Bullfrog Films, Inc. v. Wick, No. 86-6630

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtBefore BROWNING, FLETCHER and POOLE; POOLE
Citation847 F.2d 502
Docket NumberNo. 86-6630
Decision Date17 May 1988
PartiesBULLFROG FILMS, INC., et al., Plaintiffs-Appellees, v. Charles Z. WICK, Director, United States Information Agency, et al., Defendants-Appellants.

Page 502

847 F.2d 502
56 USLW 2670
BULLFROG FILMS, INC., et al., Plaintiffs-Appellees,
v.
Charles Z. WICK, Director, United States Information Agency,
et al., Defendants-Appellants.
No. 86-6630.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted July 10, 1987.
Decided May 17, 1988.

Page 503

Wendy M. Keats, Appellate Staff Atty., U.S. Dept. of Justice (Civil Div.), Washington, D.C., for defendants-appellants.

David Cole, Center for Constitutional Rights, New York City, Ben Margolis, Margolis, McTernan, Scope & Epstein, Los Angeles, Cal., for plaintiffs-appellees.

Robert B. Broadbelt, ACLU Foundation of Southern California, Los Angeles, Cal., for amici.

Appeal from the United States District Court for the Central District of California.

Before BROWNING, FLETCHER and POOLE, Circuit Judges.

POOLE, Circuit Judge:

This appeal is brought by the United States Information Agency (USIA), as the federal agency charged with the domestic administration of the Beirut Agreement, a multilateral treaty aimed at facilitating the international circulation of "educational, scientific and cultural" audio-visual materials. Under the treaty, qualifying materials receive various benefits, including exemption from import duties. A certificate of international educational character is a necessary prerequisite to the receipt of treaty

Page 504

benefits. Owners of American materials must apply to the USIA for such certificates. Plaintiffs-appellees are film makers, production and distribution companies and a membership association, all of whom have an interest in one or more films that were denied certification. In their complaint, plaintiffs alleged that the regulations employed by the USIA to implement the treaty were unconstitutional. On a motion for summary judgment, the district court agreed, holding that three of the regulations are facially unconstitutional, in violation of the First and Fifth Amendments.

For reasons set forth below, we affirm.

I.

A.

The Beirut Agreement, 1 the outgrowth of a proposal by the United States delegation to the General Conference of the United Nations Educational, Scientific and Cultural Organization (UNESCO) at its third session in Beirut, Lebanon, in 1948, entered into force on August 12, 1954. S.Rep. No. 1626, 89th Cong., 2d Sess. 2, reprinted in 1966 U.S.Code Cong. & Admin.News 3143, 3143-44 (S.Rep. No. 1626). The United States Senate ratified the Agreement on May 26, 1960, but deposit of ratification was withheld pending the enactment of implementing legislation. Id. On October 8, 1966, Congress passed the necessary implementation statute, Pub.L. No. 89-634; 80 Stat. 879 (1966), and formal operations by the United States under the Agreement commenced January 12, 1967. 22 C.F.R. Sec. 502.1.

According to its Preamble, the purpose of the Agreement is to facilitate the international circulation of audio-visual materials that are of an "educational, scientific and cultural character." This objective is portrayed as part of a larger effort to promote the "free flow of ideas by word and image" and encourage "the mutual understanding of peoples."

To achieve these ends, contracting States agree to accord certain benefits to qualifying materials. These benefits include exemption from customs duties, import licenses, special rates, quantitative restrictions and other restraints and costs. Art. III, paragraphs 1, 3. The value of these benefits to those seeking to export audio-visual materials can be substantial. 2

Securing favorable treatment under the Agreement is a two-step process. First, the exporter must obtain a certificate from the appropriate governmental agency in the country of the material's origin attesting to the item's educational, scientific or cultural character. Art. IV, paragraphs 1-2. Second, the certificate must be filed with the appropriate governmental agency of the contracting State into which entry is sought. That agency must then decide for itself whether the material presented qualifies for benefits under the Agreement. Art. IV, p 4. The decision of the importing state is final. Art. IV, p 6.

Article I of the Agreement offers the following broad standards for judging whether materials qualify as educational, scientific or cultural:

Visual and auditory materials shall be deemed to be of an educational, scientific and cultural character:

(a) when their primary purpose or effect is to instruct or inform through the development of a subject or aspect of a subject, or when their content is such as to maintain, increase or diffuse knowledge, and augment international understanding and goodwill; and

(b) when the materials are representative, authentic, and accurate; and

(c) when the technical quality is such that it does not interfere with the use made of the material.

Page 505

When Congress, in 1966, enacted implementing legislation, it authorized the President to designate a federal agency to "take appropriate measures for the carrying out of the provisions of the Agreement including the issuance of regulations." Pub.L. No. 89-634; 80 Stat. 879. Pursuant to this Congressional delegation, the USIA, the selected agency, issued regulations to facilitate the implementation of the Agreement. World-Wide Free Flow (Export-Import) of Audio-Visual Materials, 22 C.F.R. Secs. 502.1-502.8. Under these regulations, applications for certificates of international educational character are reviewed by the Agency's Chief Attestation Officer or his subordinates. If certification is denied, the regulations provide for appeal to a Review Board, and, as a last resort, to the director of the USIA. 22 C.F.R. Sec. 502.5(b)-(c).

In addition to setting application procedures, the USIA's implementing regulations establish "substantive criteria" for determining eligibility for certification. 22 C.F.R. Sec. 502.6. Three of these regulations were held by the district court to be unconstitutional on their face and are at issue in this appeal. The first regulation repeats verbatim the definition of "educational, scientific or cultural" found in Article I of the Agreement. 22 C.F.R. Sec. 502.6(a)(3). The other two regulations were promulgated by the USIA to assist in the "interpretation" of the Article I criteria. Section 502.6(b)(3) provides:

The Agency does not certify or authenticate materials which by special pleading attempt generally to influence opinion, conviction or policy (religious, economic, or political propaganda), to espouse a cause, or conversely, when they seem to attack a particular persuasion....

Section 502.6(b)(5) reads as follows:

The Agency does not regard as augmenting international understanding or good will and cannot certify or authenticate any material which may lend itself to misinterpretation, or misrepresentation of the United States or other countries, their peoples or institutions, or which appear to have as their purpose or effect to attack or discredit economic, religious, or political views or practices.

B.

Plaintiffs-appellees are independent film makers, film production and distribution companies and a membership association. They brought suit in the district court to challenge the constitutionality of two of the USIA regulations referred to in the previous section, 22 C.F.R. Secs. 502.6(b)(3) and (b)(5), after the USIA refused to certify seven of their films as "educational, scientific, or cultural" under the Agreement.

The films denied certification cover a wide range of topics and are described briefly by appellees as follows: (1) In Our Own Backyards: Uranium Mining in the United States looks at "the effects of uranium mining on the environment and on the health of those who work in or live near the mines"; (2) Save the Planet presents "a film history of the atomic age"; (3) Ecocide: A Strategy of War "documents the environmental impact of United States military tactics in Vietnam"; (4) From the Ashes ... Nicaragua Today "traces the historical roots of the 1979 Nicaraguan Revolution"; (5) Whatever Happened to Childhood? "addresses the changing reality facing children growing up in modern-day urban America, principally through first-hand interviews and statistical evidence"; (6) Peace: A Conscious Choice "attempts to teach its viewers about the first step toward peace in a Cold War society, by suggesting that the United States and the Soviet Union are inextricably related, and that their relationship has implications for world peace"; (7) The Secret Agent "examines the use and effects of dioxin, a toxic ingredient in Agent Orange, through archival footage and interviews." Aples.' Br. at 6-11. Many of these films are the recipients of prizes, awards and other forms of critical acclaim.

The district court granted plaintiffs' motion for summary judgment, finding both Secs. 502.6(b)(3) and (b)(5) facially violative of the First and Fifth Amendments. Bullfrog Films, Inc. v. Wick, 646 F.Supp. 492, 510 (C.D.Cal.1986). The court, sua sponte, also granted summary judgment to plaintiffs

Page 506

with respect to the facial invalidity of Sec. 502.6(a)(3). Id. It went on to permanently enjoin the USIA from enforcing the three regulations and ordered the Agency to reconsider the eligibility of plaintiffs' films under constitutionally sound standards. Id. at 510-11. 3

The USIA now appeals.

II.

Our initial concern is with the USIA's argument that plaintiffs-appellees lack standing to challenge the Agency's regulations. Rejecting the conclusions of the district court, the USIA contends that plaintiffs have failed to meet the requirements for Article III standing set forth in Valley Forge Christian College v. Americans United For Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). 4 We disagree.

A.

The requirement that a plaintiff present an injury in fact is satisfied by the showing of a pecuniary injury. Data Processing v. Camp, 397 U.S. 150, 154, 90 S.Ct. 827, 830, 25 L.Ed.2d 184 (1970). By...

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53 practice notes
  • Lind v. Grimmer, Civ. No. 92-00415 ACK.
    • United States
    • U.S. District Court — District of Hawaii
    • April 20, 1993
    ...enjoining the enforcement 859 F. Supp. 1331 of HRS § 11-216(d).19 See Bullfrog Films, Inc. v. Wick, 646 F.Supp. 492, 507 (1986), aff'd, 847 F.2d 502 (9th Cir.1988) ("A facial challenge means that the regulation could never be applied in a valid manner ... both species of challenge — facial ......
  • Humanitarian Law Project v. Reno, No. CV 98-1971 ABC(BQRX).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • June 8, 1998
    ...of scrutiny if they interfere with the exercise of a fundamental right, such as freedom of speech....'" Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 509 (9th Cir.1988). Because the Act interferes to some extent with Plaintiffs' exercise of freedom of association, the Act is subject to a heig......
  • Made in the Usa Foundation v. U.S., No. CV-98-PT-1794M.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • July 23, 1999
    ...of whether the plaintiffs' requested relief is "substantially likely" to redress their injuries. Citing Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 507 (9th Cir.1988), the Government contends that the mere fact that the Camp Courts found that the plaintiffs had been injured by governmental ......
  • DKT Memorial Fund Ltd. v. Agency for Intern. Development, Nos. 88-5243
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 10, 1989
    ...and deliver only on addressee's recorded request foreign mailings of "communist political propaganda"); see Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 509 n. 9 (9th Cir.1988) (" '[T]here can be no question that, in the absence of some overriding governmental interest such as national secur......
  • Request a trial to view additional results
53 cases
  • Lind v. Grimmer, Civ. No. 92-00415 ACK.
    • United States
    • U.S. District Court — District of Hawaii
    • April 20, 1993
    ...enjoining the enforcement 859 F. Supp. 1331 of HRS § 11-216(d).19 See Bullfrog Films, Inc. v. Wick, 646 F.Supp. 492, 507 (1986), aff'd, 847 F.2d 502 (9th Cir.1988) ("A facial challenge means that the regulation could never be applied in a valid manner ... both species of challenge — facial ......
  • Humanitarian Law Project v. Reno, No. CV 98-1971 ABC(BQRX).
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • June 8, 1998
    ...of scrutiny if they interfere with the exercise of a fundamental right, such as freedom of speech....'" Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 509 (9th Cir.1988). Because the Act interferes to some extent with Plaintiffs' exercise of freedom of association, the Act is subject to a heig......
  • Made in the Usa Foundation v. U.S., No. CV-98-PT-1794M.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • July 23, 1999
    ...of whether the plaintiffs' requested relief is "substantially likely" to redress their injuries. Citing Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 507 (9th Cir.1988), the Government contends that the mere fact that the Camp Courts found that the plaintiffs had been injured by governmental ......
  • DKT Memorial Fund Ltd. v. Agency for Intern. Development, Nos. 88-5243
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • October 10, 1989
    ...and deliver only on addressee's recorded request foreign mailings of "communist political propaganda"); see Bullfrog Films, Inc. v. Wick, 847 F.2d 502, 509 n. 9 (9th Cir.1988) (" '[T]here can be no question that, in the absence of some overriding governmental interest such as national secur......
  • Request a trial to view additional results

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