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11 Monthly Bull. Int'l Jurid. Ass'n 1 (1942)

handle is hein.journals/injasmb11 and id is 1 raw text is: INTERNATIONAL JURIDICAL ASSOCIATION MONTHLY BULLETIN Vol. 11, No. 1 JULY, 1942 357 Price $2 a year Is Liberalism a Disqualification for Public Service? The ideal figure that would cosily fit the American Gestapo measuring stick has a closer resemblance to the basic character of a good clean Fascist than it has to a per- son passionately interested in driving Fascism from the earth. -JOSEPHINE HERBST Contrary to the prevalent assumption, the tenure rights of federal employees have never had sufficient protection in law. Whatever statutory safeguards exist are completely inadequate. The courts have declined consistently to inter- vene. Administrative procedure with regard to discharges varies among agencies and departments and affords an employee little protection. The result is that dismissals are practically in the free discretion of the head of the department or establishment.' From the aspect of a scientific public personnel admin- istration, this raises serious questions. A rationally qualified tenure is the very core of sound personnel administration. That the civil service should be responsive to executive direction and control does not diminish the necessity for adequate institutional guarantees. The result is as might be expected. The past few years have seen a growing trend of discharges for reasons beyond the sphere of legiti- mate administrative interest. The activities of investigating committees and other agencies are having effect on the administrative branch of the government, and an unfor- tunate feeling of insecurity is filtering through. Dis- charges because of personal opinions pertaining to politi- cal, social, and economic issues, unrelated to official obliga- tions, have no legitimate justification; for the civil service cannot fulfill its functions with promptness and regularity if its status is uncertain, if it is exposed to shortsighted political meddling, and if it must bow to the caprice of partisan forces.... 2 This is not to deny that there may be appropriate limitations on the political conduct of the employee; but there is an equally important restriction to be placed on the interference by legislators and higher ad- ministrative officials with the fundamental personal liber- ties of the subordinate public employee. From the political point of view, the trend poses ques- tions equally as important. It is evident that the attack has been aimed at liberals in the government service. This is particularly apparent in the case of active members of government unions, many of whom have undergone offen- sive personal investigations, despite the long established acknowledgment of the beneficial role of such organiza- (Continued on page 142) 1. White, Introduction to the Study of Public Administration (1939), p. 299. 2. Marx, F. M., Comparative Administrative Law: Public Employer-Employee Relationships (1940-1), 4 U. of Detroit L. J., p. 60, 61. Picketing As Constitutional Right- Recession With Thornhill's case (April 1940) a workingman's right to picket came to be thought within that liberty of communication which is secured to every person. The Meadowmoor2 case (February 1941) introduced qualifi- cations but the Swing3 case (February 1941) reinforced Thornhill's essential holding. Peaceful picketing was said to be a mode of speech appropriate for assuring the right to utterance for workingmen; it was the workingman's means of communication; the Federal Constitution shel- tered it from mutilation by state or nation. Naturally the doctrine of these cases has had profound influence upon state courts. There has been whole-hearted compliance; there has been grudging, formalistic compli- ance; there has been resistance and mutilation.4 All this was well within the range of reasonable expectation. But- and this was not yet within the range of reasonable expec- tation,-there has this year been retreat by the Supreme Court itself,-a wide retreat,-an important retreat. Ritter's Case5 Ritter's cafe had a union contract with its cafe employees but when Ritter undertook the construction of a new building some distance away from the cafe, he gave the contract to a contractor employing non-union labor. The carpenters' and painters' unions thereupon picketed the cafe with a placard stating the facts. As a result cafe busi- ness dropped, and the cafe employees and teamsters mak- ing deliveries to the cafe declined to cross the carpenters' picket line. No violence attended the said picketing of the cafe. The union's plea of free speech was rejected and an injunction against all picketing granted. A motion for rehearing based upon the Swing and Meadowmoor cases was overruled by the Texas court6 on the ground that where the union's acts-even if they take the form of speech-involve such conduct as the state is author- ized to declare unlawful, an injunction may properly be granted. Here, the Texas court felt, the picketing was in the nature of a boycott or violation of the Texas anti- trust laws,- and the constitutional right of free speech 1. 310 U.S. 88. See Picketing: From Sinister Name to Con- stitutional Right, 8 I.J.A. Bull. 113 (May 1940); 41 Col. L. Rev. 89. 2. 312 U. S. 287. See Picketing as Constitutional Right- 1940, 9 I.J.A. Bull. 121 (May 1941); 41 Col. L. Rev. 99; 41 Col. L. Rev. 727. 3. 312 U.S. 321. Supra, n. 2. 4. See Peaceful Picketing and the Constitutional Guarantee of Free Speech Since the Swing Case, 90 U. of P. L. Rev. 201; The Court of Appeals Faces the Constitution, 10 I.J.A. Bull. 9 (Aug. 1941). 5. Carpenters and 7oiners Union of America v. Ritter's Cafe, 149 S.W. (2d) 694, aff'd 62 S. Ct. 807. The most valuable dis- cussion of this case we have so far seen is Freedom of Speech in Secondary Picketing, 51 Yale L. J. 1209. 6. 4 Labor Cases §60,400. 1

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