vol. 35, no. 5

American

Civil Liberties

Union

Volume XXXV

SAN FRANCISCO, BENS 1970

No. 5

"Immoral Conduct"

Fed. Court Orders

Reinstatement

Of Neil Mindel

Federal Judge Robert Peckham has ordered the reinstate-

ment of Neil Mindel, a postal clerk who was fired for "im-

moral" conduct beeause he allegedly lived with a woman

not his wife. The Post Office had concluded that Mindel's

conduct harmed the "efficiency" of the Civil Service even

though the public served by Mr.

Mindel and his associates at the

Post Office were unaware of his

living arrangements.

ACLU Contentions

In his brief to the court, Staff

Counsel Paul Halvonik had ar-

gued' that:

"This lawful relationship was

unknown to the public which

he served and unknown to his

fellow workers. One would

have hoped that it would have

been unknown to the govern-

ment too. The spector of the

government dashing about in-

vestigating this non-notorious

and not uncommon relation-

NEIL MINDEL

Victim of

Mutiny Case

Released

Nesrey Dean Sood, convicted

of "mutiny" for participating in

anon-violent demonstration

against abysmal conditions at the

Presidio of San Francisco stock-

ade has been released from Leav-

enworth Penitentiary on parole.

Originally sentenced to fifteen

years at hard labor, his sentence

was cut to seven years by Lt.

General Stanley Larsen and then

to two years by the Pentagon.

Sood served a little more than a

year in Leavenworth before his

parole. :

Two Books

Sood's release parallels the

publication of two books on the

"mutiny" of the `Presidio 27."

One, entitled Unlawful Concert,

by Fred Gardener, is presently

available in both hard and soft-

bound editions. The other, by

Robert Sherrill, is entitled Mili-

tary Justice Is To Justice As Mil-

itary Music Is To Music will be

available shortly.

Clemenceau Quotation

The title of Sherrill's book

comes from a Clemenceau quota-

tion revived by Staff Counsel

Paul Halvonik when he wag in-

formed that Sood had been sen-

tenced to fifteen years. Both

books document the outrageous-

ness of the mutiny charges.

Sherrill's book also deals with

the case of Captain Howard Levy,

_the physician who refused to

train Green Berets for what he

considered unlawful and immor-

al activities. Levy was represent-

ed at his Court Martial by ACLU

Southern Regional Director

Charles Morgan, Jr,

ship that was totally divorced

from plaintiff'; governmental

duties is the most disturbing

aspect of this case. It would, be

a peculiar scale of moral values

that would condemn plaintiff's

activities and endorse those of

the government."

Arbitrary And Capricious

In his decision Judge Peck-

ham quoted the above statement

from. Halvonik's brief and held:

"Plaintiff Mindel's motion for

summary judgment is granted.

This Court holds that Mindel's.

termination was arbitrary and

capricious, and therefore vio-

lated due process. Further-

more, the termination violated

his right to privacy as guaran-

teed by the Ninth Amendment."

Headed For Norway

Although Judge Peckham has

ordered Mindel's reinstatement,

Mindel will be unable to take ad-

vantage of that part of the rul-

ing; about two weeks before ren-

dition of the opinion he decided.

to leave the country and is pres-

ently in transit to Norway. Min-

del, however, will not lose the

principal benefit of the decision:

he will receive a good deal of

money-in back pay.

Halvonik was assisted in the

Mindel case by ACLU volunteer

attorney Martin Goodman of San

Francisco.

Right of Assembly

Court Victory

Board Views

On Berkeley

Helicopters

The branch Board of Directors

has voted against the use of po-

lice helicopters to conduct gen-

eral aerial surveillance of a com-

munity as "massive intrusions

into the right of privacy pro-

tected by the Fourth and Four-

teenth Amendments." It also op-

posed the use of police helicop-

ters for the general surveillance

of political assemblies,

Appearance Approved

_The Board authorized the

Berkeley/Albany Chapter to ex-

press its views to the Berkeley

City Council which has before it

a proposal te purchase twe heli-

copters. Jerome B. Falk, Jr., was

forced to present the Board's

views in writing when a Councii

hearing was disrupted by some

opponents of the plan.

: Some Disagreement

There was disagreement on

the branch board over the is-

sue, Ernest Besig, executive di-

rector, said he agreed that heli-

copters should not be used for

the surveillance of peaceful as-

semblies, but he didn't regard

general aerial surveillance of a

community as an invasion of pri-

vacy, Specificially he said he

didn't regard patios, back yards,

sun porches and roof tops as pri-

vate areas, He conceded that

helicopters could invade privacy

but he would deal with such an

incident when it arises.

Mental Illness

"Mental illness can never by

itself he a justifiable reason for

depriving a person of liberty

against his objection. The Board

will establish a committee to

study all the civil liberties as-

pects of any involuntary confine-

ment in mental institutions."

(The foregoing statement was

adopted by the ACLU national

Board of Directors on Feb, 9,

1970, by a vote of 24-11).

for

Pacifica Draft Help

Last fall the Pacifica Draft Help (an organization which

counsels young men about the draft law, was denied use of

the community room at the Pacifica Public Library because

the City Council felt that they might counsel "evasion of the

law."

With the fall Moratorium

meetings behind them, the or-

ganization did not have an imme-

diate desire to use the facilities

but were assured of ACLUNC's

assistance in establishing their

right to use the facilities when

the need arose.

Prior Restraint :

When time for the April Mor-

atorium arose, ACLUNC volun-

teer attorney Stanley S. Fried-

man of San Francisco filed suit

in Federal Court on behalf of

Pacifica Draft Help. Friedman

contended that the action of the

City Council was an unconstitu-

tional prior restraint on First

Amendment activities.

Judge's Holding

Judge Albert C, Wollenberg

agreed, holding:

"There seems little question

but that denial of tHe use of the

community room by defendants

Gust and members of the City

Council raises. serious first

amendment problems, In oral ar-

gument before this Court, coun-

sel for Pacifica inferred that any

application for use of the com-

munity room in the future would

only be granted if there were a

prior showing that Pacifica Draft

Help would not `conspire to vio-

late federal statutes.' In light of

the organization's professed pur-

pose, ie., the advising of young

men as to alternatives to the

draft, this appears to be a prior

restraint on the content of the

speeches to be made at organi-

zational meetings. It is not al-

leged by defendants that the

`felonies' feared are criminal ac-

tions apart from speech, This

being the case, sanctions against

the organization may take the

form of criminal prosecutions

for violation of valid laws, but

may not take the form of prior

censorship of the content of po-

litical speech, absent a showing

in an adversary proceeding of

a clear and present danger of

riot and disorder."

Injunction Denied

Judge Wollenberg declined to

issue an injunction against the

defendants because application

for use of the Community room

had not been made since last

fall, but kept jurisdiction of the

case in order to be able to issue

an injunction if future requests

to use the Community room

should be unconstitutionally de-

nied,

Ennis, Nat'l Chairman, Speaks

Annual Meeting

Of Membership

Monday,

May 11

- ACLU of Northern California will hold its annual meet-

ing of the general membership, Monday, May 11, starting

promptly at 8:30 p.m. in the Sanctuary of the First Unitarian

Church, 1187 Franklin at Geary Street, San Francisco.

No admission will be charged, and all members and their

friends are cordially invited. Re-

`freshments will be served at the

conclusion of the meeting.

Speakers

Featured speaker of the eve-

ning will be Edward J. Ennis,

chairman of the Board of Direc-

tors of National ACLU which is

celebrating its 50th Anniversary.

Ernest Besig, Executive Director

of ACLUNC since 1935, will give

his traditional "Report on the

State of the Union."

Pre-Meeting Buffet

Starting at 6:30, a buffet, cat-

ered by a distinguished San

Francisco caterer, will be served

in the Starr King Room. Tickets

EDWARD J. ENNIS

State Supreme

Court to Review

Trespassing Case

The California Supreme Court

has agreed to hear the case of

Roderick Wallace, John Pamper-

in and Madeline Mitzer who were

convicted of "trespassing" dur-

ing a May Fair in Dixon, Califor-

nia. The "trespass" occurred

when the petitioners refused to

discontinue their pro-farm labor

picketing and handbilling near

a harvesting machine on the Fair

Grounds when; asked to do so by

Fair Grounds officials.

Conviction Affirmed

The petitioners were convicted

in the Dixon Justice Court of vi-

olating Penal Code Section 602

(j) (entering lands for the pur-

pose of interfering with the law-

ful business thereon). That con-

viction was affirmed by Judge

Raymond J. Sherwin of the So-

lano Superior Court.

ACLUNC entered the picture

at that point and asked the

Court of Appeal to issue a habe-

as corpus writ vacating the con-

viction. The Court of Appeal re-

viewed the case but denied the

writ on the ground that the pick-

eters "might have been" convict-

ed for obstructing people rather

than for exercise of First Amend-

ment rights.

Unconstitutional Considerations

Paul Halvonik and volunteer

attorney Marcus Vanderlaan of

Sacramento then asked the Su-

preme Court to consider the case

contending that there was no evi-

dence that the picketing ob-

structed anyone andi that, in any

event, a conviction must be va-

cated whenever it may be prem-

ised on unconstitutional consid-

erations notwithstanding that it

also "might" have a valid basis.

The case will likely be argued

before the Supreme Court in late

spring or early summer,

for the buffet are by advance res-

ervation only and cost $10 each

(of which approximately $3.00

represents a painless, tax-deduc-

tible contribution to ACLUNC).

They may be obtained from the

Branch Office, 503 Market Street,

San Francisco; telephone 433-

2750. Deadline for reservations

for the buffet is noon, Thurs-

day, May 7.

In sending for tickets, please

enclose an earmarked check, spe-

cify the number of reservations

desired, and enclose a return en-

velope to assure prompt service.

Ennis Background

A New York attorney, Edward

Ennis was elected chairman of

the National ACLU a year ago.

Before that he was general coun-

sel and chairman of the Due

Process Committee. He has ar-

gued many test cases before the

U.S. Supreme Court and obtained

landmark decisions upholding

and extending civil liberties.

Among the best known are Unit-

ed States v. Barenblatt (1959),

in' which the Supreme Court up-

held First Amendment rights of

witnesses hailed before Congres-

sional committees. Another cru--

cial case was Afroyim v. Rusk

(19867) which denied the State

Department the right to revoke

the citizenship of Americans who

voted in foreign elections. More

recently, Mr. Ennis has partici-

pated in cases involving restric-

tions on the right to travel

abroad, and on censorship of

films and books.

Justice Dept, Association

Before coming to ACLU, Mr.

Ennis served in the U.S. Depart-

ment of Justice (in the Solicitor

General's Office, and Assistant

U.S. Attorney, Southern District

of New York and as General

Counsel for the Immigration and

Naturalization Service). During

World War II he was Director of

Alien Enemy Control. Since 1957

he has been Chairman of the

Board of Directors of the Amer-

ican Immigration and Citizenship

Conference. Born in 1907, Mr.

Ennis graduated from Seton Hall

College and received hig LL.B.

from Columbia University.

Matching

Centributions

Reach $1585.50

Six persons responded te

Richard De Lancie's offer in

last month's News to match

contributions which would not

otherwise have been given.

One contribution was for

$1000, another for $500, and

four ranged from $15 to

$25.50. The gifts totaled

$1585.50,

If you want. your contribu-

tions to do double duty and

at the same time wipe out

our operating deficit for the

fisca] year, now estimated at

$4350, please send your

checks, marked "matching

funds," to the ACLU office,

503 Market St., San Francisco.

Remember, your ordinary

contributions to the ACLU

may not be counted in this

matching offer, Richard De

Lancie will match your gifts

only if they would not other-

wise have been contributed.

Federal Injuction Issued

Free Speech

Victory For

Prison Parolees

Federal District Court Judge Albert C. Wollenberg has

held unconstitutional a condition of parole which required

Richard Hyland to seek the approval of his parole agent be-

fore addressing public gatherings.

Hyland is active in the Peace and Freedom Party and a

frequent public speaker. When, ~

in January, three inmates of the

Soledad Correctional Facility

were killed by a guard and an-

other guard was killed in the

subsequent unrest, students at

`the Santa Cruz campus of the

University of California invited

Hyland (a former Soledad in-

mate) to address them on Sole-

dad conditions. Hyland's parole

agent, Fred Steinberg, gave Hy-

land permission to address the

students but Steinberg's superi-

ors insisted that the authoriza-

tion be withdrawn. The permis-

sion was revoked on the day

when Hyland was to give his

speech in Santa Cruz and he was

thus unable to attend.

Second Meeting

The students, however, invited

Hyland to address another meet-

ing scheduled for the following

week, Hyland again accepted

their invitation and asked for

authorization to speak from

Steinberg. Steinberg, again on

the insistence of his superiors,

refused authorization explaining

that "future requests to speak at

the University of California, San-

ta Cruz, will be denied so long

as the situation at Correctional

Training Facility remains un-

stable."

Suit Filed

Staff counsel Paul Halvonik

brought suit on behalf of Hyland

and members of his potential au-

dience seeking a temporary re-

straining order prohibiting the

Department of Corrections from

interfering with his scheduled

address, a permanent injunction

holding the "authorization to

speak" condition of parole un-

constitutional and a permanent

injunction restraining the De-

partment of Corrections from

prohibiting any California State

parolee from addressing lawful

public assemblies held at the

_ University of California, Santa

Cruz, when the prohibition is be-

cause of the expected content of

the speech. ;

Refusal Withdrawn

The need for the temporary

restraining order disappeared

when the Department of Correc-

tions decided that Hyland would

be able to address the January

assembly at the Santa Cruz Cam-

pus, The requests for permanent

injunctive relief were argued in

February and the case was taken

under submission for decision.

Prior Restraint

In his decision Judge Wollen-

berg held:

_ "That the condition here im-

posed on plaintiff's parole is

a prior restraint of his First

Amendment rights seems

clear. The Court must there-

fore scrutinize with great care

any explanation offered by the .

State to justify its action...

Of further weight is the fact

that the restraint was invoked

in view of the anticipated con-

tent of plaintiff's speech... .

This prior restraint on what

was to have been a speech con-

cerning a matter of public in-

terest can only be justified by

a showing that the speech en-

tailed a clear and present dan-

ger of riot and disorder, The

State has not made this show-

ing...

"Chilling Effect"

"Defendants confine their

argument for the most part to

ACLU NEWS

MAY, 1970

Page 2

allegations that the plaintiff

on many occasions has been

allowed to speak and otherwise

publish his views without re-

straint. This, of course, is be-

side the point. Not only have

there been at least two occa-

sions when an attempt was

made to bar plaintiff from

speaking, but the State also

gives no indication that it will

not continue to require ad-

vance permission for all speak-

ing engagements. If the past is

any guide, such permission-

seeking procedures will inevi-

tably involve a scrutiny by the

parole officers concerned of

the proposed content of peti-

tioner's proposed speeches.

This Court, making use of a

sadly over-worked phrase,

finds that this would have an

unwarranted chilling effect on

the exercise by plaintiff of his

undisputed rights."

Injunction Issued

Judge Wollenberg then en-

joined conditioning Hyland's pa-

role on hig seeking permission

to address public gatherings and

enjoined the Corrections Depart-

ment from prohibiting any other

parolee from addressing lawful

assemblies at the Santa Cruz

Campus when the reason for the

prohibition is because of the con-

tents of the speech.

Mootness Claim Too Late

In addition to establishing a

valuable precedent for Califor-

nia parolees, the suit had an-

. Other satisfying effect for Rich-

ard Hyland. Hyland was dis-

charged from parole 10 days be-

fore Judge Wollenberg issued

his decision; it is a likely sur-

mise that the discharge was an

attempt to moot the case, The

State, however, did not bring

Hyland's discharge to Judge

Wollenberg's attention until aft-

er he had filed his opinion, and

Judge Wollenberg ruled that the

state's mootness claim was too

late.

Parole Revocation

Alcoholism

Case Review

Turned Down

The U.S. Supreme Court has.

declined to review the public

drunkenness conviction of 'Thom-

as Budd.

Budd's case challenged the ap-

plication of California's public

drunkenness statute to an alco-

_holie on the grounds that it pun-

ished a disease rather than a

crime, The U.S. Supreme Court

hag never squarely decided

whether such a prosecution is

constitutional; it has now twice

declined to review Budd's con-

viction.

The first petition to the Su-

preme Court on Budd's behalf

was from the California courts.

The present action results from

the denial of a Federal habeas

corpus writ.

After many years of hearings

and applications in six different

lower courts and two petitions to

the United States Supreme Court

it appears that Budd will have

to pay his twenty-two dollar fine.

Budd was represented through

the years by former Staff Coun-

sel Marshall W. Krause and vo-

unteer attorney George Duke of

Berkeley.

Suit Against

Kodak Dismissed

Federal District Judge Lloyd

Burke has dismissed ACLUNC's

suit on behalf of Frank Esposito

and Jerry Abrams against the

Eastman Kodak Company.

The suit was brought when Ko-

dak refused to return film given

to them by the plaintiffs for the

purposes of development. Kodak

contended that the film was "ob-

scene" and it came to light that

there was a Kodak policy of pre-

senting allegedly ``obscene" films

to police.

In dismissing the case Judge

Burke ruled that the plaintiffs

had not established that there

was any "state action" that would

entitle them to relief against the

defendants in a Federal Civil

Rights suit. ACLUNC volunteer

attorney Ephraim Margolin, who

represented the plaintiffs, has de-

cided not to appeal Judge

Burke's decision because the suit

has accomplished its purpose.

In the first place, Kodak has

agreed to return the films in its

possession. Secondly, Kodak has

changed its policy of turning

films over to the police and, fi-

nally, Kodak has now been ad-

vised by their counse] that they

cannot be prosecuted (as they

feared) for returning allegedly

"obscene" films to photogra-

phers.

Judge Sherwin Orders

Hearings in Two Cases

Superior Court Judge Raymond Sherwin ruled in the

case of Black Panther Eldridge Cleaver that his parole had

been revoked by the Adult Authority without due process of

law, but his decision was reversed. Now, in a series of seven

cases offering similar issues, Judge Sherwin has once again

ruled (in two of the seven) that

the Adult Authority has exceed-

ed the law.

Lead Case

The lead case concerns Sam-

uel Beasley, where parole was

revoked solely on the strength of

an unsworn written report of a

parole officer setting forth the

unsworn and unverified accusa-

tions of three persons that Beas-

ley had attacked a woman, The

report was short, sloppy, con-

clusory and vague. It was re-

garded as "overwhelming evi-

dence" by the Adult Authority.

Solano county's Public Defend-

er, perceiving a good test case,

asked for a writ of habeas cor-

pus. ACLUNC appeared as ami-

cus. curiae, as did Benjamin

Dreyfus of Garry, Dreyfus, Mc-

Ternan and Brotsky.

Evidentiary Hearing

-Judge Sherwin has now ruled,

in two of seven similar cases be-

fore him, that Beasley is entitled

to an evidentiary hearing (with

counsel, the right to cross-ex-.

amine, and the right to present

evidence) because he has made

out a prima facie case that his

parole. was revoked without suf-

ficient cause.

Important Ruling

Pointing out that the many

theories upon which due proc-

ess has traditionally been held

unnecessary in parole revocation

are either hopelessly out of date

or were fictional from the first,

and commenting that "the Adult

Authority is not. equipped nor

inclined to correct its proce-

dures," Judge Sherwin has made

a ruling which may be of ter-

rific impact in the field. The

ruling will, of course, be ap-

pealed by the State Attorney

General's office,

Right to a Transcript

ACLUNC Brief

Supports S.F.

State Students

ACLUNC has filed a friend-of-the-court brief in support

of George Colbert, Edward Delacruz, Kathleen Ennis and

Danny Clover, four indigent San Francisco State students

who, after a lengthy trial, were convicted of disturbing the

peace and failure to disperse. The charges grew out of an

assembly declared unlawful by

the San Francisco police at the

college campus last year.

Voluntarily Indigent

Judge Andrew Hyman, sitting

specially as a Municipal Court

Judge, refused to grant the indi-

gent defendants' motion for a

transcript (estimated cost: $4,-

500.00) at county expense. Judge

Eyman held that the defendants,

_ because they are students, are

"voluntarily" indigent and thus

not entitled to a transcript. His

order states: "A delay of a few

months of college in order for

the defendants to earn funds for

the transcript on appeal is not

such a hardship as to justify this

court in assessing the taxpayers

of San Francisco for the pay-

ment of their trazscript on ap-

peal. The alleged indigency of

the defendants did not deter

their attempt to close down a

state educational institution."

Mandate Denied

The students' attorney, Mark

Himelstein of San Francisco,

sought a writ of mandate from

the San Francisco Superior Court

requiring that the transcript be

prepared, Judge Merrill denied

that writ and the appeal fol-

lowed.

Equal Protection Denied

In the friend-of-the-court brief

filed in support of the students,

staff counse! Paui Halvonik con-

tends that Judge Eyman's ruling

violates the Constitution in a

number of ways. First of all it

is inconsistent with the guaran-

tee of equal protection of the

laws:

"The trial court did not hold

are not entitled to a _ tran-

that appellants, if indigent,

script but instead attempted

to define appellants out of the

class of indigents. Appellants

are, Judge Eyman held, a spe-

cial group of indigents, stu-

dent-indigents who may es-

cape from that class and are

- therefore not entitled to a

transcript. But appellants,, in-

digency cannot be defined

away. Appellants may belong

to a sub-class of indigents, stu-

dent-indigents, but they also

welong to a sub-class of stu-

dents, indigent-students and it

is the latter sub-class that is.

significant for constitutional

purposes. :

"A wealthy student may pur-

sue an appeal from a misde- -

meanor conviction without de-

lay and without abandoning

his education but the trial

court's ruling requires indi-

gent students to leave school

and postpone their appeals un-

til they have acquired funds

for a transcript. This differ-

ence in access to the appellate

process between the wealthy

student and the indigent stu-

dent is precisely what the

guarantee of equal protection

forbids."

Due Process

Moreover, by requiring the de-

fendants to leave school and ac-

cumulate funds for a transcript

as the price for- an effective ap-

peal, Judge Eyman has placed

a substantial burden on the exer-

cise of a fundamental right, a

violation of the due process

clause of the Fourteenth Amend-

ment, Last year, in the ACLUNC

-Continued on Page 4

Board of Directors of the American Civil Liberties Unio

of Northern California :

CHAIRMAN: Howard H. Jewel .

VICE-CHAIRMAN: Prof. Van D. Kennedy

: Helen Salz

SEC'Y-TREAS.: Howard A. Friedman

EXECUTIVE DIRECTOR: Ernest Besig

Anthony G. Amsterdam Bern Jacobson Prof, John Searle

Ralph B. Atkinson - Daniel N. Loeb Warren H. Saltzman

Albert M. Bendich Ephraim Margolin Prof. H. K. Schachman

Prof. John Edwards Dr. John N. Marquis Mrs. Alec Skolnick

Jerome B. Falk, Jr. John R. May _ Stanley D. Stevens

Robert Greensfelder Richard L. Mayers Michael Traynor

Rey. Aron S. Gilmartin Martin Mills, M.D. Justin Vanderlaan.

Evelio Grillo Regino Montes Don Vial

Michael B. Harris Prof, Robert M. O'Neil Richard J. Werthimer

Francis Heisler Mrs. Esther Pike Joe J. Yasaki

Neil F. Horton Engene N. Rosenberg

Clifton R. Jeffers Mrs. Muriel Roy

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

Honorary Treasurer: Dr. Marvin J. Naman

Joseph S. Thompson Mrs. Theodosia Stewart

Honorary Board Member: Rt. Rev. Sumner Walters

Sara Bard Field Richard Johnston ~

Mrs. Gladys Brown Roger Kent

Mrs. Paul Couture Mrs. Ruth Kingman

Mrs. Margaret C. Hayes Prof. Theodore Kreps

Prof. Carlo Lastrucci Seaton W. Manning

Rev. Robert W. Moon

Mrs. Paul Holmer Clarence E. Rust

Joseph Eichler Mrs. Mary Hutchinson Prof. Wallace Stegner

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

Prof. Ernest Hilgard Dr. Norman Reider Norman Lezin

John J. Eagan

BESET ES RS SS eRe eR

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, California 94105, 433-2750

Subcription Rates - Two Dollars and Fifty Cents a Year

Twenty-Five Cents Per Copy Gey 151

Review Board Action

Long-Haired

Postal. Employee

Reinstated

William Cain is back on the job as a postman at San

Francisco's Diamond Heights Station after a 15-month ab-

sence.

