vol. 37, no. 7
Primary tabs
_ Published by the American Civil Liberties Union of Northern California
ee
San Francisco, September, 1972
Volume XXXViI
No. 7
Campaign Underway For
`No on Prop 17"
Although the California Supreme Court
held it totally unconstitutional and the
U.S. Supreme Court held it un-
constitutional in its discretionary form,
the "future of the death penalty in
California is still to be decided...by the
voters in November.
The Campaign against the death penalty
proposition was formally announced on
September 8 by State Senator George
Moscone (D-San Francisco), who has
been named statewide Co-Chairman of
Senator George Moscone
Californians Against Proposition 17. A
southern Californian will soon be named
as the other Co-Chairman. Moscone has
been Democratic Floor Leader in the
Senate for the past 5 years and figures
prominantly in speculation on Ronald
-Reagan's successor as Governor. Former
Governor Edmond G. Brown will be
serving as Honorary Chairman for ``No
on Poop. 17.
Of course, much work was already
underway by September 8, as a staff of half
a dozen volunteers were busy at work in
Northern California under the leadership
of Campaign Coordinator Deborah
Hinkel. Their primary task was one of
building county organizations, in at least
the major counties, to wage the massive
educational campaign that will be
necessary for success at the polls. Grass
roots campaign structures are now
established in the counties accounting for
over half of Northern California's
population.
Volunteer Staff
The two assistant coordinators for
Northern California are Dottie Ehrlich
and Bruce Lilliston (see story on Page 7),
with volunteer staff assigned to press
relations, speakers bureau, fund raising,
student and labor campaigns.
Money to sustain this low-budget
campaign has so far been raised from
ACLU of Northern California, national
ACLU and the Playboy Foundation.
Since little money is available for a
substantial media advertising effort,
education of the public must come from
ACLU members arranging for speakers,
talking with their neighbors and volun-
teering their help. See Page 3 for a
discussion of the arguments on
Proposition 17. Please contact us to find
out what you can do, at 433-2753, or call
your local coordinator (see list in article on
Page 3)
Election Code Challenge Fails
In SF and in Goose Prairie
On August 21, a three-judge federal
district court in San Francisco heard
argument in Storer v. Brown, an election
suit filed by ACLU-NC challenging
California Election Code Provisions which
make it virtually impossible for in-
dependent candidates to secure a place on
the ballot.
Paul Halvonik, General Counsel of
ACLU-NC, argued that the Legislature
could no more deny Independents a place
on the ballot than they could deny the
Republican or Democratic candidates
places on the ballot.
ACLU-NC had filed a similar suit on
August 11 on behalf of Gus Hall and
Jarvis Tyner, members of the Communist
Party of the United States, who sought to
run as independent candidates for
President and Vice-President, respec-
tively. At the suggestion of the court, the
Hall case was submitted on the basis of the
arguments made in Storer.
Denial
On September 8, the three-judge court
filed its opinion denying relief in both
cases, asserting in effect that the State of
California had a legitimate interest in
promoting party loyalty and avoiding a so-
called ``laundry-list'' ballot. The court
failed to use the traditional test in election
cases which requires that a state have a
``compelling interest'' before it can in-
terfere with fundamentally protected
rights such as the right of a candidate to
run for office and the right of voters to
nominate the candidates of their choice.
The normal course of appeal from the
judgment of a three-judge district court is
- directly to the Supreme Court, a process
which would take from several months to
a year. The California Secretary of State
indicated that ballots for the November 7,
1972 election would have to go to the
printers by September 15. Thus, the
normal course of appeal would result in
the Supreme Court's hearing the case after
the election had already taken place
without the candidates' names on the
ballot.
Justice Douglas
Therefore, ACLU-NC decided to file a
special application before Mr: Justice
William O. Douglas of the United States
Supreme Court, asking that he order the
Secretary of State and local clerks to place
plaintiffs' names on the ballot pending
final decision by the United States
Supreme Court.
Because the Court was in summer
recess, Justice Douglas could be reached
only at his summer home in Goose
Prairie, Washington.
So, on September 13, 1972, we sent a
telegram advising the Justice that we.
would be in Goose Prairie on the 14th,
asking for injunctive relief. On the 14th,
Continued on Page 8
~ On September 11 a 3-judge federal
court agreed with the ACLU's charge that
the Congress went too far in requiring
banks to report all domestic banking
transactions to the government, and
issued a nationwide preliminary in-
junction against this section of the Bank
Secrecy Act of 1970. They also struck
down those sections giving the Secretary
of the Treasury unlimited access to your
bank records, without your knowledge,
and through him to any other department
of government, such as the FBI.
However, the Court held that financial
institutions can be required to keep
microfilm records and to report monetary
transactions involving foreign countries.
And in spite of much good language on
privacy and personal ownership of checks,
the court merely returned access to its pre-
act situation where the government has
available to it over 100 different ad-
ministrative subponas which do not
require any notification to the account
holder that his records are being
examined.
Far-fetched
The 2-to-1 majority opinion said: ``We
are of the opinion that the act, insofar as it
authorizes the secretary (of the Treasury)
to require virtually unlimited reporting
from. banks and their customers of
domestic financial transactions as a
surveillance device for the alleged purpose
of discovering possible, but unspecified,
`record-keeping
[Bank Secrecy Act Decision:
"Significant, But Insufficient"
wrongdoing among the citizenry, so far
transcends the constitutional limits...as to
unreasonable invade the right of privacy
protected by the Bill of Rights...'' Such
detailed surveillance is a ``far-fetched''
means to accomplish the goal of un-
covering wrongdoing, the Court said,
noting that 20 billion checks are written in
the U.S. each year.
The order did not half the massive
required by the act,
however, even though the opinion said:
"Tt would seem reasonable for the drawer
of a check to regard himself as the real
owner of his checks, subject only to
normal banking processing.''
Disappointed
Executive Director Jay Miller com-
ments, ``We are disappointed that the
court sustained the microfilming
requirement without calling for specific
improvement in the policies of access to
date. However the case has focused at-
tention on how loosely banks have
maintained security on financial records
all along, while most people were
assuming their private financial matters
were confidential. With the greatly ex-
panded record-keeping now required, the
rules concerning access become all the
more important. Not only will we be
appealing this part of the decision, but we
urge public support for legislation now
pending in congress to tighten up on the
Continued on Page 8
Free Speech at Stanford, for
Voices on the Right and Left
The Franklin Case
The ACLU-NC filed suit on August 15
in the Superior Court of Santa Clara
County seeking the reinstatement of
former Stanford Professor H. Bruce
Franklin to his position of Associate
Professor of English at Stanford
University.
The complaint alleges that Franklin was
fired for acts of pure speech by the
President and Trustees in violation of his
contract and in violation of the free speech
guarantees of the federal and state con-
stitutions, as well as California statutory
law, since at no time during his speeches
did Franklin engage in ``advocacy directed
to inciting or producing imminent lawless
action. = = = -
Legal Director Charles Marson explains
that Stanford violated the law in at least
three ways in firing Franklin:
First, since Franklin's remarks
were protected free speech, Stanford
openly violated Franklin's right to
free speech by firing him for exer-
Continued on Page 7
The Shockley Case
The ACLU has questioned the basis for
rejecting a proposed workshop on Stanford
Professor William Schockley's con-
troversial theories of hereditary racial
inferiority, describing it as ``a potential
threat of major proportions to civil
liberties.''
The matter was raised in a letter sent
September 19 to Dan Lewis, the Director
of Stanford Workshops on Political and
Social Issues (SWOPSI), from Executive
Director Jay Miller and Mid- Peninsula
Chapter Chairman Larry Sleizer.
The ACLU took particular exception to
three of the reasons that were given for
refusing to approve Shockley's proposed
class as a SWOPSI workshop:
(1) The sensitivity of the issue,
(2) The morality of the issue,
(3) The possibility of disruption of
the workshop.
Speaking to the first point, the letter
states, "To deny sanction for a workshop
because of the sensitivity of the issues
involved strikes at the heart of the
Continued on Page 7
A Class action lawsuit against the Hatch
Act was filed in the U.S. District Court in
Sacramento by ACLU-NC Foundation
this past month. Cooperating attorneys
were San Francisco's state senator George
Moscone and Bud Marks of Stockton.
The objective of the actions were to
extend to state employees the coverage of a
recent decision by the Washington D.C.
federal District Court, which held that
prohibition on political activity by Federal
civil service employees. was un-
constitutional. This decision held that the
1939 Hatch Act infringes on free speech,
as it is so vague and broad that ``no one
can read the act and ascertain what it
prohibits.''
Plaintiffs named in the suit were:
-Pearl M. Carey, of Seaside in Monterey
Chairman of our
Hatch Act Challenged
County, 1g was advised that her at-
tendance as a delegate to the Democratic
National Convention in Miami was
grounds for discharge as Employment
Security Officer I with the Department of
Human Resources Development. She
went, but has so far not been fired. Pearl is
Monterey ACLU
chapter.
-C. Catherine Barr, who was fired as an
Administrative Assistant of the Shasta
County Community Action Project for
being a delegate to the Democratic
Convention, then rehired a month later,
without compensation for that month.
-Lee W. Miller, a Fishery Biologist of
the Department of Fish and Game, in San
- Continued on Page 2
LEGAL
Gay Rights Denied
Classroom Censorship
Judge Broderick of Marin County
Superior Court set September 28 as a
hearing date for the Novato Unified
School District to explain the charges of
censorship of a gay speaker, made in a suit
filed September 13 by ACLU-NC.
Joining in the petition were the two
teachers who had invited the speaker to
their class-Kristina O'Donnell and
Lawrence Siegel-as well as students who
wished to hear the talk, parents who
wished them: to, and the organization
which supports the civil rights of
homosexuals, (SIR) Society for Individual
Rights.
Refused
The controversy arose at the end of last
school term when homosexual Robby
Robillard was scheduled to tell of the
discrimination gays experience to students
in Personal Philosophy and Minority
Studies classes as San Marin High School.
Although representatives of other
discriminated `groups (blacks, women,
students) had spoken earlier in the year to
the classes, the school administrators .
refused to allow Robillard to speak, and
even obtained a reprimand for the teachers
from the school board for inviting the
speaker over the principal's objection.
ACLU Staff Counsel Joseph Remcho
states, ""The issue is whether school
administrative authorities can thwart the
_ wishes of students, parents and teachers to
hear responsible discussion of con-
troversial issues within the classroom
setting. It is particularly ironic that this
situation happened in a school district
with an. enlightened official guideline
which says that `students have the right
to study any controversial issue which
has political, economic, or social
significance.' "'
Unreasoning
Remcho points out several court
decisions that support this right, including
one which states, ``The classroom is
peculiarly the `market place of ideas!' The
Nation's future depends upon leaders
_ trained through wide exposure to that
robust exchange of ideas which discovers
truth `out of a multitude of tongues'
(rather) than through any kind of
authoritative selection.''
`This kind of unreasoning authoritative
action is exactly the opposite of the kind of
democratic experience that we want our
children to learn in school.''
Frank Fitch, head of SIR's speaker
bureau explained that Robillard was not
invited to discuss sexual activity, but
rather the problems of discrimination by -
society of a minority group. He states,
He explained, -
"Just as a white cannot adequately inform
a Class about the subject of discrimination
against blacks, so a non-gay cannot
adequately explain the discrimination
experienced by gays. Frankly, we are quite
surprised by this action of the Novato
school, since we are supplying speakers for
secondary schools of the Bay Area at
something like the rate of one a week.''
Attendance at the lecture in question
had been optional for the students, with
written permission from parents required
for admittance.
The ACLU action requests a court
ruling that the speaker not be refused an
opportunity to speak at the school, and
that the reprimand be withdrawn from the
teachers' files.
Clearance Revocation
ACLU represented Electronics
Engineer Allan L. Rock at a security
clearing hearing over his homosexual
activity, on September 21.
Mr. Rock freely admits he has engaged
in homosexual activity and has done so for
nine of the past 16 years, during which
time he has held increasingly sensitive
security clearances in a variety of im-
portant and demanding jobs in the
electronics industry. . .
So how can the threat of exposure
subject him to blackmail and compromise
security? Staff Counsel Joe Remcho
doesn't feel the government has presented
one bit of evidence to demonstrate any
security threat.
Discrimination
Remcho points out that the Security
Clearance Review Office has not granted
or retained the clearance of a single known
homosexual during the 20-year term of its
present director; at the same time they
have shown a complete lack of interest in
anyone's illegal heterosexual activity,
such as sodomy, adultery or fornication.
Remcho states, ``As in most of these
cases, the screening board has come up
with no evidence at all that Mr. Rock's:
personal sexual activities have any
relationship to his trustworthiness on the
job. Mr. Rock has presented affidavits of
his family, co-workers and supervisor, all
of whom are aware of his sexual orien-
tation, and all attesting to his reliability,
integrity and resistance to pressure. The
only risk presented by his private sexual
life is that someone in the Department of
Defense may blindly remove his clearance
over it and thus deprive the nation of the
services of a man who has proven his value
to the national defense effort.''
H qi tc h Continued
Joaquin County, who was forced to with-
draw his candidacy last Spring for the
Republican nomination for the U.S. House
of Representatives in the 15th
Congressional District, or be fired. He
removed his name from the ballot.
Legal Director Charles Marson points
out that the Hatch Act infringes upon the
fundamental right to engage in political
activity, in violation of the guarantees of
the Ninth and Tenth Amendments to the
Constitution. He explains that this suit
makes no attack on other sections of the
act which place reasonable restraints on
political activity-such as prohibiting
active political work on the job, or bans on
the use of public money to finance political
campaigns.
The DC Court's decision is being stayed
pending review by the U.S. Supreme
Court this fall.
Howard Jewel, Chairman of the Board
aclu NEWS
9 issues a year, monthly except bi-monthly in March - April, July - August,
: and November-December
Published by the American Civil Liberties Union of Northern California
Second Class Mail privileges authorized at San Francisco, California
William Kane, Editor and Public Information Director
593 Market Street, San Francisco, California 94105-433-2750
Membership $10 and up of which $2.50 is the annual subscription fee fot aclu News.
Jay Miller, Executive Director
September
aclu NEWS
ACLU on Corporal Punishment
At a Summer Board of Directors
meeting the following resolution was
passed opposing Corporal Punishment in
our schools. The legal staff is presently
preparing a suit and would be interested in
hearing of any corporal punishment
violations which occur. Contact our
volunteer field investigator Adah Maurer,
527-0454.
The use of corporal punishment by:
school personnel in the management of
students poses serious problems of civil
liberties concern. It should be entirely
eliminated from the public school system.
Some of the reasons for its elimination are
these :
The legal basis for corporal punishment
is no longer adequate. The doctrine of in
loco parentis (in place of the parent), from
which the schools draw their primary
authority for corporal punishment, is a
legal anachronism in the context of
today's school system, in which a child,
during his educational years, may face as
many as 100 teachers, no one of whom
can acquire the understanding or
knowledge to deal with him as a parent,
and most of whom are in no position to
give him the affection and help expected of
a parent.
The Supreme Court has held that the
juvenile is entitled to the protection of the
Bill of Rights. Beating-an infliction of
pain and a deprivation of liberty-is a
summary form of severe punishment -
which may easily violate the right of due
process (fair and impartial procedures) and
which violates the right to be free from
cruel and unusual punishment. Also, as a
violation of bodily integrity, corporal
punishment is an invasion of the privacy
of the individual.
A further powerful objection to corporal
punishment in schools is that it sets the
young the dangerous example of the use of
violence as a way of imposing one's will on
others.
The schools should be a vital means of
strengthening democracy by teaching our
_ children the rights, privileges and
responsibilities of citizenship in a
democratic society. The ACLU believes
that, in carrying out this function,. the
schools should assure that their practices
exemplify the principles set forth in the
Bill of Rights. -
The Smith Family by Mr. and Mrs. Smith
SCHOOLS AS THEY ARE Now
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TOLST A TEENY WEENY
LITLE ST.
EDUCATION
September
aclu NEWS
Will the November Ballot Propositions Affect Your Freedom?
Following is a discussion of several
ballot propositions you will be voting on
this November, each of which would have
an effect on your civil liberties, both
positive and negative.
Proposition 17 - Death Penalty
Proposition 17 consists of two short -
sentences. Here is the full text of the
measure:
""All statutes of this state in effect
on February 17, 1972 requiring,
authorizing, imposing or relating to
the death penalty are in full force and
effect, subject to legislative amend-
ment or repeal by statute initiative or
referendum.
""The death penalty provided for
under those statutes shall not be
deemed to be, or to constitute the
infliction of cruel or unusual punish-
ment within the meaning of Article I,
Section 6 nor shall such punishment
for such offenses be deemed to
contravene any other provision of this
constitution. ''
For centuries, capital punishment has
been supported by a number of myths
which justify its continuance. Today, even
when the myths have been proven to be
just that, proponents of the death penalty
continue to call on the old arguments.
Deterrence
Deterrence of crime has long been
flouted as the chief excuse for capital
punishment. This view holds that the
threat of death keeps potential criminals
from killing. The fact is that there is
absolutely no basis for such an assump-
tion. Actually, there are numerous cases
where capital punishment has proven to be
an incentive to violence.
Even J. Edgar Hoover admitted that
""any statistical evidence relating to
murder rates is inconclusive in
establishing the deterrent effect of the
death penalty.
Several states have abolished capital
punishment without any ill effects
whatsoever. Even more, many states
report an actual decrease in homicides
since abolition. The net effect is that in
nearly all cases, homicides are unaffected
~ by the threat of death and there are many
instances where persons murder because
they can't bring themselves to commit
suicide. They would rather the state did it
for them.
Reformable
Another argument often cited by
proponents of capital punishment is that
murderers are essentially unreformable
and that life imprisonment is. needlessly
expensive. Here again, the facts are
contrary to such arguments. The over-
whelming number of homicides occur
between relatives or acquaintances and are
the result of drunkenness or passionate
arguments. Under such circumstances,
the influence of deterrence is minimal.
