vol. 34, no. 7

_ American

-Cwil Liberties

| Union

Volume XXXIV

SAN FRANCISCO, JULY, 1969

No. 7

Terminated for Views on Pot

Suit To Reinstate

Professor Mezey

To Be Filed

A suit by Professor Robert Mezey and the English De-

partment of Fresno State College seeking reinstatement of

Mezey on the Fresno State Faculty has been prepared hy

staff counsel Paul Halvonik and volunteer attorney Albert

Bendich and will shortly be filed in the Fresno Superior

Court.

Mezey held a position as As-

sistant Professor of English at

Fresno State College during the

1967-1968 academic year but was

terminated by College President

Frederic Ness at the end of

that year. Ness's decision not to

retain Mezey was made over the

vigorous objections of the De- -

partment of English and the

School of Arts and Sciences.

Pane] Discussion

Mezey's troubles began in No-

vember of 1967 when he ap-

peared at a "Panel on Pot' at

the state college and, in the

course of the discussion, stated

that he thought the use of mari-

juana would not harm anyone

and that if a person wished to

use marijuana he should do so.

Mezey stated, "It is against the

law. But I will take a Thoreau-

like position and say that all

laws like that-I mean laws that

are so stupid-are to be broken

until the laws are off the books."

Public Clamor

As a consequence of those re-

marks a public clamor for

Mezey's dismissal arose both

within and without the college

community. A Superior Court

Judge, for example wrote to

President Ness and stated that

Mezey was undermining his ju-

venile court work. The judge

said, "I do not propose to permit

him to destroy the work of the

Juvenile Court and contribute

to the delinquency of minors by

Draft Card

Burner

Convicted

Burton Marks, who burned his

Selective Service Registration

Card before the eyes of the clerk

of his local draft board, has been

convicted by a federal jury of

violating a 1965 statute which.

makes it a felony to "mutilate"

a Selective Service Card. Draft

card burners and other violators

of Selective Service laws and

regulations are not customarily

prosecuted for their offenses if

they are inducted into the armed

forces. After Marks burned his

draft card he was ordered to

report for induction by his local

draft board and did report for

induction but was rejected be-

cause of high blood pressure.

Marks will appeal his convic-

tion on the ground that he is in

effect being punished for his

failure to pass a physica] exami-

nation, a violation of the Eighth

Amendment's proscription of

cruel and unusual punishment

and on the ground that he was

denied the constitutionally guar-

anteed right of a speedy trial (19

months elapsed between the date

upon which he burned his draft

card and the date upon which

he was indicted for the offense).

Marks will be represented on

appeal, as he was at trial, by

staff counsel Paul Halvonik.

using his high position as a pro-

fessor at a college and the pres-

tige which flows from that po-

sition to destroy the future lives

of the teenagers of this commu-

nity . . . I, therefore urge that

Professor Mezey be removed

`from the staff of your college as

one who is unfit to occupy the

teaching profession." Similar

letters were addressed to Ness

and to the Faculty Personnel

Committee by members of the

Fresno State College academic

community.

Retention Recommended

The English Department was

asked to investigate Mezey and

issue an evaluation report in

light of the complaints that had

been received. The English De-

partment and the Dean of the

School of Arts and Sciences con-

ducted the requested investiga-

tion and reached the conclusion

that Mezey was an outstanding

feacher and that the complaints

against Mezey were asking the

Engiish Department to punish

Mezey for an exercise of his

right to freedom of speech guar-

anteed by the First Amendment.

Accordingly, the Department of

English recommended Mezey's

retention.

Secret Meeting

The recommendation was made

to the Coliege Personnel Com-

mittee and in violation of its own

rules, held an in camera hear-

ing on the issue of whether Me-

zey by his statements at the

"Panel on Pot," had engaged in

"unprofessional conduct." At the

conclusion of the hearing the

Committee recommended to

President Ness that Mezey not be

retained. The recommendation

was unaccompanied by any rea-

sons and was not, as the college

rules provided, referred back to

the English Department,

No Cause Stated

Because of the infirmities in

the Personnel Committee hear-

ing Ness decided that he could

not rely upon their recommenda-

tion and decided to conduct an

investigation of his own. He got

together with the English De-

partment and with Mezey in pri-

vate "off the record" meetings

that were devoted almost entire-

ly to Mezey's social and political

views. When those meetings

were concluded, Ness sent a

letter to Mezey informing him

that he would not be retained

for the 1968-1969 academic year.

That letter, once again in vio-

lation of college rules, contained

no reasons for the termination.

The Defendants

The defendants in the suit in-

clude President Ness and Chan-

cellor Glenn Dumke. Dumke de-

nied Mezey's appeal from Ness's

termination decision. The com-

plaint contends that Mezey's

termination violated his rights

of free speech and due process

of law, in addition to asking that

Mezey be reinstated on the fac-

ulty, requests that he be com-

-pensated for salary he has lost

as a consequence of Ness's un-

lawful action.

Postal Employee

Charged as a

Subversive

The U.S. Civil Service Com-

mission claims it has received -

information that a San Francisco

postal employee has advocated

the overthrow of the government

and that she is, therefore, un-

suitable for employment in the

Federal competitive civil service.

The employee is charged with

membership in the Peace and Free-

dom Party, which, in the last

Presidential election had El-

dredge Cleaver as its candidate.

Cleaver is alleged to advocate

the violent overthrow of the gov-

ernment and "Specifically, he

recommends the killing of all

policemen as the initial step in

taking over the Government of

the United States by the Black

Panther Party and/or the Peace

and Freedom Party." The young

lady is, therefore, assumed to

hold the alleged views of E1-

dredge Cleaver since he headed

the political group with which

she was registered as. a voter.

All the lady. knows. about Clea-

ver is from reading "Soul on

Ice," hearing several of his Uni-

versity of California lectures

on Radio Station KPFA, hearing

him once on a radio talk show

and again at a public rally.

Neither in the book, nor in the

talks she heard did he advocate

the killing of all policemen as

an initial step in the violent

overthrow of the Government of

the United States. She regards

the charges against. her as ab-

surd and false.

There is no hearing in a pro-

ceeding of this kind. The Gov-

ernment never proves its case. It

makes allegations on the basis

of investigative material that is

never seen by the employee and

gives her an opportunity to com-

ment on them, If the ruling is

against her the only relief would

appear to be in the courts.

