vol. 33, no. 5

American

Civil Liberties

Union

Volume XXXIII

SAN FRANCISCO, MAY, 1968

Number 5

ACLU Members Will

Spend Day

at Capitol

The. Legislative Committee of tne ACLUNU has scheduled

its second annual "Day in Sacramento" Tuesday, May 7. The

purpose of the all-day trip is to lobby our legislators on cur-

rent bills relating to welfare, bail reform, loyaty oa`hs, cen-

sorship and academic freedom, to learn about legislative pro-

cedures and to watch the Legislature in action.

All members of the ACLU are urged to attend. The meet-

ing point is Westminster Presbyterian Church, 1300 N Streei,

Sacramente, at 9 a.m., May 7.

The agenda for the day includes a briefing by Paul Hal-

vonik and Coleman Blease, northern and southern California

Legislative Representatives for the ACLU, The luncheon will

be addressed by legislators, including Assemblyman William

Bagley (R-Marin) speaking on bail reform and John Vascon-

cellos (D-San Jose) speaking on California's unreasonably

severe criminal penalty structure.

Both the Assembly Criminal Procedure and Gove: nmental

Efficiency and Economy Committees (they hear most of the

civil liberties bills) will be holding hearings the afternoon of

the trip. Indeed, the members of these committees will be

our guests at a no-host cocktail reception pianned after the

committees adjourn their meetings.

The cost is $5 per person, including lunch' and the infor-

mational kit. Please let the office know by the morning 0!

- May 6 at the latest whether you wish to attend. All membeis

of the ACLU and their friends are not only welcome but urge!

to attend.

Car pools are being formed in chapter areas. For further

information call James Hammill, Mt. Diablo Chapter. 934-

5332; Dr. Sam Hanzel, Marin, HO 1-5820; Larry Jones. Berkeley-

Albany, 525-1528; Stan Stevens, Santa Cruz, 426-7300. X246;

Larry Sleizer, Mid Peninsula, 321-7522; or, call the ACLU

office at 433-2750.

Legislative Report

Flag Burning,

Colleges and

Marijuana

Flags are the most traditional form of symbolic political

expression. What it is that any symbol expresses is impossible

to define; symbols denote things that are by nature elusive.

Attachment to or disaffection from a symbol is an emotional

matter. People disaffected with a symbol one approves or

smitten with a symbol one dis-

approves are the most obnoxious

of dissenters.

Flag Burning

"It is not, therefore, surprising

that in this time of international

stress bills prescribing what is

proper and what is improper al-

legiance to a flag have found

their way into the Legislative

hopper. A.B. 1002 (McGee) is in-

tended to promote proper alle-

giance to the proper symbol. It

would make it a misdemeanor to

"publicly burn any flag of the

United States, with the intent to

cast contempt upon, or defile

such flag." Burning a flag for a

lark would not be a crime. It is

the impure motive that would

subject one to criminal punish-

ment. A.B. 1002 has been intro-

duced at a time when the United

States Supreme Court is consid-

ering whether to review a flag

burning conviction obtained by

the state of New York. In that'

case James Street, a Negro vet-

eran of World War II, upon hear-

ing that James Meredith had

been shot, took himself into the

streets of New York and burned

a flag that had been used to

drape the coffin of his dead step-

father. Before burning the flag

Street told the people around

him, "If they can kill James

Meredith we don't need this."

The state of New York found

that he had cast contempt upon

the flag by his actions. Some

feel that Street was trying, in

the most dramatic of ways, to

say something about what that

symbol should mean.

To those it is not Street who

defiled what the flag symbolizes

but those who pros2cuted and

convicted him. The California

Legislature can best promote the

ideals of the United States by

rejecting Assembly Bill 1002.

College Campuses

A.B. 755 (Stull) would make

it unlawful to display on the

campus of any public school, col-

lege, or university, the flag of

the Viet Cong, North Vietna-

mese, "or of any other nation or

armed group engaged in open

hostilities against the United

States." Whether the author in-

tended to include the Black

Panther flag is opea to specula-

tion. For certain the bill in-

cludes the flag of the Viet Minh.

And this illustrates one of the

fascinating aspects of symbols,

their ambiguity. The flag of the

Viet Minh is identical to the flag

of a Brigadier General in the

Marine Corps of the United

States. If Stulle's bill were to be-

come law, prudent Marine Corps

generals would not display their

colors on college campuses. One

- interesting feature of A.B. 755

is that it prohibits the display

of disapproved flags only on

campuses,

Advocating Communism

The obsession with prohibiting

the expression of evil thoughts

and ideas on the campuses is re-

flected in other bills. S.B. 331

(Whetmore) would prohibit

guest speakers on campuses from

"advocating" communism where

it produces "a clear and present

-Continued on Page 3

Suspend Student

For Disapproved

Survey Answer

A Lowell High School student

was suspended from school last

month because when asked on a

questionnaire "What do you plan

to do as your life work?" she an-

swered "live-learn and make

love." She was reinstated next

day when her parents came to

school and protested.

The student's faculty advisor,

a Mr. Drysdale, is alleged to have

told the student she wanted to

be a prostitute and that she was

a person of low moral character.

Poor Memory

Miss Poole, who has "hang

ups" on nude art, mini skirts

and refusal to recite the pledge

of allegiance, denied that the

student was suspended for her

answer to the particular ques-

tion, but because of her "rude-

ness and impertinence.'"' When

Miss Poole was asked what the

student said and did that was

rude and impertinent she replied

that she couldn't remember, even

though the incident had occurred

only two days before.

In a letter to Dr. Robert E.

Jenkins, Superintendent of San

Francisco Schools, the ACLU

suggested "that before a student

is suspended for alleged mis-

conduct ...a Dean of Girls

ought to be able to describe what

was said and done. (We) suspect

that merely because the girl

sought to defend herself she was

charged with being rude and im-

pertinent."

Investigation Sought

The ACLU asked that the mat-

ter be investigated and that "ap-

propriate action be taken to as-

sure that the Dean of Girls Of-

fice at Lowell High School is

operated in a more reasonable

manner." The ACLU is still

awaiting a response from Dr.

Jenkins.

