Meese, Iii v. Keene
| Decision Date | 28 April 1987 |
| Docket Number | No. 85-1180,85-1180 |
| Citation | 95 L.Ed.2d 415,481 U.S. 465,107 S.Ct. 1862 |
| Parties | Edwin MEESE, III, Attorney General of the United States and Joseph E. Clarkson, Appellants v. Barry KEENE |
| Court | U.S. Supreme Court |
The Foreign Agents Registration Act of 1938 (Act) requires registration, reporting, and disclosure by persons engaging in propaganda on behalf of foreign powers. The Act uses the term "political propaganda" to identify those expressive materials subject to its requirements, and defines the term as, inter alia, any communication intended to influence the United States' foreign policies. Appellee, a member of the California State Senate, wished to show three Canadian films identified by the Department of Justice (DOJ) as "political propaganda" under the Act, but did not want to be publicly regarded as a disseminator of "political propaganda." He therefore brought suit in Federal District Court to enjoin the application of the term "political propaganda" to the films. The District Court granted the injunction, holding that the risk of damage to appellee's reputation established his standing to challenge the constitutionality of the use of the term "political propaganda," and that such use violated the First Amendment. According to the District Court, the public believes that materials to which the term "political propaganda" applies have been "officially censured," and therefore those materials are rendered unavailable to people like appellee because of the risk of being seen in an unfavorable light by the public. In the District Court's view, the conscious use of such a pejorative label was an unnecessary and therefore invalid abridgment of speech.
Held:
1. Appellee has standing to challenge the Act's use of the term "political propaganda" as a violation of the First Amendment. Pp. 472-477.
(a) That the identification of the films in question as "political propaganda" threatens to cause appellee cognizable injury is established by uncontradicted affidavits indicating that his exhibition of the films would substantially harm his chances for reelection and adversely affect his reputation in the community. Even if he could minimize these risks by providing viewers with a statement about the high quality of the films and his reasons for agreeing with them, the statement would be ineffective among those citizens who shunned the films as "political propaganda." Moreover, the need to take such affirmative steps would itself constitute a cognizable injury to appellee. Pp. 472-476.
(b) The risk of injury to appellee's reputation can be traced to appellants' conduct, since it stems from DOJ's application of the term "political propaganda" to the films. P. 476.
(c) Granting appellee's requested relief would at least partially redress the complained-of injury, since a judgment declaring the Act unconstitutional would eliminate the need to choose between exhibiting the films and incurring the risk of injury to appellee's reputation. Pp. 476—477.
2. The Act's use of the term "political propaganda" is constitutional. The District Court's holding to the contrary erroneously rests on potential public misunderstanding of the Act's effect rather than on what the Act actually says, requires, or prohibits. Pp. 477-485.
(a) As defined in the Act, the term "political propaganda" not only includes slanted, misleading advocacy in the popular, pejorative sense, but also encompasses materials that are completely accurate and merit the highest respect. Pp. 477-478.
(b) Since the Act neither inhibits appellee's access to the films nor prohibits, edits, or restrains the distribution of materials to which the term "political propaganda" applies, it places no burden on protected expression. To the contrary, it simply requires the disseminators of propaganda to make additional disclosures to better enable the public to evaluate the material's impact, allows them to add further information that they think germane, and thereby actually fosters freedom of speech. It is, in fact, the District Court's injunction that wrongfully withholds information—the fact that the films have been deemed to be "political propaganda"—on the paternalistic assumption that the public will misunderstand and therefore misuse the information. Pp. 480-483.
(c) Although the Act's definition of "political propaganda" has existed since 1942, there is no evidence that public misunderstanding or the fear thereof has actually interfered with the exhibition of a significant number of foreign-made films. Pp. 483-484.
(d) The Act's use of the term "political propaganda" is neutral, evenhanded, and without pejorative connotation, and is therefore constitutionally permissible. P. 484—485.
619 F.Supp. 1111 (1985), reversed and remanded.
SCALIA, J., took no part in the consideration or decision of the case.
Donald B. Ayer, Sacramento, Cal., for appellants.
John G. Donhoff, Jr., Mill Valley, Cal., for appellee.
The Foreign Agents Registration Act of 1938, 52 Stat. 631-633, as amended in 1942 and 1966, 22 U.S.C. §§ 611-621 (Act), uses the term "political propaganda," as defined in the Act, to identify those expressive materials that must comply with the Act's registration, filing, and disclosure requirements. The constitutionality of those underlying requirements and the validity of the characteristics used to define the regulated category of expressive materials are not at issue in this case. The District Court concluded, however, that Congress violated the First Amendment by using the term "political propaganda" as the statutory name for the regulated category of expression.
Appellee, an attorney and a member of the California State Senate, does not want the Department of Justice and the public to regard him as the disseminator of foreign political propaganda, but wishes to exhibit three Canadian motion picture films that have been so identified.1 The films, distrib- uted by the NFBC,2 deal with the subjects of nuclear war and acid rain.3 Appellee brought suit in the Federal District Court for the Eastern District of California on March 24, 1983, to enjoin the application of the Act to these three films. On May 23, 1983, the District Court denied appellants' motion to dismiss and granted appellee's motion for a preliminary injunction. The injunction prohibited appellants from designating the films as "political propaganda" and from subjecting them to the labeling and reporting requirements of the Act. The court issued findings of fact and conclusions of law on September 7, 1983. Keene v. Smith, 569 F.Supp. 1513. The court held that the risk of damage to Keene's reputation established his standing to challenge the constitutionality of the statute's use of the term "propaganda," and that appellee had established his entitlement to a preliminary injunction.4
On September 12, 1985, the District Court granted summary judgment for appellee and a permanent injunction against enforcement of any portion of the Act which incorporates the term "political propaganda." 619 F.Supp. 1111. The District Court opined that the term "propaganda" is a semantically slanted word of reprobation; that the use of such a denigrating term renders the regulated materials unavailable to American citizens who wish to use them as a means of personal expression; and that since there was no compelling state interest to justify the use of such a pejorative label, it was an unnecessary, and therefore invalid, abridgment of speech. The court amended its judgment on October 29, 1985, limiting the permanent injunction against enforcement of the Act to the three films at issue in this case.
We noted probable jurisdiction of the Attorney General's appeal under 28 U.S.C. § 1252, 475 U.S. 1117, 106 S.Ct. 1632, 90 L.Ed.2d 178 (1986), and we now reverse.
Before we discuss the District Court's holding on the First Amendment issue, we briefly describe the statutory scheme and determine that appellee has standing to challenge the Act.
The statute itself explains the basic purpose of the regulatory scheme. It was enacted:
"[T]o 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 the light of their associations and activities." 56 Stat. 248-249.
See Viereck v. United States, 318 U.S. 236, 244, 63 S.Ct. 561, 564, 87 L.Ed. 734 (1943).
The Act requires all agents of foreign principals to file detailed registration statements, describing the nature of their business and their political activities. The registration requirement is comprehensive, applying equally to agents of friendly, neutral, and unfriendly governments. Thus, the New York office of the NFBC has been registered as a foreign agent since 1947 because it is an agency of the Canadian government. The statute classifies the three films produced by the Film Board as "political propaganda" because they contain political material intended to influence the foreign policies of the United States, or may reasonably be adapted to be so used.
When the agent of a foreign principal disseminates any "political propaganda," § 611(j), in the United States mails or in the channels of interstate commerce, he or she must also provide the Attorney General with a copy of the material and with a report describing the extent of the dissemination.5 In addition, he or she must provide the...
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