In December of 1968 the Post Office placed Cain in a non-

duty non-pay status because he refused to cut his shoulder

length hair. San Francisco Post

Office's "Appearance Review

Board" decided that Cain's ap-

pearance was "unsatisfactory"

because it did not "conform with

good business practices."

Privacy and Free Expression

Staff counsel Paul Halvonik

appealed the local Post Office's

decision to the Board of Appeals

and Review of the Post Office

Department's Bureau of Person-

nel in Washington, D.C., insist-

ing that the postal regulation

that Cain was supposedly violat--

ing said nothing about the length

of one's hair but only that it be

"kept neatly trimmed and clean."

Halvonik further argued that

Cain's long hair did not in any

manner interfere with his du-

ties as a postman and that the

government's attempt to regu-

late his hair length was an in-

vasion of Cain's rights to privacy

and free expression.

Daly City P.M.

Agrees To Drop

Invalid Rule

Postmaster Vincent P. Murphy

of Daly City agreed last month

to stop enforcing an employee

regulation he had promulgated

requiring men's hair to reach ne

lower than one inch above the

collar and limiting the wearing

of sideburns. He admitted his

regulation was inconsistent with

national postal regulations.

Murphy denied that he had

pulled 21-year-old John Sauer by

the hair or that he threatened

to have him watched in order

to find grounds for dismissal pro-

ceedings. Murphy admitted to

Ernest Besig, ACLU executive

director, that Sauer, who has

been employed for three years,

is an excellent worker.

On another occasion, Murphy

suspended Sauer until he cut his

Suit Inspires Action

Cain's appeal reached the

Board of Appeals and Review in

March of 1969; a year then went

by without any decision on the

case. Exasperated with bureau-

cratic inertia, Halvonik brought

suit in the Federal District

Court praying that the court or-

der Cain's reinstatement, A few

days after the suit was filed the

Board of Appeals and Review

got around to deciding Cain's

case: it ordered the San Fran-

cisco Post Office to put Cain

back on the job.

Significant Case

Cain's case will have a signifi-

cant impact on postal. employees

throughout the United States, It

`has been rather common prac-

tice to fire long-haired employ-

ees in a number of post offices.

The substantial back pay that the

Post Office will have to pay to

Cain ought to provide a deter-

rent against future similar ac-

tions by local post offices.

Legislative

Report

A disaster struck the ACLUNC

office as copy was, being pre-

pared for this issue of the

"News". The tape on which

Charles Marson's Sacramento re-

port was dictated was erased by

mistake. When this catastrophe

was discovered, Marson was al-

ready in Sacramento and there

was not enough time left to pre-

pare and deliver another story.

Next month the "News" will car-

ry two months' legislative devel-

opments besides another story

that was: also erased.

hair to his satisfaction. Sauer

turned for help to the ACLU

`when he read newspaper ac-

counts of the ACLU's successful

handling of a similar case in San

Francisco,

ACLUNC's San Francisco

Council Honors Kunstler

The San Francisco Council of the ACLUNC is presenting

a "Festival of Freedom" in honor of a man whose own free-

dom is now threatened because of his total dedication to the

civil rights of his clients.

Attorney William M. Kunstler, a member of the ACLU

national Board of Directors, will

be the guest speaker at the May

27th event of the Council.

Background

To. provide a better under-

standing of the political situation

leading to the Chicago Seven

Conspiracy Trial in which Kunst-

ler played a major role, the Fes-

tival will present "The Seasons

Change," an ACLU documentary

film of the rioting in Chicago

during the 1968 Democratic Con-

vention, Also featured during the

evening will be live music. -

The Festival will also serve as

an introduction to the ACLU for

the unitiated, Informational and

membership literature wil] be

available.

Fillmore West

The Festival of Freedom is

scheduled to begin at 7:30 p.m.,

Wednesday, May 27th, at Bill

Graham's Fillmore West, Market

and Van Ness. The coupon ap-

pearing below may be mailed for

advance passes, Donations of

$3.00 will also be accepted at the

door.

ATTENTION:

- FESTIVAL OF FREEDOM --

MAIL TO: ACLU-SAN FRANCISCO COUNCIL

KUNSTLER PROGRAM

503 MARKET STREET ~-

SAN FRANCISCO, CALIFORNIA 94105

Names

Address: = 2 he ee

pe Number of Passes...

Se TARE oe ee

DONATION-$3.00 PER PASS CHECK OR MONEY OR-

DER ONLY POSTMARK DEADLINE FOR ACCEPTING

COUPON-MAY 22, 1970 PLEASE: Re a SELF-

ADDRESSED STAMPED ENVELOPE

Women Postal

Employees Have

Hair Problems

Following intervention by the

ACLU, the Berkeley Postmaster,

George B. Kohler, withdrew a

- termination notice in the case of

Susan E, Ohori, a probationary

special delivery' messenger, who

rides a jeep, She wears her hair

in a pig tail behind her back.

This, said the termination letter,

was a Violation of a posted safety

rule, The local rule provides

that if hair may be caught in

moving machinery or equipment

it must be "bound up above

shoulder level at all times while

on duty."

No Hazard

The ACLU said the hair

charges against Miss Ohori were

without merit since she "was not

employed in any situation where

a pigtail became a hazard."

The letter of termination also

cited Miss Ohori for refusing to

deliver a letter by crossing a

school picket line and for re:

ceiving a poor evaluation by a

supervisor,

Spurious Evaluation

The ACLU contended that

Miss Ohori should not ba penal-

ized for refusing to cross a pick-

et line and that she should have

been instructed as to how to han-

dle such matters. With respect

to the evaluation, the ACLU

noted that it had never been pre-

sented to the employee and was

suspect because it came only ten

days after a satisfactory formal

evaluation had been given. "I am

sure that you would agree," said

the ACLU in a letter to the Post-

master signed by Ernest Besig,

executive director, `that it is rep-

rehensible to create a spurious

evaluation in order to achieve an

end." The ACLU asked that the

matter be investigated and, if

necessary, that corrective meas-

ures be taken.

