Meese v. KeeneAnnotate this Case
481 U.S. 465 (1987)
U.S. Supreme Court
Meese v. Keene, 481 U.S. 465 (1987)
Meese v. Keene
Argued December 2, 1986
Decided April 28, 1987
481 U.S. 465
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
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.
1. Appellee has standing to challenge the Act's use of the term "political propaganda" as a violation of the First Amendment. Pp. 481 U. S. 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. 481 U. S. 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. 481 U. S. 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. 481 U. S. 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. 481 U. S. 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. 481 U. S. 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. 481 U. S. 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. 481 U. S. 483-484.
(d) The Act's use of the term "political propaganda" is neutral, evenhanded, and without pejorative connotation, and is therefore constitutionally permissible. Pp. 481 U. S. 484-485.
619 F.Supp. 1111, reversed and remanded.
STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, POWELL, and O'CONNOR, JJ., joined. BLACKMUN, J., filed an opinion dissenting in part, in which BRENNAN and MARSHALL, JJ., joined, post p. 481 U. S. 485. SCALIA, J., took no part in the consideration or decision of the case.
JUSTICE STEVENS delivered the opinion of the Court.
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. [Footnote 1] The films, distributed
by the NFBC, [Footnote 2] deal with the subjects of nuclear war and acid rain. [Footnote 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. [Footnote 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 (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."
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(i,), 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. [Footnote 5] In addition, he or she must provide the recipient of the material with a disclosure statement on a form prescribed by the Attorney General. [Footnote 6] When an agent seeks to disseminate
such political advocacy material, he or she must first label that material with certain information, the agent's identity, and the identity of the principal for whom he or she acts. The standard form to be used with films reads as follows:
"This material is prepared, edited, issued or circulated by (name and address of registrant), which is registered with the Department of Justice, Washington, D.C. under the Foreign Agents Registration Act as an agent of (name and address of foreign principal). Dissemination reports on this film are filed with the Department of Justice, where the required registration statement is available for public inspection. Registration does not indicate approval of the contents of this material by the United States Government."
App. 16, 59.
It should be noted that the term "political propaganda" does not appear on the form.
The statutory definition of that term reads as follows:
"(j) 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 or 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, or (2) which advocates, advises, instigates, or promotes any racial, social, political, or religious disorder, civil riot, or other conflict involving the use of force or violence in any other American republic or the overthrow of any government or political subdivision of any other American republic by any means involving the use of force or violence."
In determining whether a litigant has standing to challenge governmental action as a violation of the First Amendment, we have required that the litigant demonstrate "a claim of specific present objective harm or a threat of specific future harm." Laird v. Tatum,408 U. S. 1, 408 U. S. 14 (1972). In Laird, the plaintiffs alleged that the intelligence-gathering operations of the United States Army "chilled" the exercise of their First Amendment rights because they feared that the defendants might, in the future, make unlawful use of the data gathered. We found that plaintiffs lacked standing; the Army's intelligence-gathering system did not threaten any cognizable interest of the plaintiffs. While the governmental action need not have a direct effect on the exercise of First Amendment rights, we held, it must have caused or must threaten to cause a direct injury to the plaintiffs. Id. at 408 U. S. 12-13. The injury must be "distinct and palpable.'" Allen v. Wright,468 U. S. 737, 468 U. S. 751 (1984) (citations omitted).
Appellee's allegations and affidavits establish that his situation fits squarely within these guidelines. To be sure, the identification as "political propaganda" of the three films Keene is interested in showing does not have a direct effect on the exercise of his First Amendment rights; it does not prevent him from obtaining or exhibiting the films. As the District Court recognized, however,
"[w]hether the statute in fact constitutes an abridgement of the plaintiff's freedom of speech is, of course, irrelevant to the standing analysis."
619 F.Supp. at 1118. While Keene did not and could not allege that he was unable to receive or exhibit the films at all, he relies on the circumstance that he wished to exhibit the three films, but was "deterred from exhibiting the films by a statutory characterization of the films as political propaganda.'" 569 F.Supp. at 1515. If Keene had merely alleged that the appellation deterred him by exercising a chilling effect on the exercise of his First Amendment rights, he would not have standing to seek its invalidation. See Laird, supra, at 408 U. S. 13-14.
We find, however, that appellee has alleged and demonstrated more than a "subjective chill"; he establishes that the term "political propaganda" threatens to cause him cognizable injury. He stated 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 reelection and to practice his profession would be impaired."
569 F.Supp. at 1515. In support of this claim, appellee submitted detailed affidavits, including one describing the results of an opinion poll [Footnote 7] and another containing the
views of an experienced political analyst, [Footnote 8] supporting the conclusion that his exhibition of films that have been classified as "political propaganda" by the Department of Justice would substantially harm his chances for reelection and would adversely affect his reputation in the community. The affidavits were uncontradicted.
In ruling on the motion for summary judgment, the District Court correctly determined that the affidavits supported the conclusion that appellee could not exhibit the films without incurring a risk of injury to his reputation and of an impairment of his political career. The court found that the Act
"puts the plaintiff to the Hobson's choice of foregoing the use of the three Canadian films for the exposition of his own views or suffering an injury to his reputation."
619 F.Supp. at 1120. While appellee does not allege that the Act reduces the number of people who will attend his film showings, see Brief for Appellee 15, n. 14, he cites
"the risk that the much larger audience that is his constituency would be influenced against him because he disseminated what the government characterized as the political propaganda of a foreign power."
Ibid.See also Tr. of Oral Arg. 36 (the label "raises the hackles of suspicion on the part of the audience"). As the affidavits established, this suspicion would be a substantial detriment to Keene's reputation and candidacy.
It is, of course, possible that appellee could have minimized these risks by providing the viewers of the films with an appropriate statement concerning the quality of the motion pictures -- one of them won an "Oscar" award from the Academy of Motion Picture Arts and Sciences as the best foreign documentary in 1983 -- and his reasons for agreeing with the positions advocated by their Canadian producer concerning nuclear war and acid rain. Even on that assumption, however, the need to take such affirmative steps to avoid the risk of harm to his reputation constitutes a cognizable injury in the course of his communication with the public. This case is similar to Lamont v. Postmaster General,381 U. S. 301 (1965), in which we did not question that petitioner had standing to challenge a statute requiring the Postmaster General to hold all "communist political propaganda" originating abroad, and not release it to the addressee unless that individual made a written request to the Post Office for delivery
of the material. Although the statute was directed to the Postmaster General, it affected addressee Lamont just as the Act under consideration affected Keene. The necessity of going on the record as requesting this political literature constituted an injury to Lamont in his exercise of First Amendment rights. Likewise, appellee is not merely an undifferentiated bystander with claims indistinguishable from those of the general public, as the Government argues; he would have to take affirmative steps at each film showing to prevent public formation of an association between "political propaganda" and his reputation. Moreover, while these steps might prevent or mitigate damage to his reputation among those members of the public who do view the films, they would be ineffective among those citizens who shun the film as "political propaganda." [Footnote 9]
Our cases recognize that a mere showing of personal injury is not sufficient to establish standing; we have also required that the injury be "fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, 468 U.S. at 468 U. S. 751; see also Valley Forge Christian College v. Americans United for Separation of Church ana State, Inc.,454 U. S. 464, 454 U. S. 472 (1982). Because the alleged injury stems from the Department of Justice's enforcement of a statute that employs the term "political propaganda," we conclude that the risk of injury to appellee's reputation "fairly can be traced" to the defendant's conduct. Simon v. Eastern Kentucky Welfare Rights Organization,426 U. S. 26, 426 U. S. 41 (1976).
Moreover, enjoining the application of the words "political propaganda" to the films would at least partially redress the reputational injury of which appellee complains. The Attorney General argues that an injunction would not provide the
relief sought, because appellee's constituents and others may continue to react negatively to his exhibition of films once they have been labeled as "political propaganda." However, appellee's alleged harm occurs because the Department of Justice has placed the legitimate force of its criminal enforcement powers behind the label of "political propaganda." A judgment declaring the Act unconstitutional would eliminate the need to choose between exhibiting the films and incurring the risk that public perception of this criminal enforcement scheme will harm appellee's reputation. Appellee declared his intent
"to continue to exhibit the three films periodically in the future, but only if the defendants are permanently enjoined from classifying the films as 'political propaganda.'"
Declaration of Barry Keene As Regards Having Exhibited the Three Films, App. 110. Thus, the threatened injury alleged in the complaint is "likely to be redressed by a favorable decision." See Valley Forge, 454 U.S. at 454 U. S. 472, and cases cited ibid. at n. 9.
