Keene v. Smith

• Decision Date: 07 September 1983
• Docket Number: No. CIV. S-83-287 RAR.,CIV. S-83-287 RAR.
• Citation: 569 F. Supp. 1513
• Parties: Barry KEENE, Plaintiff, v. William French SMITH, et al., Defendants.
• Court: U.S. District Court — Eastern District of California

569 F. Supp. 1513

Barry KEENE, Plaintiff, v. William French SMITH, et al., Defendants.

No. CIV. S-83-287 RAR.

United States District Court, E.D. California.

September 7, 1983.

James Scanlon, Sacramento, Cal., for Lawyers Alliance for Nuclear Disarmament.

John G. Donhoff, Sacramento, Cal., Tobin & Tobin, Paul E. Gaspari, Scott R. Keene, San Francisco, Cal., for plaintiff, Barry Keene.

David Anderson, Department of Justice, Washington, D.C., for defendants, William French Smith, et al.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

RAMIREZ, District Judge.

On May 23, 1983, the above-entitled matter came on regularly for hearing on plaintiff's motion for a preliminary injunction and defendants' motion to dismiss. Having read and considered the memoranda submitted by counsel, the attachments thereto, the pleadings, and the arguments of respective counsel, the Court herein grants plaintiff's motion for a preliminary injunction and denies defendants' motion to dismiss. The following shall constitute the Court's Findings of Fact and Conclusions of Law pursuant to Federal Rule of Civil Procedure 52(a).

FINDINGS OF FACT

I

The present action challenges the constitutionality of the Foreign Agents Registration Act, 22 U.S.C. §§ 611, et seq. inasmuch as plaintiff contends that certain portions of the Act violate the First Amendment to the United States Constitution, which provides in relevant part:

Congress shall make no law ... abridging the freedom of speech ....

II

Plaintiff is a member of the California State Senate and a member of the California State Bar. He desires to exhibit three films produced by the National Film Board of Canada which bear the titles, If You Love This Planet, Acid Rain: Requiem or Recovery, and Acid From Heaven. The former addresses the possible state of the earth and society after a nuclear holocaust; the latter two films address the problem of the acidification of atmospheric precipitation by exposure to sulfur dioxide in the air, commonly known as acid rain. Plaintiff alleges he is deterred from exhibiting the films by a statutory characterization of the films as "political propaganda." Plaintiff further alleges that if he were to exhibit the films while they bore such characterization, his personal, political, and professional reputation would suffer and his ability to obtain re-election and to practice his profession would be impaired.

III

Defendants are, respectively, the Attorney General of the United States and the Chief of the Registration Unit of the Internal Security Section of the Criminal Division of the United States Department of Justice. Responsibility for the administration and enforcement of the Foreign Agents Registration Act is vested in the Attorney General, who has delegated his authority to an appropriate officer. 28 U.S.C. § 510; 28 C.F.R. § 0.61(b), 28 C.F.R. Part 5 (1982).

IV

Section 2 of the Foreign Agents Registration Act, 22 U.S.C. § 612, requires each "agent of a foreign principal," defined by § 1(c), 22 U.S.C. § 611(c), to register as such with the Attorney General of the United States. The National Film Board of Canada has so registered.

V

Section 4 of the Act, 22 U.S.C. § 614, requires all registrants to supply the Attorney General with two copies of any "political propaganda" intended for dissemination in the United States. "Political propaganda" is defined, in relevant part, as follows:

The term "political propaganda" includes 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 county 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 further 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 in Washington, D.C., and (4) that the registration of agents of foreign principals by the United States does not indicate approval by the United States of the material.

VI

Section 10 of the Act, 22 U.S.C. § 620, authorizes the Attorney General to adopt regulations to implement the Act. Pursuant to that authority, the Attorney General adopted regulations which authorize slightly different treatment of films:

Unless specifically directed to do so by the Assistant Attorney General, a registrant is not required to file two copies of a motion picture containing political propaganda which he disseminates on behalf of his foreign principal, so long as he files monthly reports on its dissemination. In each such case this registrant shall submit to the Registration Unit either a film strip showing the label required by section 4(b) of the Act or an affidavit certifying that the required label has been made a part of the film.

28 C.F.R. § 5.400(c).

VII

From the materials submitted to the Court, the Court infers that the National Film Board of Canada does not routinely affix the § 4 label to all of the films that it distributes in the United States. Instead, it would appear that the Film Board transmits a list of all of its films to the Registration Unit which then requests copies of the films which the unit believes fall within the statutory definition of "political propaganda." Upon receipt of the requested copies, the unit determines whether any of the films are "political propaganda" within the meaning of the Act. If any film is determined to be "political propaganda," the Registration Unit so informs the Film Board which then must affix the § 4 label to the copies of the film and file the Dissemination Reports required by the Act, 22 U.S.C. § 614(a), 28 C.F.R. § 5.401.

VIII

The procedure described in Paragraph VII was followed by the defendants in evaluating the films If You Love This Planet, Acid Rain: Requiem or Recovery, and Acid From Heaven. On January 13, 1983, defendants notified the National Film Board of Canada that a determination had been made that the films were "political propaganda," and that the Film Board must make the § 4 label "a part of the films," 28 C.F.R. § 5.400(c), and file the appropriate reports, 28 C.F.R. § 5.401.

IX

In March 1983, defendants agreed to review their administrative decision and to refrain from imposing the labelling and reporting requirements of the Act on the films pending that review.

X

Defendant Clarkson, Chief of the Registration Unit, has supplied the Court with an uncontradicted affidavit which establishes that the defendants have consistently interpreted the Act and the regulations to apply only to the registrant. According to the authoritative agency interpretation of the Act and the regulations, plaintiff is free to remove the § 4 label before exhibiting the films.

CONCLUSIONS OF LAW

I

The present action arises under the United States Constitution, and as such, subject matter jurisdiction is predicated on the provisions of 28 U.S.C. § 1331 A. Standing

II

As a general rule, the doctrine of standing may be employed so as ... "to refuse to determine the merits of a legal claim, on the ground that even though the claim may be correct, the litigant advancing it is not properly situated to be entitled to its judicial resolution." 13 Wright, Miller, & Cooper, Federal Practice & Procedure § 3531. Standing implicates the Court's subject matter jurisdiction because the Constitution confers judicial power on the courts only for "cases and controversies." U.S. Const. art. III, § 2, cl. 1; Valley Forge Christian College v. Americans United for Separation of Church and State, 454 U.S. 464, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982). In order to demonstrate standing, a plaintiff must exhibit (1) that he has suffered or will suffer imminently some injury, (2) that the injury can fairly be traced to the challenged conduct, and (3) that the injury can be remedied by an exercise of the court's power. Id.

III

In evaluating plaintiff's standing, the Court is required to accept all material allegations of the complaint as true:

For purposes of ruling on a motion to dismiss for want of standing, both the trial court and the reviewing courts must accept as true all material allegations of the complaint, and construe the complaint in favor of the complaining party. cite At the same time, it is within the trial court's power to require the plaintiff to supply, by amendment to the complaint or by affidavits, further particularized allegations of fact deemed supportive of plaintiff's standing. If, after this opportunity, the plaintiff's standing does not adequately appear from all the materials of record, the complaint must be dismissed.

Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). This does not and will not preclude defendants from filing an answer which denies the allegations and seeking an adjudication of the issue via a motion for summary judgment, United States v. Students Challenging Regulatory Procedures (SCRAP), 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973), or via trial, Pacific Legal Foundation v. State Energy Resources Conservation & Development Commission, 659 F.2d 903 (9th Cir. 1981), aff'd on other...