Gartner v. US Information Agency

• Decision Date: 12 October 1989
• Docket Number: Civ. No. 88-337-E.
• Citation: 726 F. Supp. 1183
• Parties: Michael GARTNER; Ralph Rosenberg; and Partnership Independent Press, Inc., d/b/a The Ames Daily Tribune, Plaintiffs, v. UNITED STATES INFORMATION AGENCY, Defendant.
• Court: U.S. District Court — Southern District of Iowa

726 F. Supp. 1183

Michael GARTNER; Ralph Rosenberg; and Partnership Independent Press, Inc., d/b/a The Ames Daily Tribune, Plaintiffs, v. UNITED STATES INFORMATION AGENCY, Defendant.

Civ. No. 88-337-E.

United States District Court, S.D. Iowa, C.D.

October 12, 1989.

COPYRIGHT MATERIAL OMITTED

David W. Belin and Mark McCormick, Belin, Harris, Helmick, Tesdell, Lamson, McCormick, P.C., Des Moines, Iowa, for plaintiffs.

Christopher D. Hagen, U.S. Atty., and John Beamer, Asst. U.S. Atty., Des Moines, Iowa, and John R. Bolton, Asst. Atty. Gen., and Vincent M. Garvey and Jerome L. Epstein, Asst. U.S. Attys., U.S. Dept. of Justice, Civ. Div., Washington, D.C., for defendant.

ORDER

DONALD E. O'BRIEN, Chief Judge.

This matter is before the court pursuant to defendant's resisted motion to dismiss and plaintiffs' resisted motion for summary judgment. Both motions overlap and the parties did not dispute material facts. Therefore, the court considers that ruling on these motions shall be dispositive of the case.

Plaintiffs, a journalist, a state legislator, and a newspaper publishing company, have brought this action against the United States Information Agency (hereinafter "USIA") seeking a declaratory judgment that section 501 of the Smith-Mundt Act, 22 U.S.C. §§ 1461 and 1461-1a infringes upon their first amendment rights insofar as it "purports to prohibit" the plaintiffs from "receiving and disseminating within the United States information and materials disseminated abroad by the defendant." (Complaint, p. 3.) Plaintiffs' complaint can thus be divided into two parts — the first alleging a violation of the right to receive information, and the second alleging a violation of a right to disseminate information.¹ After careful review of the pleadings, arguments, and documents involved in this matter, the court concludes that plaintiffs' case must be dismissed. First, the court concludes that plaintiffs do not have a right, under the first amendment, to make copies of documents which the USIA uses to disseminate information abroad. The first amendment proscribes the government from passing laws abridging the right to free speech; the first amendment does not prescribe a duty upon the government to assure easy access to information for members of the press. The court further finds plaintiffs lack standing to contend that section 501 prohibits them from disseminating within the United States information obtained from reviewing USIA documents. Further, the court finds that there is no case or controversy concerning the ability of media representatives to disseminate domestically USIA information. Finally, the court finds, in the alternative, that Congress did not intend section 501 to preclude plaintiffs from disseminating USIA information domestically.

I. BACKGROUND

The USIA, an independent agency of the executive branch, is responsible for conducting international informational, educational, and cultural activities for foreign populations. Its mission, if it chooses to accept it, is to further foreign understanding of American society and policies, and to do so, the agency engages in a variety of communication activities, from academic and cultural exchanges, to radio and television broadcasts. See, generally, 22 U.S.C. § 1461-1; 22 C.F.R. § 504.

Section 501 of the United States Information and Educational Exchange Act of 1948 provides, in pertinent part:

The director of USIA is authorized ... to provide for the preparation, dissemination and dissemination abroad, of information about the United States, its people, and its policies, through press, publication, radio, motion pictures, and other information media, and through information centers and instructors abroad. Any such information ... shall not be disseminated within the United States, its territories, or possessions, but, on request, shall be available in the English language at the agency, at all reasonable times following its release as information abroad, for examination only by representatives of the United States press associations, newspapers, magazines, radio systems, and stations, and by research students and scholars, and, on request, shall be made available for examination only to members of Congress.