In addition, the recidivism rate among
killers is very low. Most such convicts slip
into obscurity as soon as they are released.
Lewis Lawes, former warden of Sing Sing
has stated that "`in a great majority of
cases, the murderer is not a criminal in his
nature as we ordinarily understand this
term.""
Cost
Cost, too, is a weak argument since it
has been verified countless times that life
imprisonment is far cheaper than the
direct and indirect expenses related to an
execution. Estimates vary around $4,000
per year for imprisonment. That would be
$320,000 for 80 years. On the other
hand, when the mandatory appeals, in-
creased security, court time, trial tran-
scripts, and the actual execution are
considered, the costs of capital punish-
ment range up to $1.5 million.
PROPOSITION
Others who support capital punishment
will be honest enough to admit that their
motivation is simple vengeance. For most
of these, however, their zeal for
retribution should pale given the fact that
by retaining capital punishment they may
be endangering the welfare of all citizens.
Such risks to society are not worth the
satisfaction of revenge, which has never
been recognized as a legitimate objective
of criminal penalties anyway.
Unreviewable
For civil libertarians the most important
objection to Proposition 17 is its specific
language that would totally and com-
pletely bar the Courts from reviewing the
death penalty under any provision of the
California Constitution. Thus, the Courts
would be forbidden from reviewing
legislative action imposing the death
penalty under the due process, equal
protection, or any other parts of the
California Bill of Rights.
This step is clearly a violation of the
long-standing concept of separation of
governmental powers and is an extreme
and radical departure from our system of
constitutional government which have
long been the protection of minority
rights. Such action will present a tragic
first step on the road to massive inroads
into every citizen's civil rights.
Unconstitutional
Furthermore, since Proposition 17 was
authored before the United States
Supreme Court decision which outlaws
discretionary death sentences, much of
the measure is unconstitutional. Voters
_ will not be informed of this by the ballot
arguments, however. If they believe they
are supporting capital punishment for
persons convicted of premeditated murder
by voting ``yes'' on Proposition 17, they
will be granting to the legislature license
to dictate the administration and cir-
cumstances of the death penalty.
Obviously, there have been abuses of
the death penalty in the past. The poor and
the working classes have suffered far
greater than the rich and influential.
Proposition 17 will do nothing to repair
that situation. Also, with the awful
finality of the death penalty, there is no
possible reparation to an executed in-
nocent. And such cases have not been
unknown in the past.
Proposition 17 will kill a lot more than
people. Every citizen's basic rights and
freedoms are at stake. Indeed, our r system
of justice is endangered.
You can help in this Campaign to defeat
Proposition 17. Call Bruce or Dottie at
433-2753 and find out how. Or contact
your local coordinator.
Proposition 17,
`County Coordinators
weld ene Ors
ALAMEDA:
James Peterson .
201 13th Street, Rm 105
Oakland, Ca. 94604
(415) 763-0370
CONTRA COSTA:
Jim Hupp
15 Vallecito Lane
Orinda, Ca. 94563
(415) 254-5407 (home)
(415) 398-1212 (office)
FRESNO:
Lenore Shreiber
1028 S Street
z Fresno, Ca.
} (209) 233-0020
MARIN:
Leslie Flemming
106 Cornulia
Mill Valley, Ca. 94941
(415) 383-5247
MID-PENINSULA:
(Palo Alto Area)
Sheila Spaulding
825 Berkeley Avenue
Menlo Park, Ca. 94025
(415) 325-9167
MONTEREY:
Pearl Carey
1231 Olympia
Seaside, California 93955
(408) 394-2156 (home)
(408) 373-0143 (office)
NAPA:
Barry Gill
1988 Adrian Street
Napa, Ca. 94558
(707) 224-4235
SACRAMENTO:
Glen Holman
1300 N Street
Sacramento, Ca. 95814
(916) 442-5447
SAN FRANCISCO:
Jerome Fishkin
666 Octavia
San Francisco, Ca. 94102
(415) 868-3113
SAN JOAQUIN:
Beverly Ford
8108 Balboa Street
Stockton, Ca. 95207
(209) 477-0715 (home)
(209) 466-3911 (office)
SAN MATEO:
Pending
SANTA CLARA:
Daniel Hoffman
Triplett, Pruett and Hoffman
2775 Park Avenue
Santa Clara, Ca. 95050
(408) 244-4464
SANTA CRUZ:
Ed Newman
2020 Wallace Avenue
Aptos, Ca. 95003
(408) 688-4235 (home)
(415) 582-1080 (office)
SOLANO:
Pending
SONOMA:
Bill Booth
2150 Hyland Court
Santa Rosa, Ca. 95404
(707) 542-5818
STANISLAUS:
Howard Tenbrink
1521 Ohio
Modesto, Ca.
(209) 523-8008
YOLO:
Charles Slap
1103 Maple Lane
Davis, Ca. 95616
(916) 758-1774 (home)
(916) 753-2551 (office)
Piopeaitiod 18 - Obscenity
In summary, this proposition:
@ Amends, deletes and adds Penal Code
statutes relating to obscenity. |
e@ Defines nudity, obscenities,
sadomasochistic abuse, sexual conduct,
sexual excitement and other related terms.
@ Deletes ``redeeming social im-
portance' tests. Limits ``contemporary
standards'' tests to local areas.
@ Creates misdemeanors for selling,
showing, producing or distributing
specified prohibited materials to adults or
minors. Permits local governmental
agencies to separately regulate these
matters.
@ Provides for a county jail term and up
to $10,000 fine for violations. Makes the
sixth conviction of specified misdemeanors
a felony.
@ Creates defenses and presumptions.
e Permits injunctions and seizures of
materials.
@ Requires speedy hearing and trial.
Have you read any good books lately?
Seen any good movies? If you haven't,
hurry, because if the Obscenity Initiative
on the November ballot passes, some of
the best ones could be banned.
The initiative, sponsored by Senator
Harmer (R.-Glendale), proposes to create
wholly new crimes by banning matter
which is not now considered obscene by
judicial standards. While obscenity is
currently determined by considering a
work as a whole, the initiative would
brand a work as obscene on the basis of a
single word or picture.
ACLU opposes the initiative as blatant
censorship.
Under the initiative, adults could be
prevented from seeing such Academy
Award motion pictures as French Con-
nection, Patton, and Midnight Cowboy,
not to mention award nominees like Love
Story, MA S H, Cabaret, Butch Cassidy
and the Sundance Kid, Five Easy Pieces,
and The Last Picture Show.
The measure is so overly broad that it
would make it a crime to exhibit a movie
or magazine containing a single
photograph "`that shows the nude or
nearly nude body,'' or that utilizes slang
words referring to the human body.
It would have the content of matter
judged criminal solely because of its
descriptive character. Certain depictions of
nudity would be banned without regard to
the context, appeal or purpose of the
depiction. A journalistic photo of a nude
cadaver and a Playboy-style pin-up pose
are one and the same thing under the
proposed law. A single photograph in a
magazine or newspaper could result in the
banning of the entire publication.
Besides eliminating consideration of a
work as a whole, the initiative would do
away with another contemporary test for
obscenity - consideration of a work's
**tedeeming social importance.'' So much
for Michelangelo's David.
There are about 6,000 further ob-
jectionable points in the initiative - it is
some 6,000 words long - including a
section allowing local governments to
create their own even broader censorship
laws.
As ACLU legislative advocate Coleman
Blease commented to the California
Newspaper Publishers Association,
"Literally applied, the new law would
reach much of the printed matter in
circulation today. If not applied literally,
the new law will be applied selectively, at
the whim of any district attorney or
vociferous pressure group.''
EDUCATION
September
aclu NEWS
Proposition 19 - Marijuana
Passage of this proposition will:
@ Remove state penalties for personal
use.
@ Proposes a statute which would
provide that no person eighteen or older
shall be punished criminally or denied any
right or privilege because of his planting,
cultivating, harvesting, drying,
processing, otherwise preparing, trans-
porting, possessing, or using marijuana.
@ Does not repeal existing, or limit
future legislation prohibiting persons
under the influence of marijuana from
engaging in conduct that endangers
others. :
The American Civil Liberties Union
opposes laws which criminalize the
possession and use of marijuana, for these
reasons:
1. They impose arbitrary, often harsh,
and cruel penalties for private conduct for
which no criminal penalty at all is ap-
propriate.
2. They impose all of the hardships of
an arrest, an arrest record, and often a
prison term on otherwise law-abiding
young people.
3. They are selectively enforced.
4. Their enforcement relies on en-
trapment, illegal searches, and other
means which violate civil liberties.
5. They encourage police corruption.
6. They divert law enforcement money
and manpower from the enforcement of
laws against serious crimes.
7. They engender contempt for law.
8. They interfere with honest efforts to
educate young people about the dangers of
drug use and to combat the problems of
drug abuse.
Following are examples that illustrate
some of the things that go wrong when a
legal system is charged with upholding
laws against crimes that are not really
crimes at all: barbaric sentences, police
entrapment, selective enforcement,
swamped courts, thousands of police
manhours and millions of law enforcement
dollars consumed and because of it all,
increasing numbers of citizens who have
nothing but contempt for the laws and
flout them freely. The marijuana laws are
perverting our law enforcement system
and threatening our civil liberties.
-In Louisiana recently, a man was
sentenced to 50 years in prison for selling
a matchbox of marijuana to an undercover
_agent.
-TIn California in 1968, one-fourth of
all felony arrests were for marijuana
crimes, netting a total of more than ~
50,000 persons; the state spent about $72
million enforcing the laws.
-The FBI reports that 26 percent of
`the persons arrested for marijuana
violations in 1970 were under the age of
18, and 62 percent were under the age of
21; marijuana arrests accounted for 45
percent of all "`narcotic'' drug law arrests
in the United States.
-In Michigan a few years ago, two
undercover policemen spent several
months cultivating the friendship of a local
*`hippy'' poet, then asked him for some
marijuana; when he gave them two
cigarettes, he was arrested, convicted of
""possessing'' and "`dispensing,'' and
orginally faced 40 years, many times more
than the minimum sentence in that state
for any crime except first-degree murder.
The sentence was reduced on appeal to
91% years, without parole.
-The San Francisco Police Crime
Laboratory estimates that 38 percent of its
_ staff time is devoted to marijuana analysis;
yet in the period between 1960 and 1970
the number of lab tests performed in
conjunction with serious crimes ranging
-. from murder through robbery, burglary,
' who sentenced them said,
`providing a lesson for others,'
and aggravated assault actually declined
while the number of such crimes more
than doubled.
-In Minnesota, a youth was given an
indeterminate 20-year maximum sentence
for possession of 1/2800 of an ounce of
marijuana; police had to vacuum the
lining of his jacket to get it.
-In Ohio, a young couple received 20
to 40 years for selling $5 worth of
marijuana to a neighbor ; one of the judges
""they're
and the
sheriff who arrested them thought the
sentence wasn't stiff enough.
-In Cook County, Illinois (Chicago),
about 400 drug abuse cases, most of them
2
involving marijuana, are handled by the
courts daily.
-In California several years ago, a
woman was sentenced to sterilization for
being present where someone else was
smoking marijuana; a higher court
reversed the decision.
-It is estimated that at least 8 million
Americans, and perhaps as many as 20
million, have smoked marijuana at least
once; the U.S. Department of Health,
Education, and Welfare estimates that 31
ON CAMDUS
e2 Aaes
percent of American college students had
used marijuana by-1970. All of them are
criminals under the law.
There is no reason marijuana should be
a matter for the criminal law. Research
and experience have shown us that
marijuana does not make people commit
crimes, act aggressively or violently,
crave heroin, ``drop out,'' or go insane.
(The National Institute of Mental Health,
in its January, 1971 report to Congress,
said that ``Marijuana has little, if any,
effect on major crimes and violence and is
far less likely to be associated with such
conduct than alcohol.'? In 1967 Dr.
James Goddard, Commissioner of the U.S.
Food and Drug Administration, said he
knew of no medical
prohibit the use of marijuana.)
In parts of this country, it is possible to
be sentenced to 5 years, 10 years, or even
life in prison; 5 years in solitary con-
finement; or a $20,000 fine on a first
offense for simple possession of any
quantity of marijuana. The sale of a
marijuana cigarette to a minor could mean
40 years in prison, or life with no
possibility of parole, or even death. These
sentences do not reflect a _ rational
measurement of punishment appropriate
to a crime. They are symptoms of an
unreasoning fear, outraged morality, and
vindictiveness. They appear to be less a
response to what marijuana does than
what it represents - a life style, a political _
"IF DOES MV HEART GOOD SON
| SEE 4OU STONE DRUNK RATHER
THAN HOPPED UPON GRASS!"
justification to
stance, the seemingly alien values of a
different generation.
Few of those convicted serve the
maximum sentence under law. Yet any
conviction, indeed any arrest, for
marijuana is a personal tragedy that can
ruin a life. An arrest record, even without
a conviction, can bar a youth from future
scholarships, employment, entrance into.
the professions, qualification for oc-
cupational licenses, military service. It
means an emotional ordeal for him and his
family, financial hardship,-and for those
who cannot make bail, a long wait in jail
before trial. A conviction and prison term
will expose the youthful offender - who
in the vast majority of cases has never
been arrested before - to a school of drug
abuse, violence, and criminality. For
some, the first arrest or conviction can be
the beginning of a lifelong alienation from
society, even of a career in crime.
While it may be true that 20 million
Americans have smoked marijuana, only
a fraction of those millions are caught, or
even sought. Enforcement is selective.
One obvious target group is the ``hip-
pies'? - the longhairs, the street people,
residents of communes, and others whose
with Phil Frank
Stmchiengee ee ae
Aue
mF Ac 1972,
Reprinted with
|} permission from
0x00B0 `the Des Moines
@ 0x00B0
o Register and
of - Tribune
Syndicate.
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AN a a Sey
dress of style of living is unorthodox.
Another easy mark are juveniles, whose
privacy and trustworthiness receive scant
respect from many school authorities,
police officials, and sometimes even their
own parents. Political radicals are often
indirectly punished for their unacceptable
views by marijuana arrests. Particularly
vulnerable are the ethnic minorities, most
of them ghetto dwellers, whose frequent
run-ins with the police on minor in-
fractions result in the discovery of
marijuana offenses. Of course, this pattern
of selective enforcement only further
alienates the very groups most alienated to
begin with.
When a store is robbed or a pedestrian
mugged, someone calls the police, When
marijuana is smoked or sold, no one calls
the police because there is no victim who
is hurt or aggrieved. Therefore, in order to
enforce the laws, the police must seek out
the ``victims.'' One of the most effective
ways of doing this is through entrapment
by the employment of undercover agents
- little "`mod squads'" - who entice
suspected users and sellers into breaking
the law in their presence. Often they
provoke illegal acts that otherwise would
not be committed at all.
Many other violations of civil liberties
are virtually inevitable in the ap-
prehension of marijuana suspects. Illegal
or questionably legal searches of homes:
and persons, wiretapping, use of in-
formers - themselves often persons
arrested for possession or use and in-
timidated into giving information im-
plicating friends - are all employed, and,
indeed, are bound to be when the law tries
to police the private lives of citizens.
It is widely believed that drugs are
planted by the police to justify illegal
searches, that police sell drugs confiscated
from suspects, that they give perjured
testimony in court, that police and judges
accept payoffs to dismiss charges. No one
can say how often these suspicions are
justified by facts. But the suspicion alone
is damaging enough to the health of our
judicial system.
Partial and, therefore, selective law
enforcement breeds contempt for law. Yet
it is doubtful if many of those who support
the marijuana laws would be willing to pay
the price of their vigorous enforcement.
The hours and dollars devoted to police
work, court proceedings, and im-
prisonment would represent an ex-
penditure far beyond anything our society
is willing to make. It is always dangerous
to a society when a large minority of its
citizens feel aggrieved by a law which they
believe impinges upon their rights, and
especially upon their privacy. It is even
more dangerous when that law is
sytematically violated by an ever-
increasing number of people who are in
other ways law-abiding. It is surely
significant that until now the most
lawless, corrupt period in modern
American history was Prohibition,
another era of attempted legislation of
private morality. When one area of law is
held in so much contempt by so many
people, there is inevitably a weakening of
respect for the meaning of law and a
greater tolerance for the flouting of all
laws.
Certainly, the most tragic aspect of the
criminalization of marijuana use is its
effect upon the use of dangerous drugs.
_ When opponents of legalizing marijuana
link marijuana with LSD, ``speed,'' and
heroin, they are not wholly incorrect -
except they do not add that a connection
may be fostered by the marijuana laws
themselves.
Because marijuana is illegal, those who
use it must obtain their supplies illegally,
sometimes from dealers who have other
outlawed drugs to sell as well. There is
nothing inherent in marijuana which
makes its users ``graduate'' to dangerous
drugs and heroin. But the fact that users
may be thrown into contact with the
purveyors of these drugs increases the
likelihood that they will experiment and,
for some, this can be the beginning of the
frightening path into serious drug abuse.
The marijuana-heroin link is strongest
in the urban ghettos, where all kinds of
drugs are bought and sold freely and where
heroin addicition is virtually an epidemic.
Even though the intolerable pressures of
slum life will continue to drive many to an
escape into drugs, legalization of
marijana could save many others from an
early and intimate association with
narcotics peddlers.
The present laws also prevent honest
education about drug abuse. The drug
educator who tries to tell the truth about
marijuana will be accused by those in
authority of encouraging violation of the
law. The educator who insists the
marijuana is harmful will not be believed
by his students - and his justified warn-
ings about other drugs may go unheeded
too. If we uuy wish to teach young peuple
about drugs. we must stop telling
lies about marijuana, and we must get rid
of the .aws wuich support thuse us.