"Toothless Lion' Gives In

. stitutional

Supreme Court Decision ,

Indigents Need

Not Pay

Services

Of Counsel

In July of 1968 Jennifer Grey Allen entered a plea of

guilty to a charge of possession of restricted dangerous

drugs without a prescription. The San Mateo Superior

Court suspended sentence and placed her on probation. One

of the conditions of her probation was that she "reimburse

the County of San Mateo for

court appointed counsel through

the Probation Department." Miss

Allen, who felt that she should

not have to pay for the services

of a court-appointed attorney,

sought the assistance of ACL-

UNC in challenging the condi-

tion of -.probation. Marshall

Krause, at that time staff coun-

sel, complained to the San Ma-

teo Superior Court that it was

acting beyond its jurisdiction by,

in effect, penalizing Miss Allen

s @

Charges Against

Leafletters

e : e

Dismissed

The San Francisco Police De-

partment has made it a practice

to arrest persons who distribute

"radical" literature near high

schools. ACLUNC has repre-

sented a number of persons ar-

rested for leafleting around high

schools and in each case the

charges have ultimately been dis-

missed by the District Attorney.

The latest case involved Eve-

lyn Begairie and Ruth Franklin

who were arrested for "loiter-

ing" near a schol when they dis-

tributed an anti-police leaflet

outside Mission High School.

The District Attorney decided to

dismiss the charges against them

_after Paul Halvonik filed a de-

murrer to the criminal com-

plaint contending that if the

loitering statute can be used to

punish leafleteers it is an uncon-

statute in conflict

with the First Amendment.

.

ggs (Butte Co.) Handbil

Prosecution Dismissed

Thomas Wallace of Chico was recently arrested in the

city of Biggs (near Chico) for distributing leaflets announcing

a peace march. He was charged with a violation of a 1934

ordinance which, among other things, prohibits "distribu-

tion" of handbills on the public sidewalk. ACLUNC took

the case and demurred to the

complaint on the ground that the

ordinance was indistinguishable

from the ordinance held uncon-

stitutional by the United States

Supreme Court in Schneider v.

State, 308 U.S. 947 (1939).

Defy the Supreme Court

The response of Robert Mil-

- lington, City Attorney, to this de-

murrer was most unusual. His

answer to the Schneider argu-

ment is set out in full:

"Unfortunately for the city of

Biggs, the United States Supreme

Court has, subsequent to the en-

actment, nullified statutes such

as the one in issue. We have no

argument to offer except to say

the United States Supreme Court

is wrong in this field. That au-

gust body shows extreme disre-

spect for its own precedent. It

thinks nothing of overruling its

own decisions, and, therefore we

would urge that lower courts

stand up to the United States

Supreme Court when it is wrong,

and issue opinions and decisions

which to them seem right. It has

been said in the past that the

Supreme Court of the United

States follows the election re-

turns. By the time this case can

get to the United States Su-

preme Court we will have at

least two new members, and

- cution.

hopefully more. Perhaps the

newly constituted court will re-

turn to the cities the necessary

police power to enable the cities

to protect themselves from open

rebellion under the guise of free

speech. Were there reasonable

restraints on the right of free

speech it would not be necessary

to mobilize the armed forces for

this nation time, and time again

to protect cities from revolu-

tionists."

: Toothless Lion

A series of letters followed,

discussing the possible ramifica-

tions of bad faith criminal prose-

Shortly thereafter the

prosecution was dismissed on the

motion of the City Attorney.

Said Mr. Millington in one of his

letters, ". . . as a local law en-

forcement officer, I have become

painfully aware that when it

comes to protecting the commu-

nity from the activities of the

`new left' the Supreme Court has

rendered me a toothless lion. I

have no weapons left, but my

adversaries have contrived to

make it appear as if I am the

criminal."

The urban staff of ACLUNC

now understands why Butte

County is regarded as the Orange

County of northern California.

for the exercise of a constitu-

tional right. The Court, how-

ever, disagreed and the Califor-

nia Court of Appeal refused to

issue a writ of habeas corpus

relieving Miss Allen from the

contested condition. The Su-

preme Court of California, how-

ever, in a unanimous opinion has (c)

concluded that the San Mateo

Superior Court did act beyond

its jurisdiction in conditioning

probation on the payment of

court appointed counsel.

Impediment To Righ

In its opinion in the Allen case

the Court, per Justice Louis

Burke, states:

"We may take judicial no-

tice that judges in San Mateo

County and in certain other

counties have made use of the

method utilized in this case

at hand of reimbursing the

county's treasury for funds ex-

pended in supplying counsel

for indigents. Although this

concern for the financial bur-

dens imposed upon the coun-

ties for such costs is commend-

able we believe that as knowl-

edge of this practice has grown

and continues to grow many

indigent defendants will come

to realize that the judge's of-

fer to supply counsel is not the

gratuitous offer of assistance

that it might aprear te ke;

that, in the event the case re-

sults in a grant of probation,

one of the conditions might

well be the reimbursement of

the county for the expense in-

volved. This knowledge is

quite likely to deter or dis-

courage many defendants from

accepting the offer of counsel

despite the gravity of the need

for such representation.

"We conclude that the im-

position of the condition under

attack constitutes an impedi-

ment to the free exercise of a

right guaranteed by the Sixth

Amendment to the Constitu-

tion and as with respect to

other impediments or forms

of compulsion against the

exercise of such rights may

not be permitted by the

Court."

Landmark Decision

The Allen decision should be

a significant landmark in Cali-

fornia civil] liberties law not only ~

because it lifts a burden off of

the indigent defendant but addi-

tionally because it is the first

case in which the Supreme Court

of California has held a condi-

tion of probation unconstitu-

tional on the ground it restricted

the exercise of a constitutional

right.

Miss Allen was represented

before the Supreme Court of

California by Krause and staff

counsel Paul Halvonik.

St'ckton Chapter

Educational

Workshop

The members of the Stockton

Chapter gathered on June 26

for a workshop session to discuss

ACLU history, structure, meth-

ods, and policies. Carol Wein-

traub, Chapter Director, and Mar-

vin Marks, the Chapter's legal

coordinator led discussions. A

pot-luck supper added extra

pleasure.

People's Park March

Report on

Berkeley Chapt.

Participation

Participation of the Berkeley/Albany Chapter of ACLU-

NC in the People's Park March of May 30 was the subject

of board discussion at the meeting of June 12.

On May 28 the chapter issued a press release urging "the

entire membership of ACLU-BA to participate in the People's

Park march .. . as a peaceful

gesture of support of the First

Article of the Bill of Rights."

