognosticators by declin-

ing, by a vote of 5to-4, to declare

unconstitutional the application

of public drunkenness laws to

persons who are chronic alcoho-

lics and connot resist drinking. It

was thought that the case of Pow-

ell v. Texas would end the inhu-

mane practice of jailing persons

whose only crime is being sick

with the disease of alcoholism,

but the majority of the Supreme

Court, led by Justice Thurgood

Marshall, refused to accept the

argument that Powell's punish-

ment was "cruel and unusual"

within the prohibition of the

Eighth Amendment.

Four Dissenters

Justices Douglas, Brennan, For-

tas and Stewart dissented from

this decision and they wrote-an

opinion indicating that they

would reverse the conviction on

the ground that Powell was being

punished for exhibiting the

symptoms of his illness. At least

four votes is an improvement

over the votes this same issue got

when the case of Thomas Budd

reached the United States Su-

preme Court in 1967. That case,

handled by the ACLUNC, re-

ceived only the votes of Justices

Douglas and Fortas.

Federal Court Action

ACLU attorneys did not allow

the Budd case to die but instead

filed a writ of habeas corpus in

the Federal District court which

was held under submission un-

til the decision in the Powell

case. Then Judge Oliver Carter

denied the writ of habeas corpus

but now has granted a stay of

execution of Budd's sentence in

Oakland Municipal Court while

ACLU's attorneys, led by volun-

teer George F. Duke, appealed

the case to the Ninth Circuit

Court of Appeal.

Since one of the majority jus-

tices on the United States Su-

preme Court (Chief Justice War-

ren) has since resigned, and

since another of the five justices

indicated that he might rule the

jailing of chronic alcoholics un-

constitutional under certain lim-

ited circumstances, it is certainly

possible that the Supreme Court

will change its mind on the is-

sue and it is hoped that the Budd

case will provide the vehicle for

the change to be accomplished.

Meanwhile, in most areas of

the country, the dreary process

of repetitive jailing of drunks

goes on under the mistaken as-

sumption that these victims of

disease are committing a moral

sin against society by being un-

able to control the symptoms of

their illness.

Letters to the Editor

Some Members Oppose

National ACLU Gun Policy

Second Amendment

Editor: I observed in the July,

1968 issue of ACLU News that

"The American Civil Liberties

Union last month urged the

adoption of strong federal gun-

control legislation."

The article states:

"The Second Amendment to

U. S. Constitution states: `A well

regulated militia being necessary

to the security of a free state,

the right of the people to keep

and bear arms shall not be in-

fringed.'

"At a press conference held at

the national headquarters .. .

the ACLU said it agrees with the

Supreme Court's long-standing

view that the individual's right

to keep and bear arms applies

only to the preservation or ef-

ficiency of `a well-regulated mi-

litia." Except for lawful police

and military purposes, the pos-

session of weapons by individ-

uals is not constitutionally pro-

tected."

As a member of ACLU and

ACLUNC, I strongly object to

this position for the following

three reasons:

First-It is my understanding

that the ACLU holds itself ready

In a public statement re-

leased last month the Board

of Directors of ACLUNC

warned that police use of

deadly force in the absence

of an immediate threat to an-

other life violates the 14th

Amendment to the Constitu-

tion by. taking life without

due process of law. The

Board's statement, the com-

plete text of which appears

below, noted that giving a po-

lice officer the right to take

a life merely because he be-

lieves that a fleeing person

has committed a felony gives

that police officer the right

to judge and punish. This con-

flicts with the presumption of

Innocence as to every person

accused of a crime and can

result in the loss of a life

for such relatively minor of.-

fenses as joyriding in a stolen

vehicle and breaking and en-

tering.

The ACLUNC statement

was specifically issued to sup-

port the position of Oakland

Chief of Police Charles Gain

that Oakland police officers

should not use deadly force

to apprehend suspected auto

thieves and burglars. A simi-

lar order issued by the Chief

to act only in specific cases in-

volving individal deprivations of

constitutional liberty.

Second-I further understand

it is your function to protect the

constitutional liberties of citizens

and not connive to thwart them,

and

Third -1I do not agree with

your legal conclusions concern-

ing the Second Amendment. It

eannot relate to "military pur-

poses," as you state, for Congress

is given power to declare war,

provide for the defense, raise an

army and provide for a navy in

Article I, Section 8. Nor does

the Second Amendment say any-

thing about a "lawful police pur-

pose," as you have tried to im-

pute. It was not intended (or

necessary), in this bill of indi-

vidual protective rights, to pro-

vide for police departments.

The Second Amendment does

not impose on the people the

duty of having a well regulated

ACLU NEWS

_ AUGUST, 1968

Page 2

militia-it says only that a well

regulated militia is necessary to

the security of a free State; but

by assuring to ALL the people

(in whom, after all, the powers

of government are vested), the

right to keep and bear arms, it

constitutionally insures that

whenever a well regulated mi-

litia becomes necessary to the

(external or internal) security of

. their State, the people shall have

the legal and practical power to

effectuate it. The uninfringeable

right of the people to keep and

bear arms is the crux of the

whole section-the sine qua non

of the security of the State-and

it is a constant, absolute, indi-

vidual right, whether a militia

exists at any particular moment

or not.

If the Section does not mean

this, there is no reason for it; if

the intent was to have it mean

something else, it would have

said something else - and I

charge you and the responsible

officials of the American Civil

Liberties Union with having an

educated knowledge of that fact.

-John L. Steely, Sacramento.