Few people would suggest that the use
of marijuana should actually be en-
couraged. Few would state that marijuana
can never do any harm to anyone under
any conditions. Like alcohol, for that
matter, like tobacco,... caffeine, ~
EDUCATION
September
aclu NEWS
COUNTY COORDINATORS
ALAMEDA
Rob Kern
2519 Telegraph Avenue
Berkeley, Ca. :
(415) 848-8561
Robert Wright
3415 Pestana Way
Livermore, Ca. 94550
(415) 447-1100 Ext. 3168
Joe Howard
6387 Cotton Avenue
Newark, Ca. 94560
Susan Hockmier
2200 Market Avenue
San Pablo, Ca. 94806
(415) 237-6564
APLINE
Susie Lemos
P.O. Box 132
Bear Valley, Ca. 95223
Leave Message at:
(209) 753-2029
BUTTE:
Friar Timothy Snyder
Oroville Universal
Life Church
3418 Oro Bangor Hwy.
Oroville, Ca. 95965
CALAVERAS:
Alex Chick
Star Route 1
San Andreas, Ca. 95249
FRESNO:
William McPike
1671 East San Jose No. 109
, Fresno, Ca. 93710
(209) 227-3839
HUMBOLDT:
Fred Cranston
Route 1, Box 198F
Bayside, Ca. 95524
MARIPOSA:
Larry Goebel
Star Route
Mariposa, Ca. 95338
(209) 966-3805
MERCED:
Rand Amen
891 Pine Street
Merced, Ca. 95340
(209) 723-8897
MONTEREY:
C.M.1.
467 Alvarado Street No. 7
Monterey, Ca. 93940
Mail To: P.O. Box 595
Seaside, Ca.
(408) 373-3139
Steve Trimble (408) 372-6784
Carol Mooy
NAPA:
Charles Henderson
20 Bramley Court
Napa, Ca. 94558
(707) 226-9860
SACRAMENTO:
C.M.1.
2804 `'P'' Street
Sacramento, Ca.
(916) 451-8446
Pat and Donna Butler
4226 Tresler Avenue No. B
No. Highlands, Ca. 95660
(916) 331-9610
Linda Roberts-Mike Hill
1316 - 18th Street
Sacramento, Ca. 95814
(916) 447-5427
M.H. Office (916) 445-7644
Arlene Hudson-Pau! Merz
(916) 363-7969
SAN FRANCISCO:
C.M.1.
2221 Filbert Street
San Francisco, Ca. 94123
(415) 922-6273
Cindy Hendershott-Michael Aldrich
Dennis Fiore-Molly Lemay
2241 Filbert Street
San Francisco, Ca. 94123
(415) 921-7780
san mateo;
Bob Capodilupo
110 Poplar Avenue
Redwood City, Ca. 94061
(415) 366-5522
Leo Paoli
1015 East Hillsdale Boulevard
Foster City, Ca. 94404 |
(415) 573-8071 (O)
(415) 341-0630 (H)
SANTA CLARA:
Jerry DeLany
72 East San Fernando Avenue
San Jose, Ca.
(408) 286-2159
SHASTA:
Russ Gamlin
1077 Market Street
Redding, Ca. 96001
(916) 241-1851
SIERRA:
Chuck DeVore
8567 Phoenix Avenue
Fairoaks, Ca. 95628
(916) 967-6297
SOLANO:
Janet Staskivige-Dick Lake
822 Benicia Road
Vallejo, Ca. 94590
(707) 648-1130
TEHAMA:
Arthur Delbert Boatsman
945 Harrold Drive, No. 1
Red Bluff, Ca. 96050
(916) 527-4414
TUOLOMNE:
Melvin Liel
Venda Dos Cabecas (Store of the Heads)
Route 4, Box 500
~. Sonora, Ca. 95370
(209) 532-1819 (shop)
(209) 586-3583 (home):
tranqulizers, and a host of other mood-
altering drugs widely used in our society,
marijuana has its drawbacks and its risks.
But it does not follow that the answer to
every risk is the criminal law. It is a basic
principle of civil liberties that every citizen
should be free of coercion by the state
unless his conduct is harmful to other
individuals or society.
Government can play a positive role,
however, by attempting to inform the
citizenry, and young people in particular,
about the risks of drug abuse, and by
regulating certain aspects of marijuana
traffic much as it now regulates alcohol
and some other drugs. There is a
reasonable alternative to the present
approach to marijuana, an alternative
which will respect the privacy and civil
liberties of our citizens and at the same
time help combat drug abuse. One step in
this approach is the repeal of all criminal
penalties for the possession or use of
marijuana, which passage of Proposition
19 would bring about.
Marijuana crimes are crimes without
victims. The possession and use of
Marijuana are criminal acts, often
felonies, because our federal and state
legislators were persuaded more than
thirty years ago that marijuana was the
`*killer weed'' that drove people to crime
and insanity. Now we know that these
fears were unfounded. But the laws
remain.
Proposition 11 - Privacy
Proposition ll amends the State Con-
stitution to add ``privacy'' as an
inalienable right, along with those now
mentioned (life, liberty and the pursuit of
-happiness).
The American Civil Liberties Union of
Northern California supports the privacy
initiative on the November ballot.
The privacy initiative creates a legal and
enforceable right of privacy for every
citizen of California. As both government
and private enterprise gain access to more
sophisticated technical equipment and
become more and more interested in the
private affairs of citizens, it becomes
critical to limit their power to probe into
our private lives.
In past years, private citizens have been
able to rely upon the inherent difficulty of
gaining access to private conversations
and data and the further difficulty of
compiling that information in usable form
to insure their privacy. Modern
sophisticated computers and
eavesdropping devices make it far easier
for the government and private concerns
to collect and have available vital personal
data. The easy availability of such data
make it possible for the government and
private interests to misuse information -
to use it for purposes other than that for
which it was collected or to embarrass
persons.
As the increased use of wiretap in-
formation illustrates, the government has
shown no hesitancy in using the technical
equipment which it has available. A
further example is the Bank Secrecy Act of
1970 which has been challenged by the
ACLU of Northern California. Under that
act, the Treasury Department has
required banks to join in compiling
records of all checking transactions made
by customers. It further requires banks to
turn over full financial data to any agency
of the Federal government on request.
Since we can not rely on the physical
difficulty of gathering data nor upon
private or governmental restraint in this
area, it is necessary to set legal limitations
on the power of private interests and the
government to collect, disseminate and
use information.
The ACLU-NC urges the adoption of
the privacy initiative to secure the fun-
damental right to be left alone.
Proposition 21 - Anti Busing
In summary, this proposition:
e Adds section to the State Education
Code providing: ``No public school
student shall, because of his race, creed,
or color, be assigned to or be required to
attend a particular school.''
@ Repeals a section of the State
Education Code establishing a policy that
racial and ethnic imbalance in pupil
enrollment in public schools shall be
prevented and eliminated.
@ Repeals section of the State Education
Code which:
-Establishes factors for consideration
in preventing or eliminating racial or
ethnic imbalances in public schools.
-Requires school districts to report
numbers and percentages of racial and
ethnic groups in each school.
-Requires districts to develop plans to
remedy imbalances.
The wording of Prop. 21 is quite
simple. It merely says: `*`No public school
student shall, because of his race, creed or
color, be assigned to or required to attend
a particular school.''
That may sound innocent, but what it
means is that the monumental 1954
decision in Brown v. Board of Education,
and much of the hard-won progress that
has flowed from it, would be, for most
practical purposes, nullified or at least
prevented from any further progress.
The amendment is supposedly designed
to salve public anger over school busing.
In fact, it goes much further. The
language of the amendment is such that it
could be used to stop literally every device
that has been used to help children of
minority groups realize their right to equal
educational opportunity.
For instance, the amendment could be
used to stop redistricting, or pairing plans,
or educational park plans, or many other
programs which do not even require
busing.
One need not support long-distance -
busing to oppose this amendment. While
it is true that many busing opponents have
valid complaints, an amendment for-
bidding a// busing for racial purposes, as
well as ail other pupil assignment plans
designed to alleviate racial inequities, is so
extreme that it can only be considered
racist.
Equal educational opportunity is im-
possible today in the absence of affirmative
actions by government. A constitutional
amendment is far too severe and
restrictive a measure for a problem which
needs to be approached on an individual
basis, school district by school district,
city by city.
Proposition 22 - Farm Labor
ACLU opposes Proposition 22, the
Agricultural Labor Relations Initiative, as
it restricts the freedom of self-organization
and association, and. impinges upon
freedom of speech and expression.
_ The initiative is aimed directly against
the United Farm Workers. It would
impose crippling restrictions on their
union organizing activities. Explaining
their opposition to the initiative, the
United Farm Workers sent ACLU the
Statement reprinted below.
Statement of United Farm Workers,
AFL-CIO Against Proposition 22
"On election day, the people of
California will vote on the proposed
"Agricultural Labor Relations Initiative.'
The lettuce' growers, the Farm Bureau
and other corporate agribusiness interests
behind the proposed law seek to present
the measure as a newfound way of
determining farm labor disputes in
California agriculture. _
`*But any objective examination of the
law will expose its real purpose: to destroy
Cesar Chavez' United Farm Workers and
make it a crime for farm workers to
organize into a union of their own in
California.