We begin our examination of the District Court's ruling on the First Amendment issue by noting that the term "political propaganda" has two meanings. In popular parlance, many people assume that propaganda is a form of slanted, misleading speech that does not merit serious attention and that proceeds from a concern for advancing the narrow interests of the speaker, rather than from a devotion to the truth. See, e.g., Declaration of Edwin Newman, Correspondent for NBC News, App. 107-108. Casualty reports of enemy belligerents, for example, are often dismissed as nothing more than "propaganda." As defined in the Act, the term political propaganda includes misleading advocacy of that kind. See 22 U.S.C. § 611(j). But it also includes advocacy materials that are completely accurate and merit the closest attention and the highest respect. Standard reference works include both broad, neutral definitions of the word "propaganda" that
Appellee argues that the statute would be unconstitutional even if the broad neutral definition of propaganda were the only recognized meaning of the term, because the Act is "a Classic Example of Content-Based Government Regulation of Core-Value Protected Speech." [Footnote 12] As appellee notes, the Act's reporting and disclosure requirements are expressly conditioned upon a finding that speech on behalf of a foreign principal has political or public policy content.
The District Court did not accept this broad argument. It found that the basic purpose of the statute as a whole was "to inform recipients of advocacy materials produced by or under the aegis of a foreign government of the source of such materials" (emphasis deleted), and that it could not be gainsaid that this kind of disclosure serves, rather than disserves, the First Amendment. [Footnote 13] The statute itself neither prohibits nor censors the dissemination of advocacy materials by agents of foreign principals.
The argument that the District Court accepted rests not on what the statute actually says, requires, or prohibits, but rather upon a potential misunderstanding of its effect. Simply because the term "political propaganda" is used in the text of the statute to define the regulated materials, the court assumed that the public will attach an "unsavory connotation,"
619 F.Supp. at 1125, to the term and thus believe that the materials have been "officially censured by the Government." Ibid. The court further assumed that this denigration makes this material unavailable to people like appellee, who would otherwise distribute such material, because of the risk of being seen in an unfavorable light by the members of the public who misunderstand the statutory scheme. [Footnote 14] According to the District Court, the denigration of speech to which the label "political propaganda" has been attached constitutes "a conscious attempt to place a whole category of materials beyond the pale of legitimate discourse," id. at 1126, and is therefore an unconstitutional abridgment of that speech. We
find this argument unpersuasive, indeed, untenable, for three reasons.
First, the term "political propaganda" does nothing to place regulated expressive materials "beyond the pale of legitimate discourse." Ibid. Unlike the scheme in Lamont v. Postmaster General, the Act places no burden on protected expression. We invalidated the statute in Lamont as interfering with the addressee's First Amendment rights because it required "an official act (viz., returning the reply card) as a limitation on the unfettered exercise of the addressee's First Amendment rights." 381 U.S. at 381 U. S. 305. The physical detention of the materials, not their mere designation as "communist political propaganda," was the offending element of the statutory scheme. The Act
"se[t] administrative officials astride the flow of mail to inspect it, appraise it, write the addressee about it, and await a response before dispatching the mail."
Id. at 381 U. S. 306. The Act in this case, on the other hand, does not pose any obstacle to appellee's access to the materials he wishes to exhibit. Congress did not prohibit, edit, or restrain the distribution of advocacy materials in an ostensible effort to protect the public from conversion, confusion, or deceit.
To the contrary, Congress simply required the disseminators of such material to make additional disclosures that would better enable the public to evaluate the import of the propaganda. [Footnote 15] The statute does not prohibit appellee from
advising his audience that the films have not been officially censured in any way. Disseminators of propaganda may go beyond the disclosures required by statute, and add any further information they think germane to the public's viewing of the materials. By compelling some disclosure of information and permitting more, the Act's approach recognizes that the best remedy for misleading or inaccurate speech contained within materials subject to the Act is fair, truthful, and accurate speech. See generally Whitney v. California,274 U. S. 357, 274 U. S. 377 (1927) (Brandeis, J., concurring) ("If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence"). The prospective viewers of the three films at issue may harbor an unreasoning prejudice against arguments that have been identified as the "political propaganda" of foreign principals and their agents, but the Act allows appellee to combat any such bias simply by explaining -- before, during, or after the film, or in a wholly separate context -- that Canada's interest in the consequences of nuclear war and acid rain does not necessarily undermine the integrity or the persuasiveness of its advocacy.