The press release implemented

a resolution adopted the pre-

vious evening at an emergency

board meeting which stated

"That the Berkeley-Albany chap-

ter of the American Civil Lib-

erties Union participate in the

march on Memoria] Day, Friday,

May 30, as an expression of the

fact that we still have the right

to freedom of assembly." Mem-

bers of the chapter were advised

to meet at the chapter offices.

and "to go as a group to the

march."

Protests Received

The branch first learned of the

chapter's proposed participation

in the march on May 29 when

it received telephone calls pro-

testing the chapter's involve-

ment. Executive director Ernest

Besig telephoned the Berkeley

chairman and informed her that

there was no policy of the

branch which allowed participa-

tion in the march. Her response

was "that picketing had been en-

gaged in by the Southern Cali-

fornia branch."

Director's Statement

The executive director then is-

sued a press statement to a num-

ber of bay area papers as fol-

lows:

"As Executive Director of the

ACLUNC I disapprove of the

action of the Berkeley Board of

Directors in voting to partici-

pate in the People's March, Our

Chapter did not consult us with

respect to this matter. The park

issue as such is not a civil] liber-

ties problem. To the extent that

it raises civil liberties issues

both the Chapter and this branch

have properly intervened. This

has involved legal action chal-

lenging the Governor's procla-

_ mation and investigation of num-

erous complaints of lawless en-

forcement of the law. .

"We cannot lend our name to

a People's Park march without

causing people to conclude that

we are supporting the People's

Park, no matter how much our

signs speak in terms of civil lib-

erties. This organization cannot

keep its functional] integrity if

it goes beyond its purpose.

"Moreover, the branch has

never adopted a policy to engage

in parading, picketing or demon-

stration in support of civil lib-

erties."

By-Law Requirements

All chapter By-Laws provide

that "The Chapter shall take no

legal action without the approval

of the Chairman of the Board

of Directors of ACLUNC. It may,

however, take any other action,

including issuance of public

statements, so long as the speci-

fic case or issue involved is clear-

ly within its jurisdiction and is

covered by the stated policies of

the ACLUNC. Where there is any

doubt as to the foregoing or

where the ACLUNC has not is-

sued a statement of policy, no

public position or action shall

be taken without approval of the

Chairman of the Board of ACLU-

NC."

While the branch has a policy

against engaging in picketing,

it has no statement of policy

against participating in parades,

ACLU NEWS

JULY ,1969

Page 2

sit-ins, marches and other dem-

onstrations. In the absence of

such a policy "no public position

or action" may be taken by a

chapter without securing the ap-

proval of the branch chairman.

National Office Position

Incidentally, the national

ACLU has a policy against the

Union participating in picketing,

boycotts, sit-ins "and other di-

rect action techniques of the

civil rights movement." The

statement declares that "This

policy is based on the Union's

Cesire to conserve its limited re-

sources, avoid duplication of the

work of other groups, and avoid

weakening the ACLU's independ-

ent position as an organization

concerned primarily with defense

of constitutional rights, regard-

less of the content of the cause."

The branch board has previously

taken the position that it is

bound by national policies only

to the extent that it accepts

them.

Chapter By-Laws also provide

that "The chapter shall not join

with any other organization, ex-

cept for other affiliates of ACLU-

NC, in the sponsorship of any

meeting or other activity."

Branch Board's Action

Discussion of the problem oc-

cupied the entire branch board

meeting of June 12 with 28 of

the 40 board members in at-

tendance. The board took the

following action:

1. A resolution was adopted

"that the Berkeley/Albany Chap-

ter be commended for its legal

and investigative services to the _

Berkeley community in defense

of civil liberties during a period

in which the city was, in effect,

under martial law in the crisis

over the People's Park." There

was no opposition to this motion.

2. The board tabled a resolu-

tion which provided that "while

affirming that the By-Laws and

Rules of the Branch must be ad-

hered to by all chapters, con-

cludes that the Berkeley/ Albany

Chapter was not in violation of

any existing By-Law or defined

policy." A motion to table was

adopted by a vote of 13 to 11.

3. It adopted by a 10 to 9 vote

a motion for the chairman to

designate a special committee to

consider a third resolution which

provides that (a) the methods

of action and participation in

emergency situations; (b) the

decision-making processes of the

Branch in emergency situations;

and, (c) the questions of chapter

autonomy and interrelations with

the Board also be referred to a

special committee for immedi-

ate consideration and recom-

mendation. The chairman refer-

red these matters to the Com-

mittee on Priorities.

Award Prizes

In Monterey

Essay Contest

Stanley Rowland of Salinas

High School was awarded first

place in an essay contest spon-

sored by the Monterey Chapter

for his essay titled, "Conscrip-

tion, A Threat To The Integrity

Of The Constitution." Paul Lapi-

dus of Salinas High School was

the runner-up.

The contest was open to all

Citizenship

After Four and

A Half Years

Mrs. Ann Woo has become a

citizen of the United States of

of America. The happy event

occurred four and a half years

after her initial application for -

citizenship.

In -the intervening years the

Department of Immigration and

Naturalization refused to recom-

mend Mrs. Woo for citizenship

on the grounds that it was "in-

vestigating" her "associations"

of ten years ago. Mrs. Woo had

been recording secretary for a

social club in San Francisco's -

Chinatown and it was the De-

partment's theory that some

members of the club may have

had unwholesome political

thoughts.

Nothing Subversive

At one of the naturalization

hearings the Department at-

tempted to establish that the

club to which Mrs. Woo had be-

longed was connected with an-

other club that the Department

thought may have been "sub-

versive." Their witnesses to the

relationship between the two

clubs, however, admitted, after

cross-examination by Executive

Director Ernest Besig, that they

were unable to establish any con-

nection between the two clubs.

Nevertheless the Department re-

fused to recommend that Mrs.

Woo be naturalized and insisted

that it must pursue its "investi-

gation" further.

Questions Answered

When the investigation ap-

peared to be interminable, Staff

Counsel Paul Halvonik petitioned

the Federal District Court for a

naturalization hearing. A _hear-

ing was scheduled at which the

Department's attorney appeared

and recommended against Mrs.

Woo's naturalization until she

answered a series of nineteen

questions. The Department as-

sured Federal District Judge Al-

fonso Zirpoli that if Mrs. Woo

satisfactorily answered those

questions it would no longer re-

sist her application for citizen-

ship, Halvonik agreed to the pro-

posal, Mrs. Woo answered the

questions that very morning,

and Mrs. Woo became a citizen

the following week.

S.F. Mime

Troupe Performs

In Castro Valley

The San Francisco Mime

Troupe conducts performances

in public parks and, since their

material is rather unorthodox,

public park officials are reluc-

tant to permit Mime Troupe use

of public facilities.

Castro Valley Park

The Mime Troupe's most re-

cent difficulties arose when the

Hayward Park District refused

to grant them a permit to per-

form at a Castro Valley public

park. The park, ironically

enough, is called Earl Warren

Park. The reason given by the

Park District for refusing the

permit was that the Mime Troupe

performance would attract a

crowd too large for the park

facility.

Change of Heart

ACLU volunteer attorney

Robert Adams of the Oakland

Council filed an injunctive ac-

tion on behalf of the Mime

Troope in the Alameda Superior

Court. The suit challenged the

Park District'; permit denial as

a violation of the First Amend-

ment to the United States Con-

stitution and asked that the Park

District be enjoined from pro-

hibiting the Mime Troupe per-

formance. Once the suit was

`filed the Park District had a

change of heart, issued the per-

mit, and the Mime Troupe gave

its performance.

High School students in Monte-

rey County, who were asked to

submit essays on the theme: Is

the Draft Constitutional.

Self Incrimination

Ap

peal Ct. Asked to Protect

Fifth Amendment Rights

A San Francisco Superior Court judge has issued an order

which requires John R. Ruiz, a criminal defendant, to make

available for the District Attorney's inspection and copying

the statements of any witnesses, other than himself, to the

offense charged and requiring him additionally to make

available for inspection and copy-

ing the names, addresses and

statements of any witnesses,

other than himself, whom he in-

tended to call at the trial for the

purpose of raising any affirma-

tive defenses.

Ruiz's attorney, Jerrold Levitin

of San Francisco, asked the

Court of Appeals to vacate the

Superior Court order and ACL-

UNC, as a friend of the court,

filed a brief supporting Levi-

tin's position.

The Court of Appeals has now

issued an order requiring the

Superior Court to quash its or-

der or show cause why the Court

of Appeals should not require

the order quashed.

Discovery Orders

The ACLUNC brief, prepared

by volunteer attorney Michael

S. Moore of San Francisco, con-

tains an extensive discussion of

the privilege against self incrimi-

nation as it relates to "discovery"

orders. Discovery orders are

orders which require one liti-

gant to provide the other litigant

with information he has gathered |

relevant to the case.

Brief Quoted

The amicus brief notes that

"It has long been settled that the

privilege against self incrimina-

tion embraces two distinct prin-

ciples: that of any person not to

answer questions that tend to in-

criminate, and that of a defend-

ant to avoid all questioning by:

not taking the stand. The com-

pulsory production of documents

or the disclosure of information

relating to an accused offense

violates both aspects of the privi-

lege. Such a procedure violates

the right to stand silent through-

out the criminal proceedings, in

that it forces a defendant to dis-

close prior to trial information

or documents relating to his de-

fense which he has the right not

to raise at all, at any time. Such

compulsory production of docu-

ments or other information from

a defendant also violates the wit-

ness's privilege against self in-

crimination, in two ways: First,

unlike an ordinary witness, a

defendant need make no show-

ing that the answer or document

sought may be incriminating, for

the very fact that the prosecu-

tion seeks it, establishes that in

the prosecution's view it must

be incriminating. Hence, it is

presumed that what the prosecu-

tion seeks from a defendant is

incriminating. Secondly, implicit

in the act of production of docu-

ments requested by the prosecu-

tion is the defendant's assurance

that the articles produced are

the ones demanded. There is thus

the element of testimonial in-

crimination involved each time -

an accused produces any docu-

ments for the prosecution."

Investigative Techniques

"One of the fundamental] poli-

cies of the Fifth Amendment

privilege is that of forcing the

state to seek out evidence against

the accused through independent

investigative techniques, rather

than through inquisitorial meth-

ods directed against the defend-

ant himself. If the Fifth Amend-

ment is designed to force the

prosecution to utilize its own

investigative techniques, to al-

low the defendant to stand silent

and not to aid those techniques,

then there is no way in which

the defendant can be forced pre-

trial to aid the prosecutor in his

task."

Mrs. La Verda O. Allen

Alfred J. Azevedo

Albert M. Bendich

Leo Borregard

Rev. Hamilton Boswell

Price M. Cobbs, M.D.

Prof. John Edwards

Jerome B. Falk, Jr.

Prof. Mare Franklin

Robert Greensfelder

Rev. Aron S. Gilmartin

Evelio Grillo

Francis Heisler

Neil F. Horton

Daniel N. Loeb

Gerald D. Marcus

Ephraim Margolin

Dr. John N. Marquis

Honorary Treasurer:

Joseph S. Thompson

Honorary Board Member:

Sara Bard Field

Mrs. Gladys Brown

Mrs. Paul Couture

Mrs. Margaret C. Hayes

Prof. Carico Lastrucei

John J. Eagan

Joseph Eichler

Dr. H. H. Fisher

Board of Directors of the American Civil Liberties Union

of Northern California

CHAIRMAN: Howard H. Jewel

VICE-CHAIRMAN: Prof. Van D. Kenned

Helen Saiz

SEC'Y-TREAS.: Howard A. Friedman

EXECUTIVE DIRECTOR: Ernest Besig

GENERAL COUNSEL: Wayne M. Collins

STAFF COUNSEL: Paul N. Halvonik

ASS'T STAFF COUNSEL and LEGIS. REP.: Charles C. Marson

ADMINISTRATIVE ASSISTANT: Mrs. Pamela S. Ford

CHAPTER DIRECTOR: Carol R. Weintraub

Committee of Sponsors

Mrs. Paul Holmer

Mrs. Mary Hutchinson Prof. Wallace Stegner

Prof. Wilson Record

Prof. Ernest Hilgard Dr. Norman Reider

John R. May

Richard L. Mayers

Martin Mills, M.D.

Robert L. Nolan, M.D.

