Bullfrog Films, Inc. v. Wick

Decision Date24 October 1986
Docket NumberNo. CV 85-7930 AWT.,CV 85-7930 AWT.
PartiesBULLFROG FILMS, INC., et al., Plaintiffs, v. Charles Z. WICK, Director, United States Information Agency, et al., Defendants.
CourtU.S. District Court — Central District of California

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David Cole, Margaret Ratner, Michael Ratner, Morton Stavis, Center for Constitutional Rights, New York City, Ben Margolis, Margolis, McTernan, Scope & Epstein, Los Angeles, Cal., for plaintiffs.

Robert C. Bonner, U.S. Atty., Stephen D. Peterson, Asst. U.S. Atty., Los Angeles, Cal., Vincent M. Garvey, Richard C. Stearns, Dept. of Justice, Civil Div., Washington, D.C., for defendants.

Paul Hoffman, ACLU Foundation of Southern California, Los Angeles, Cal., Jack Novick, ACLU Foundation, New York City, for amici curiae American Civil Liberties Union, ACLU of Southern California, Film Arts Foundation, Intern. Documentary Ass'n, Writers Guild of America, West, Inc., The Nation Institute and Pen American Center.

TASHIMA, District Judge.

Plaintiffs in this action are independent film makers, film distributors and a membership association. They allege that the United States Information Agency (the "USIA" or "Agency"), violated their constitutional rights, which caused them economic injury, by refusing to certify their films as "educational" under the Agreement For Facilitating The International Circulation of Visual And Auditory Materials of An Educational, Scientific And Cultural Character,1 an international treaty known as the Beirut Agreement. The Court concludes that the USIA regulations, on which the Agency based its certification decisions, are facially inconsistent with the First Amendment. Accordingly, the Court will enjoin the USIA from enforcing the challenged regulations and order the USIA to reconsider certification of plaintiffs' films under constitutionally acceptable criteria.

I. FACTUAL AND PROCEDURAL BACKGROUND
A. THE BEIRUT AGREEMENT AND THE USIA REGULATIONS

The Beirut Agreement (sometimes the "Treaty"), is a treaty designed to promote the international exchange of audiovisual materials deemed to be "educational, scientific or cultural" in nature. Signatory nations agree to exempt certified materials from customs duties and licensing requirements. Under the terms of the Treaty, a person seeking duty-free treatment for his or her materials must apply for a certificate of educational, scientific or cultural character from the appropriate agency of the exporting country. Treaty, Art. IV, ¶ 2. The certificate is then submitted to the importing country, which makes its own independent determination as to whether the material meets the requirements for an exemption. Art. IV, ¶ 4. However, the importing country is required to "give due consideration" to the exporting country's determination. Art. IV, ¶ 6. Significantly, the Treaty contains a broad definition of "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 an 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.

Art. I.

The United States became a signatory of the Beirut Agreement in 1948; however, Senate ratification did not follow until 1966. Implementing legislation, Pub.L. No. 89-634, 80 Stats. 879 (1966) ("P.L. 89-634"), was enacted in the same year. The implementing statute does not establish a specific mechanism or framework for effectuating the Treaty; rather, Congress chose to permit the Executive Branch to fill in the details. The statute authorizes the President to designate the agency to carry out the Treaty's provisions, and vests the designated agency with broad discretion in carrying out its mandate:

It shall be the duty of the Federal agency or agencies so designated to take appropriate measures for the carrying out of the provisions of the Agreement including the issuance of regulations.

Id. § 1. Congress also provided that the Agency could seek guidance from other executive agencies in carrying out the Treaty:

Agencies of the Federal Government are authorized to furnish facilities and personnel for the purpose of assisting the agency or agencies designated by the President in carrying out the provisions of the Agreement.

Id. § 2.