Ironically, it is the injunction entered by the District Court that withholds information from the public. The suppressed information is the fact that the films fall within the category of materials that Congress has judged to be "political propaganda." A similar paternalistic strategy of protecting the public from information was followed by the Virginia Assembly, which enacted a ban on the advertising of prescription drug prices by pharmacists. See Virginia Pharmacy Bd. v. Virginia Citizens Consumer Council, Inc.,425 U. S. 748 (1976). The State sought to justify the ban as a means of
preventing "the aggressive price competition that will result from unlimited advertising" and the "loss of stable pharmacist-customer relationships" that would result from comparison shopping on the basis of price. We wholly rejected these justifications, finding that the ban was predicated upon assumptions about the reactions the public would have if they obtained the "wrong" kind of information. Although the proscribed information in that case was price advertising of pharmacy items, our rationale applies equally to information that the Congress considers certain expressive materials to be "propaganda":
"[O]n close inspection, it is seen that the State's protectiveness of its citizens rests in large measure on the advantages of their being kept in ignorance. The advertising ban does not directly affect professional standards one way or the other. It affects them only through the reactions it is assumed people will have to the free flow of drug price information."
Id. at 425 U. S. 769. Likewise, despite the absence of any direct abridgment of speech, the District Court in this case assumed that the reactions of the public to the label "political propaganda" would be such that the label would interfere with freedom of speech. In Virginia Pharmacy Bd., we squarely held that a zeal to protect the public from "too much information" could not withstand First Amendment scrutiny:
"There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication, rather than to close them. . . . It is precisely this kind of choice, between the dangers of suppressing information and the dangers from its misuse if it is freely available, that the First Amendment makes for us."
Id. at 425 U. S. 770.
Second, the reasoning of the District Court is contradicted by history. The statutory definition of "political propaganda" has been on the books for over four decades. [Footnote 16] We should presume that the people who have a sufficient understanding of the law to know that the term "political propaganda" is used to describe the regulated category also know that the definition is a broad, neutral one rather than a pejorative one. [Footnote 17] Given this long history, it seems obvious that, if the fear of misunderstanding had actually interfered with
the exhibition of a significant number of foreign-made films, that effect would be disclosed in the record. Although the unrebutted predictions about the potentially adverse consequences of exhibiting these films are sufficient to support appellee's standing, they fall far short of proving that the public's perceptions about the word "propaganda" have actually had any adverse impact on the distribution of foreign advocacy materials subject to the statutory scheme. There is a risk that a partially informed audience might believe that a film that must be registered with the Department of Justice is suspect, but there is no evidence that this suspicion -- to the degree it exists -- has had the effect of Government censorship.
Third, Congress' use of the term "political propaganda" does not lead us to suspend the respect we normally owe to the Legislature's power to define the terms that it uses in legislation. We have no occasion here to decide the permissible scope of Congress' "right to speak"; [Footnote 18] we simply view this particular choice of language, statutorily defined in a neutral and evenhanded manner, as one that no constitutional provision prohibits the Congress from making. Nor do we agree with the District Court's assertion that Congress' use of the term "political propaganda" was "a wholly gratuitous step designed to express the suspicion with which Congress regarded the materials." 619 F.Supp. at 1125. It is axiomatic that the statutory definition of the term excludes unstated meanings of that term. Cokbutti v. Franklin,439 U. S. 379, 439 U. S. 392, and n. 10 (1979). Congress' use of the term "propaganda" in this statute, as indeed in other legislation, has no pejorative connotation. [Footnote 19] As judges, it is our duty to
construe legislation as it is written, not as it might be read by a layman, or as it might be understood by someone who has not even read it. If the term "political propaganda" is construed consistently with the neutral definition contained in the text of the statute itself, the constitutional concerns voiced by the District Court completely disappear.
The judgment of the District Court is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE SCALIA took no part in the consideration or decision of this case.
In a letter dated January 13, 1983, the Chief of the Registration Unit of the Internal Security Section of the Criminal Division of the Department of Justice notified the National Film Board of Canada (NFBC) that these three films were "political propaganda," and requested that the NFBC comply with the labeling and reporting requirements imposed by § 4 of the Act, 22 U.S.C. § 614. App. 18.
The NFBC (New York office) has been registered with the Attorney General as an agent of a foreign principal, the NFBC, since 1947, pursuant to 22 U.S.C. § 612. Second Declaration of Joseph E. Clarkson
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