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S. 1, AS AMENDED,

A BILL TO CODIFY, REVISE, AND REFORM

THE FEDERAL CRIMINAL LAW

MARCH,

1975

OF COUNSEL:

Mary Ellen Gale

HIGHLIGHTS OF ACLU'S PROPOSED CHANGES IN S.1 AS AMENDED
A BILL TO CODIFY THE FEDERAL CRIMINAL LAW

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A.

B.

The Official Secrets Act, $$1121-1125: Substitute ACLU proposed espionage statute set out at p. 18 of statement. Drop $$1122-1125 in their entirety. Require that, wherever the word "war" is employed, it be defined to mean a war declared by Congress under Art. I, Sec. 8 of the Constitution.

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3.

4.

A. Inciting or leading a Riot, §§1831-1834.
subsections (c) (3) (4) and (5) from $1831.

B.

Drop

Disorderly Conduct, $1861. At the very least, drop subsections (2), (3), (5), (6) and (7). Reconsider subsections (1) and (4).

C.

Drugs, $1813.

marijuana.

Decriminalize use of possession of

D.

Obscenity, $1842. Decriminalize pornography by
dropping $1842 in its entirety.

Offenses Against Government Processes

A.

B.

Criminal contempt, $1331.

Maximum penalty should be 5 days imprisonment and a $500 fine.

Refusing to testify, $1333.

All immunity statutes should be abolished.

Wiretapping and Electronic Surveillance

S$3101-3109. Abolish all electronic eavesdropping and wiretapping.

Introduction

The ACLU is a nationwide, non-, artisan organization of 275,000 members dedicated to the preservation and promotion of individual rights and liberties guaranteed by the Constitution of the United States. One of the ACLU's primary missions is to encourage legislative advancement of civil liberties and to oppose legislative

encroachment on them.

The ACLU supports revision and reform of the federal criminal laws. The over-all goal of making the federal criminal law more rational and more predictable is a salutary one. Clear, coherent, and uniform laws serve the public by making it plain what conduct is lawful and what is forbidden. They give fair notice to citizens and law enforcement officials alike, thereby restricting the possibilities of arbitrary punishment. However, obtaining clear and coherent laws at the expense of the rights and liberties of our people would be a step backward.

In the pages that follow, we express our strong opposition to some specific provisions of S.1, as amended." In particular, we focus on the bill's national security provisions which we believe are especially dangerous to First Amendment freedoms. In some cases, such as

All reference to S.1 in the succeeding pages are to S.1, as amended, the version of the bill now before the Senate Judiciary Committee.

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A. The "Official Secrets" Act

Five sections of S.1, would reverse 200 years of democratic decision-making under the Constitution by preferring government secrecy to the freedoms guaranteed by the First Amendment. Sections 1121-25 of S.1 would deliver into the hands of the Executive complete and final control of information "relating to the national defense." The free flow of facts and opinions on which self-government ultimately depends would be dammed at its source. Our true national security, which springs from "uninhibited, robust, and wide-open" debate on public issues and public officials, New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964), would be destroyed. When Congress first debated the Espionage Act of

1917, two Senators marked off for future generations

the parameters of debate over the protection of national

security:

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