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Vol. II, No. 1
October, 1956

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"Loyalty-Security" in Private Employment

The recent decisions in Parker v. Lester (268.1) have provided the most extended review to date of the Government's loyalty-security program as applied in private industry. A year ago the Court of Appeals for the Ninth Circuit (at 227 F. 2d 708) held that the loyalty-security regulations adopted by the Coast Guard for the purpose of screening merchant seamen were unconstitutional in that under them procedural due process, as required by the U. S. Constitution, was impossible. The Court considered the Coast Guard's argument that security considerations made impossible the presentation of full evidence and an open hearing, discussed the kind of evidence customarily found in "confidential files", and posed the question: "Is this system of secret informers, whisperers and tale bearers of such vital importance to the public welfare that it must be preserved at the cost of denying to the citizen even a modicum of the protection traditionally associated with due process?"

Answering in the negative, the Court remanded the case to the District Court for entry of an appropriate order enjoining the Coast Guard from enforcing the regulations against plaintiffs. The Coast Guard did not apply for certiorari but, instead, on May 1, 1956 amended its regulations to provide that an open "due process" hearing might be provided to the seamen. It then argued that the screened seamen should be required to file applications under the new regulations. The District Court disagreed and directed the immediate reinstatement of all seamen screened under the old, illegal regulations, without prejudice to the right of the Coast Guard to proceed under the new regulations to remove them from their positions after a full hearing. The Court of Appeals again affirmed (235 F. 2d 787). The Coast Guard obtained a stay until Oct. 31st pending its decision on whether to apply for certiorari.

The decision is in terms applicable only to the West Coast but it may be that national application will be necessary as an administrative matter. This is the first decision in an appellate court in which the due process requirement of cases such as Morgan (304 U. S. 1), and Ohio Bell Telephone Co. (301 U. S. 292) have been applied to the current loyalty-security program.

And see Kasik (268.2) and Mulsac (268.3).

Teachers Need Not "Inform or Else"

On March 17, 1955 the N. Y. Board of Education passed a resolution authorizing the Superintendent of Schools to terminate the employment of those who, in the course of an investigation under New York's Feinberg Law, refused to inform on other members of the teaching staff who may have been members of the Communist Party. In August, 1955, five teachers were discharged for their refusal to inform (Adler, 280.3). They appealed to the State Commissioner of Education, who, in August, 1956, held the City's "inform or else" resolution illegal.

The Commissioner cited widespread public criticism of the Board's resolution from both professional organizations and responsible public sources. He held that enforcement of the ruling would so destroy teacher morale as to interfere seriously with the operation of the educational system, and pointed out that the requirement that teachers inform would resut in tale-bearing and other destructive practices.

The Corporation Counsel of the City of New York has announced he will seek judicial review of the ruling, but no action has been filed to date.

The Powers of Senator McCarthy

Corliss Lamont, Albert Shadowitz and Abraham Unger were indicted for contempt of Congress for refusing to answer questions put by the McCarthy Committee in three separate Congressional investigations. They had not pleaded the Fifth Amendment; all had raised questions as to the jurisdiction of the Committee and had urged that the First Amendment protected them in their refusal to answer questions relating to political views and activities. The District Court (SD NY) dismissed the indictments (18 F.R.D. 27); the Court of Appeals affirmed in August, 1956.

In a unanimous decision, the Court held that it was clear that the Committee on Government Operations (Sen. McCarthy, Chairman), did not have authority to inquire into alleged subversive activities of non-governmental personnel. Chief Judge Clark, for the Court, pointed out that the Committee's jurisdiction was limited by the terms of the Legislative Reorganization Act and the Senate Rules and that nothing in those enactments gave to the Committee the broad power it asseted to investigate subversive activities at large.

The decision struck a severe blow at the powers of the McCarthy Committee. Dr. Lamont was called as a witness in a hearing which purported to relate to Army information and education; Mr. Unger in an investigation re the United Nations; Mr. Shadowitz in an investigation re Fort Monmouth. Under this decision, all three investigations were illegal, at least in so far as they called non-governmental witnesses. In fact, few, if any, of the witnesses called at those hearings were employees of the Federal Government. The Government has not appealed.

And see cases at 271.

Government Witnesses Held Unreliable

In an unusual decision from the Bench during argument of the Mesarosh Smith Act conspiracy case (241.2), the Supreme Court sent the case back for new trial because the Government had confessed that it could not vouch for the credibility of its paid witness, Mazzei. This witness had also testified against two attorneys involved in disciplinary actions: Sheiner (265.3) and Schlesinger (265.4).

And see Kusnitz (355.3).

Civil Liberties on Supreme Court Docket

Certiorari granted or probable jurisdiction noted:

Cases pending: