. ~- ---, . ..


Civil

Liberties

Controversy

Government Protects Civil Rig

The Conflicts of Today
Need New Solutions
As Private Institutions
Acquire More Power
By IUGH WITEMEYER

WHEREVER Americans look to-
day, they see new controver-
sies in civil liberties. We are sur-
rounded by them. They pluck at
the clothing of our minds from all
sides, clamoring for attention. One
week, we are faced by problems in
school integration in New Orleans;
the next, riots against the House
Un-American Activities Commit-
tee in San Francisco; the next,
Federal aid to parochial schools
in Washington. We turn every-
where at once in consternation.
But we never focus on the in-
dividual problems long enough to
see what is essentially new and
distinctive about them. We over-
look the fact that the civil liber-
ties problems of today are in many
ways fundamentally different from
the problems of the past. They
raise new and difficult questions,
the answers to which cannot be
derived ready-made from history.
And this new look is precisely
what makes them such burning
issues.
IN THE Anglo-American tradi-
tion, the individual is the pri-
mary entity, and civil liberty has
meant protection of certain in-
dividual rights from infringement'
by the power of Government. Each
man is believed born with certain'
rights inherent in his nature,
which no Government can trans-
gress. These have been primarily
spiritual rights (the freedom of
worship, speech, and publication)
and political rights (self -govern-
ment and fair judicial process).
Locke grouped them under the
general headings of life, liberty,
and estate. He said the principal
purpose of Government is to pre-
serve these rights. If it fails to
do so, it can justly be overthrown.
This was the doctrine of both the
English and American Revolu-
tions; the rebels believed they were

asserting civil liberty against an
overbearing Government.
The Anglo-American tradition
therefore sees Government as the
potential tyrant, and believes that
if governmental authority can be
limited, liberty will be preserved.
It limits this authority chiefly by
placing it under a higher law em-
bodying individual rights, a con-
stitutional or common law upheld
by an independent judiciary. The
tradition asks one basic type of
question: How far can Government
rightfully extend its powers into
the individual life? The United
States Bill of Rights is a typical
answer; it contains a host of limi-
tations on the legislative, execu-
tive, and judicial powers of the
National Government..
Today, however, the most cru-
cial civil liberties controversies do
not, for the most part, involve the
main branches of Government.
They involve rather the influence
on the individual 1) of private in-
stitutions, and 2) ofdmodern ad-
ministrative or subsidiary agencies
of state and national governments.
We are gradually realizing that
in contemporary society the main
threat to individual liberty is not
Government as such, but that of
which Government is but one form
-power. Many far-flung private
and subsidiary public institutions
today holdigreat power over the
individual man; and these power
have been called into question in
the recent disputes.
II
THE MAJOR controversies in-
volving private institutions are
these:
1) Separation of Church and
State. The First Amendment be-
gins "Congress shall make no law
respecting an establishment of :e-
ligion, or prohibiting the free exer-
cise thereof." The biggest ,hurch-
state issues today center on ac-

Anti-discrimination picketers under arrest-
civil liberties vs. the law.

