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. 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. 3. 4. A. Inciting or leading a Riot, §§1831-1834. 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 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. 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: |