Officia] Warning

Elizabeth R,. Manire, another

special delivery messenger, but

one with status, was given an "of-

ficial warning" because of her

long hair which was clipped in

the back while she was on duty.

The ACLU insisted that the ap-

plication of the rule should be

limited to hazardous situations -

and was too broad in its lan-

guage, The matter is still pend-

ing,

Unemployment

Benefits in

Long Hair Case

In a 2 to 1 decision, the Cali-

fornia Unemployment Insurance

Appeal Board upheld the grant-

ing of benefits to Dennis A.

Hicks who had been discharged

by the Bank of America in San

Francisco for refusing to cut his

long hair,

The Tests

The Commission said the tests

it would use in longhair cases

were those found in a 1967 deci-

sion of the State Supreme Court

(not involving long hair) in

which the ACLU had intervened

(Bagley v. Hospital District, 65

Cal. 2d 499). These tests are:

"1, Is there in the record evi-

dence that the wearing of long

hair by the employee would im-

pair the legitimate objectives of

the employer?

"2. Did the employer's interest

in enforcing its rule outweigh

the resulting impairment of the

claimant's constitutiona] rights?

"3. What alternatives were

available to the employer short

of discharging the claimant?"

No Public Contact

In the instant case the em-

ployee's hair did not extend over

the collar line, "In addition, the

employee had no contact with

the public since his work (as a

sorter operator) was on the

graveyard shift which com-

menced at midnight and extend-

ed into the early hours." The

Commission said it could "find

no injury to the employer's in-

terest."

Ernest Besig, ACLU executive

director, represented Hicks,

Freedom of the Press

Confidential

Information

Protected

In a case of first impression, Federal District Judge Al-

fonso J. Zirpoli has ruled that the free press guarantee of the

First Amendment entitles a newspaper reporter to refrain

from divulging confidential information acquired while pur-

suing his profession unless the government can demonstrate

that it has a "compelling and

overriding national interest" in

gathering the information and

that it cannot gather the infor-

mation elsewhere.

"Times" Reporter

The decision came in the case

of Earl Caldwell, a black jour-

nalist who was sent to San Fran-

cisco by the New York Times

with the specific purpose of seek-

ing information on the Black

- Panther Party _which was un-

available to white reporters, The

assignment entailed a long proc-

ess in which Mr. Caldwell won

the trust of Panther officials and

developed a relationship of con-

fidence with them. This rela-

tionship of confidence and trust

did not depend on the custom-

ary "off-the-record" communica-

tions but rather on the under-

standing which Mr. Caldwell and

the Panthers had between them.

Because of his relationshin with

the Panthers, Mr, Caldwell. was

able to write a number of trench-

ant articles about the Black Pan-

ther Party, its activities and Phi;

losophies.

How Issue Arose

The confidentiality issue arose

when the Federal Grand Jury

in San Francisco, on application

of the United States Department

of Justice, issued two subpoe-

nas. One of the subpoenas re-

quired Mr, Caldwell to appear

and testify before the Grand

Jury, the other required him to

bring notes and tape recordings

of interviews with Panther offi-

cials.

Destructive Requirement

Caldwell decided to resist the

subpoenas and the New York

Times supported him in that en-

deavor, Caldwell, represented by

Stanford Law Professor (and

ACLUNC Board Member) An-

thony G. Amsterdam, contended

that the subpoenas would, if not

quashed, destroy his ability ef-

fectively to report on the Pan-

thers. He had, he insisted, pub-

lished everything about the Pan-

thers that was not of a confiden-

tial nature and that if he were

required to testify, and bring his

notes and tapes, to a secret

Grand Jury meeting, he would

never be able again to perform

Bill of Rights

Contest Judging

In Progress

Entries for the ACLU Bill of

Rights writing contest for high

school students are now in the

hands of five distinguished

northern California judges: Wil-

liam K. Coblentz, Art Hoppe,

Mrs, Alexander Meiklejohn, Prof.

Charles Muscatine and the Rt.

Rev. C. Kilmer Myers, The

ACLU is grateful to its chapters

and memberg in non-chapter

areas who organized the contest

on the topic, "The Bill of Rights,

is it for real?"

Three prizes winners will be

selected for northern California

and their entries will be for-

warded to national ACLU to be

considered for national prizes

and published in a book by Ban-

tam Books. The national contest

judges are as follows: Maya An-

gelou, Julian Bond, Budd Schul-

berg, Kurt Vonnegut, Jr., and

Frederick Wiseman,

his assignment for the New York

Times.

Amicus Briefs

ACLUNC joined with Nation-

al ACLU and the ACLU of

Southern California in a brief

supporting the motion to quash

the subpoenas. The ACLU

friend-of-the-court brief, pre

pared by Joel Gora of the Na-

tional office, with the assistance

of Paul Halvonik, urged that the

ease "involves the very right of

the press effectively to inform

the public at all." In addition to

ACLU, the Associated Press and

the Columbia Broadcasting Sys-

tem also filed friend-of-the-court

briefs in support of the motion

to quash.

One Subpoena Withdrawn

Apparently impressed by the

arguments supporting Mr. Cald-

well's cause, the government

withdrew the most blatant in-

fringement on First Amendment

rights (the subpoena requiring

Caldwell to bring his notes and

tapes) before the hearing on the

motion to quash the subpoenas.

_ Thus when the case came on for

argument before Judge Zirpoli

the only issue before the court

was the subpoena requiring

Caldwell to appear.

Protect Sources

- Professor Amsterdam urged

the court either to quash the in-

dictment in its entirety or to is-

sue an order protecting Cald-

well's confidential sources dur-

ing any appearance before the

Grand Jury. Judge Zirpoli adopt-

ed the latter course.

The Ruling

Judge Zirpoli held that confi-

dential relationships of the sort

developed by Mr, Caldwell were

common to the journalistic pro-

fession and indispensable to the

work of gathering, analyzing and

publishing news and that:

"When the exercise of the

Grand Jury power of testimo-

nial compulsion so necessary

to the effective functioning of

the court may impinge upon

or repress First Amendment

rights of freedom of speech,

press and association, which

centuries of experience have

found to be indispensable to

the survival of a free society,

such power shall not be exer- -

cised in a manner likely to do

so until there has been a clear

showing of a compelling and

overriding national interest

that cannot be served by al-

ternative means.