tions of state and national legis-
latures; but more precisely, they
center on the responses of these
groups to the pressure or lobbying
of private, organized religious
groups. Since most churches are
concerned not only with the tran-
scendent world, but also with the
actions of people in this world,
they attempt to promote their
beliefs and rules of behavior by
participating in the normal pres-
sure-group activity expected, in-
deed even desired in a democratic
government.
Unlike other pressure groups,
however, their activity falls within
an area sacrosanct in our tradi-
tion-the area of freedom of be-
lief. When therefore they suc-
ceed in imposing their own ways
(birth control practices, Sabbath,
support for religious schools,
Scriptural reading in public
schools) on the rest of the public,
many people feel this constitutes
"an establishment of religion."
Because of the ambiguity of "es-
tablishment," the courts must pass
on each specific issue as it arises,
and the church groups have in
practice no way of knowing ahead
of time whether they are abridg-
ing freedom of belief.
FOR INSTANCE, public support
for bus transportation to paro-
chial schools is constitutional, ac-
cording to the Supreme Court,
whereas optional religious instruc-
tion during public school time is
not. And no one knows whether
or not Federal aid to parochial
schools is constitutional until the
Court rules on it. In this situa-
tion, the church groups tend to
press for all they can get, and the
church-state issue becomes never-
ending.
2) Academic Freedom. This civ-
il libery, as it applies to teachers,
derives from their special social
function as disinterested seekers
and disseminators of truth. Truth
is conceived in the scientific
sense, as the product of disinter-
ested and objective investigation,
never final, but always subject to
revision as new evidence appears.
Academic freedom is, therefore,
the freedom to seek and teach
this truth without adverse conse-
quences from anyone whose inter-
ests or beliefs may be injured in
the process. It involves as security
for this high quest academic ten-
ure against dismissal on any
grounds other than proven pro-
fessional incompetence or misbe-
havior. Thus, when Professor
Koch was fired at Illinois not for
misconduct, but for advocating
the kind of sexual conduct im-
plied by his academic findings, his
academic freedom was violated,
AS IT APPLIES to students, ac-i
ademic freedom means some-'
thing slightly different. It means
the student's freedom to pursue
knowledge and judge its validity
himself, both inside and outside
the classroom. It includes free-
dom of the student press, and
freedom to discuss and organize
for political issues. It is properly
subject to rules of decent conduct.
Disputes over academic freedom
usually- involve actions against

faculty or students taken by the
administrations or 'governing
boards of private or state schools.
(The latter, although really sub-
sidiary governmental agencies,
are enough like private institu-
tions to be included here.) The ac-
tions may be in response to pres-
sures from alumni, private pres-
sure groups, state legislatures, or
some combination of them.
The Wayne State administra-
tion, for example, was recently un-
der combined private (Ann Byer-
lein and Donald Lobsinger) and
legislative (Senator Elmer Por-
ter) pressure to maintain its Com-
munist speaker ban. In these dis-
putes, the administrations often
claim to be exercising two legiti-
mate private rights themselves:
First, the right of an employer to
dismiss an employee; and second,
the parental right to regulate stu-
dent activity for the welfare of
both students and society, which
they hold, as it were, by proxy.
3) Racial Discrimination. This
issue, because of its exquisite mor-
al clarity, the most passionate civ-
il liberties issue of our time. It
is also the most significant.
Racial discrimination is basic-
ally a private phenomenon. It is
true that in the South there is
systematic discrimination in the
public sphere, in state and local
governments (this constitutes the
greatest exception to the thesis
suggested here). But these meas-
ures are public reinforcements for
what is essentially a private
discriminatory system ranging
through all the institutions of
Southern life,
DISCRIMINATION is reflected
in everything, down to the
smallest niceties of private social
etiquette. it determines not only
who can vote and get a fair trial,
but who can work with, live near,
eat with, talk with, and marry
whom. This private character is
even more clear in the North,
where there is little public dis-
crimination, and where practices
of private institutions are most at
issue (business employment poli-
cies, union membership policies,
'real estate sales and rental poli-
cies, union membership policies,
icies, fraternity-sorority member-
ship_ policies),
Discrimination, by striking so
systematically at the heart of
everything necessary for a good
life, is doing nothing less than cre-
ating new civil liberties. We speak
now of equal rights to go to school,
to buy a house, to be served in
stores, to be employed. They are
largely private economic and so-
cial rights, as opposed to the
older political and spiritual rights.
It is no help to call them civil
rights, as distinct from civil lib-
erties, for they are coming to
have the same sanctity as the old-
er rights. They are new because
theyrare asserted in the private
sphere, against the exercise of
power by private institutions.