The USIA is the agency designated by the President to implement the Treaty. Its implementing regulations set out a three-step procedure for certificate applications. Applications first are reviewed by an Attestation Officer. 22 C.F.R. § 502.3(g).2 Upon an adverse ruling, the applicant may appeal to a Review Board. § 502.5(b). Final Agency review is by the Director of the USIA. § 502.5(c).

The regulations also establish substantive criteria for determining eligibility for certification. These substantive regulations are both definitional and interpretive in nature. Plaintiffs challenge three of these regulations.

First, plaintiffs challenge § 502.6(a)(3), which defines the kinds of materials the Agency will deem to be of "international educational character." This regulation incorporates word-for-word the broad definition of "educational" contained in Article I of the Treaty, quoted above.

Plaintiffs next challenge two of the USIA's "interpretive" regulations, the purpose of which is to guide the Agency in its certification process. The Agency itself describes these regulations as "relating to some of the problem areas most frequently encountered." § 502.6(b).3 The first regulation, § 502.6(b)(3), states in pertinent part:

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....4

The second challenged regulation, § 502.6(b)(5), provides:

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' CLAIMS

Plaintiffs' basic contention is that the USIA regulations permit the Agency to hinder the foreign distribution of films that present viewpoints which are critical of, or not in conformity with, those of the current Administration. Each plaintiff has an interest in one or more of the following films, characterized by them as follows:

In Our Own Backyards: Uranium Mining in the United States ("Our Own Backyards"), which examines the impact of uranium mining on the environment and on workers and nearby residents. It purports to explore the question of "who is responsible" for setting and enforcing safety standards. (Comp. ¶ 31.)
Peace: A Conscious Choice ("Peace"), which maintains that neither Americans nor the Soviets want nuclear war and that "an attitude of cooperation" would be beneficial. (Comp. ¶ 37.)
Whatever Happened to Childhood? ("Childhood"), which examines the changed circumstances and pressures facing American children today, including drug usage and changing notions about sexual behavior. (Comp. ¶ 41.)
Save the Planet, which covers the debate over nuclear power. (Comp. ¶ 46.)
Ecocide: A Strategy of War ("Ecocide"), which documents "the environmental effects of U.S. tactics during Vietnam." (Comp. ¶ 57.)
The Secret Agent, which examines the United States' use of Agent Orange during the Vietnam War. (Comp. ¶ 51.)
From the Ashes ... Nicaragua Today ("From the Ashes"), which is about "the historical roots of the Nicaraguan national liberation movement" and purports to trace "the history of U.S.-Nicaraguan relations." (Comp. ¶ 66.)

Many of these films have won various prizes and awards. For example, Ecocide, From the Ashes and Childhood each won a Red Ribbon at the American Film Festival, which is judged by United States librarians. Nonetheless, each was denied a Treaty certificate under the criteria set out in the USIA regulations.5 Typically, the USIA found the films to "espouse a cause", to be "inaccurate" or "imbalanced", or to be capable of "being misinterpreted or misunderstood by foreign audiences lacking adequate American points of references." For example, the USIA determined that Our Own Backyards, among other things, attempts to "espouse a cause and influence opinion," contrary to § 502.6(b)(3), because it presents "an anti-nuclear message" and has a purpose of "persuading the audience that all uranium mining should be prevented."6 The USIA also found the film to be "inaccurate" under § 502.6(a)(3) because it emphasizes the high rate of cancer among uranium miners without mentioning that the miners' cancers may have been caused by cigarette smoking. Similarly, the USIA decided that Childhood is not "representative" under § 502.6(a)(3) because "the Agency does not find that the youth in the film are typical or representative of all American youth today." Ecocide failed to comply with §§ 502.6(a)(3) and (b)(5) partly because "the film does not augment international understanding as it attacks the United States." From the Ashes was rejected because it leads viewers to conclude "that the United States is the primary cause of instability, poverty, and oppression in Nicaragua," thereby constituting both an "attempt to persuade", contrary to § 502.6(b)(3), and "an attack on the institutions of the United States", contrary to § 502.6(b)(5). The film also was found to be imbalanced because it does not...

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