"Accordingly, it is the order

of the court that Earl Cald-

well shall respond to the sub-

poena and appear before the

Grand Jury when directed to

do so, but that he need not

reveal confidential associations

that impinge upon the effec-

tive exercise of his First

Amendment right to gather

news for dissemination to the

public through the press or

other recognized media until

-such time as a compelling and

overriding national interest

which cannot be alternatively

served has been established to

the satisfaction of the court."

Judge Zirpoli's ruling will

likely be appealed to the United

States Court of Appeals,

ACLU NEWS

MAY, 1970

Page 3

New Regulations Challenged

Suit Filed to

Stop Opening of

First Class Mail

The American Civil Liberties Union filed suit last month

for the Managing Editor of Pantheon Books charging that

the opening of his private and business correspondence from

abroad could adversely affect his business.

The ACLU, in the first test of recent Post Office regula-

tions authorizing seizure of any

foreign mail thought to contain

"prohibited matter," called the

regulations unconstitutional on

the basis of the First and Fourth

Amendments to the Constitution

as well as the Constitutional

right to privacy.

The Union called for an im-

mediate injunction against en-

forcement of the regulations,

Damage Threatened

Andre Schiffrin of Pantheon

Books, a division of Random

House complained that sealed

first class mail addressed to him

from abroad has been or will be

opened, This he feels could se-

riously endanger his relationship

with foreign authors who often

submit manuscripts dealing with

a wide variety of controversial-

often political-subjects. Schif-

frin also feels that foreign au-

thors, fearing confiscation of

their work, will be discouraged

from submitting manuscripts to

him.

The Regulation

The postal regulation states

that: all mail originating out-

side the customs territory of the

United States is subject to cus-

toms examination .. ." and that

"Mail believed to contain matter

liable to customs duty or believ-

ed to contain prohibited matter

is submitted immediately to lo-

cal customs officers" and after

submission, the material can be

"held by customs officers for ap-

propriate treatment under cus-

toms law."

The Legal Issues

The ACLU maintains thai reg-

ulations allowing the opening of

first class mail without a search

warrant violate the guarantees

of the Fourth Amendment pro-

hibiting unreasonable search and

seizure. And because of the in-

hibiting nature of the illegal

search and seizure, the Union

charges that First Amendment

freedom of press rights are

violated because the regulations

will discourage publication of

material written abroad.

Privacy Violated ~

The ACLU also contends that

Constitutional guarantees of pri-

vacy are violated in that the

plaintiffs are denied the right

to receive first class mail with-

out having it first opened and

Fresno

Meeting

Fri., May 22

The Fresno Chapter has set

May 22nd as the date for its an-

nual dinner meeting. Charles

Marson, ACLUNC legislative rep- .

sentative will be the featured

speaker, Members will be noti-

fied as to details of the meeting

and the nominating committee's

recommendations for board mem-

bers,

. All members are also invited

to attend Fresno Chapter Board

meetings, which are held at 7:30

p.m. the first Monday of each

month at the State Savings and

Loan at Olive and College Ave.

nues, Speakers will present talks

on subjects such as juvenile jus-

tice and women's rights.

ACLU NEWS

MAY, 1970

Page 4

read by government officials.

Professor A Plaintiff

Also represented in the suit

is Laurence Birns, a Professor

of Latin American Studies at the

New School for Social Research

and New York University. He

regularly receives first class

mail from Latin American and

other foreign countries which

often deals with political move-

ments and other controversial

subjects. He maintains that if

this mail is opened by the gov-

ernment, it will seriously affect

his professional relationship with

academicians, organizations and

other correspondents in these

countries.

Other Plaintiffs

Other plaintiffs in the action

include the ACLU itself as an

organization which regularly re-

ceives foreign mail and Deirdre

Wulf, a British citizen, as a resi-

dent alien who engages in reg-

ular correspondence with fam-

ily and friends abroad.

B/A May Seek

Contributions

From Members

The ACLUNC board of direc-

tors has authorized the Berke-

ley/Albany chapter to engage in

direct solicitation of funds from

members residing in its area.

The board also voted to exclude

the Berkeley/Albany area from

the June 1 Special Funds Ap-

peal and instead grant the

branch the first $1800 in con-

tributions received by the Chap-

ter, which is the same amount

the branch received from the

Special Funds solicitation in the

Berkeley/Albany area last year.

Police Complaint Center

The resolution adopted by the

board provides that "All appeals

shall specify that the primary

purpose of the solicitation is the

maintenance of the Police Com-

plaint Center . . . and that all

appeals shall be approved as to

form and content by the Branch/

Chapter Finance Committee."

The chapter fund-raising is au-

thorized until the end of the

current fiscal year on October

31.

Ernest Besig Opposed

Ernest Besig, executive direc-

tor, strongly opposed the board's

action. He argued that any fi-

nancing of chapter projects or

chapter operations should be con-

sidered at the time the fiscal

year's budget is adopted. At

such time, he said, the board

should determine its priorities

and, if necessary, cut items it

is unable to pay for. He warned

that allowing one chapter to en-

gage in direct solicitation of its

members for funds would open

the door to similar proposals

from other chapters. He noted

that direct mail solicitation for

chapter funds is not permitted

under national ACLU's integrat-

ed financial and membership ar-

rangements. He pointed out that

in this period of inflation the

branch was experiencing grow-

ing financial problems. He said

he believed that in the long run

the proliferation of ACLU fi-

nancial appeals would have a

disastrous effect on branch fi-

nances. He said he would, there-

fore, continue to oppose- the di-

rect. solicitation of funds by

chapters from their local mem-

bers.

JOHN de J. PEMBERTON, JR.

National

Exec. Dir.

Resigns

John de J. Pemberton, Jr., na-

tional executive director of the

ACLU resigned last month after

eight years of service. He suc-

ceeded Patrick Murphy Malin

who had been executive director

since 1950, Prior to that the only

other national executive direc-

tor in the ACLU's 50-year his-

tory was Roger N. Baldwin.