Dismayed

Editor: I am dismayed by your

of Police in Richmond, Cali-

fornia, was countermanded by

a 3-to-2 vote of the Richmond

City Council after a tumul-

tuous meeting dominated by

those who equate law and or-

der with unrestricted force in

the hands of police officials.

There have been'a number of

recent incidents in northern

California of young persons

killed by police gunfire be-

cause they were suspected of

a crime even though they

were posing no danger to an-

other person. These incidents,

states the ACLU, have result-

ed in justified public indigna-

tion over killings without due

process of law. Such excessive

use of force by police, states

the Commission on Civil Dis-

orders, has been the spark

lighting most of the racial dis-

orders around the United

States.

The complete text of the

ACLUNC statement follows:

The Fourteenth Amend-

ment to the Constitution of

the United States forbids the

taking of life, liberty or prop-

erty "without due process of

law." This clause requires a

fair and measured procedure

in all cases where the govern-

position on strong Federal gun

control laws for the following

reasons:

1. Guns are not the only weap-

ons contributing to disruption of

communicative endeavors.

2. The rights of legal gun own-

ers will be restricted through

repetitious registration and gim-

micky fees.

3. Such laws are not enforce-

able without dangerously jeop-

ardizing civil liberties.

4. Such laws will result in fur-

ther expansion of government

policing.

I neither own nor wish to own

a gun, nor do I have Bircher in-

clinations, Laws will not dissolve

the stockpiles, however, although

they can stigmatize honest, trust-

worthy citizens as criminals.-

Mrs. Rachel Ralston, Menlo Park,

Short-Sighted ACLU

Editor: I appreciated the

announcement, in the July issue

of the ACLU News, that the na-

tional ACLU is backing "strong

federal gun-control legislation as

necessary to foster `The free and

fearless debate on which our free

society rests'." ...

Disarming the law-abiding in

the face of the rising crime wave

is not going to promote the "free

and fearless debate' anymore

than prohibition promoted a na-

tion of abstainers.

With reference to the Second

Amendment, may I remind you

that the writers of the Constitu-

tion had in mind neither a

trained military body nor a corps

of policemen, when they said a

well-regulated militia is neces-

sary to the security of a free

state. What they meant was that,

unless men were armed, it was

no longer possible for them to

determine the kind of govern-

ment they wanted. Government

by consent of the governed be-

comes a purely academic concept

if the governed are no longer

able to enforce their will-and

without weapons, how can they?

By a "well-regulated militia"

the founding fathers meant a ci-

tizenry able to respond to the

call for defense of home, coun-

try, and principle, not just with

their bodies but with weapons,

ammuntion, and the skill to use

them. The natural weapon for

BRANCH URGES POLICE GUN CURBS|

ment acts to interfere with

the right to life, liberty or

property. The right to life re-

quires the most rigid protec-

tion as, once life is taken, no

remedy is available,

Police use of deadly force

threatens to take lives with-

out due process of law and

can be justified only: to pre-

vent an immediate threat to

-another life. The duties of the

police department include the

apprehension of suspected

criminals and do not include

the judgment or punishing of

these suspects. Every person

accused of a crime is pre-

sumed to be innocent unless

proven guilty at a judicial

trial.

In these circumstances, the

ACLUNC warns that the tak-

ing of life by police officials

in the absence of an imme-

diate threat to another life is

a violation of constitutional

rights. We urge all govern-

mental agencies and police of-

ficials to respond to justified

public indignation over kill-

ings without due process of

law by strictly forbidding use

of deadly force where there

is no immediate threat to an-

other life.

this purpose is the gun.

Take the long view. Are you

prepared to say, and guarantee,

that this country will never have

to call its civilians to arms in a

last ditch fight for self-preserva-

tion?

That is what the British

thought in the 1930's, so they

enacted a set of onerous gun con-

trol laws that made all but the

the few most stubborn give up

their guns. However, when the

Nazi hordes were poised for in-

vasion across the English Chan-

nel, the British sent a frantic cry

over the Atlantic, to those bar-

barous Americans, to send their

rifles and shotguns, and even

handguns, so that the British

might fight off the enemy and

preserve the way of life of the

English speaking peoples.

Did the British learn anything

from this deadly lesson? No.

Their gun laws are as restrictive

today as ever!

Why was it that the Resistance

Movement in France was so slow

getting underway? I can still re-

-Continued on Page 4

Poverty

Suit Loses in

Court of Appeal

California's Court of Appeal,

unimpressed by ACLUNC's law-

suit seeking a writ of mandamus

to allow a person too poor to

pay the filing fee to go ahead

with a civil suit, has refused

to act in the case of Leonard

Glaser v. The Superior Court in

and for the City and County of

San Francisco. Glaser's case, de-

scribed in last month's NEWS,

has now been presented to the

Supreme Court of the State of

California in a petition for hear-

. ing, filed by Glaser's attorneys.

Staff counsel Marshall W. Krause

and volunteer attorney Charles

S. Marson.

No Opinion

The petition for hearing points

out that the Court of Appeal

denied Glaser's application for a

writ without any opinion, thus

leaving the state of the law con-

cerning whether a poor person

can sue in a civil action unclear

in California. The petition for

hearing points out that California

courts have said that in an ap-

propriate case a poor person

could sue without payment of

fees but have never specifically

described the appropriate case

and the proper procedures. The

petition for hearing states: "The

remoteness of law and justice

from the poor is one of the major

lega] crises of our time. The

poor litigant, as well as the rich

one, is entitled to know the pro-

cedures he must follow in order

to have access to the courts. This

court can establish some of those

procedures by hearing and de-

ciding this case." It is expected

that the California Supreme

Court will act on the petition

for hearing sometime in August.

Equal Protection

The petition for hearing points

out that Glaser was unable to

even file his case and thus get

a decision on the merits of his

cause of action. Any litigant who

can pay the filing fee can at least

obtain a hearing on the suffici-

ency of his cause of action and

any litigant who can pay the fil-

ing fee can at least obtain a rec-

ord to proceed with an appeal.

Glaser was denied the right to

Mt. Diablo

Chapter Seeks

Members' Aid

Chapter Chairman Richard

Patsey last month urged all

members in the Mt. Diablo Chap-

ter area to participate in the

extensive new projects launched

- at a workshop session of the

Chapter's membership held on

July 20.

Speakers' Service

Forty members attending that

meeting planned an area-wide

speakers' service to arrange

speaking engagements on civil

liberties topics for a number of

qualified speakers with service

clubs, church groups, schools, so-

cieties and organizations. This

campaign is designed to broaden

public understanding of the

ACLU and its work and to en-

able non-members to recognize

infringements and realize the

importance of defending civil

liberties,

Various Committees

A committee was also formed

to study ghetto problems in the |

Chapter area, including police-

community relations, welfare

rights and discriminatory discip-

line in schools, and to plan ap-

propriate remedial action where

civil liberties are threatened.

Civil liberties problems in the

public schools and the rights of

juveniles in general was the

~topic assigned another commit-

tee. A legal panel is being or-

ganized to investigate and take

action as indicated on complaints

of violation of rights.

Who to Contact

Chairman Patsey requests that

any interested member able to

work with any of the above com-

mittees contact Marilyn Penne-

baker, Chapter Secretary, at 335

El Toyonal, Orinda, telephone

254-8681, or himself at 3168

Cafeto Drive, Walnut Creek, tele-

phone 932-1921.

file his complaint and therefore

cannot even appeal or obtain any ~

decision on his case. This seems

a clear violation of the equal

protection of the laws and it is

hoped that the California Su-

preme Court will correct this in-

justice in order to make the rem-

edies of law more available to

the poor.

seen ES SSS SEE ;

AMERICAN CIVIL LIBERTIES UNION NEWS

Published by the American Civil Liberties Union of Northern California

Second Class Mai! privileges authorized at San Francisco, California

ERNEST BESIG... Editor

503 Market Street, San Francisco, California 94105, 433-2750.

Subscription Rates - Two Dollars a Year

Twenty Cents Per Copy

Board of Directors of the American Civil Liberties Union

of Northern California

CHAIRMAN: Prof. Van D. Kennedy

VICE-CHAIRMAN: Rabbi Alvin I. Fine

Helen Salz

SEC'Y-TREAS.: Howard A. Friedman

EXECUTIVE DIRECTOR: Ernest Besig

Ralph B. Atkinson Gerald D. Marcus

Mrs. Judith Balderston Ephraim Margolin

Albert M, Bendich Dr. John Marquis

Leo Borregard Martin Mills, M.D.

Rev. Hamilton Boswell Ree teen M.D.

Price M. Cobbs, M.D. ichar atsey

Robert C, Dalton, Jr. Mrs. Esther Pike

Mrs. Natalie Dukes Henry J. Rodriguez

Prof. John Edwards Eugene N. Rosenberg

Robert Greensfelder John Brisbin Rutherford

Rev. A S. Gilmarti Warren H. Saltzman

Evelic Grillo ee Mrs. Alec Skolnick

Mrs. Zora Cheever Gross Stanley D. Stevens

Francis Heisler Stephen Thiermann

Neil F. Horton Richard J. Werthimer

Howard H. Jewel Justin Vanderlaan

Dean Robert A. Keller Joe J. Yasaki

GENERAL COUNSEL: Wayne M.. Collins

STAFF COUNSEL: Marshall W. Krause

ASST. STAFF COUNSEL and LEGIS. REP., Paul Halvonik

ADMINISTRATIVE ASSISTANT: Mrs. Pamela S. Ford

CHAPTER DIRECTOR: Mrs. Marcia D. Lang

Committee of Sponsors

Honorary Treasurer: Dr. Marvin J. Naman

Joseph S$. Thompson Mrs. Theodosia Stewart

Honorary Board Member: Rt. Rev. Sumner Walters

Sara Bard Field Richard Johnston

Mrs. Gladys Brown Roger Kent

Mrs. Paul Couture Mrs. Ruth Kingman

Mrs. Margaret C. Hayes Prof. Theodore Kreps

Prof. Carlo Lastrucci Seaton W. Manning

Rev. Robert W. Moon

Mrs, Paul Holmer Clarence E. Rust

Joseph Eichler Mrs. Mary Hutchinson Prof. Wallace Stegner

Dr. H. H. Fisher Prof. Wilson Record Prof. Hubert Phillips

Prof. Ernest Hilgard Dr. Norman Reider Norman Lezin

John J. Eagan

Campus Draft Opposition

Important New Issues

Raised in Univ. of Cal. Case

Important new issues were brought into the case of

Sellers v. The Regents of the University of California on July

19 when the plaintiffs' complaint was amended in Federal

District Court. The suit was originally started by student and

faculty members of the Campus Draft Opposition at the Uni-

versity of California who were

protesting the denial of the

Berkeley campus' Greek Theatre

for a commencement ceremony

at the end of the spring semes-

ter. After a temporary restrain-

ing order against the University

was denied on the ground that

irreparable injury had not been

proven, the same ceremony was

held on the Sproul Hall steps

of the campus.