22 U.S.C. § 1461 hereinafter cited as "section 501" (emphasis added). Congress restricted the USIA's activities to the foreign sphere in order to prevent the agency from propagandizing the American public.² Congress intended that the USIA inform the world about the United States without creating a propaganda agency that could be used by the party in power to indoctrinate the American public.³ At the same time, Congress intended, since the inception of section 501 in 1948, to provide for oversight of USIA activities. Toward this goal, Congress provided for the press, among others, to have access to USIA information.⁴

Plaintiffs contend that section 501 is an unconstitutional "prior restraint" of their right to speak. They claim: (1) that they have a constitutional right to make copies of USIA materials that they examine in USIA offices; (2) that Congress unconstitutionally intended to bar the American public, including the plaintiffs from disseminating of USIA materials and information within the United States; and (3) that the court must reject the USIA's construction of its statutory mandate, by which the agency does not purport to regulate public speech, because Congress did unconstitutionally intend to bar speech by the public.

Defendant USIA contends: (1) that the plaintiffs have no first amendment right to make verbatim copies of USIA documents on USIA premises; (2) that the court should read section 501 so as not to restrict the plaintiffs' right to speak; and (3) that no present case or controversy exists concerning plaintiffs' ability to speak (i.e., to disseminate USIA materials and information) because the defendants have not prevented plaintiffs from doing so and there is no imminent danger that they will be prevented from doing so.

II. ANALYSIS

The question before the court is whether the congressional balance between preventing domestic dissemination by USIA, on the one hand, and allowing the press and other members of the public to "examine" USIA materials in order to criticize them, on the other, violates any first amendment rights of the plaintiffs. The court shall first analyze whether plaintiffs have a right under the first amendment to make verbatim copies of USIA documents.⁵ The court will then analyze whether the statute has prohibited them from disseminating within the United States information gleaned from the USIA documents without verbatim copying.

A. Verbatim Copies of USIA Materials.

The first amendment to the United States Constitution reads, in pertinent part:

Congress shall make no law ... abridging the freedom of speech, or of the press,....

U.S. Const. amend. I. Freedom of speech forms the vanguard of our democratic freedoms. Justice Hugo Black opined that:

When our founding fathers, with their wisdom and patriotism, wrote the first amendment ... they knew what history was behind them and they wanted to ordain in this country that Congress, elected by the people, should not tell people ... what they should believe or say or publish, and that is about it. It says "no law," and that is what ... it means.⁶

Nevertheless, no constitutional right is absolute and the right to free speech is not excluded from this rule of necessity. Further, the first amendment reads in the negative, "Congress shall make no law ...," not in the affirmative.⁷ The amendment constrains our government from acting in ways which infringe upon our right to free speech; it does not create an affirmative duty upon the government to act.

The starting point for determining whether the plaintiffs have a first amendment right to make copies of government documents on government premises is Houchins v. KQED, Inc., 438 U.S. 1, 98 S.Ct. 2588, 57 L.Ed.2d 553 (1978), in which the Supreme Court held that there is no first amendment right to government information.⁸ In Houchins, the Supreme Court rejected the broadcaster's argument that it had a first amendment right to access to a county jail in order to inform the public of important public issues: "This Court has never intimated a first amendment guarantee of a right to access to all sources of information within government control." Id. at 9, 98 S.Ct. at 2593. The Houchins Court rejected the same argument plaintiffs present in this case — that a restriction on access to government information is unconstitutional because it indirectly affects speech — holding simply that there is no right of access to information "as distinguished from a right to public information which has been obtained." Id. at 10, 98 S.Ct. at 2594.

When a member of the public seeks access to government information, the Constitution does not impose "an affirmative duty on the part of the government to assist in that research or to disclose government files ... such interests are statutory in nature." Wolfe v. Froehlke, 358 F.Supp. 1318, 1321 (D.D.C.1973), aff'd per curiam, 510 F.2d 654 (D.C.Cir.1974) (no first amendment right of access to a Department of Defense file that was exempt from mandatory statutory disclosure under Freedom of Information Act). See also Zemel v. Rusk, 381 U.S. 1, 17, 85 S.Ct. 1271, 1281, 14 L.Ed.2d 179 (1965) ("the right to speak and publish does not carry with it the unrestrained right to gather information"). In short, it is one thing to say that the government may not restrict the plaintiffs from telling the news to their readers, and quite another to argue that the government has a constitutional duty to supply the plaintiffs with the news to write about.⁹ It is for Congress to establish the extent of access to the government documents; the first amendment does not do so. For example, in Capital Cities Media v. Chester, 797 F.2d 1164, 1168-71 (3d Cir.1986) (en banc), the court held that a...