Tax Exemption

Vietnam Commencement

Fed. Suit Will

Seek to Enjoin

Ban on Meeting

A suit will be filed by ACLUNC staff counsel Marshall

W. Krause challenging the University of California Regents'

decision not to allow the Campus Draft Opposition to use

the Hearst Greek Theatre on May 17 for a "Vietnam Com-

mencement" honoring students who have signed pledges

not to be inducted into the

Armed Services. The suit will

seek an injunction on the

grounds that the Regents' action

is a prior restraint on free speech

in that the assembly has been

declared unlawful in advance of

anything being said. The Re-

Teacher Who

Defied HUAC

Gets Credential

John Johnson, the teacher who

was denied his permanent teach-

ing credential by the State Board

of Education because of his re-

fusal to co-operate with the

House Committee on Un-Amer-

ican Activities, has now been

granted that credential.

The credential was received

when the Board of Education de-

cided not to appeal a ruling by

San Francisco Superior Court

Judge Robert Drewes requiring

it to reverse its decision and is-

sue the credential. Although

State Superintendent of Public

Instruction Maxwell Rafferty was

reportedly not enthusiastic about

Drewes' order, the decision not

to appeal did not come as a total

surprise. The prospect of an ap-

pellate decision of state-wide ap-

plication holding the Dilworth

Act (the law under which John-

son was denied his credential)

unconstitutional is what deterred

the Board from appealing.

Johnson was represented in the

year-and-one-half struggle to ob-

tain a credential by assistant

staff counsel Paul Halvonik.

Contributions to ACLUNC

Are Still Deductible

The Internal Revenue Service

ruled on April 8, 1968, that the

ACLUNC's present legislative ac-

tivities are "insubstantial in rela-

tion to your total activities," and,

therefore, contributions to the

organization will continue to be

deductible for income tax pur-

poses.

Legislative Program

In December, 1966, before the

branch embarked on its legisla-

tive program it notified the Dis-

trict Director that "beginning

January 3, 1967 . . . Paul Halvo-

nik will be serving in Sacramen-

to as our Assistant Staff Counsel

Legislative Representative."

The director was also informed

of the budget provisions for this

undertaking and of the nature of

Halvonik's work. The letter de-

clared "This will be a continuing

program."

A year later the Internal Rev-

enue Service requested detailed

information about the first year's

operation of the legislative pro-

gram, including financiai reports,

and a complete statement of Hal-

vonik's non-legisiative activities.

Voluminous information was fur-

nished to the Service and the de-

cision of April 8 resulted.

Substantial Part

The law specifically excludes

from exemption an organization

that, as a substantial part of its

activities, attempts to influence

legislation. According to current

Income Tax Regulations, "an or-

ganization is attempting to influ-

ence legislation when it contacts

or urges the public to contact

members of a legislative body to

support or oppose legislation, or

when it otherwise advocates the

adoption or rejection of legisla-

tion."

The Service requested that

"any substantial increase in

your legislative activities should.

be brought to the attention of

your District Director of Internal

Revenue, San Francisco, since

they may jeopardize your ex-

empt status." Since the current

legislative session is expected to

be shorter than last year's, there

will be no increase this year in

the branch's expenditures and,

consequently, the exemption is

not in jeopardy at this time.

Unique Position

Incidentally, contributions to

the ACLUNC have been deducti-

bie for income tax purposes since

October 17, 1962. Neither the na-

tional office nor any other

branch enjoys such tax exemp-

tion. About a year ago, however,

the ACLU set up the separate

Roger Baldwin Foundation in or-

der to secure tax exempt funds

which are used for educational

and legal purposes.

gents' action was taken by a vote

of 14-2, with three abstentions.

ACLUNC Board Action

The Regents had before it on

April 19 a letter from the Board

of Directors of the ACLUNC,

signed by Chairman Van Dusen

Kennedy, urging that use of the

Greek Theatre not be denied.

Chancellor Heyns had denied the

use only because of an opinion

of Regents' Counsel Thomas

Cunningham that the meeting

would involve "unlawful ac- .

tivity."

Aiding Draft Violation

Cunningham's opinion was

`based on the argument that hon-

oring draft refusers would en--

courage other young men to do

the same and thereby violate that

portion of the Selective Service

Act of 1948 which punishes aid-

ing, abetting or counselling the

disobedience of draft laws. (This

is the same law which Dr. Spock

and four others are accused of

violating by a Federal indictment

returned in Boston, Massachu-

setts.) Under a Regents' policy

statement adopted October 20,

1967, "University facilities shall

not be used for the purpose of

organizing or carrying out unlaw-

ful activity."

No Unlawful Action Pianned

The ACLU letter argued that

the meeting did not comprehend

any unlawful activity, that at

most it was only "debatably un-

lawful . . . so that to enforce (c)

an administrative judgment as

to its unlawfulness would@ be.to

violate the Regents' policy of

October 20, 1967 providing: "The

advocacy and content of speech

at University facilities cannot

and shall not be restricted be-

yond the purview of the First

and Fourteenth Amendments to

the Constitution."

No Clear Danger

The ACLU letter also argued

that honoring non-inductees "is

not greater `counselling' than is

a direct statement that one dis-

-Continued on Page 4

Ernest Besig

Speaks In

Modesto May 2

Modesto members of ACLU

of Northern California will

hold a public meeting at the

Davis High School Cafeteria

(corner of Rumble and Tully

Roads) on Thursday, May 2,

starting at 7:30 p.m.

Ernest Besig, Executive Di-

rector of ACLUNC, will speak

on "Yonconformity: A Threat

to Democratic Society?" and

will discuss the extent to

which our society's and gov-

ernment's attitudes and prac-

tices toward youth, dissenters

and members of various sub-

cultures square with our con-

stitutional principles and the

extent {0 which nonconformity

poses a threat to the demo-

cratic process.

Mdmission is free. Refresh-

ments will be served after the

meeting. All ACLU members

in Modesto and environs are

cordially invited and urged to

bring their families and

friends.

avoided.

Riot Commission Report

On Sale From ACLUNC

The (softcover) Bantam Book edition of the Report of the

National Advisory Commission on Civil Disorders, 608-+- pages,

March 1968, is now available for purchase from the Branch

Office. The cost of the book is $1.31 ($1.25 plus state tax) and

will be sent free of additional postage charge, upon request.

In ordering, please be sure to indicate your postal zip code.

A 29 page summary of the Report is also available at $0.16.

It is also available on the same terms.

The report deals with 24 disorders in 23 cities in the United

States during the summer of 1967, the worst of which took

place in Newark and Detroit, although it notes that 164 dis-

orders occurred in the first nine months of last year.

In the light of the most recent outbreaks of vielence fol-

lowing Dr. Martin Luther King's murder, this Report is very

timely, and it served to influence the behavior of the authori-

ties charged with maintaining and restoring order. It also con-

stitutes a blueprint of programs and reforms that it believes

are essential, if similar catastrophic outbreaks are to be

Chapter Activities

Berkeley-Albany

Top priority is planned for extension of ACLU work into the

community with two new committees being formed immediately.

These solicit the active participation of members in the chapter

area, who are urged to call the Chapter office, 548-1322, or to attend

brainstorming and organizing sessions:

Police-Community Relations Committee; meeting at Chapter

office, 1919 Berkeley Way, 8:00 p.m., May 2, to explore all aspects

of civil liberties and local police practice.

Program Committee, meeting at Schroerluke home, 1104 High

Court, Berkeley (phone 527-3632) 8:00 p.m. May 8, to plan edu-

cational forums etc. on civil liberties topics.

Santa Clara Valley

A May meeting will be held at the Board of Supervisors Meet-

ing Room, 20 West Hedding, San Jose, to discuss with Paul N. Hal-

vonik, ACLUNC's representative in Sacramento, crucial academic

freedom and students' rights bills before the legislature at this time.

With legislators from the Chapter area sitting on vital committees

in both houses, Valley members are in a position to be particularly

effective in the cause of civil liberties. School and college issues

have been prominent among the Chapter's concerns recently. All

members are urged to attend and bring friends.

County Jail

Prisoners May

Wear Beards

Sheriff Matthew Carberry has

decided to allow the hippies to

remain unshorn while they re-

side in- his jail. :

Judge Joseph Karesh required

the Sheriff either to quit discrim-

inating against long hair or ob-

tain a statement from a physi-

cian in each instance that the

hair cuts were needed for health

reasons. No statements from phy-

sicians were produced.

Solitary

The issue came to court when

three San Bruno jail inmates

charged that they were being

kept in solitary confinement be-

cause they refused to allow their.

long hair to be cut, The Penal

Code provides, however, that jail

and prison inmates may not be

required to cut their hair except

on a doctor's order.

- That law was enacted after

the decision of Associate Justice

Stephen J. Field of the U.S. Su-

preme Court who was sitting as

a Circuit Justice. In 1879 he

found Sheriff's Nunan's action in

cutting off the queue of a Chi-

nese inmate of the county jail to

be cruel and unusual punish-

ment. "The act by itself has no

tendency to promote discipline

and can only be a measure of

health in exceptional cases,"' said

Justice Field.

Access to Courts

The ACLU has had no re-

sponse to a further allegation of

the three prisoners that they

were prevented from sending

legal documents to the courts,

and that petitions for writs had

to be spirited out of the jail.

Another case is pending"at the

Deuel Vocational. Institution in

Tracy, which is under the juris-

ACLU NEWS

MAY, 1968

Page 2

Bob Barnum

Scores Victory

For Beards

Bob R. Barnum, San Francis-

co's 25-year-old bushy-haired and

bearded postman was reinstated

to his old job last month. Pend-

ing a decision from Washington,

he had been assigned to a job

away from public view. Today, he

is back in full view on his parcel

post truck delivering packages.

"We concluded," said a spokes-

man for the Post Office, "that

he meets the standards for neat-

ness in this day and age." Bar-

num says the public is treating

him in a friendly fashion. "The

little old ladies, the people I was

supposed to scare, have been the

best of all," Barnum said, "They

have invited me in for hot muf-

fins."

ACLU intervened in Barnums

behalf when he. was laid off for

about ten days after refusing to

cut his hair. The Post Office said

Barnum wasn't fired but merely

"denied employment." After

ACLU intervention he was rein-

stated with back pay but shifted

to a temporary job where he was

not required to deal with the

public.

Barnum, a gentle man, who

says he appears every day "neat,

clean, bathed and pressed," wear-

ing a complete uniform, is an

Army veteran and spent a year

as a novice in a Cistercian Monas-

tery in South Wales. At that time

he had a shaven head and wore

a beard that was seven inches

long.

diction of the Youth Authority.

The Superintendent has taken

the position the Penal Code has

given him full authority to make

regulations for the Institution

but he has thus far ignored the

foregoing Federal Court decision.

The ACLU has called this de-

cision to his attention and has

urged that he get an opinion

from his legal advisor.

Draft Protester

Wins Stay Of

Induction

ACLUNC attorneys have again

frustrated the attempts of Gen-

eral Hershey and the Selective

Service System to punitively in-

duct those registrants who ex-

ercise their right of protest to

the war in- Vietnam by return-

ing their draft cards to their

local boards. Last month Jeffrey

Wachtel, a student at San Fran-

cisco State College, was ordered

to report for induction because

he had returned his draft card

to Selective Service local board

No. 62 in San Jose.

Restraining Order

On presentation of these facts

to Federal District Judge Alfonso

J. Zirpoli, a temporary restrain-

ing order was issued against the

local board requiring them to

stay the operation of the induc-

tion notice on the ground that

there was cause to believe that

their action was an unauthorized

imposition of punishment by the

Selective Service System as well

as an inhibition to the exercise

of First Amendment rights.

ACLUNC has now obtained three

such temporary restraining or-

ders and is awaiting the govern-

ment's answer to the complaint

filed before taking further action

in the case.

High Court Case

The same issue is now before

the United States Supreme Court

in a case named Oestereich v. Se-

lective Service System which is

being handled by Melvin Wulf,

legal director of the national

ACLU. Last month the Solicitor

General filed an opposition in

the Oestereich case in which he

supported the action of the Se-

lective Service System in re-

classifying persons 1-A and or-

dering them inducted because

they did not have their draft.

cards. He stated that this could

be done regardless of the eligi-

bility of the registrants for de-

ferments because the registrants

had violated a regulation by

sending in their draft cards to

their local boards. However, in

the case of Mr. Oestereich the

Solicitor General admitted that

a mistake had been made in that

Oestereich was a ministerial stu-

dent entitled by Act of Congress

to an exemption from the Selec-

tive Service System which could

not be taken away by that Sys-

tem.