Aiding and Abetting

Now the complaint has been

amended to add these two issues:

First, the plaintiffs point out

that they plan to continue the

operations of the Campus Draft

Opposition on the campus which

include the collecting of pledges

from those persons who support

young people in their own deci-

Must Indigent

Defendants

Pay for Counsel

San Mateo County seems to be

unique in Northern California

in requiring persons who have

proven themselves to be indigent

to pay for the counsel which the

court appoints to defend them

in criminal cases. Curiously, not

all defendants have to pay for

`their counsel; only those found

to be guilty. Thus, as additional

punishment, persons who are

guilty of crimes and have the

temerity to request counsel to

help defend them are doubly

punished.

Condition. of Probation

The method used by the San

Mateo County judges is to re-

quire payment to the County of

a sum of money as a condition

of granting probation to the in-

digent defendant to compensate

the County for the money it

spent to defend him. If the mon-

ey is not paid, the defendant's

probation may be revoked and

he can be sent to jail.

Test Case Sought

The ACLUNC objects to this

procedure as an unconsitutional

condition of probation but so far

has been unsuccessful in obtain-

ing a test case to challenge the

practice. Lawyers in San Mateo

County are urged to refer such

conditions of probation to the

ACLU. Last month ACLUNC

staff counsel Marshall Krause ap-

peared in San Mateo County to

protest the condition of proba-

tion as to a particular defen-

dant and promptly had the case

pulled out from under him when

the judge struck out the objec-

tionable condition of probation.

ACLU Objections

ACLUNC objects to indigent

defendants being required to pay

for their own counsel on the

ground that it discourages crimi-

nal defendants from exercising

their constitutional right to have

counsel appointed to represent

their interests. Even though a

person is guilty of a particular

crime, counsel can still perform

valuable, indispensable, functions

in raising technical defenses and

mitigating punishment. It is

feared that a number of indig-

ents, knowing that their punish-

ment will be increased if they

request counsel will waive the

right to counsel because of the

San Mateo County rule. More-

over, there are no standards un-

der which a. judge makes a de-

cision as to who shall pay for

counsel and the additional pun-

ishment provided by the imposi-

tion of such costs probably in-

terferes with rehabilitation which

is the basic purpose of proba-

tion.

sions not to respond to military

service and from young people

themselves who state that if

called they will not serve. The

plaintiffs then state that the pro-

visions of the Military Selective

Service Act of 1967 which pun-

ishes as a crime "any person

who knowingly counsels, aids or

abets another to refuse or evade

registration or service in the

armed forces . . . or who con-

spires to commit [such offense]"'

have been used by the Univer-

sity to charge them with illegal

conduct and to deny them their

right of free speech. Therefore

the plaintiffs urge that a three-

judge federal court be convened

to hold such section unconstitu-

tional,

Overbroad Law

The significance of this chal-

lenge is that this is the same

section under which Dr. Spock

and three others were convicted

after a Federal District Court

trial in Boston and the same sec-

tion which is used to inhibit per-

sons opposing the draft through-

out the United States. The

ACLUNC believes this law to be

unconstitutional because it is too

vague and overbroad to stand as

a valid regulation in the freedom

of expression and assembly area

and because it deprives persons

of their freedom of speech.

Resolution Challenged

The second significant aspect

of the latest amendment to the

Sellers complaint is that a chal-

lenge is made to the legality of

the Regents' resolution in Octo-

ber of 1967 forbidding the use

of University premises for "un-

lawful activity." It is alleged that

this resolution, which has also

been used to deny the Campus

Draft Opposition free speech

rights, is a prior restraint on

freedom of speech in that it al-

lows an administrator to deny

use of campus facilities merely

because he believes that the ac-

tivity will be "unlawful." The

ACLU, which is representing the

plaintiffs, in the Sellers suit

through staff. counsel Marshall

W. Krause, has always believed

that prior restraints on free

speech are unconstitutional and

and that speech activities may be

punished only when they are

shown to have been unlawful in

a court of law.

Critical Issues

These two new allegations may

make the Sellers case of critical

importance to free speech rights

in the country as both of the

issues it newly raises will have to

be ruled upon by the United

States Supreme Court.

Narrow Failure

In Maginnis

Abortion Case

The campaign of the ACLU to

obtain a favorable ruling in the

case of People v. Patricia Magin-

nis and Rowena Gurner failed

very narrowly last month when

the California Supreme Court

declined to accept a petition for

a writ of habeas corpus by a

vote of 4to-3. The writ sought

to attack the validity of Business

Professions Code Sec. 601 be-

fore the two defendants were re-

quired to go to trial for an al-

leged violation of its terms. Sec-

tion 601 forbids dissemination

of information about techniques

of abortions. It thus chokes off

discussion aiming toward reform

of the anti-abortion laws since

the public is prevented from

knowing such things as the sim-

Oakland |

Area Council

Organizes

Since its recognition by the

Branch Board of Directors in

June the enthusiastic response

of the membership has enabled

the Steering Committee repre-

senting Oakland members to put

in motion an ambitious program

for the coming months in Oak-

land, Piedmont and Alameda.