Richard Patsey

Mes, Esther Pike

Henry J. Rodriguez

Eugene N. Rosenberg

Mrs. Muriel Roy

John Brisbin Rutherford

Prof. John Searle

Warren H. Saltzman

Mrs. Alec Skoinick

Stanley D. Stevens

Jerry Tucker

Justin Vanderlaan

Don Vial

Joe J. Yasaki

Dr. Marvin J. Naman

Mes. Theodosia Stewart

Re. Rev. Sumner Walters

Richard Johnston

Roger Kent

Mes. Ruth Kingman

Prof. Theodore Kreps

Seaton W. Manning

Rev. Robert W. Moon

Clarence E. Rust

Prof. Hubert Phillipe

Norman Lezin

(aaa SS

AMERICAN CIVIL LIBERTIES UNION NEWS

Published by the American Civil Liberties Union of Northern California

Second Class Mail privileges authorized at San Francisco, California

ERNEST BESIG.. . Editor

503 Market Street, San Francisco, Californias 94105, 433-2750

Subcription Rates - Two Dollars and Fifty Cents a Year

Twenty-Five Cents Per Copy

Riaht of Privacy

Statement By

ACLU On

Homosexuality

In recent years a good deal of public interest has been

given to the question of homosexuality in our society. The

pace-making Wolfenden Report in Great Britain which re-

cently led that country to end criminal punishment of private

homosexual conduct and the growing recognition of the

right of privacy as a significant

aspect of civil liberties, has but-

tressed the belief that "the right

to be left alone," free of govern-

ment interference or restraint,

is a cherished element of man's

existence. This attitude has par-

ticular application to an individ-

ual's sexual practices, where a

person's most inner feelings and

desires are involved.

The public debate on homo-

sexuality has placed special focus

on criminal laws penalizing ho-

mosexual conduct, chiefly the

fact that they are more honored

in the breach than in practice.

At the same time police harass-

ment and intimidation of homo-

sexuals has grown to the point

where homosexual organizations

have properly protested both the

injustice of the penal laws and

society's attitudes, reflected in

its law-enforcement machinery,

in endeavoring to curb homo-

sexual behavior. Fortunately

both defenders and critics of

homosexuality have utilized their

right of free speech to enlarge

public discussion of this issue, so

the subject has been brought

from behind a wall of silence

and fear into the open air of

public consideration.

An invaluable contribution to

Senate Comm.

Subpoenas

Student Records

The ACLU last month urged

college presidents to move to

quash subpoenas for records of

campus organizations and lead-

ers issued by the Senate Perma-

nent Subcommittee on Investiga-

tions, but in all instances, includ-

ing Stanford and the University

of California, the universities

complied with the subpoenas.

Efforts by groups in New York

and Berkeley to secure restrain-

ing orders from the Federal

courts were unsuccessful.

The subpoenas were issued by

the Subcommittee for its investi-

gation of various student organi-

zations, particularly Students for

a Democratic Society, at Stan-

ford, Harvard, Columbia, Cornell

and the University of California

at Berkeley.

The text of the ACLU tele-

grams to the colleges was as fol-

lows.

"The American Civil Liberties

Union urges Stanford University

_ to move to quash the subpoenas

issued by the Senate Permanent

Subcommittee on Investigation

for records of campus organiza-

tions and leaders at your insti-

tution.

"The attempt to force univer-

sities into revealing such infor-

mation is an intrusion by the

government into the affairs and

independence of an educational

institution. A similar experience

with the old House Un-American

Activities Committee was re-

garded by students, faculty and

most university administrators

as an attack on academic free-

dom and a threat to the freedom

of expression, association and

assembly of the academic com-

munity.

"Rather than shedding light on

the nature of campus disturb-

ances, the Senate Subcommittee's

action can serve to escalate ten-

sion and widen the breach be-

tween students and administra-

tors."

public thinking on the role of

the criminal law in dealing with

homosexuality was made by the

American Law Institute. Its

ground-breaking report, issued in

1955, urged reform in the crimi-

nal law to eliminate punishment

of sexual practices performed in

private between consenting

adults. The reasoning of the ALI

position, regrettably until now

only accepted by one state, IIli-

nois, is as illuminating today as

it was in 1955:

"... No harm to the secular

interests of the community is

involved in a typical sex prac-

tice in private between con-

senting adult partners. This

area of private morals is the

distinctive concern of spiritual

authorities. It has been so rec-

ognized. in a recent report by

a group of Anglican clergy,

`with medical and legal] advis-

ers, calling upon the British

Government to re-examine its

harsh sodomy law. The dis-

tinction between civil and reli-

gious responsibility in this area

is reflected in the penal codes

of such predominantly Catho-

lic countries as France, Italy,

Mexico and Uruguay, none of

which attempt to punish pri-

vate misbehavior of this sort.

The Penal Codes of Denmark,

Sweden and Switzerland also

stay out of this area...

"As in the case of illicit het-

erosexual relations existing

law is substantially unenforced

and there is no prospect of

real enforcement except in

eases of violence, corruption

of minors and public solicita-

tion. Statutes that go beyond

that permit capricious selec-

tion of a very few cases for

prosecution and serve prima-

rily the interests of blackmail-

ers. Existence of the criminal

threat probably deters some

people from seeking psychia-

tric or other assistance for

their emotional problems; cer-

tainly conviction and imprison-

ment are not conductive to

cures. Further, there is the

fundamental question of the

protection to which every in-

dividual is entitled against

state interference in his per-

sonal affairs when he is not

hurting others, Funds and per-

sonnel for police work are

limited and it would appear

to be poor policy to use them

to any extent in this area when

large numbers of atrocious

crimes remain unsolved. Even

the necessary utilization of

police in cases involving mi- "

mors or public _ solicitation

raises special problems of po-

lice morale, because of the

entrapment practices that en-

forcement seems to require

and the temptation to bribery

and extortion."

The American Civil Liberties

Union, concerned solely with

the protection of individual

privacy and expressing no judg-

ment on the wisdom or value

of any kind of sexual practice,

asserts that the right of privacy

should extend to all private sex-

ual conduct, heterosexual or ho-

mosexual, of consenting adults.

The judgment of such conduct,

including its morality, is the

province of conscience and re-

ligion, but is not qa matter for

invoking the penal] statutes of

the secular state. Such statutes

-Continued on Page 4

N.

Opinions in

Tinker Case

Now Avilable

The ACLU office now has

available a limited supply of

the opinions of the U.S. Su

preme Court in Tinker vs.

Des Moines Independent

School District, decided Feb-

ruary 24, 1969. This is the arm-

band case, in which the high

court upheld the right to sym-

bolic free speech in a public

school. The students wore the -

armbands as a protest against

the war in Vietnam. "They

caused discussion outside of

the classrooms, but no inter-

ference with work and no dis.

order."

This case is important be-

cause it establishes free

speech for public school stu-

dents. Anyone hoping to un-

derstand the civil liberties of

students should read this case.

Cost of the opinions is 35c.

Orders should be sent to the

ACLU office, 503 Market St.,

San Francisco 94105, together

with payment.