Mr. Pemberton apparently had

personal reasons for his resigna-

tion, A Minnesota lawyer, he will

return to the practice of law.

The search for a new executive

director is now under way.

Mr. Pemberton is a Quaker

and a Republican in his politics.

He was associated with the

ACLU in a volunteer capacity

before joining the national paid

staff, During his tenure in of-

fice the ACLU has grown sub-

stantially in membership and in

its financial support, At the pres-

ent time, there are differences

in the organization which have

been described as a conflict be-

tween traditionalists and mili-

tants. The latter have sought to

involve the ACLU in issues not

previously regarded as involving

civil liberties, such as a guar-

teed annual wage, In comments

to the press, Mr. Pemberton is

quoted as saying that in this con-

flict he lined up with the mili-

tants,

ACLU Brief

Supports S.F.

State Students

Continued from Page 2 -

case of In re Allen, the Supreme

Court of California held uncon-

stitutional a condition of proba-

tion which required a convicted

defendant "to reimburse the

county . for court appointed

counsel through the probation

department." The Supreme

Court held that an indigent can-

not be required to pay for the.

services of his court-appointed

lawyer because the imposition

of such a cost "constitutes an

impediment to the free exercise

of a right guaranteed by the .

Constitution." ACLUNC con-

tends that an adequate appellate

review is as fundamental a con-

stitutional right as the right to

counsel and that adequate re-

view cannot exist without a tran-

script; the Allen case, therefore,

should compel reversal of Ey-

man's ruling.

Undeserving Poor

Finally, the brief urges that

Eyman's ruling is unconstitution-

al because it imposes costs pur-

suant to a vague standard, The

concept of the undeserving poor

(or "sturdy vagabond") is not a

novel formulation. Judge Eyman

has simply placed the discred-

ited standard of "vagrancy" in a

new context. Numerous courts

have held vagrancy laws. void-

for-vagueness and those prece-

dents should be applied to inval-

idate Judge Eyman's ruling.

San Francisco:

gards civil liberties.

cisco ACLU Council.

one year terms.

Election for S.F. Council

Board of Directors

An, election by mail ballot will be held for the 15 at large

seats on the Board of Directors for the San Francisco

ACLUNC Council. All ACLUNC members in good standing

living in San Francisco who desire to become Directors may

do so by supplying the following information in writing post-

marked before June 1, 1970, to Robert Clement, 2010 Vallejo,

_ J-A statement that the incumbent wishes to be nominated

and that he will serve as a director if elected.

2-His name and brief listing of his qualifications as re-

3-A statement of approximately 50 words or less indicating

the aims, policies, and activities he advocates for the San Fran-

A membership meeting of the San Francisco Council will

he held Sunday evening June 14 at 7:30 at the Family Service

Agency, 1010 Gough St., S.F., for the purpose of better ac-

quainting the membership with the Director candidates. Ballots

and a summary of the previously specified information will

be in the mail June 15, 1970, and the 15 nominees receiving

the largest number of votes postmarked prior to June 30, will

be declared members at large of the vue of Directors, with

Campbell H.S. District

Fed. Court Hears

Challenge To

Leafletting Ban

A three-judge Federal court, composed of Federal Dis-

trict Judges Alfonso J. Zirpoli and Robert F. Peckham and

United States Court of Appeals Judge Oliver D. Hamlin, Jr.,

has heard final oral arguments on Sections 9012 and 9013

and taken the matter under submission for decision.

_ Laws In Question

Section yenU12 proviaes that:

"No publicauon of a sectarian,

partisan, or denominationai char-

acter snail be disiriputed, dais-

Played, or used for sectarian, par-

tisan, or denominational pur-

poses on school premises, but

such publications may be. used

in school library collections and

for legitimate instructional pur.

poses."

Sec. 9013 prohibits the distri-

bution on school premises of any

publication the purpose of which

is to "spread propaganda." It fur-

ther prohibits the distribution on

school premises of any publica-

tion "or article of any character,

the purpose of which is to foster

membership in or subscription

to the funds of any organization

hot directly under the control

of the school authorities' unless

the organization is "nonpartisan"

and the governing board of the

school district has approved the

distribution.

Unofficial Newspaper

The suit was filed last spring

by Everett Rowe, a San Jose at-

torney, on behalf of his son who

had been denied permission by

the Campbell High School Dis-

trict to distribute an: `unofficial'

newspaper dealing with school

activities. While the suit is pond-

ing the newspaper is being dis-

tributed pursuant to a restrain-

ing order issued by Judge Peck-

ham.

ACLUNC, represented by vol-

unteer attorney Stephen M. Ten-

nis of San Francisco and Paul

Halvonik, filed a brief in the

The first right of a citizen

Is the right

To be responsible

AMERICAN CIVIL LIBERTIES UNION

OF NORTHERN CALIFORNIA

Patron Membership ...

Family Membership .

Annual Membership

Student Membership

ACLU News Subscription ....

NAME. .d...25%

ADDRESS and ZIP CODE .....

TELEPHONE NUMBER ...... ae

503 Market Street

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ac ea cAMT; ENGLOSED... 2.

San Francisco, 94105

ease and participated in argu-

ment as a friend of the court.

ACLUNC urged the court to find

the statutes void on their face as

unconstitutionally vague and

overbroad.

Right To Communicate

In its argument ACLUNC re-

lied heavily on the case of Tin-

-ker v. Des Moines Community

School District in which the

the United States Supreme Court

last year held that high school

students, because of the First

`Amendment, could not be sus-

pended for wearing black arm-

bands (signifying support for the

moratorium) on campus. Tinker

establishes that students do have

the right to communicate their

views to one another on campus;

9012 and 9013, on the other hand,

are premised on the theory that

students have no First Amend-

ment rights.

Restraint On Expression

A more pervasive restraint on

free expression than the chal-

-lenged situation is not imagin--

able. Schools, of course, may en-

force legitimate regulations of

the time, place and manner of

the exercise of First Amendment

rights on campus but the Educa-

tion Code sections do not do that

nor is that their purpose. They

are an attempt to regulate the

content of expression and censor

"disapproved" ideas. In other

words, they seek to accomplish

that which the Constitution ex-

pressly forbids.

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JOIN TODAY

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Sustaining Membership ..........22eeeecceceeees

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