Public Meeting

At meetings held in June and

July, to which interested mem-

bers were invited, a public meet-

ing held on July 24 was planned

with Chief of Police Charles

Gain, Legal Aid Staff Counsel

Clifford Sweet and Montclarion

News Editor Peggy Stinnett on

a panel moderated by ACLUNC's

Executive Director Ernest Besig,

discussing the state of civil liber-

ties in Oakland area,

Gary Schwartzman was ap-

pointed to organize a speakers'

bureau and to arrange engage-

ments for speakers on civil liber-

ties topics as the Council's first

educational attempt.

Police Problems

A Police-Community Relations

Committee, chaired by Mrs, Bar-

bara Berman, held an organiza-

tional meeting early in July at

which a coordinating committee

was delegated to plan a specific

program. A meeting was sched-

uled for August 5, at the home

of Dr. and Mrs. Bernard Berger,

6537 Chabot Road, Oakland, to

which all members willing to

participate in this Committee's

work are invited to attend. Mrs.

Berman has announced the gen-

eral objectives of the Committee

to include: studying police prac-

tices, policies and procedures as

these relate to constitutional pro-

tections for the citizen, with spe-

cial emphasis on riot control

policies, recruitment and train-

ing methods, and arrest and in-

terrogation practices; recording

and investigating citizens' com-

plaints of alleged violations of

civil liberties, improving the

processing of such complaints

through public agencies, and em-

phasizing to the city government

and police department their

roles in maintaining the constitu-

tional rights of every citizen.

School Issues

Mrs, Suzanne Rose was ap-

pointed to chair a Public School

Issues Committee, which will in-

vestigate civil liberties problems

in the schools, plan remedial ac-

tion, and prepare to take up in-

dividual cases as they arise.

Legal Coordinator Roger Ken-

sil has announced that a legal

panel meeting will be called

early in August to assign respon-

sibility for screening and inves-

tigating possible cases, and to

appoint resource attorneys as

needed for the standing commit-

tees.

Who to Contact

Interested members are urged

to call Mrs. Stella Hemphill,

Council Secretary, at 452-2881

for further information and de-

tails of the new unit's program.

Members are also urged to make

individual efforts to recruit new

members, and Mrs. Hemphill can

supply membership application

envelopes and ACLU literature

to use in contacting prospective

members. The Steering Commit-

tee has set a goal of 500 mem-

bers by the end of 1968. Present

paid-up membership numbers

377.

ple surgical techniques for per-

forming an abortion.

The decision of the California

Supreme Court denying pretrial

relief came over the dissents of

Chief Justice Traynor and Jus-

tices Peters and Tobriner. Jus-

tices Mosk, McComb, Sullivan,

and Burke voted to refuse to

intervene in the case. No doubt

the issue will again be presented

to the courts if Miss Maginnis

and Miss Gurner are convicted in

their Superior court trail,

Right of Privacy Upheld

In State Legislature

Continued from Page Hee

vides such an "inspection war-

rant," procedure.

Warrant Procedure

In its original form, SB 1089

would have permitted inspection

warrants to be issued in order to

conduct searches "required or

authorized by state or local law

or regulation relating to health,

welfare, fire, or safety." That in-

cludes virtually all of the powers

of the state and could, for ex-

ample, be used as a device to

harass welfare recipients. AC-

LU's opposition to SB 1089 was

removed after the Assembly Ju-

diciary Committee limited the

scope of possible inspections to

such things as zoning, health,

fire, and _ safety regulations

Other ACLU amendments that

have been incorporated into the

bill provide notice to the person

whose property is to be inspect-

ed, a requirement that the place

to be inspected be particularly

described, thus removing the pos-

sibility of general warrants and

roadblocks, and a limitation on

those circumstances in which a

judge may authorize a forceable

entry to situations in which there

is an immediate threat to the

public health or safety or when

reasonable attempts to serve the

inspection warrant have been un-

successful,

Welfare Recipients

Another bill that would invade

the privacy of welfare recipients

is SB 102, authored by Senator

John Schmitz (R., Orange). SB

102 would make the list of wel-

fare recipients available for the

scrutiny of anyone. At this writ-

$.F. Employment

Questionnaire

Changed

At long last the majority of the

San Francisco Civil Service Com-

mission has voted to change that

body's archaic practice of re-

quiring disclosure of any arrests

on all employment applications

filed with the City and County of

San Francisco. The Commission's

new policy, adopted early in July

at the insistent urging of many

groups including San Francisco's

Human Rights Commission and

ACLUNC, now asks applicants to

list only convictions which have

occurred during the past two

years.

Discrimination.

The ACLU, in a letter con-

gratulating the Commission on

this move, pointed out that the

former practice of holding all

arrests against applicants for

employment was a rank discrimi-

nation against members of mi-

nority races as to whom the po-

lice show more than ordinary in-

terest in making an arrest, es-

pecially of young persons, and

also the former practice was a

threat to due process of law as

it allowed the mere decision of

a policeman to make an arrest

to be held against a person for

the rest of his life even though

that person never had a chance

to go to court to clear himself.

Arrest Records Preserved

Many persons do not realize

that once an arrest record has

been created in California even

if charges are never pressed and

even if the police admit that a

clear mistake was made, that

record may never be removed

and persons filling out employ-

ment applications must always

disclose arrests where called for

by the question. A person con-

victed of an offense is better

off than a person arrested but

not charged as the person con-

victed may get his conviction

"expunged" after serving a term

of probation. However, many gov-

ernment applications, including

those for the State of California,

flout this expungement benefit

by asking questions such as "List

all convictions, whether or not

they have been `expunged.' "

ing SB 102 has been stalled in

the Senate. A similar measure

passed the Senate last year; it

was killed in the Assembly.

Privacy of Pupils'

Senator Schmitz, who is not in-

timidated by foolish consisten-

cies, has authored two bills that

promote privacy and are sup-

ported by ACLU. SB 669, which

has been passed by both houses

and awaits the Governor's sig-

nature, prohibits schools from

`administering surveys in which

questions appear about a pupil's

personal beliefs or practices re-

garding sex, morality and reli-

gion without first receiving per-

mission from his parents.

Schmitz's SB 670 greatly limits

the persons to whom personal

information concerning a pupil

may be given, SB 670 has passed

both houses, but in different

forms, and is currently in a con-

ference committee of the two

houses.

Mistreated Minors

One privacy measure has al-

ready been signed by Governor

Reagan. AB 137 (Milias) limits

the persons to whom informa-

tion regarding a mistreated

minor may be given by the Bu-

reau of Criminal Identification

and Investigation.

Simulated Sex Acts

SB 487 (Walsh), which would

have prohibited college produc-

tions of plays in which a "sim-

ulated sex act" occurs, has been

killed.

The bill was inspired by a col-

lege production of The Beard, a

play that ends in an act of sim-

ulated oral copulation. As in-

troduced, SB 487 made a mis-

demeanant of any student who

performed in such a play or any

teacher who counseled or aided in

any such production. Although

SB 487 dealt with conduct on col-

lege campuses it was not assign-

ed to the Senate Education Com-

mittee but, because of its crim-

inal sanction, to the Senate Judi-

ciary Committee. The bill was

approved, sent to the Senate

floor and passed.

Neat Trick Fails

But Walsh (D-Los Angeles)

knew his temporary success was

illusory and that his bill would

not receive a congenial] reception -

in the Assembly Committee on

Criminal Procedure, the grave-

yard of obscenity bills. Accord-

ingly, he devised a neat trick for

avoiding Criminal Procedure, He

amended the bill to strike the

penal provisions inserting, in-

stead, a penalty of automatic dis-

missal from the college, thus

bringing his measure without the

purview of Criminal Procedure.

Speaker Unruh adopted a coun-

ter-strategy: he simply ignored

Walsh's amendment and sent the

bill to Criminal Procedure any-

way, where it was disposed of

promptly.

Loyalty Oath

When the joint effort of the

Northern and Southern Califor-

nia branches of ACLU resulted,

last December, in a State Su-

preme Court decision holding un-

constitutional California's oath of

non-disloyalty for public em-

ployees, Assemblyman James

Hayes (R., Long Beach) issued

a press release in which he pro-

mised to introduce a bill pro-

viding a new oath of non-disloyal-

ty for public employees. True to

his word, Assembly Constitutio-

nal Amendment 10 (Hayes), pro-

viding a new oath of non-disloyal-

ty for public employees, was in-

troduced on January 18, It was

assigned to the Assembly Com-

~ mittee on Elections and Reappor-

tionment where it has languished

ever since. In July Hayes

dropped his bill conceding that

he lacked the votes necessary to

get approval for his oath, De-

feated but undaunted Hayes has

promised to try again next year.

-Paul N. Halvonik

ACLU NEWS

AUGUST, 1968

Page 3

Ed

Some Members Oppose

National ACLU Gun Policy

Continued from Page 2-

member the contempt we felt

for the supine Frenchman. But

we were wrong. Frenchmen were

brave enough, but their over-

solicitous government had seen

to it that very few of them had

guns, and every gun in private

possession was registered. When

the Nazis came in, they went

first to the registries; then to

the owner. Presto! Frenchmen

were reduced to helplessness un-

til the U.S. could supply them

with arms. Dare we hope to be

so lucky, in a similar emergency,

as to have a helping friend?

While your article was vague

on this point, it is fairly clear

that you have climbed on the

bandwagon and are trumpeting

for registration of all firearms.

I hope I have made clear what a

deadly weapon against us regis-

tration can be if the registries

fall into the hands of an enemy

-whether an invading foreigner

or a domestic tyrant seeking

power. Let us assume, now, that

your energies have succeeded in

bringing into being a central

registry of all firearms in the

nation. The years go by and the

crime rate does not fall. Or, per-

haps, it falls a little. But the fev-

er has died down and nobody

pays much attention.

And then, another public fig-

ure is shot! Again the fever to

prevent such violence rises to a

furious pitch. Something must

be done - anything! But - we

have already done about all we

`could, what with registration and

licensing! So what's left to do?

Why, Of Course: Take away ev-

erybody's guns. It's easy! We

paved the way when we forced

their registration. So, now, the

stalwart American citizen stands

naked and helpless before the .

world. And that, has been the

ultimate objective of most of the

public men with whom you are

now making common cause: The

Dodds, The Kennedys, The Tyd-

ings, etc,

I am filled with horror and

shame that ACLU, the organiza-

tion I have supported and de-

fended for so many years as the

foremost defender of the Ameri-

can Way of Life should now join

in its destruction!

So much for the broad aspects.

Have you ever stopped to think,

how many crimes are prevented

by police? It happens so seldom

that each such event is as news-

worthy as "when a man bites a

dog." The police go into action

after the citizen has been vic-

timized by the criminal. The

money has been stolen, the serv-

ice station robbed, the woman

raped. There is nothing the po-

lice can do for them now. So it

has always been; so it will al-

ways be. Clearly, if the law abid-

ing citizen is to be defended

against the criminal, he will have

to do it himself.

Now, what can he do to defend

himself? Of course, he can always

get down on his knees and pray.

I know of no case in which this

tactic has proved successful.