ACLU Stand

The ACLU position is that re-

tention of a draft card has no

relationship to the activities of

the Selective Service System and

does not interfere with its func-

tioning and therefore is an ar-

bitrary violation of the due pro-

cess clause of the Fifth Amend-

ment to punish persons for not

having this card.

Fairmont Incident

Editer: To begin, I would like

to thank you (Marshall Krause)

personally, as well as the Amer-

ican Civil Liberties Union of

Northern California, for repre-

senting and assisting me during

my trial that resulted from the

Fairmont Hotel incident of Jan-

uary 11, 1968. It is truly a reas-

suring feeling to know that an

organization such as the ACLU

exists willing to aid an individual

such as myself under similar cir-

cumstances, But, even more im-

portant than a thanks for your

helping me, I must congratulate

the ACLU for the work it does

daily in safeguarding the many

freedoms we uniquely possess in

America, If my past experience

has affected me in any way, it

has made me aware of this fact.

In the future, I look forward to

supporting the work of the

ACLU, financially as well as pro-

fessionally-Norman H, Nelson.

Alameda Co.

Jurors' IQ

Test Dropped

Alameda county's intelligence

test, for jurors has been aban-

doned by order of the Superior

Court judges. That decision fol-

lowed swiftly on a ruling of

Judge Spurgeon Avakian uphold-

ing a defense challenge to a jury

panel in the case of a 20-year-

old Negro charged with burg-

lary.

Judge Avakian said his ruling

was based, in part, on a "special

analysis" of trial jury candidates

from two Oakland districts: West

Oakland and Montclair.

"The residents of the West

Oakland area are predominantly

black and of low economic in-

come," he observed. "The resi-

dents of Montclair are predomi-

nantly white and of middle or

higher economic income."

Is Icent Discriminatory?

In Montclair, 14.5 per cent of

the prospective jurrors failed the

test; in West Oakland, 81.5 per

cent failed. The judge then raised

questions about the test's va-

lidity including:

"To what extent does it mea-

sure moral and social attitudes

and level of education rather

than mental capacity?"

"Does it contain cultural, edu-

cational or environmental biases

which are not present equally in

high and low income groups and

in different racial groupings?"

Twenty-four Questions

To pass the test prospective

jurors had to answer 21 of 25

questions correctly in the space

of 10 minutes. Here is Question

25: "If it rains when you are

starting to go for the doctor,

should you:

1. Stay at-home. -

2 "Take an umbrella, ~~

3. Wait until it stops raining?"

Maybe you would prefer to

telephone.

ACLU Concern

The ACLU has been concerned

with this test for almost two

years and had referred it to San

Francisco State psychologists for

an opinion. Representations had

also been made to the Presiding

Judge of the Alameda County

Superior Court.

Hearing Held

In Auburn

Long Hair Case

A day long hearing into the

legality of the suspension from

classes of two Placer High

School students, Patrick Minor

and James Henricks, because

their hair cuts did not conform

to a school regulation, was held

in Auburn on April 12. _

Faculty Testimony

Most of the hearing was con-

sumed by testimony from mem-

bers of the school faculty about

the necessity for the regulation.

Shop teachers testified that long

hair was dangerous because it

got into the eyes of students who

needed to see in order to avoid

injury; business teachers testi-

fied that long hair could not be

tolerated because it. was inap-

propriate in the business com-

munity; a typing teacher testi-

fied that Minor's hair often got

in his eyes thus blocking his

vision while he typed; and the

school's principal, Napoleon Bo-

naparte Triplett, insisted that

the regulation was necessary be-

cause long hair would bring a

decline in discipline to the

school.

Model Students

-'On cross-examination the shop

teachers conceded that the wear-

ing of hair-nets by long-haired

students would solve their prob-

lems; the business teachers ad-

mitted that their students were

not required to wear suits and

ties, the only proper attire for

the business community; the typ-

ing teacher stated that she taught

touch typing where it was often

hot necessary to see and that

Minor had been able to perform

his classroom work; and the prin-

cipal said that the Plaintiffs,

apart from their coiffeurs, were

model students.

_-Regimentation ~

"In his summation, assistant

staff counsel Paul Halvonik, rep-

resenting the plaintiffs, urged

Judge Ronald Cameron to strike

down the school regulation as

an unconstitutional and unjusti-

fiable infringement on the right

of free expression. The regula-

tion, he urged, was a' manifesta-

tion of the concept of the "total"

state, a state which tries to con-

trol those parts of our lives in

which it has no real interest.

Judge Cameron has taken the

case under submission.

Ralph B. Atkinson

Mrs. Judith Balderston

Albert M. Bendich

Leo Borregard

Rev. Hamilton Bosewell

Price M. Cobbs, M.D.

Robert C. Dalton, Jr.

Mrs. Natalie Dukes

Prof. John Edwards

Robert Greensfelder

Rev. Aron S. Gilmartin

Evelio Grillo

Mrs. Zora Cheever Gross

Francis Heisler

Neil F. Horton

Howard H. Jewel

Dean Robert A. Keller

Honorary Treasurer:

Joseph S$. Thompson

Honorary Board Member:

Sara Bard Field

Mrs. Gladys Brown

Mrs. Paul Couture

Mes. Margaret C. Hayes

Prof. Carlo Lastrucci

John J. Eagan

Joseph Eichler

Dr. H. H. Fisher

Prof. Ernest Hilgard

Board of Directors of the American Civil Liberties Union

of Northern California

CHAIRMAN: Prof. Van D, Kennedy

VICE-CHAIRMAN: Rabbi Alvin |. Fine

Helen Salz

SEC'Y-TREAS.: Howard A. Friedman

EXECUTIVE DIRECTOR: Ernest Besig

GENERAL COUNSEL: Wayne M. Collins

STAFF COUNSEL: Marshall W. Krause

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

ADMINISTRATIVE ASSISTANT: Mes. Pamela 0x00A7. Ford

CHAPTER DIRECTOR: Mrs. Marcia D. Lang

Committee of Sponsors

Mrs, Paul Holmer

Mrs. Mary Hutchinson Prof. Wallace Stegner

Prof. Wilson Record

Gerald D. Marcus

Ephraim Margolin

Dr. John Marquis

Martin Mills, M.D.

Robert L. Nolan, M.D.