**The initiative accomplishes its goal in
the following ways:
Free Speech
oD;
"*The initiative would outlaw the farm
workers' boycott. It would take from farm
workers their most effective non-violent
weapon - the boycott which millions of
Americans have supported over the years
by not buying grapes and now iceberg
lettuce. The law would make all secondary
and nearly all primary boycotting a crime
punishable by one year in prison or a
$5,000 fine or both. But it does not apply
only to agricultural workers. If a
housewife, in the privacy of her own
home, were to urge her neighbors to help
the farm workers by boycotting iceberg
lettuce, she could conceivably be liable os
the jail term and fine.
`*The initiative would also prohibit the
picketing of any retail store or super-
market.
Free Speech
Assembly
*"The initiative would abolish the right
of farm workers to strike. Growers would
be able to receive automatic 60-day in-.
junctions against strikes or the threat of a
strike from local Superior Courts - the
same rural courts that enjoined the 1970
Salinas Lettuce Strike.
Equal Protection
**The initiative's so-called `secret ballot
election' process is a fraud that would
disenfranchise the vast majority of the
migrant and seasonal farm workers - the
workers most in need and most likely to
vote for Chavez' Farm Workers Union.
The law says the elections ``shall be set at
a time when the number of temporary
employees does not exceed the number of
permanent employees. . ."' This means
that if an agricultural employer hires 10
full time workers but 200 temporary or
seasonal employees, the election would
have to be held when there are not more
than 10 seasonal workers on the ranch,
thus taking the vote away from 180 field
workers.
"`Tf the union ever won an election -
and the law makes that impossible - the
initiative would allow growers to empty
the collective bargaining process of its
meaning. It would be a crime for workers
to press for pesticide protection clauses in
union contracts, successor clauses,
subcontracting clauses (barring the use of
infamous labor contractors), hiring halls
or a say on mechanization.
`*The initiative sets up a 30-day shop
which in agriculture amounts to a `right
to work' provision.
"Governor Reagan, for years a bitter
~enemy of the farm workers cause, would
appoint the five members of the Board that
would administer the law.
`"`Farm workers are among the poorest
of our nation's working people. For seven
years they have suffered and sacrificed
non-violently so that they could hold their
heads high in a union of their own. The
agribusiness establishment has fought
them every inch of the way with hired
guards and police dogs, imported
strikebreakers, illegal court injunctions,
money and sordid political influence. Now
agribusiness seeks to use the law of the
people of California to rob farm workers
and consumers of their most sacred
constitutional rights. We must recognize
this initiative for what it is: a rich man's
law against a poor people's movement.''
tod
September
aclu NEWS
Civil Liberties and the 1971-1972 U.S. Supreme Court
By Marshall W.. Krause,
former Staff Counsel, ACLU-NC (with thanks to Paul Halvonik, Jerry Falk, and Jerry Gunther, whose ideas I have drawn upon).
Editor's Note: While the "Nixon Four" have not been a totally solid conservative
bloc in the U.S. Supreme Court, as Marshall Krause's article observes, they
have certainly shown remarkable unanimity. Of the 66 cases in which all nine
justices participated, the four voted together in 54. Even more revealing was
their cohesiveness on close cases. Of the 18 cases in the finalweeks of the term
that turned on 5-to-4 decisions, the Nixon four voted together on 13. ACLU's
excellent win rate during the Warren court of around 80 per cent also seems to
have changed, running only slightly over 50 per cent this year (19 wins, 18
losses). Details on these decisions are in a pamphlet now in the mail to members.
President Richard M. Nixon has not been successful in achieving a Supreme Court
majority to his liking or even in achieving a conservative bloc which reflects his
philosophy on all legal issues important to the Administration.
The President's extraordinary fortune in having four vacancies on the Court to fill in
one term of office has not overcome the independence of the judiciary stemming from
life appointments, the duty to maintain the separation of co-equal branches of the federal
government, and (as observed by Paul Freund), the shadow cast by the foreknowledge
that work becomes history through the judgment of his successors.
Some Unanimity
Although the product of the Court during the period here examined is notable for the
large number of opinions fragmented by dissents and concurrances, there was unex-
pected unanimity in some cases where a conservative dissent was the least predicted.
Here there comes to mind the interdiction of Department of Justice's desire to engage
in bugging and wiretapping of domestic groups which it, in its sole discretion, believed a
danger to the national security. When the administration claimed that the Fourth
Amendment did not require warrants for such searches (because the national security
picture was too complex and subtle to be conveyed to a judge), Mr. Justice Louis Powell
responded for the Court (minus Justice Rehnquist who was disqualified) that this claim
led one to question whether any probable cause for the surveillance even existed.
Other examples of this unexpected unanimity are the decisions:
1) that the Students For a Democratic Society could not be denied official recognition
on a college campus merely because of the alleged misconduct by such groups on other
campuses ;
2) that traditional criminal vagrancy statutes violate the 14th Amendment because of
their vagueness;
3) that plea bargains made by prosecutors must be carried out exactly and are not
subject to the ``harmless error'' rule; and
4) that most state parole revocation procedures are invalid because the hearing
process on the alleged parole violation lacks one or more of these essential elements:
a) the parolee must have written notice of the charges.
b) there must be an impartial hearing officer,
c) testimony must be sworn with the right to cross-examine and present a defense,
and
d) the decision must contain a statement of reasons for any revocation. The question
of the right to counsel at revocation hearings was reserved by the Court for resolution at
a later date.
Conservative Bloc
In most cases of civil liberties concern the Court can be split into three segments. The
largest is the four Nixon appointees, Chief Justice Warren Burger, Justices Harry
Blackmun, Louis Powell and William Rehnquist. These men place comparatively less
emphasis on individual rights and givemore weight to the orderly functioning of society.
Roughly speaking, the degree of conservatism of these four Justices is in inverse order
to the listing just made, with Justice Rehnquist frequently in a camp by himself
espousing views adopted by no one else on the Court. An example of this is his dismissal
of complaints by prisoners as frivolous and better left in the hands of prison ad-
ministrators and his narrow view of the availability of habeas corpus for servicemen.
Justice Powell is less rigid than Rehnquist on doctrine and has proven an able and
interesting opinion writer. Justice Blackmun has split away from absolute voting
concurrence with the Chief Justice which has enabled him to do something occasionally
individual, such as his dissent in the Sierra Club case (arguing against the narrow
decision as to. who has standing to protect the environment in judicial proceedings).
Chief Justice Burger, normally a supporter of government power in close cases, must be
credited with bringing the Court to some remarkable activist positions, supporting the
rights of prisoners to the use of law libraries, to file suits under the federal civil rights
act, to religious freedom even for Buddhists and to be free of arbitrary parole procedures.
Swing Men
Somewhere in the middle on most votes concerning civil liberties we will find Justices
Potter Stewart and Byron R. White. They have been dubbed the ``swing men'' of the
Burger Court and indeed their positions do make the crucial difference in many of this
Term's important decisions, although since the conservatives already have four votes it
only takes one of the swing men to make a majority when that bloc sticks together.
The votes of the swing men were most important this Term in the Capital punish-
ment cases where all death sentences before the Court were reversed by a vote of 5 to 4.
What seemed to be crucial for White and Stewart (each writing separately as did all of
the nine Justices) was the inability to ascribe rational distinctions between cases of
persons convicted of first degree murder who did not receive the death sentence and
those who were sentenced to death. This weakened the case for the necessity of the death
WES SYA E -
FE. A
S 7 Cyt
ee
IF YOU TOUGHT
YO) HAD TROUBLES
BEFORE...
`EIGHT TO FOUR-THAT'S GUILTY ENOUGH, BY GOLLY! THIRTY YEARS!' -
Editorial cartoon by Pat Oiiphant Copyright, The Denver Post Reprinted with permission of Los Angeles Times Syndicate.
sentence to deter other potential murderers and caused the Eighth Amendment's
prohibition of cruel and unusual punishments to be applicable through equal protection
considerations. The opinions left open for future decision, if the question comes up,
whether the death sentence could be imposed on a finding of specific reasons for its use
or mandatorily for all crimes of a certain nature.
The swing men also voted together in joining the conservative bloc sustaining a
vacuous loyalty oath and in allowing the government to exclude aliens from visiting this
country without giving any reasons despite the desire of Americans to hear lectures by
the excluded visitors. On the other hand, the swing men caused 5 to 4 decisions against
the conservative position only rarely.
When the two Justices voted different ways, Mr. Justice White was more likely to be
with the conservative bloc, making the majority for decisions denying reporters im-
munity concerning their sources in grand jury investigations, denying the right to a
unanimous jury verdict in state criminal trials, and denying Senator Gravel legislative
immunity for disclosure of the ``secrets'' of the Pentagon Ppaers. Strangely enough, it
was Justice White who joined the losing side in a 5 to 4 decision cutting down on the
right to counsel in line-ups of criminal suspects.
Liberal Bloc
Justices William O. Douglas, William Brennan and Thurgood Marshall continued to
take strong positions defending individual rights and there were many 6 to 3 decisions
with the trio on the losing side.