of private rights. For in exercis-
ing their power, these private in-
stitutions are often within what
have long been, and still are con-
sidered by many, their rights.
Over against freedom of religion,
academic freedom, and the right
to be employed stand the churches'
right to lobby for their interests,
the schools' right to dismiss their
employees, and the companies,
right to hire whom they choose.
Though the power of Govern-
ment has been placed under a
higher law from the beginning in
our country, the power of private
institutions has been left sub-
stantially free. Ironically, however,
the exercise of this freedom has
seriously conflicted with other
important private rights. (Some
of which have actually been cre-
ated by it).
Thus in the name of freedom,
other freedoms are being jeopar-
dized. Some line of demarcation
must now be drawn between these
two sets of private rights. The
present controversy is over where
this line of demarcation should be,'
III
THE MAJOR controversies in-
volving subsidiary state and
national governmental agencies
are these:
1) Censorship. This problem is
really quite complex, and cannot
really be cleanly classified like
this. It touches in one degree or-
another most of the major media
of modern communication: books,
magazines, newspapers, radio, tel-
evision, and movies. It involves
private and public groups of all
kinds; we shall consider both
types.
There is little prior censorship
(censorship before issuance) in
the United States,. except of mov-
ies by the industry itself. Most
censorship is applied to distribu-
tors or exhibitors of the media in
question. It is usually exercised on
two grounds: protection of public
morals, and preservation of public
loyalty.
First, with respect to private
groups, many of them are con-
cerned with maintaining certain
"standards of decency" in pub-
licly-distributed media. They use
a variety of means to get book and
magazine merchants and theaters
to conform to these standards.-
Still other private groups are
concerned with "subversive" ma-
terial, and bring various pressures
to bear on school boards and li-
braries to prevent public exposure
to such material. Also, private ad-
vertisers sometimes exert subtle,
if not overt censorship on news-
papers, radio, and television.
SECOND, with respect to public
governmental agencies, many
states or localities have obscenity
regulations . prohibiting the sale
or exhibition of obscene printed
Continued on Page Fifteen
HUGH WITEMEYER, a
senior in the English Honors
program, was spokesman for

Continued from Page Two
matter or films. These regulations
are justified as an exercise of the
police power, that general power
to protect the public welfare and
morality under which liquor and
dope are regulated. The Post Of-
flce and Customs Bureau on the
national level have exercised cen-
sorship over second-class and f or-
eign mail and other media on the
grounds of both subversion and
immorality. This censorship is
justified as an exercise both of ad-
ministrative discretion and of the
police power.
The exercise of these subsidiary
or administrative powers there-
fore has raised questions of civil
liberties. Since Milton, its critics
have argued that ideas, opinions,
and information on all topics
should be allowed to flow freely,
and in the long run rational pub-
lic discussion will discard the
false and adopt the true. And no
authority, exercising a police pow-
er on any grounds, they argue, is
competent to judge beforehand
what is true or fit for discussion.
Justice Holmes has called this the
"market-place -of -,ideas" theory.
Subsidiary governmental powers
may be creating instead a "planned
economy-of-ideas."
2) Internal Security Program.
This program has arisen as a re-
sponse to the danger of internal
Communism in the Cold War. It
is by no means coherent and cen-
tralized; it has grown up piece-
meal, as a scattershot of arrange-
ments found in many administra-
tive and subsidiary agencies of
both state and national govern-
ments. It throws a spotlight on a
development of which we are sel-
dom made aware-the tremendous
scope and importance of such ad-
ministrative agencies in modern
government, and the power they
have over the individual citizen.
These various security programs
all involve a judgment, either im-
plied or overt, on the loyalty of
persons or groups. For instance,
in the national executive branch,
the Attorney-General keeps a list
of subversive organizations and

their memberships. Also in this
branch, prospective immigrants
are judged as to probable-loyalty
to the United States. In both na-
tional and state executive branch-
es, actual and prospective govern-
ment employees are screened for
their loyalty. In national and state
legislative branches, committees
gathering information on subver-
sive activities interrogate citizens
on their political associations and
opinions. (For example, the House
Un-American Activities Commit-
tee, the Senate Internal Security
Committee, the Teller Committee
in California). -These are only a
few examples from a very far-
flung program.
MANY BELIEVE that though
these judgments are not tri-
als, yet the indirect social and eco-
nomic repercussions from the pub-
licity of them can be so severe as
to make them de facto character
trials, They believe that the ex-
acting procedures and explicit cri-
teria of judgment used to guaran-
tee the protection of the innocent
in regular trials should be applied
here as well. These governmental
agencies, it is argued, hold a pow-
er over the individual just as
damning as a criminal penalty,
and he should be accorded rights
to equalize the unfair match just
as he is in a criminal proceeding.
The courts, however, have been
reluctant to impose these judicial
requirements on the agencies.
They have held that the agencies
are administrative, not judicial
bodies, which can operate by the
procedure they deem fit.
The essential nature of the civil
liberties controversies involving
subsidiary -governmental agencies
is, therefore, that they are over a
form of government institution
not foreseen by the Constitution,
and therefore not placed under
any higher law embodying indi-
vidual rights. They exercise a new
type of power, with a new and
more subtle type of consequence
for the individual.
As government has grown larg-
er, these agencies have acquired
greater power; but so far they