Pity the poor housewife, all

alone with her children, who

faces a burly intruder through

the screen door. If your gun con-

trol program is successful, there

is nothing she can do but hope

he will not be too brutal. How

different the housewife in Or-

lando, Florida, who has been

police-trained to use her hand-

gun. The intruder can take his

choice - force entry and risk

being shot, as he will be, or take

himself off. Daylight burglaries

dropped drastically in Oriando

after inauguration of this pro-

gram. Would you rob this woman

of her means of self-defense?

Can you suggest any other that

would make her the equal of the

most powerful man?

ACLU NEWS

AUGUST, 1968

Page 4

Man has come a long way since

he first learned that he could

be more successful acting in a

group than acting alone, He still

has a long way to go, and prog-

ress is painfully slow. But no

one who reads history will deny

that man will continue to grow.

Give him a chance to outgrow his

need for guns. Guns are superb

equalizers. They are the only

equalizers. They permit a 90

pound woman to strike as heavy

a blow as can a 200 pound ath-

lete. A gun is no more and no

less than this: a device for strik-

ing a blow at a distance. The

equality it conveys will do far

more to promote "the freedoms

associated with civilized society"

than the `gun control legislation"

you now advocate. (I quote from

the aforementioned ACLU News

article).

At this point in our history

we cannot afford to give up our

guns. It is a capitulation to pure

sentimentality to think otherwise.

We need them to defend our na-

tion against both internal and

external enemies - they are

among our most essential re-

sources. 175 gun deaths per week,

striking as the figure looks, is

less than 1 per million, Compare

the number of auto deaths.

The vast bulk of Americans are

decent, law-abiding, honest citi-

zens, who will handle guns re-

sponsibly. The American people

can be trusted. You have always

trusted them. You have always

fought for their rights. Why do

you desert them now? Why not

concentrate on the criminal, in-

stead of the law-abiding? Why

not punish the criminal use of

guns so drastically that no crimi-

nal would dare be seen with a

gun? Strange, how lawmakers

shy away from such legislation!

Such solicitude for criminals!

Why? Why, instead, do they pro-

pose laws that favor the crimi-

nal, the enemy, and undermine

the upright and the nation?

The ACLU should get acquaint-

ed with the men of the National

Rifle Association. These men

know guns as you know and

study Civil Liberties. They are

as horrified as you at the mis-

use of guns and have for years

led the movement for sound gun

legislation. They also know what

guns have meant to the growth

of America and still must mean

to her future. I commend. them

to you.

We have not come to the part-

ing of the ways. I cannot disown

you, One doesn't disown a good

friend for one flaw or even two.

But I shall be watching more

critically in the future. Senti-

mentalism can be your (our)

downfall-Harry J. Voth, Fair

Oaks.

Oppose All Legislation

Editor: I was surprised to see

in the July issue that the ACLU

has urged "adoption of strong,

federal gun-control legislation."

Almost daily, newspapers tell

us of police violence against the

people, particularly against

Blacks and Chicanos and Indians.

Only a few days ago, a Richmond

policeman used a gun to stop a

15-year-old Black youngster, and

the Black Community-properly

-retaliated. In Berkeley, police

used tear-gas and clubs against

kids defending their legal and

constitutional rights, used them

so enjoyably and viciously that

even the Berkeley Gazette pub-

lished a story quoting an anony-

mous policeman's distaste for

what he had seen, Belatedly, the

Berkeley city council granted

what the students had asked in

the first place, free speech on

Telegraph Avenue, thereby con-

fessing that all the police vio-

lence had been quite improper,

illegal, unconstitutional and out-

rageous.

These are facts. They show

the NECESSITY of the Second

Amendment to the U. S. Consti-

tution: "The right of the People

to keep and bear arms shall not

be infringed."

Let me put it in personal

terms. I am white and blue-eyed,

but twice I have been bellowed

at by stupid brutes on the Oak-

land police force, so I have a

hazy idea what Black people

have been subjected to. I under-

stand quite well why the Black

Panthers advocate that Black

people carry guns for self-de-

fense against police.

The Second Amendment was

adopted by people who had had

to fight British government op-

pression, people who were de-

termined that they were going

to hang on to their guns to keep

future governments in line, and

that their descendants - we-

should keep our guns handy for

the same purpose.

About 10 or 15 years ago, Indi-

ans in North Carolina were at-

tacked by the KKK. The Indians

used guns to defend themselves,

chased off the Klansmen, so, as

far as I know, they haven't been

bothered since. The Second

Amendment was a necessary and

useful instrument for those Indi-

ans.

Your story says national ACLU

officers accept the view that the

Second Amendment doesn't real-

ly mean what it says. They argue

that the amendment merely pro-

tects the right of the militia -

not the people - "to keep and

bear arms". Such a view defies

the plain wording of the amend-

ment: "The right of the people

to keep and bear arms shall not

be infringed." Such a view ig-

nores history in the U.S.; as far

as I know, the militia has always

been used AGAINST the people,

especially against strikers.

I think the Second Amendment

means what it says. I think the

ACLU should defend it, and fight

for it. I think the ACLU should

oppose all legislation interfering

with it, on the legal ground that

such legislation is unconstitution-

al, and on the historical ground

that the people need their guns

these days.

The Second Amendment is just

as important a part of civil lib-

erties as the other parts of the

Bill of Rights. The ACLU will

disgrace itself unless it defends

this one, too.-Lee Coe, Berke-

ley.