Richard Patsey

Mrs. Esther Pike

Henry J. Rodriquez

' Eugene N. Rosenberg

Clarence E. Rust

John Brisbin Rutherford

Warren H. Saltzman

Mrs. Alec Skolnick

Stanley D. Stevens

Stephen Thiermann

Richard J. Werthimer

Dr. Marvin J. Naman

Mrs. Theodosia Stewart

Rt. Rev. Sumner Walters

Richard Jchnston

Roger Kent

Mes. Ruth Kingman

Prof. Theodore Kreps

Rev. Robert W. Moon

Dr. Norman Reider

Prof. Hubert Phillips

Norman Lezin

Silencing Defendants

Press Gag Rule

Attacked as

Speech Violation

Late last month ACLUNC attorneys filed with the State

Court of Appeal their opening brief in the case challenging

the right of a trial court judge to prevent the defendants in

a criminal case from issuing public statements about their

case. The case arises out of arrests made on November 30,

1966 at the Student Union of the

Berkeley Campus of the Univer-

sity of California during a pro-

test demonstration against the

presence of military recruiters.

These arrests triggered the sub-

sequent "student strike" and the:

incidents received extensive pub-

licity in Bay Area newspapers.

Berkeley-Albany Municipal Court

Judge George Brunn issued an

order in the criminal case that

the parties, their counsel, all law

enforcement agencies, the Re-

gents of the University of Cali-

fornia, other employees of the

University, the Associated Stu-

dents of the University and its

membership and affiliated organ-

izations could not `directly or

indirectly release to any news

Media information or opinion

~ concerning the trial or any issue'

likely to be involved therein .

specifically, and without limita-

tion, there shall be no public

statements or releases concern-

ing the merits of the complaint,

the evidence or arguments to be

adduced by either side, or trial

tactics or strategy."

Court Order Defied

The four appellants in the

case being handled by the ACLU,

Steven Hamilton, Michael Smith,

Stewart Alpert and Jerry Rubin,

defied the court order by making

a statement on the courthouse

_ steps taking the position that

they were arrested .as scapegoats

to appease newly-elected Gover-

`nor Ronald Reagan. The state-

ment also pointed out that many

prominent persons had already

commented adversely on their

arrests and that the public was

already prejudiced against them

and they were attempting to

balance the scale. The statement

also said that the appellants ob-

jected to having their free speech

limited merely because they had

been charged with a crime. The

ACLU came into the case at this

point and urged the municipal

and superior courts to throw out

the charges but these courts re-

fused to do so.

In arguing before the. Court " the impact of modern technolo-

gy on the vanishing right to pri-

of Appeal `the ACLU attorney

pointed out the dangers flowing

from a broad and unrestricted

restraint on free speech merely

because persons are charged with

a crime. Recognizing that in some

specific situations pre-trial pub-

licity could prejudice the right

te a fair trial by a jury of one's

peers, the ACLU pointed out

that Judge Brunn's order was

issued without reference to any

clear and present danger of in-

terference with the right of fair

trial. "These appellants were

truly gagged by the order merely

because they had been charged

with a crime. It purports to ap-

ply to the entire university com-

munity and thus serves to in-

hibit thousands of people from

exercising their rights of free

speech under threat of criminal

contempt." The brief argued that

"any restriction on free speech

must be justified by clear public

interest, treated not doubtfully

or remotely but by clear and

present danger. Only the gravest

abuses, endangering paramount

interests, give occasion for per-

missable limitations."

The second argument made by

the brief was that the appellants

were exercising their "right of

reply" to answer charges already

made by the Governor and other

high state officials in the public

press that the appellants had

committed crimes and were "pro-

vocateurs'" who were part of a

long-range carefully planned pro-

gram of the "radical left" to dis-

rupt the University of California

and the City of Berkeley as the

"target city of the leftward move-

ment." The brief stated that the

fact that appellants were charged

with a crime cannot deny them

the right to respond to such

charges. It argued: "In truth,

the fact that these individuals

were at the vortex of a wide-

ranging public controversy con-

Stituted perhaps the most per-

suasive reason for encouraging

rather than restraining their ex-

ercise of free speech."

Sheppard Case Distinguished

Thirdly, the brief discusses the

recent case of Dr. Sam Sheppard

and points out that the decision,

that Sheppard was denied a fair

trial by the "Roman circus at-

mosphere" of the trial, was dir-

rected primarily to occurrences

during the trial and only sug-

gested certain pre-trial restric-

tions on specifie damaging infor-

mation and did not authorize

any sort of broad order as was

attempted in this case.

Lastly, the brief takes the po-

sition that Judge Brunn's order

was unconstitutionally broad and

unconstitutionally vague as a reg-

ulation of conduct subject to

criminal penalties. The brief was

prepared by volunteer attorneys

M. Lawrence Popofsky and Rich--

ard Goff..with the assistance of:

staff counsel Marshall W. Krause.

New Book On

Privacy by

Alan F. Westin

"Privacy and Freedom," by Al-

an F. Westin has recently come

off the press. Sponsored by a

special committee of the New

York City Bar Association, sup-

ported by grants from the Car-

negie Corporation, and published

by Atheneum (478p, $10) it is

the product of a 4-year study of

vacy.

Alan Westin, now Director of

the Center for Research and Ed-

ucation in American Liberties of

Columbia University and Teach-

ers College, is also a member of

' the National Board of Directors

of the American Civil Liberties

Union. He gave the keynote ad-

dress at the joint ACLUNC-San

Francisco State College confer-

ence on Privacy in a Crowding

World last May.

Professor Westin's comprehen-

sive and authoritative new study

analyzes the ethical and legal im-

plications of spectacular new de-

velopments in spying, wire-tap-

ping, eavesdropping, personality

testing, "lie detector" testing and

central data collection, It de-

scribes many of the techniques

presently in use and on the hori-

zon and their spreading applica-

tion.

After surveying the mushroom-

ing technology of surveillance, its

effects, and rising use, Mr. West-

in's blunt warning is that:

"A broad range of legislative,

judicial, executive and private

actions are needed now if Ameri-

can society is to protect privacy

from the increasing pressures of

scientific technology. We have

only a few years of lead time left

before the problem will out-

grow our capacity to apply con-

trols."

Flag Burning,

Colleges and

Marijuana

Continued from Page 1-

and immediate danger of incit-

ing students to unlawful action

to overthrow the government."

The "clear and present" language

is intended to give the bill some

constitutional coloring; it is ac-

tually a pastiche of Justice

Holmes' famous dictum, The con-

cept of a clear and present dan-

ger of incitement is unknown to

constitutional law. A similar bill

passed the Senate last year and

was killed in the Assembly Edu-

cation Committee. Hopefully this

bill will meet the same fate.

Public Controversy

S.B. 419 (Whetmore) is in a

similar vein. It provides that it

shall be the "duty" of any state

college president "to assume

complete and direct jurisdiction,

supervision and control' over any

activity on a college campus

"when he determines that the

activity results, or is reasonably

likely to result, in public contro-

versy such as will bring disre-

pute to the college.'? In other

words, the president is to stop

any demonstrations or plays that

the legislators may not like. S.B.

487 (Walsh) is directed at a par-

ticular play that certain senators

do not like. The performance of

that play, "The Beard," at Fuller-

ton State College resulted in a

legislative investigation. This bill

is a product of that investigation.

"The Beard" concludes with an

act of simulated oral copulation.

S.B. 487 would make it a mis-

demeanor for any teacher or

school official to assist in the

production of a play or other ex-

hibition. presented under the

' sponsorship of a state college in

which any student engages in a

"simulated act of sexual inter-

course or deviate sexual con-

duct." The bill does not proscribe

simulated acts of murder, mutila-

tion, or torture, "Deviation," ap-

parently, is a term of art.

Marijuana Alternative Penalty

A bill that is not without in-

terest for the campuses has

passed the Assembly Committee

on Criminal Procedure. A.B. 172

(Biddle) reduces the penalty for

the possession of marijuana from

a strict felony to an alternative

misdemeanor on the first offense.

It also raises the penalty for pos-

session of dangerous drugs by

making it the same as the mari-

juana violation. That. portion of

the bill which raises penalties is

inconsistent with reports from

Criminal Procedure Committee

issued earlier this year condemn-

ing California's severe penalty

structure but the bill's author is

seemingly of the opinion that he

cannot get a marijuana penalty

reduction without a quid pro quo.

He may be right. His bill certain-

ly hag some interesting support-

ers, including the Peace Officers

Association, the District Attor-

ney's Association and the Attor-

ney General,

The specter of California's law

enforcement establishment urg-

ing a reduction of marijuana pen-

alties provided some sport for

Assemblymen John Knox (D-

Richmond) and Robert Crown

(D-Alameda) who were among

the six Assemblymen who op-

posed the raising of the mari-

juana penalty in 1961, Knox and

Crown asked the police repre-

sentatives if their 1961 vote had

not been vindicated. The police

would not concede that but they

were in no position to say that

Knox and Crown had _ been

wrong. They squirmed painfully

under the questioning and, as

the Aesopian language flowed,

Assemblyman John Miller (D-

Berkeley) was heard to say,

"How sweet it is."

-Paul N, Halvonik

Who's Who in ACLU

Biographical -

Sketches About

Boswell and Cobbs

The NEWS has now secured biographical information and

pictures of two more at-large branch board members recently

elected to office. Previous stories appeared in the March and

April issues of the NEWS. The present story relates to Dr.

Price M. Cobbs and Dr. Hamilton T. Boswell.

Price M. Cobbs, M.D., resides

in San Rafael and is a practicing

psychiatrist in San Francisco. He

received his B.A. at the Univer-

sity of California, Berkeley, in

1954 and his M.D. at Meharry

Medical College, Nashville, Tenn.

Author of New Book

Besides having his private

practice he also teaches at the

University of California School

of Medicine. He has written for

PRICE M. COBBS, M.D.

medical and popular magazines

and his book, "Black Rage" is

scheduled for publication in the

fall of 1968.

Dr. Cobbs has served on vari-

Enrollment

Procedures

To Be Changed

Last month, the ACLU office

received a communication from

an irate member in Menlo Park

who claimed he was being billed

despite having renewed his mem-

bership.

"This is my 3rd advisement to

you," said the letter, "that on

10/31/67 I mailed you a check

for $15. I have the cancelled

check which is stamped as de-

posited to Wells Fargo Bank

ACLU account. I trust this ad-

visement will get into your rec-

ords. You're wasting your post-

age and mine on all these expira-

tion notices and I'm getting an-

noyed by them."

No Name

The ACLU would like to cor-

rect the error but, unfortunately,

the member failed to give either

his name or address and, conse-

quently, he's going to get still

another request to renew and

become even more annoyed.

One of the reasons members

continue to be billed after they

have renewed is that renewals

come from different addresses or

in different names, This year,

Jane Doe renews for John Doe

and gives the family residence ~

as an address, whereas last year

John Doe renewed at his busi-

ness office. We have a solution

for that problem which will go

into effect in the near future.

Window Envelopes

Under the new system the

mailer will address the renewal

envelopes themselves and these

will be sent to the members in

window envelopes. Consequent-

ly, when the office receives a re-

newal it will have the name and

address used the previous year

on the contribution envelope.

ous boards and is presently on

the board of the Bay Area Urban

League. He has participated in

numerous community activities.

In 1967 he was State Chairman,

Death Row, an anti-capital pun-

ishment organization. He was or-

ganizer of a Marathon, Racial

Confrontation for Esalen Insti-

tute in July, 1967, and is also an

advisor to that Institute. He has

been a speaker and panel mem-

ber at numerous community

meetings concerning the resolu-

tion of racial strife.

Dr. Hamilton T. Boswell

Dr. Hamilton T. Boswell is the

pastor of Jones Memorial Meth-

odist Church in San Francisco.

He graduated from Wiley Col-

lege in Marshall, Texas, with a

Bachelor of Arts degree, then

took his Master's degree in The-

ology from the University of

Southern California's School of

Religion. An honorary degree,

Doctor of Religion, was conferred

upon him by Wiley College.

Dr, Boswell was the founder-

organizer-pastor of Bowen Me-

morial Methodist Church in Los

Angeles in 1943. He has had his

present pulpit since 1947. He was

recently elected to the Jurisdic-

tional Conference of the Western

Jurisdiction of the Methodist

Church for 1964. He is presently

chairman of the San Francisco

DR. HAMILTON T. BOSWELL

Conference on Religion and

Race.

Housing Interests

Dr. Boswell is organizer-direc-

tor of the Jones Memorial

Homes, Inc., which was built to

house the elderly under Federal

legislation, and began occupancy

in January, 1965, In addition,

Rev. Boswell is co-chairman of

the Civic Committee of the Min-

isterial Alliance and member of

the executive board of the S. F.