Students rally for anti-discrimination action in Nashvi

answer mainly to themselves, and
to the branches of government
which created them, for the re-
sponsible exercise of it. They are
as it were a fourth branch of gov-
ernment which has sprouted be-
yond the reach of the limitations
that have successfully pruned the
other three branches.
IV
TWO MAJOR methods have
emerged in the modern contro-
versy for securing limitations on
the power of private and subsidi-
ary governmental institutions.
1) First is the mass protest
technique used chiefly by the Ne-
gro rights movement. It brings to
bear two kinds of persuasion: the
moral persuasion of sympathetic
public opinion, and the economic
coercion of boycott. It tries to
bring about a voluntary change
of policy in private and public in-
stitutions, to make them realize
the responsibilities without using
legal coercion. The method has

I

worked most successfully when the
two kinds of persuasion have beenc
combined, as in the Montgomery
bus boycott and the chain store
sit-ins and boycotts.
Where the method has had to
rely on public opinion alone, with-
out direct economic or other pres-
sures on the institution's vulner-
able spots, as in the HUAC dem-
onstrations in San Francisco, it
has been less successful. The type
of situation in which the mass
protest technique is effective seems
rather limited and specialized.
2) The other major method for
limiting the power of private and'
subsidiary governmental institu-
tions is to invoke the ultimate pub-
lic power of Government itself.
Subsidiary governmental agen-
cies, since the judicial branch has
largely refrained from regulating
them, can best be regulated by the
branches to which they are sub-
sidiary. Thus the President has re-
cently issued an executive order
ending Post Office censorship of
Russian mail coming into the
country. And some Congressmen
have waged a recent, though un-
successful fight to have the House
of Representatives regulate more
strictly the functions of its Un-
American Activities Committee. In
addition, the national government
is empowered by the Fourteenth
Amendment to prevent state gov-
ernments and their subsidiary
agencies from according unequal
protection of the laws to their
citizens. This power has been ex-
ercised most notably in recent

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HISTORY: Its Ancient, Honored Aim


MAe [r~GZ +tIE

Vol VII, No. 8

Sunday, May 21, 1961

MODERN CIVIL RIGHTS PROBLEMS
By Hugh Witemeyer Page Two
LAB PLAYBILL: A REVIEW
By Bernard Waldrop Page Three
BOW LOW TO CICERO
By Palmer Throop Page Four
THE REVIVAL OF FOLK MUSIC
By Caroline Dow Page Five
SOPHISTICATION IN AMERICAN TASTE:
A Daily Special Section
NONCONFORMITY AT LEISURE
By Peter Steinberger Page Six
AMERICANS AND THE PLASTIC ARTS
By Michael Spitzer and David Giltrow Page Eight
INTELLECTUAL BEST-SELLERS
By Jean Spencer Page Ten
AMERICAN ENTERTAINMENT
By Judith Oppenheim Page Twelve
THE MOVIES: IMPORTS AND DOMESTIC
By David Marcus- Page Thirteen
PRESTIGE AND MAGAZINES
By Michael Olinicl Page Fourteen
PHOTOS: Cover: Giltrow; Page 2: Giltrow; Page 3: bottom, Henry Yee,
top, James Keson; Page 4: Giltrow; Page 5: Giltrow; Page 6: Gil-
trow; Page 7: Giltrow; Page 10: cartoon courtesy of The New York
Herald Tribune, photo, Giltrow; Page 11: Durrell courtesy of Dut-
ton Books, others, Giltrow; Pages 12-15: Giltrow.

