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


DESIGNED PROPLICE_


NISESRLY AND LITTLE. ELSE...


PW THE. PRESENT PRIMITIVE


PROGRANG EVEN WE WORST


WETTO IONE CAN BE A BETTER


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THAT THE "MODERN?" @cH00L_


CHAMBER THAN A PLACE OF


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ROW TH IG EYIVENCED B@By......


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CUILDREN WHO MAST BE.


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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


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0x00B0 `the Des Moines


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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:...."'


Page: of 8
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In collections

Details
Title

vol. 37, no. 7 (September, 1972)

Creator

American Civil Liberties Union of Northern California

Date

1972 September

Identifier

ACLUN_0431

Genre

newspapers

Physical description

40.5 x 28 cm

Publisher

San Francisco (Calif.): American Civil Liberties Union of Northern California

Preferred citation

ACLU of Northern California News vol. 37, no. 7, 1972 September; PER ACLUN; California Historical Society.

Rights statement

In Copyright

Publication rights

Copyright (or related rights to publicity and privacy) for materials in this collection, created by the American Civil Liberties Union of Northern California, was not transferred to the California Historical Society (CHS). Permission for reproduction or publication of materials in this collection beyond that allowed by fair use must be secured from the copyright holder.

Topical subject(s)

Labor rights
Public welfare
Privacy, Right of
Criminal justice
Freedom of expression
Educational equity
Capital punishment
Academic freedom
Reproductive rights
LGBTQ rights

Named subject(s)

AFL-CIO
Brennan, William
Franklin, Bruce
Halvonik, Paul
Marson, Charles
Moscone, George
Nixon, Richard M. (Richard Milhous), 1913-1994
Hongisto, Richard
United Farm Workers
United States. Federal Bureau of Investigation

Geographical subject(s)

Sacramento (Calif.)
Salinas (Calif.)
Monterey (Calif.)
Santa Rosa (Calif.)
Davis (Calif.)
Modesto (Calif.)
Fresno (Calif.)
Oakland (Calif.)
Berkeley (Calif.)

Collection identifier

PER ACLUN