vol. 33, no. 8
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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.
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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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