Disarm Police

Editor . . . I wish to resign

from the American Civil Liber-

ties Union. This is due entirely to

your stand on Federal. Gun Con-

trol. Personally I have a number

of firearms, all of which have

been registered voluntarily with

the Chief of Police in my home

city of Belvedere at a time when

there was no requirement so to

do. This was done for my own

protection in case of theft. I have

no objection to the registration

of firearms nationally or at the

State level, provided that what-

ever legislation is passed is

not passed in an hysterical at-

mosphere of highly charged emo-

tion but soberly and carefully. I

do, however, humbly call your

attention to the fact that among

the groups who should be dis-

armed are the police of the Uni-

ted States of America. I suggest,

sir, that you study the English

law on the subject before you

dismiss this as a crank letter. I

have been exercised for a num-

ber of years by the Southern

sheriffs and deputies who have

murdered Negroes. I am exer-

cised by the trigger-happy North-

ern police who shoot and kill

young teen-agers for what is ad-

mittedly a felony, namely, steal-

ing a car, but is a felony of such

minor nature that the death pen-

alty is not warranted. This is a

far more serious situation in the

light of suppression of minority

races.

-James Rewland, San Fran.

State High Court Supports

Right of Anonymity -

Continued from Page 1-

semination of ideas. The clearest

abuse is an outright prohibition

of a constitutionally protected

form of speech. Regulation short

of absolute prohibition is also

invalid when expression is made

dependent upon state approval

by the obtaining of a permit or

is conditioned upon obtaining

the approval of a board of cen-

sors. Nor does the restriction be-

come permissible because it

merely limits the manner of ex-

pression rather than the initial

right to communicate."

Southern Cases

Justice Peters then discusses

the cases in which anonymity

has been held to be an indispen-

sable part of freedom of speech

and association. These include a

number of Supreme Court cases

`in which disclosure of member-

ship in organizations was sought

to be compelled by southern

states. These attempts were

stopped by the courts when it

was pointed out that such dis-

closure would result in harass-

ment by the public of those per-

sons who were members in civil

rights groups and that the state

could not disclaim responsibility

merely because they only com-

pelled the disclosure and did not

participate in the harassment.

Protecting Minority Views

Justice Peters continues:

"There can be no doubt that dis-

closure requirements may deter

free speech. It must be remem-

bered that the right of freedom

of speech is primarily intended

to protect minority views, `The

authors of the First Amendment

knew that novel and unconven-

tional ideas might disturb the

complacent, but they chose to

encourage a freedom which they

believed essential if vigorous en-

lightenment was ever to triumph

over slothful ignorance.' The ma-

jority may freely assert its be-

liefs and is secured freedom of

speech by the very fact of its

mathematical majority. It is the

minority, whether of the left or

the right, which must overcome

accepted views. To succeed, the

minority must persuade others

until, as is the nature of a demo-

cratic society, it hopefully at-

tains the status of the majority.

In doing so, the minority will

frequently be subjected to criti-

cism and debate, a necessary ad-

junct to the ascertainment of

truth. But, depending upon the

popularity of the minority posi-

tion and the inviolability of the

majority beliefs, the proponents

of change may also be subjected

to harassment, threats and vio-

lence."

Indispensable Prerequisite

In further emphasis of the

need to give full and complete

protection to the expression of

minority views the Supreme

Court opinion states: "In this

context, as correctly contended

by petitioners, anonymity may

be an indispensable prerequisite

to speech. When the content of

speech may lead to harassment

or reprisal, fear or apprehen-

sion may deter expression in the

first instance, History is replete

with unpopular ideas which now

form the foundations of modern

society's mores and laws, but

which could only be asserted

anonymously when first ex-

pressed." ;

Pamphlets and Handbills

The Court then discusses the

right to distribute anonymous

pamphlets and handbills which

has a long history in our coun-

try dating from before the Revo-

lutionary War and including the

famous arguments in support of

the adoption of the Federal Con-

stitution known as "The Federal-

ist." The Court concludes its dis-

cussion of theory by holding:

"The First Amendment right to

remain anonymous . . . encom-

passes all forms of expression

whether they be writings, or as

in the instant case, a recorded

message published over the tele-

phone."

No Abridgment Justified

The Court then discusses

whether there is the necessary

"compelling state interest" in

the disclosure regulation which

may justify an incidental abridg-

ment of free speech in order to

carry out indispensable govern-

ment functions. The Court points

out that the Commission's justi-

fication for the regulation of pro-

tection against defamation lacks

merit because any person who

believes himself libeled may ob-

tain the identity of the person

responsible for the message from

the telephone company's records.

To the Commission's argument

that there is a public interest in

the identification of the authors

of "irresponsible" messages, the

Court responds that this would

not warrant an invasion of free

speech. It holds, "Too often the

test of `responsibility' is the de-

gree of popular acceptance of

the idea. Popularity is not a cri-

terion for determining the

boundaries of speech. Even er-

roneous statements are entitled

to constitutional protection."

Frivolous Argument

The Court quickly disposes of

the telephone company's argu-

ment that persons hearing anony-

mous messages might think they

were ascribable to the telephone

company by stating, "This asser-

tion borders on the frivolous."

Lastly, the Court distinguishes

several existing disclosure re-

quirements, namely, those re-

quiring disclosure of the publish-

ers of second class mail matter

and the owners of radio broad-

casting and television broadcast-

ing stations, by stating that in

both of these instances the

identification requirement is jus-

tified by the limited availability

of the particular communication

facility.

The first right of a citizen

Is the right

To be responsible

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