Belmont Adopts

Anti-Hippie

e@

Ordinance

Last month the Belmont City

Council adopted a so-called anti-

hippie ordinance. The ordinance

limits to three the number of

unrelated persons who may re-

side in a dwelling unit. On the

other hand, there is no limit to

the number of related persons

who may reside in a dwelling

and they may be joined by two

unrelated persons.

"Under the proposal," said an

ACLU letter to the City Coun-

cil, "if four airline hostesses who

are unrelated reside in a dwel-

ling unit they will be violating

the law ... We submit that this

is unreasonable and arbitrary."

It certainly denies equal protec-

tion of the law to four or more

unrelated persons living in a

dwelling unit.

No case has thus far been called

to the ACLU's attention where

this kind of an ordinance has

been applied. Any persons hear-

ing of the application of such an

ordinance should call the mat-

ter to the ACLU's attention.

Advising Client

Calif. Court of Appeal

Ban On Abortion

Information

Challenged

Section 601 of the California Business and Professions

~ Code makes it a felony to "willfully compose and publish

a notice and advertisement of a medicine and means for

producing and facilitating a miscarriage and abortion .. ."

On February 20, 1967, Patricia Maginnis and Rowena Gurner

distributed pamphlets containing

abortion information at a meet-

ing in San Mateo. They were ar-

rested and charged with violat-

ing the Business and Professions

`Code. A Municipal Court judge

found the statute unconstitu-

Postal

Regulation

Attacked

Alan Kalker, a Berkeley at-

torney, received a letter from

San Francisco Postmaster Lim

P. Lee informing him that the

Post Office was holding an in-

ternational letter addressed to

Kalker and would return it to

the sender unless Kalker author-

ized postal authorities to open

it. Upon inquiry, Lee refused to.

tell Kalker what the Post Office

thought might be contained in

the letter and refused to let Kal-

ker inspect the letter.

After the fruitless negotiations

with the Post Office Kalker, act-

ing as a volunteer ACLUNC at-

torney representing himself,

brought suit in the Federal Dis-

trict Court requesting an injunc-

tion prohibiting the Post Office.

from interfering with his mail

and asking that a federal regula-

tion, known as Part 262 of the

Postal Manual which Lee main-

tains authorizes his actions, be

declared unconstitutional.

Federal District Judge George

Harris has issued a temporary

restraining order prohibiting the

Post Office from returning the

letter to the sender during pen-

dency of the suit.

Dismiss Obstructing

Charges Against Attorney

Last December Alan Kalker, Paul Aratow and others

were in the process of making a film at the Berkeley campus

of the University of California when they were approached

by campus police officers who wanted to know whether they

had permission from the school administration for the making

of the film. The officers never

discovered the answer to that in-

quiry because their attention was

distracted by some props that

Aratow was using in the film.

Nude Photographs

The props were still photo-

graphs of a nude female which

the officers decided were "ob-

scene." The officers asked Ara-

tow to accompany them to the

campus police office and Kalker,

an attorney, joined them. When

they reached the office the po-

lice attempted, over Kalker's

strenuous objections, to interro-

gate Aratow. When Kalker's ob-

jections, in the officers' view, be-

came too strenuous they arrested

him for "obstructing a police of-

ficer in the performance of his

duties" and booked Aratow for

"possession of obscenity."

The photographs seized by the

police were unquestionably not

obscene under California law

and after consultation between

the Alameda County District At-

torney's office and staff counsel

Paul Halvonik, the District At-

torney decided not to file charges

against Aratow and returned the

photographs. But the District

Attorney insisted upon filing

charges against Kalker.

In the intervening months the

District Attorney has often been

on the verge of dismissing the

charges. against Kalker but was

reluctant to do so because Kalker

and Aratow have announced that

they intend to sue the police of-

ficers for false arrest and false

imprisonment. The District At-

torney did agree, however, to a

pre-trial conference before

Berkeley Municipal Court Judge

Brunn on whether any case could

be made out against Kalker. At

the hearing Halvonik contended

that Kalker could not be charged

with obstructing an officer in

the course of his duties because

no officer is under a duty to

make an unlawful arrest and

argued further that arresting an

attorney for obstruction because

he advises his client to remain

silent is a violation of the Sixth

Amendment right to counsel.

The District Attorney was ap-

parently convinced. Charges

against Kalker have now been

dismissed.

tional but he was overruled by

the Superior Court where the

defendants were tried and found

guilty. Their case is now on

appeal to the California Court

of Appeal where they are repre-

. sented by staff counsel Paul Hal-

vonik.

Free Speech Issue

Halvonik's brief on behalf of

the defendants notes that "if the

First Amendment protects any-

thing it is the expression of

opinion and the exchange of in-

formation. 601 is a direct in-

fringement on the First Amend-

ment and is thus a nullity." The

San Mateo Superior Court had

attempted to cure the constitu-

tional problems presented by 601

by construing it to apply only to

literature dealing with "illegal

abortion." But, as the ACLUNC

brief points out, "that construc-

tion, in addition to being a re-

writing of the statute, presents

an insurmountable problem for

there is no distinction, in man-

ner or method, between legal and

illegal abortions in California. |

There may be correct and incor-

rect manners of abortions but

there are no legal and illegal

medicine or means for producing

or facilitating a miscarriage or

abortion." :

Written Communication

Halvonik also challenges 601

as an unconstitutional prohibi-

tion of a means of communica-

tion. The anti-abortion-informa-

tion law prohibits the communi-

cation of the means to facilitate

an abortion only if it is conveyed

by means of writing. Oral com-

munication of the same informa-

tion is not illegal. The State,

however, may not chose a par-

ticular medium of expression

and ban its use. The brief con-

cludes that "because section 601

makes such a distinction it is

- void under the First and Four-

teenth Amendments to the Con-

stitution and the conviction of

appellants is void for the addi-

tional reason that it deprives

them of the equa] protection of

the laws, for persons who advo-

cate the same ideas and dissemi-

nate the same information orally

are not subject to conviction un-

der the laws of California."

Sonoma Co.

Annual Picnic

July 13

The Sonoma County Chap-

ter- of the ACLUNC is hold-

-ing its annual picnic and art

auction at Noon en Sunday,

July 13, at the Jack Warnick

Ranch, 10650 Green Valley

Rd., Sebastopol.

The speaker for the occa-

sion is attorney Charles Garry

of San Francisco, who has

represented Huey Newton.

A chicken lunch will be

served starting at Noon. Swini-

ming for the children! There

is no admission charge, but

there is a charge for the

lunch.

For further details call Bia

Booth at 542-5818.