Continued from Page Four
Conflicting interpretation of the
same evidence is always upsetting.
For a while Odd Balls get odder
and odder. But Odd Ball becomes
a reasonably enlightened despot
upon the perception of the extreme
complexity of, the problem caused
by the interacting of many vari-
ables, some of them imponderable.
THE DIFFICULTIES attending
the understandings of sources
from a distant age, many of them,
particularly in religion, of contin-
uing importance, are useful in
sharpening the discriminations
which can be applied to the analy-
sis of contemporary problems.
Above all, the analysis of past
value systems, especially as they
apply to conflicting concepts of
justice, the struggle between
church and state, for example, are
extremely profitable in apprehend-
ing the constant play between ideas
and social experience,
To become aware of discrepan-
cies between professed ideals and
the legalism through which they
may become deflected is an expe-
rience that may well decrease gul-
libility as to the Commandments
of the Earthly Paradise.
HOWEVER, not all the profit,
perhaps not even the greatest
profit, comes from the increasing
ability to scrutinize complex fac-
tors flowing through time upon the
basis of difficult and frequently
tenuous evidence.
The ability to grasp other cul-
tures sympathetically as well as
analytically is to enlarge capacity
for toleration, or even better, to
lay the basis for programs of coop-
eration with others differing in re-
ligious or other._ideals. To search
for the compatibility of ideals,
particularly those of justice, is to,
SUNDAY, MAY 21 1961

enlarge the possibilities of a more
fraternal future.
THIS AIM is as ancient as hu-
manism and has had its not-
able triumphs. To understand an
ideal, a definition is not enough.
The preliminary and necessary
cold analysis chills. Interspersed
with analysis must come the re-
vification of the past in terms that
can be grasped imaginatively and
emotionally by whatever means
the past itself affords: the_ dra-
matic play of strong leaders in
conflict, the resonances of this
tension in poetry, art, and archi-
tecture.
In portraying a battle over
ideals, the values of all groups in-
volved should be viewed with sym-
pathetic understanding. It is pos-
sible to measure a personality not
on the basis of the recriminations
of the enemy, but upon the basis
of disparity between professions of
ideals and practice. The episte-
mological implications of a posi-
tion frequently show why the be-
liever had to infer and had to
fight.
MORE DIFFICULT than the le-
gal position and its philo-
sophical and religious defenses is
to get the emotional intensity felt
during the conflict as a measure of
its importance to the contestants.
Poetry contemporary with the
event and derived with varying
directness from the event is the
most effective means of generat-
ing sympathy for the ideals at
play.
Art may come with strange con-
ventions that are too startling to
inspire empathy. Music may be
even stranger. But poetry seems
to have the magic of communica-
tion claimed for it by its Renais-
sance devotees.

Not for all, be it forthwith pro-
claimed. A few students are so
zealously partisan, so stubbornly
narrow in their perspective, so
entrenched in their rigid stereo-
types, that they are incapable of
vicarious experience, strangers to
the larger compassion.
It is cheering to note that those
most successful in historical an-
alysis appear also the most suc-
cessful in enlarging and refining
their sympathetic understanding.
It should be clear that this refin-
ing is not just a matter of appre-
ciating old historical conflicts in
their dramatic aspects. This most
can do, even with little or no study.
It is a matter of going beyond the
drama to the springs of the an-
guish and the ecstasy.
ONE CANNOT look back to the
past for solutions. Yet the past
presents the conditions of our eco-
nomic, social, political, and reli-
gious problems.
Consequently history intelligent-
ly studied does yield critical in-
sights that are invaluable for com-
prehending present difficulties
and for apprehending the emo-
tional loyalties and searing frus-
trations in which they are embed-
ded. To distinguish the variables
of social conflict, even when they
cannot be weighed as to force (al-
though their duration can often be
calculated), is to illuminate some
of the fundamental ehanges eter-
nally playing in human society.
To be aware of the historical
processes which set our problems
of conflict is a necessary condition
of their resolution. The student
who finally grasps this will con-
tinue to read and ponder history
throughout his life to his own en-
richment and that of the groups
among whom he lives.
Bow low to Cicero.

THE ESSENTIAL nature of the the Challenge program on
civil liberties controversies in- American Civil Liberties and
volving private institutionsis, a Marshall scholar.
therefore, that they are conflicts
THE MICHIGAN DAILY MAGAZINE

Picketing is a weapon in the d