Among these were:
1) a case holding that non-tenured academic personnel have no right to a hearing on
non-retention decisions even when they allege they were fired for non-academic reasons,
such as opposition to their political views; :
2) a case from Pennsylvania holding that private clubs which discriminate on the
basis of race are not reachable under the equal protection clause of the 14th Amend-
ment;
3) a case extending the right of the police to engage in a pat-down search without |
warrant or probable cause, if they receive information of a criminal offense involving
some danger to themselves; and _
4) several poverty cases shooting down the equal protection claims of. welfare
recipients and tenants attempting to force landlords to make their homes habitable.
Mr. Justice Douglas deserves special mention for the enormous volume of individual
cy:nious he filed, many expressing provocative views that seem to communicate with a
broader audience of concerned people rather than oniy the usual group of lawyers and
jurists who read Supreme Court opinions.
As an example of his individuality, Douglas filed a concurring opinion in a case where
the Court sustained the right of Amish parents to keep their children out of the public
high schools. His position was that it was wrong to give this decision only to the
parents ; children of high school age ought to have a say in the decision also.
Douglas also filed essays on preserving the wilderness in the Sierra Club case and on
privacy in a case where the majority rejected a challenge to the surveillance of civilian
activities by the army for the reason that the individual plaintiffs did not find their rights
of expression curtailed by the practice. Justice Douglas wrote only two majority
decisions for the Court. :
Next Year
When the Court reconvenes in October it will again have many controversial civil
liberties issues before it. We may say that the chance for civil liberties victories in all of
these cases is less than it was a few years ago.
We are sure to have some gains next year among such pressing issues as busing to
accomplish integration in school systems which were never officially segregated, attacks
on anti-abortion laws, attacks on obscenity laws, more equality in school financing,
attempts to narrow the constitutional compulsion to exclude illegally seized evidence
from criminal trails and the necessity to give warnings concerning constitutional rights
to criminal suspects.
`LEGISLATIVE
California Legislature
Threats to Civil Liberties
By Coleman Blease,
Legislative Representative ACLU of Southern California
The legislature has recessed until after
the November election, when it will.
return to consider reapportionment and
other thorny issues. The recess came after
- a whirlwind week which had all the drama
and crises of a preadjournment week.
July Size
In particular the assembly came close to
passage of Senate Constitutional
Amendment 10 (Song, D., L.A.) which
would have placed on the ballot a
provision to lower the size of misdemeanor
criminal juries from twelve to eight. The
final vote of 45 to 23 for passage was nine
shy of the 54 needed and came after a last-
minute letter writing campaign by the
ACLU and others.
SCA 10 reached the assembly floor on a
surprise last-minute switch in votes by
Assemblyman Robert Crown (D.
Alameda). Until the switch, Crown had
consistently refused to vote for SCA 10
and similar measures.
Court Reform.
The defeat of SCA 10 is significant. It is
the tip of a large iceberg called court
reform aimed at scuttling many of the
fundamental rights of criminal defendants.
Other portions of the iceberg have so far
missed the mark through legislative
defeat. Among those are: ~
e@ Bills to abolish a unanimous verdict
in criminal cases.
e@ Bills to abolish the right of counsel to
cross-examine prospective jurors for bias.
@ Bills to reduce the number of
peremprory challenges to jurors by which
defense counsel seek to obtain a jury
composed of a cross section of the com-
munity. :
@ Bills requiring the defendant to reveal
the identity of his witnesses on the defense
of alibi. :
@ Bills to give the prosecution extensive
subpoena powers and control over the
timing and presentation of a defendant's
case.
(R)
la ra nk i i n Continued
cising it. Although Stanford is
sometimes thought of as a ``private''
university, it is in reality so closely
connected with and dependent upon
state and federal government support
and control as to be clearly subject to
the restrictions of the Bill of Rights.
For example, Stanford was created by
an amendment to the California
Constitution that decreed they could
not charge tuition unless authorized
by the legislature, which was done. In
fact, Stanford has openly stated they
wish to be bound by the Constitution
on this matter.
Second, the contract between
Stanford and Franklin could not fairly
be interpreted as prohibiting the
speeches he made. Franklin was fired
under a provision permitting dismissal
for `conduct substantially impairing
the individual's appropriate function
within the University community.''
The exercise of free speech is always
an appropriate function, especially
within the University community. |
_ Third, State law forbids an em-
ployer to fire an employee for political
activity, and free speech is the highest
and most protected form of political
activity.
The suit seeks Franklin's rein-
statement, back pay, and a declaration of
his rights under the contract.
@ Bills to impeach witnesses convicted
to felonies.
Women's Rights
The legislature dealt with many other
issues prior to its recess. The Senate Rules
Committee, led by its Chairman, Senator |
Mills, to the bitter end adamantly refused |
to let out AFR 17 (Karabian, D.L.A.) to
ratify the federal Equal Rights Amend-
ment.
Mills, who is now threatened with a
recall movement in his district over this
issue, has strangely and unfortunately
made this issue a test of his Senate
leadership. :
Ballot Propositions
The death penalty issue took many
forms prior to recess, depending generally
upon the prospects for change through the
courts or the initiative process. Earlier in
the session SCA 13 (Deukmenjian, R.
L.A.) to restore the death penalty was
defeated on the Senate floor. The author
abandoned the measure after the
qualification of the initiative sponsored by
him. Similarly measures to substitute life
_ imprisonment without possibility of parole
for the death penalty were defeated or
dropped after the initiative was placed on
the ballot.
Should the initiative pass and a court:
' Challenge to its validity again fail, the
death penalty issue will no doubt return
again to the legislative forum.
The legislature did take at least one
positive action. It passed and submitted to
the ballot ACA 51 (Cory, D., Orange
County) to add privacy as one of the
inalienable rights protected by the
California Constitution. The measure will
appear on the November ballot.
Though it did defeat AB 414 (Sieroty,
D. L.A.) to lower the penalties for
possession of marijuana, this and other
`issues spurned by the legislature will also
appear on the November ballot.
S hock ley Continued
principles of academic freedom which are |
the foundation of a great university. Only |
through full and free inquiry can the
validity of controversial theories be
tested. 2
In fact, the Policy Board Criteria sets |
such sensitivity of issues as-a goal, rather f
than something to avoid, stating, ``Does
the workshop deal with a social or political
issue, i.e., a matter of current concern to
more than the Stanford community and
one that normally involves a controversy?
The ACLU feels that to deny Shockley's
on the same basis is nothing short of
hypocrisy.
The letter points out that ``morality''
has never been made a criteria for ac-
ceptance, and never should be, since this
kind of standard defies precise definition
and leads to arbitrary rejections on the
basis of personal whims.
Concerning disruption, the ACLU
points out that the organization's
obligation is to protect the speaker by
dealing with disruptors, not using the
possibility of disruption to justify sup-
pression of speech.
The ACLU calls for SWOPSI's
rejection of the unsuitable criteria it has
been using and to reconsider Shockley's
application using acceptable and defined
criteria.
Stanford President Lyman has also
spoken out over the reasons given by
SWOPSI for rejecting Shockley's proposed
workshop.
September
aclu NEWS
The Office that
Runs on Volunteers |
Many of the jobs at ACLU are being
done by a crew of dedicated volunteers.
If you were to call or come into the
office the first people greeting you would
be volunteers. This is our Complaint
Desk, which is really much more, as they
handle most incoming contact with the
public. It is manned (and wo-manned) by a
different set of two volunteers each day.
They take a great load off our attorneys
with their data collection and referral
activities.
Co-ordinator for the Complaint Desk
Lola Hanzel advises that they need two
Lola Hanzel
And Now...
Dottie Ehrlich
Representative of these dozen or so
helpers is Dottie's sister Judy, who came
to San Francisco to visit and wound up as
Publicity Coordinator. She had just
finished two years as a Teacher Corps
Intern with the ACTION program, and a
Masters from Vermont University.
One of the volunteers even quit the job
which he had just taken after a Summer of
Bruce Lillinthall
Don Wilson.
additional volunteers for the desk at this
time. It is very interesting work, ``try it,
youll like it" Give usa call =~
Volunteers are also found in the
Membership Department and in Public
Information, and we even have a full-time
volunteer bookkeeper, whose modesty
keeps us from running a picture, but we
will mention his name (Jim Atkinson).
We now need another volunteer part-time
to help him out. And of course, many of
our legal victories are due to the hard work
_ of our cooperating attorneys.
The Death Penalty
With the start of the campaign against
the death penalty initiative, a new influx
of volunteers began. Instrumental in
soliciting free help for this effort has been
the boundless enthusiasm of Dottie
Ehrlich, Assistant Coordinator for the
Campaign Against Proposition 17. She
has been so successful that some days the
volunteer population in the office out-
numbers the staff. :
Judy Ehrlich
searching, to help defeat Proposition 17.
Assistant coordinator for the Campaign
Bruce Lillinthall came to ACLU as a
Summer Intern and is staying on through
_ the election, forgoing his return to college
this Fall.
More volunteers are still needed. Call.
433-2753 and ask for Dottie or Bruce, to .
find out how you can help.
Ne .
CHAPTERS
Chapter Legal Action
Santa Cruz
Topless Teacher
Miss Janice Rogers, a Santa Cruz City
Schools teacher's aide, was fired for
stripping to the waist during an anti-war
demonstration May 8 in downtown Santa
Cruz.