ACLU NEWS_

JULY ,1969

Page 3

1969 Session Nears End

Some Gains,

Some Losses

In Legislature

With two successive victories in special elections (Berry-

hill over La Coste in Modesto and Wood over Farr in Monte-

rey) the Republicans have not only secured their 41-39

control of the Assembly but have bolstered their confidence

as well. In firm control of both houses, the Republican

leadership is hastening everyone

toward adjournment; bills are

being heard and decided by the

hundreds every day. In late May

and the first three weeks of

June, action was taken in several

areas:

Marijuana

On May 26th the major hear-

ings on marijuana penalties were

held before the Assembly Crimi-

nal Procedure Committee. As ex-

pected, the chief piece of

legislation was defeated. This

was A.B. 1003, by Alan Sieroty

(D-Beverly Hills), which would

have reduced the penalty for pos-

session of marijuana to a mis-

demeanor. The Committee's four

Democrats voted for the biil; all

five of the Republicans either

voted against it or ae not ap-

pear.

Two lesser bills were passed.

A.B. 1004, also by Sieroty, re-

peals the requirement that one

convicted of possession, use, or

being under the influence of

marijuana register with local po-

lice as a narcotics offender.

A.B. 199, by John Vasconcellos

(D-San Jose), removes marijuana

from the statutory definition of

"narcotics." Both bills have

passed the Assembly and are

now in the Senate.

All of the extensive testimony

confirmed the falsity of beliefs

about marijuana held by most

of the public and many in the

Legislature, except that a repre-

sentative of the San Diego Police

Department insisted that mari-

juana was a narcotic; he read

from an ancient medical diction-

ary which defined "narcotic" as

anything that induces a stupor.

Certain ungenerous persons sug-

gested that his testimony quali-

fied under that definition. Such

is the caliber of the victors.

Governor's Emergency Powers

At present there is a chapter

in the Military and Veterans' Code

which defines the powers of the

Governor during disasters and

emergencies. These are the

powers that the Governor in-

voked during the recent Berke-

ley disturbances. They are ex-

tensive, and in the wrong hands

`are subject to gross abuse. The

Disaster Office, which is an

agency appointed by the Gover-

nor to administer during de-

clared emergencies, caused to

be introduced in this session a

bill which would have revised

and updated this part of the law.

The Disaster Office claimed that

the bill made no _ substantive

changes. ACLU insisted that it

greatly expanded the martial law

powers of the Governor and the

situations in which they could be

invoked. After lengthy discus-

sion and two hearings in the As-

sembly Governmental Adminis-

tration Committee, the bill was

held in committee and recom-

' mended as a possible subject for

interim study.

Bai] and O.R.

Tiny progress was made in

this field with the passage by

the Assembly of A.B. 2292, by

William Bagley (R-San Rafael),

which permits courts, with the

concurrence of county super-

visors, to employ staff to investi-

gate and' make recommendations

for the release of arrestees on

their own recognizance. This is

ACLU NEWS

JULY ,1969

Page 4

an invitation, not a substantive

change; San Francisco currently

has such a project.

The question of `preventive

detention" has been answered

for this session by the defeat of

A.B. 2014 and A.C.A. 84 in the

Assembly Criminal Procedure

Committee. These measures, by

Kent Stacey (R-Bakersfield),

provided that anyone out on pre-

trial bail or O.R. on one felony

`charge and arrested on another

felony could not be admitted to

bail or O.R. The proponents of

these measures will return next

year.

Free Speech

Two measures. which would

have controlled picketing and

demonstrating in the State Capi-

tol Building have died. A.B. 261,

by Don Mulford (R-Piedmont-

Berkeley), would completely pro-

hibit picketing in the Capitol. It

was passed by the Assembly

after bitter debate but was killed

in the Senate Judiciary Commit-

tee. A.B. 1033, by Ray Johnson

(R-Chico), would make it illegal

to carry any sign in the capitol

without permission, and would

provide no standards for the

granting of permission. It is

dead, or at least unwell, in the

Assembly Criminal Procedure

Committee.

S.B. 32 by Larry Walsh (D-Los

Angeles), is popularly known as

the "Beard bill." It would pun-

ish as a criminal anyone who en-

gages in or any teacher who

counsels or procures any (simu-

lated act of sexual intercourse

or deviate sexual conduct" on

any state college facility. True

to form, the Senate passed the

bill; the Assembly Criminal Pro-

cedure Committee killed it.

Senator Walsh, at the instance

of the Los Angeles Police De-

partment, attempted another

"reasonable restraint" on speech

by trying to delete from the in-

citing-to-riot law the require-

ment that the speaker intend to

cause a riot. The Senate passed

his S.B. 34 but the Criminal] Pro-

cedure Committee killed it after

an unusually acrimonious and

entertaining dispute.

Mental Commitment

A.B. 408, by Jack Fenton (D-

Montebello), would have re-

moved the 90-day observation

`period for mentally disordered

sex offenders and permitted

their immediate disposition. It

was killed in the Assembly Crim-

inal Procedure Committee.

A.B. 1389, by Carlos Moorhead

(R-Glendale), would originally

have provided a separate (and

inferior) system of commitment

for prisoners whose sentences

were almost served. It was

amended to direct the subjects

into the civil commitment pro-

cedures of the Lanterman-Petris-

Short Act.

Potpourri

Obscenity-Both houses have

passed and the Governor is about

to sign the bills described in

this column last month.

Campus Disturbances - The

recommendations of the Select

Committee on Campus Disturb-

ances, described here last month,

have been put into bill form and

are moving through the Assem-

bly. In a fitful fashion the bills

which do not conform to the

Committee's Report are being

heard; more than two dozen

No. Calif.

Membership

Drive Lags

The "dangerous" lag in mem-

bership noted by the National

ACLU is reflected in ACLU of

Northern California's 1969 mem-

bership drive results so far.

New Members Drop

Figures as of June 24, 1969

are disappointing when com-

pared with the same date last

year. On June 24, 1969 there

were 856 new members (of whom

301 were students) and income

from new membership dues, new

subscriptions to the ACLU News

and _ additional contributions

made during the drive was

$8198.00 At the same time last

year there were 105 more new

members and income was $52

more.

Program Needs Growth

ACLU's program is predicated

on projected increases in both

membership and income, there-

fore serious re-evaluations may

have to be made about proposed

expansion of ACLU work if re-

cruitment not only fails to live

up to modest projections, but

falls behind. As all members

should be aware, ACLUNC's

only source of income is from

individual supporters.

Causes for Lag

Part of the failure this year

lies within ACLUNC itself, spe-

cifically in the overlapping tim-

ing of the organization of the

drive with turnover on chapter

boards, with the result that there

are delays in local organization

for the drive. Another reason

that may also account for the

poor results is that other cause

organizations recruit during the

same period of the year, conse-

quently people are beset with a

variety of appeals to join, to re-

new or to make extra contri-

butions.

Detailed Report Coming

A detailed report on the mem-

bership drive will appear in the

August issue of the News. Mean-

time, we appeal to each mem-

ber to carry the ACLU message

and to help us recruit new mem-

bers.

have been killed, but others are

hardier and are still pending.

Right to Travel-A.B. 2323

(Wilson-R-San Diego) a bill

which would in effect prohibit

minors from crossing into Mexico

without written parental consent,

has died in the Assembly Crimi-

nal Procedure Committee.

Peace Officer Identification-

A.B. 1830, by John Miller (D-

Berkeley), which would require

uniformed peace officers to wear

visible identification at all times,

has been reported favorably

from Criminal Procedure and is

headed toward the Assembly

floor.

Criminal Appeals-S.B. 639, by

George Deukmejian (R-Long

Beach), would eliminate the au-

tomatic appeal from a felony

conviction and would replace it

with the right to petition for

leave to appeal. The petition

could be denied, without hearing

or opinion, if the issues were

deemed "insubstantial" and not

worthy of further consideration.

The bill is dead.

Sexual Conduct-A.B. 743, by

Willie Brown and John Burton

(both D-San Francisco) would

abolish criminal penalties for

certain sex acts (notably oral

and anal copulation) between

consenting adults in private. The

bill was heard and received all

four Democratic votes in the

Criminal Procedure Committee,

but failed to get the one Re-

publican vote necessary for pas-

sage. There were strong indi-

cations that many Assemblymen

of both parties wished the bill

to stay in committee so that they

would not be embarrassed by

having to vote on it. Political

courage is in short supply this

year.-Charles Marson, ACLUNC

Legislative Representative.

STATEMENT BY ACLU

ON HOMOSEXUALITY

Continued from Page 3-

are most reprehensible when

linked to enforcement by entrap-

ment by special police squads or

the use of "peep holes" and

other devices for secret surveil-

lance of public rest rooms.

Arbitrary Enforcement

The invasion of the right of

privacy is not the only reason

which dictates our opposition to

such statutes. When criminal

laws are not enforced either uni-

formly or substantially, or where

such laws invite arbitrary en-

forcement and facilitate black-

mail, the law itself is weakened

by such evasion and: disrespect.

The existence of such laws, more-

over, stimulates governmental

harassment of persons who en-

gage in non-typical sexual be-

havior, even though no criminal

charge is placed against them.

Police, license officials, and

other government administrative

personnel, continually subject

homosexuals to a variety of pres-

sures, in bars, parks, night clubs,

and other places where they as-

semble, solely on the ground that

homosexuals congregate there

and without any evidence of a

crime being committed. Such

practices are pure and simple

coercion and violate freedom of

assembly and equal protection of

the laws. We agree with the 1960

decision of the California. Su-

preme Court which, in reversing

the Department of Alcoholic

Beverage Control's revocation of

the license of an Oakland bar

frequented by homosexuals, said:

"mere proof of patronage, with-

out proof of the commission of

illegal or immoral acts on the

premises, or resort thereto for

such purposes, is not sufficient

to show a violation .. ."

Consenting Adults

Our policy stand supports only

the private behavior of consent-

ing adults. The state has a legiti-

mate interest in controlling, by

criminal sanctions, public solici-

tation for sexual acts, and par-

ticularly, sexual practices where

a minor is concerned. The pub-

lic has the right to be free from

solicitation, molestation and an-

noyance in public facilities and

places, but by the patrolling and

presence of uniformed police of-

ficers rather than by secret sur-

veillance and enticement by un-

dercover squads. Protection

against adult corruption of mi-

nors is a proper interest of the

state.

Government Employment

A major: focus of the public

debate over society's treatment

of homosexuals is the question

of their employment by govern-

ment. The present position of

the U.S. Civil Service Commis-

sion is that persons concerning

whom there is evidence of ho-

mosexual conduct, where there is

no evidence of rehabilitation, are

not suitable for any federal job.

The American Civil Liberties

Union rejects this general policy

as discriminatory, unfair, and

The first right of a citizen

Ts the right

`ed 2nd 661)

illogical. It believes that pri-

vate homosexual conduct, like

private illicit heterosexual con-

duct, should not be an automatic

bar to government employment.

Punishment by Gov't

Mr. Justice Douglas recently

remarked (dissenting in Bouti-

lier v. Immigration Service 18 L.

"It is common

knowledge that in this century

homosexuals have risen high in

our own public service - both

in Congress and in the Execu-

tive Branch and have served with

distinction." There have been,

and undoubtedly are today, in

the vast stretches of government

service, men and women who

perform their duties competent-

ly, and in their private hours en-

gage in different kinds of sexual

activity-without any harmful

impact on the agency that em-

ploys them. For government to

deny them employment amounts

to punishment for exercising

their right of privacy in their

own fashion. The government's

fear of blackmail in this area is

really the result of the govern-

ment`s own policy in refusing to

employ homosexuals. A_black-

mailer could not hang over the

head of a homosexual employee

the threat of public exposure

and loss of employment if the

government did not facilitate the

the practice by barring homo-

sexuals from government service.

Moreover, today`s more liberal

sexual mores and the willingness

of homosexuals to be recognized

as such are lessening the possi-

bility of blackmail. And if a ho-

mosexual employee becomes an

irritating force by making sexual

advances on the job which in-

terferes with his or her perform-

ance or a_ fellow' worker's

performance, then the normal

Civil Service procedures govern-

ing work performance can be

invoked.

: Burden of Proof

While the Union believes that

homosexuals should not gener-

ally be prohibited from govern-

ment employment, it agrees that

conceivably in certain jobs there

may be a relevancy between that

job and a person's private sexual

conduct, including homosexual-

ity. But because the preservation

of personal privacy is so impor-

tant, the burden of proof should

be placed on the government to

show that a homosexual is not .

suited for a particular job be-

cause of the nature of that job.

In such cases, the government

should be restricted to evidence

only of present homosexual con-

duct or conduct so recently in

the past that it is clear that the

job applicant or employee is

presently practicing homosexual

conduct. This is a more rational,

humane approach than the pres-

ent harsh and restrictive govern-

"ment policy which refuses to

judge the individual on his skill,

ability, and merit at all, but

simply decides employability on

the manner of expressing his or

her sexual feeling.

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