Council of Churches, the San

Francisco Branch of the NAACP,

the Bay Area Urban League, and

the Booker T. Washington Com-

munity Center.

Formerly a commissioner of

the Juvenile Justice Commission,

Dr. Boswell is presently a com-

missioner and chairman of the

Housing. Authority of the City

and County of San Francisco.

Page 3

ACLU NEWS

MAY, 1968

2

ie

Haight-Ashbury Raid

Charges Dropped

Because of

Unlawful Search

An extravagant legal game was played out last month

in the San Francisco Municipal Court which ended in the

dismissal of all charges against two young ladies who had

been accused of various charges involving possession of

dangerous drugs. The facts of the cases show, one again, the

calculated refusal by police of-

ficals to accord citizens their

constitutional rights to privacy

and freedom from unreasonable

searches and seizures when "nar-

cotics" offenses are involved.

They specifically illustrate the

practice of the San Francisco Po-

lice Department to illegally break

and enter into any premises

where they believe they can find

narcotics regardless of the fact

that they have no warrant and do

not have probable cause to ob-.

tain a warrant or obtain entry

without a warrant. The fact that

the victims of these entries are

forced to retain a lawyer, spend

a few days in jail, and appear in

court several times to get the

charges dismissed is reason

enough, in the minds of the po-

lice, to justify their illegal ac-

tions.

Severaj Raids

In January of this year the San

Francisco police received infor-

mation that LSD was present in

an apartment on the second floor

at 415 Lyon Street in San Fran-

cisco, At about 1:00 a.m. a raiding

squad of twelve policemen broke

into the second floor apartment

and placed the persons there

under arrest. That same night

four other premises in the

Haight-Ashbury district were

raided and a total of 41 per-

sons placed under arest. Entirely

without any cause the police

then entered an apartment on the

third floor at 415 Lyon Street

and awakened Joy Magezis and

Bernadotte Mullen who were

sleeping in their separate bed-

rooms in the four-room apart-

ment. The girls were awakened,

questioned, and the entire prem-

ises thoroughly ransacked.

During the course of the

search one of the girls, who had

been sleeping nude, was sub-

jected to considerable embar-

rassment. Another of the girls

had derogatory comments made

about the poems she had written

which were in her desk and was

also criticized for her political

views as reflected by her books.

Finally, a small vial of what the

police alleged to be methedrine

was discovered in the purse of

Miss Mullen. The two girls were

arrested along with the occu-

pants of the second floor apart-

ment. When this group appeared

for arraignment several days la-

ter in Muncipal Court the char-

ges against all except Miss Mage-

zis were dismissed on technical

grounds.

Wrong Person

At this point, the ACLU of

Northern California decided to

represent Miss Magezis since the

facts were undisputed and there

had clearly been an illegal en-

try and unwarranted conduct by

the police officials. The Magezis

case was scheduled for trial in

March as was ACLU counsel

Marshall Krause's motion to sup-

press.the evidence on the basis of

illegal seizure. When the case

was called for trial before Judge

Harry Low, a hurried conference

was held between th District At-

torney and the arresting officers.

Evidently realizing that the per-

son on trial was not the person

in whose purse the methedrine

was allegedly found, the District

Attorney dismissed the charges

ACLU NEWS

MAY, 1968

Page 4

against Miss Magezis without

trial, The arresting officers then

rushed outside the courtroom

and placed Miss Mullen under

arrest. Miss Mullen had been

present as a witness for Miss

Magezis.

Four Things Wrong

This arrest was even more il-

legal than the previous arrests.

First, it was for a misdemeanor

violation and it is well settled

that police officials have no pow-

er to make arrests for misde-

Meanors except when they are

committed in `the presence of the

officer and the arrest is made

on that immediate occasion.

Since the alleged offense was

committed on January 16, it

could hardly be claimed that an

arrest on March 12 took place

at the time the offense was ob-

served, Second, Miss Mullen had

already been tried on an offense

arising out of the same occur-

rence and it is well settled that

prosecuting officials may not ha-

rass defendants by requiring

them to undergo several trials

for offenses which occurred in

the same factual context. Third,

Miss Mullen had already been in

jeopardy on the charge of being

in a place where dangerous drugs

are used and the charge of pos-

session of a danzerous drug was

essentially the same charge.

Fourth, the same problems of il-

legal search and seizure were

still present.

D. A. Dismisses

These matters were brought

to the attention of the Municipal

Court in written motions filed

by Marshall Krause to which the

District Attorney was granted

several weeks to respond. Rather

than file any written response,

the District Attorney merely dis-

missed the charges against Miss

Mullen on April 2.

Miss Mullen and Miss Magezis

are now contemplating damage

actions which seem to be the only

method to protect ee rights to

privacy.

The first right of a citizen

Is the right

To be responsible

Death Penalty

Arguments

Heard by H.C.

The California Supreme Court,

on March 28, heard oral argu-

ment on the applications of Rob-

ert Page Anderson and Fred-

erick Saterfield for habeas cor-

pus relief from their sentences

of death. Anderson and Sater-

field are the ACLUNC-NAACP

Legal Defense Fund cases that

raise constitutional questions

about the death penalty that are

common for all men on death

_row. When Anderson and Sater-

field applied to the Suprem:2

Court for relief all executions in

the State were stayed by the

Court until their cases are de-

cided.

Law Professor

Professor Anthony G. Amster-

dam of the University of Penn-

sylvania Law School argued the

case for the petitioners. Assistant

Attorney General Albert W. Har-

ris, Jr., argued on behalf of the

State. Gerald Gottlieb and A. L.

Wirin of the Southern California

ACLU appeared as friends of the

Court.

The oral presentations ran for

many hours, much of that time

consumed by thoughtful and

searching questions asked by the

Court of counsel from both sides.

; Basis of Suit

Four claims of unconstitution-

ality in the administration of the

death penalty are before the

Court. They are: (1) That it is

cruel and unusual punishment;

(2) That removing persons

scrupled against the death pen-

alty from a jury that determines

the guilt or innocence of an ac-

cused deprives the accused of an

impartial cross-section of the

community (this issue is current-

ly before the United States Su-

preme Court and the United

States Court of Appeals for the

Fourth Circuit in April held that

"death qualifying' a jury does

deny due process); (3) That the

death penalty, since it is im-

posed without standards in the

unguided and absolute discretion

of a jury, violates due process of

law; (4) That the failure of Cali-

fornia to appoint counsel for in-

digent condemned men after

they have exhausted their appeal

to the State Supreme Court, vio-

lates the constitutional right to

counsel and equal protection of

the law. .

