Keene v. Meese

• Decision Date: 29 October 1985
• Docket Number: No. Civ.S-83-287 RAR.,Civ.S-83-287 RAR.
• Citation: 619 F. Supp. 1111
• Parties: Barry KEENE, Plaintiff, v. Edwin MEESE, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

619 F. Supp. 1111

Barry KEENE, Plaintiff, v. Edwin MEESE,^* et al., Defendants.

No. Civ.S-83-287 RAR.

United States District Court, E.D. California.

September 12, 1985.

On Motion to Alter Judgment October 29, 1985.

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John G. Donhoff, Jr., Sausalito, Cal., for plaintiff.

James Scanlon, Yuba City, Cal., Mona S. Butler, Dept. of Justice, Civ. Div., Washington, D.C., for defendants.

MEMORANDUM AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT

RAMIREZ, District Judge.

The above-entitled matter came on specially for hearing by way of the parties' cross-motions for summary judgment on August 8, 1984. John G. Donhoff, Esq., appeared as counsel for the plaintiff, BARRY KEENE, and David J. Anderson, Esq., United States Department of Justice, appeared as counsel for the defendants, EDWIN MEESE, et al. Having read and considered the briefs and arguments presented by respective counsel, the Court herein renders its decision on the various motions.

PROCEDURAL AND FACTUAL BACKGROUND

The present action challenges the constitutionality of the Foreign Agents Registration Act, 22 U.S.C. § 611(j)(1), which employs "political propaganda" as a term of art to describe every sort of communicative or expressive medium intended or reasonably adapted to influence persons within the United States with respect to the foreign or domestic policies of a foreign government, the foreign policies of the United States, or certain divisive domestic policies of the United States. Specifically, the plaintiff asserts that the use of the phrase "political propaganda" to describe the materials subject to the Act so denigrates the materials that they are made unavailable to plaintiff as a medium for the expression of his own views and that the freedom of speech guaranteed to plaintiff by the First Amendment is, therefore, abridged.

The Foreign Agents Registration Act ("FARA" or "the Act"), 22 U.S.C. § 611, et seq., was enacted in 1938 and amended in material respects in 1942 and 1966. Act of June 8, 1938, ch. 327, 52 Stat. 631 (1938); Act of April 29, 1942, ch. 263, 56 Stat. 248 (1942); Pub.L. No. 89-486, 80 Stat. 244 (1966). As originally enacted, the intent of the statute was to shine "the spotlight of pitiless publicity" on agents of foreign governments present in the United States who "foster un-American activities, and ... influence the external and internal policies of this country" and thus to deter "the spread of pernicious propaganda." H.R. Rep. No. 1381, 75th Cong., 1st Sess. 2 (1937). Accordingly, the Act requires every "agent of a foreign principal," as defined, to register as such with the Secretary of State. Act of June 8, 1938, ch. 327, § 2, 52 Stat. 632 (1938). It was soon recognized, however, that the mere registration of agents of foreign principals with an obscure subunit of a federal agency in Washington, D.C., would not suffice to apprise the recipients of materials disseminated by agents of a foreign power of the source of such materials. H.R.Rep. No. 1547, 77th Cong., 1st Sess. 4 (1941); Amending Act Requiring Registration of Foreign Agents: Hearings on H.R. 6045 Before Subcomm, No. 4 of the House Comm. on the Judiciary, 77th Cong., 1st Sess. 17 (1941). The Act was therefore amended to define "political propaganda," to require all registrants to mark "political propaganda" with a source-disclosure statement, and to require all registrants to deposit two copies of any "political propaganda" with the Library of Congress and one copy with the Attorney General. Act of April 29, 1942, ch. 263, §§ 1, 4, 56 Stat. 248 (1942).

The purpose of FARA has always been, at least in part, to give notice to the recipients of materials produced by, at the direction of, or under the aegis of a foreign government of the source of such materials; it has always been, at least in part, a "sunshine" statute. H.R.Rep. No. 1381, 75th Cong., 1st Sess. 2 (1937). The 1942 amendments included an express statement of the purpose of the Act:

It is hereby declared to be the policy and purpose of this Act to protect the national defense, internal security, and foreign relations of the United States by requiring public disclosure by persons engaging in propaganda activities and other activities for or on behalf of foreign governments, foreign political parties, and other foreign principals so that the Government and the people of the United States may be informed of the identity of such persons and may appraise their statements and actions in light of their associations and activities.

Act of April 29, 1942, ch. 263, § 1, 56 Stat. 248-49 (1942). The 1966 amendments were intended "to strengthen the basic purposes of the original act," H.R.Rep. No. 1470, 89th Cong., 2d Sess. (1966), reprinted in 1966 U.S.Code Cong. & Admin.News 2397, 2398, but in rewriting the statute Congress deemed it appropriate to modify the xenophobic tenor of the original Act and to emphasize the "sunshine" aspect of the law. S.Rep. No. 143, 89th Cong., 1st Sess. 5 (1965). Nevertheless, Congress chose to retain the phrase "political propaganda" to describe the materials subject to the labelling requirement of the Act.

Under the Act, "political propaganda" is defined as

Any oral, visual, graphic, written, pictorial, or other communication or expression by any person (1) which is reasonably adapted to, or which the person disseminating the same believes will, or which he intends to, prevail upon, indoctrinate, convert, induce, or in any other way influence a recipient or any section of the public within the United States with reference to the political or public interests, policies, or relations of a government of a foreign country or a foreign political party or with reference to the foreign policies of the United States or promote in the United States racial, religious, or social dissensions....

22 U.S.C. § 611(j). Section 4 of the Act, 22 U.S.C. § 614, prohibits the dissemination, in the United States, by any registrant, of any "political propaganda" unless the material is "conspicuously marked" at its beginning with a four-component statement. The four components of the required statement are: (1) "the relationship or connection between the person transmitting the political propaganda or causing it to be transmitted and such propaganda," (2) the fact that the supplier of the material is an agent of a foreign principal, (3) the fact that the supplier's registration statement is available for public inspection at the Department of Justice, and (4) that the registration of agents of foreign principals by the United States does not indicate approval by the United States Government of the material. Thus the information required by the disclosure statement seems wholly innocuous, but the obligation to affix such a statement exists only when an agency of the federal government has determined that the materials are "political propaganda."

The National Film Board of Canada has registered with the Attorney General as an agent of a foreign principal since 1947. In 1983, the Registration Unit of the Internal Security Section of the Criminal Division of the United States Department of Justice informed the National Film Board of Canada that three of its films — If You Love This Planet, Acid Rain: Requiem or Recovery, and Acid from Heaven — had been determined to be "political propaganda" within the meaning of the Act and that the Board was therefore obliged to make the disclosure statement "a part of each film." See 28 C.F.R. § 5.400(c). Shortly thereafter, the Registration Unit agreed to review its determination and to refrain from imposing the labelling requirement pending the review. Six months later this Court issued a preliminary injunction addressed to the defendants forbidding them from enforcing the Act with respect to these three films pending ultimate disposition of the action, finding that the plaintiff had raised substantial issues meriting litigation and that the hardship to befall the plaintiff from a denial of a preliminary injunction was significantly greater than the hardship to befall the defendants from a grant of a preliminary injunction. Keene v. Smith, 569 F.Supp. 1513 (E.D.Cal.1983).¹

The defendants are the federal officers charged with the enforcement of the Act. The plaintiff is a citizen of the United States, a member of the State Bar of California, and a member of the California State Senate. Plaintiff has introduced into evidence uncontroverted declarations, see 28 U.S.C. § 1741, that he wishes to acquire and exhibit the three Canadian films as part of his participation in the public debate about appropriate governmental policy respecting nuclear weaponry and stationery source emissions and that he is deterred from doing so by the government's characterization of the materials as "political propaganda."² Plaintiff has asked this Court to hold that the use of the phrase "political propaganda" to describe materials subject to the Act abridges his freedom of speech and is, therefore, unconstitutional.

I STANDING

At the outset, the Court feels obliged to observe that summary judgment is proper only when a party demonstrates that there are no material issues of fact in dispute and that the moving party is entitled to judgment as a matter of law. Franklin v. Murphy, 745 F.2d 1221, 1235 (9th Cir.1984); Vucinich v. Paine, Webber, Jackson & Curtis, Inc., 739 F.2d 1434, 1436 (9th Cir.1984); Retail Clerks Union Local 648 v. Hub Pharmacy, Inc., 707 F.2d 1030, 1033 (9th Cir.1983). It is the obligation of the moving party to establish the absence of a genuine issue of material fact. Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1250 (9th Cir.1982); Feldman v. Simkins Industries, Inc., 679 F.2d 1299, 1305 (9th Cir.1982). See Scoggins v. Boeing Co., 742 F.2d 1225, 1230 (9th Cir.1984); Aydin Corp. v. Loral Corp., 718 F.2d 897, 901 (9th Cir.1983). As such, the party opposing the motion is...