Although Miss Rogers was the subject
of a "`citizen's arrest'' at that time, the
district attorney's office later dropped
charges against her on the grounds that no
crime had been committed. In this town
which has received much publicity this
summer for its monokini, public nudity is
not against the law unless ``lewd,
sexually-arousing conduct'' is associated
with it.
However, Miss .Rogers had _ been
suspended on May 15, without pay,
pending a full investigation of the in-
cident, pursuant to a section of the
Classified Employers' Handbook
providing for dismissal for ``wilful failure
of good conduct tending to injure the
public service.'
The ACLU plans to bring suit for back
salary for Miss Rogers, for her rein-
statement, and for clearing her record.
The suit will also seek declaratory relief
for removal of the code section involved
from the handbooks, as too vague and
subject to abuse.'
San Francisco
Engineer/Writer
The Civil Service Commission of San
Francisco has unanimously voted to
reinstate engineer G.S. Dang to his job
with the water department of the SF
Public Works Department.
Dang had been dismissed from his job
on charges of alleged uncooperation and
insubordination, apparently because of
articles he wrote about environmental
issues. At the hearing before the com-
mission, Dang testified his ``superiors
were incensed at some of the exposes'' he
had done for some newspapers and
magazines and therefore had unjustly
dismissed him.
ACLU volunteer attorney Stephen
Koslow advised the commission that this
kind of threat to freedom of speech was
unconstitutional.
Davis
Newspaper Girl
In California, a boy can deliver papers at
10; a girl must wait until she is 18.
This doesn't sound right to 12-year-old
Amy Baldwin, of Davis, and it doesn't
sound right to the Davis ACLU Chapter,
and it doesn't sound right to volunteer
attorney Bob Leidig.
In fact, Amy is outspoken on the
subject, stating, "`I wanted to be a
paperboy because of the money and
because I want a job. Then they told me it
was against the law. Now, I really want
this job because I want equal rights with
boys."'
The ACLU also wants to end the sex
discrimination that California Labor Code
Section 1298 creates when it states:
"*No boy under 10 years of age and no
girl under 18 years of age shall be
employed or permitted to work at any
time or in any connection with the
street occupations of peddler,
bootblacking, the sale or dispersion of
newspapers, magazines, periodicals,
or circulars, or any other occupational
pursuit in any street or public place.
Nothing in this section shall apply to a
city whose population is less than
23,000 according the the preceding
federal census.''
Since Davis's 1970 census population
was 23,486, Amy could ironically have
been a paper carrier there in 1969 when
she was only 9-years-old.
ACLU has taken the case and has
written a complaint letter to the E.E.O.C.
Joining in the suit is the Woodland Daily
Democrat, who would like to hire Amy.
National Organization of Women (NOW)
has advised that they wish to submit an
Amicus brief in the case. ACLU of
Southern California is now exploring a
similar case in Lompoc, California.
5 Gi al k Continued
Joe Remcho flew to Yakima, Washington,
with Clayton P. Roche, a deputy attorney
general, who had argued for the defendant
Secretary of State before the three-judge
court. Following is Remcho's account of
this ``folksy'' court appearance:
``In Yakima, we rented a car and
drove to Goose Prairie where the
waitress at the General Store and cafe
sent us to Justice Douglas' home.
No one was home at the Douglas
cottage, but Mr. Ira Ford, who lives .
down the road drove over and offered
to leave our papers on the Justice's
desk. Later that afternoon we returned
to the house and were informed by
Mrs. Douglas that Mr. Justice
Douglas wanted the evening to study
the papers and requested that we
return at noon the following day.
Unconstitutional
`*After a pleasant evening stoking
wood in a cabin in Goose Prairie, we
returned to "`argue'' the case. Justice
Douglas said he had to be ``morally
certain'' that the full Supreme Court
would reverse the lower court's
decision before he could grant in-
junctive relief. He indicated that that
statute appeared from the court papers
to be unconstitutional, but that he
could not predict what the new court
would do with it. Ultimately, he
Si
denied our request for injunctive
felief
A notice of appeal from the district
court decision has been filed, and the case
will be decided by the full Supreme Court
this term. Although the decision will
come too late for Storer, Hall and Tyner
to get on the ballot this year, the Court
will be asked to declare the statute un-
constitutional to open up the ballot in
future years.
lec ti (c) Nn els
present rules governing access to bank
records by the government.''
_ Bills requiring notification of the
customer by the bank and a chance to
contest summonses or subpoenaes have
been introduced in both houses, as a result
of the attention brought to the matter by J
this suit, as well as specific urging by the
ACLU for such a law.
The three judges agreed in ruling on
foreign transaction that, ``when dealing
with matters of reporting to and sur-
veillance by the executive, (the Supreme
Court) has traditionally recognized a
distinction between domestic surveillance
where foreign nations are involved.''
_ Appeal
Legal Director Charles Marson feels
that in addition to our appeal of the
decision on the record keeping and foreign
transactions portions, the government
will appeal the injunction directly to the
U.S. Supreme Court.
September
aclu NEWS
| Learn How the Nov.
Ballot Will Affect You
The ACLU is sponsoring a series of
public forums, planned jointly with the 0x00B0
Marin Chapter, to highlight the civil
liberties issues involved in several of the
Propositions on the November ballot.
Assemblyman Willie Brown
The series will kickoff on October 4
with Assemblyman Willie Brown
discussing Proposition 21 - _ Pupil
Assignment. While this has been known
News, Renews
Thank you! Thank you those 850
members who responded to our appeal for
names of potential new members and who
sent us 9,000 new names. The mailing is
already on its way to those who you
recommended. If you can jog them with a
phone call, please do. If you have not sent
in your names please do. Your own best
source for needed growth.
By now all of you should have received
our Special Fund Appeal - please respond
as the Anti-busing Proposition, as is
pointed out on Page 5 of this issue and as_ -
KPIX-TV has editorialized: ``This.
measure does far more than end the use of .
busing as a tool for desegregation. It would
prevent the use of any known method for
desegregating schools.'' 2
The following week on October 11, SF
Sheriff Richard Hongisto will discuss your
right to be left alone and the three
_ propositions that will affect it. These are:
Proposition 11 - Privacy
Proposition 18 - Obscenity
Proposition 19 - Marijuana
Finishing the series on October 19
(Note: this is the only Thursday) is
Senator George Moscone, who is
statewide chairman for Californians
Against Proposition 17, to discuss this
attempt to reinstate the death penalty.
The forums will be held starting at 8:30
p.m. at the Edgewater Inn, in Marin
County's Corte Madera, which is located
right off Highway 101. A charge of $1.50
per talk will be made. A savings can be
made by reserving in advance for all three
talks for only $3. Call Ruth Lederman at
461-5672, or tickets can be purchased at
the door.
,and Specials
- the need is desperate! If you have
already - thanks.
9,500 members have renewed for 1972.
However, if we are to meet our goal and
budget we must renew 11,500 members
before December 1. There are 3,000 of
you out there who have still not renewed.
Will you do it today and save us the
further expense of mail reminders and
telephone calls - also grey hairs.
On September 9, the ACLU Student
Rights Project held a Bill of Rights
Seminar at the Alternative Futures Center
in San Francisco. Approximately 40
students from 10 different high schools
attended. Seminar participants came from
as far away as Crescent City, near the
Oregon border and Santa Barbara.
Resource people in attendance at the
conference included Valerie Edwards, a
student from Washington High School in
San Francisco. Valerie worked on getting
ff the San Francisco Manual and Respon-
sibilities adopted by the San Francisco
' Board of Education. The San Francisco
Manual is one of the most progressive
student bill of rights in the country. A
second resource person was Booker Neal
- staff member of the San Francisco
Human Rights Commission. Mr. Neal
was actively involved with the San
s Francisco Citywide Youth Council and its
struggle to get the San Francisco Manual
on Rights and Responsibilities adopted.
The last participant was Suzanne Mar-
| Student Project Conference
tinez, an attorney with the Youth Law
Center. Ms. Martinez was legal counsel
for the CWYC during its bill of rights
struggle.
Besides listening to the resource people
describe their organizing techniques,
participants exchanged atrocity stories,
painting a fairly gloomy picture on the |
status of student's rights. At one school
police dogs are used to find illicit materials
in students' lockers. At another school, a
student was suspended for writing that she
felt the principal had a puritanical outlook
on life. The story goes on.
Some students discussed the idea of
forming a statewide high school student (c)
union that could effectively work for
students rights.
Since funding has run out for ACLU's
student project, it must now take on a new
form. While foundation contacts are still
being made for that elusive funding,
discussions are underway with the
American Friends Service Committee on
the possibility of a joint project.
Bookeeper Needed
We desperately need a retired
bookkeeper and-or accountant to
volunteer two or more days a week in
our office assisting on ACLU and
`Foundation books. Please call Ingrid
Haubrich (433-2750).
Sound Engineer Needed
Are you in the recording business? ~
Are you a sound engineer looking to
put your extraordinary talents to use
for a good cause? If so, ACLU needs
you.... Call us at 433-2270, ask for Rita
Friedman. We're making "`an offer you
just can't refuse:...."'