Right to Counsel

The questioning of the attorn-

eys by the Court was confined

almost exclusively to the last two

issues. On the right to counsel

the Attorney General maintained

that if counsel were provided for

men on death row every prisoner

would ba entitled to a personal

JOIN TODAY

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503 Market Street

San Francisco, 94105

Federal Court

Calif. Criminal

Syndicalism Act

Held Invalid

A three-judge federal court on March 11, in a unanimous

opinion, declared California's 49-year-old Criminal Syndical-

ism Act to be unconstitutional. Originally directed at mem-

bers of the International Workers of the World and then the

Communist Party, it punished mere membership in groups

allegedly advocating the violent

overthrow of the government.

During the past 35 years, how-

ever, the law has fallen into dis-

use,

Leaflet Case

Los Angeles police recently re-

sorted to the Act in arresting

John Harris, Jr,, a member of

the Progressive Labor Party. He

passed out leaflets in front of

the Los Angeles Hall of Justice

while a coroner's jury was hear-

ing testimony

Leonard Deadwyler.

Deadwyler was accidentally

killed by police officer Gerald

Bova after a high speed automo-

bile chase in May, 1966, while

taking his pregnant wife to the

hospital.

Harris' leaflets proclaimed,

"Wanted for Murder-Bova the

Cop," and "Wanted for Murder-

Parker the Cop." William H.

Parker was then chief of police.

Also "Revolution is necessary .

Revolution means a complete

overthrow of the system."

Federal Injunction

After attempts to stop the

prosecution in the State courts

proved unsuccessful, a suit for

an injunction was brought in the

Federal courts on behalf of Har-

ris and two other members of

the Progressive Labor Party, Jim

Dan and Diane Hirsch, and state

college instructor Farrel Bros-

lawsky. The opinion in the case

was written by District Court

Judge William P. Gray. Concur-

ring in the opinion were Circuit

Court Judge Gilbert H. Jertberg

and Judge Warren J. Ferguson.

The Crime Defined

Criminal syndicalism, under

the California Act is the "doc-

trine .. . advocating, teaching or

aiding and abetting the commis-

sion of crime, sabotage, or un-

lawful acts of force and violence

or unlawful methods of terrorism

as a means of accomplishing a

change in industrial ownership

or control, or effecting any po-

litical change. " In the five years

following its enactment, 504 per-

sons were arrested and held for

attorney at the State's expense.

Professor Amsterdam did not

agree. Men under sentence of

death are in a separate class.

Failure to pursue legal claims in

their cases is fatal.

Lack of Standards

The Court seemed deeply dis-

turbed by the procedure that im-

poses the death penalty without

any standards. "The jury," Jus-

tice Tobriner observed "is left at

sea with no rudder and two dif-

ferent points of destination that

are 1800x00B0 apart.' The Attorney

General insisted that it was im-

possible to draft standards to

guide a jury in imposing the

death penalty. Amsterdam con-

tradicted that by suggesting some

possible standards that a jury

could consider in mitigation or

aggravation of the penalty. He

went on to say "if standards can-

not be drawn it can only mean

that the death penalty is totally

irrational and thus cruel and un-

usual punishment."

Case Under Submission

The Court has taken the case

under submission, It is impossi-

ble to predict when a decision

_ will be rendered.

Amsterdam's co-counsel on the

death penalty case are assistant

staff counsel Paul Halvonik and

volunteer attorneys Jerome Falk,

Roy Eisenhardt, Gary Berger and

Harry Kraemer.

in the case of.

bail of $15,000 each, and 264 ac-

tually tried.

When some I.W.W.'s were on

trial and Miss Anita Whitney

was produced as a witness for

the defense to describe the aims

of the organization, she was re-

jected because, not being a mem-

ber, she had no expert knowl-

edge. Consequently, other

I.W.W.'s had to be brought in as

witnesses. As sgon as these left

the courtroom after testifying,

they were arrested on the ground

that they had admitted being

members of the proscribed or-

ganization, and they were also

tried and convicted.

Anita Whitney Case

_ Miss Whitney joined the Com-

munist Labor Party and was her-

self convicted under the Act, and.

the U. S. Supreme Court upheld

her conviction and the Act in

1927. In reaching its present de-

cision, the three-judge court re-

lied on recent decisions of the

U. S. Supreme Court. Said the

court, "Constitutional concepts of

freedom of expression have been

refined and broadened a great

deal."

Both the Northern and South-

ern California branches of the

ACLU campaigned vigorously

against the Criminal Syndicalism

Act and sought its repeal in the

State Legislature. Indeed, in

1926 when a branch of the ACLU

existed' in Northern California

for a year, the principal issue

was repeal of the California

Criminal Syndicalism Act.

The successful challenge of the (c)

law was handled by attorneys

A. L. Wirin and Fred Okrand,

counsel] for the Roger Baldwin

Foundation of the ACLU, and

Frank Pestana, attorney for John

Harris, Jr.

Court Considers

Soquel High Sch.

Long Hair Case -

Volunteer ACLU attorney Rob-

ert L. Bennett of Watsonville is

seeking freshman Richard Smil-

ey's reinstatement to Soquel

High School from which he has

been suspended for wearing long

hair.

The Superior Court hearing

before Judge Charles Franich

started on April 19 and will re-

sume on May 2nd at 2 p. m. in

the Veteran's Courthouse. The

case is sponsored by the Santa

Cruz County Chapter of ACLU-

NC.

Fed. Suit Will

Seek to Enjoin

Ban on Meeting

Continued from Page 1-

agrees with certain uses of the

Armed Forces of the United

States ... We believe that the

Regents' policy was not intended

to apply in this kind of contro-..

versial situation but only where

the unlawfuiness is manifest ..."

The sponsors of the meeting have

denied that they propose any

illegal activity and expressed a

willingness to sign a statement

to that effect.

Finally, the ACLU letter ar-

gued that if there were any law

violations at the ceremony the

ordinary processes of arrest and

prosecution were sufficient to

protect the public interest.