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.
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.
Page 481 U. S. 466
(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.
Page 481 U. S. 467
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
Page 481 U. S. 468
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.
Page 481 U. S. 469
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.
I
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,
318 U. S. 244
(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
Page 481 U. S. 470
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
Page 481 U. S. 471
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
Page 481 U. S. 472
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."
§ 611(j).
II
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).
Page 481 U. S. 473
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
Page 481 U. S. 474
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.
Page 481 U. S. 475
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
Page 481 U. S. 476
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
Page 481 U. S. 477
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.
III
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
Page 481 U. S. 478
are consistent with the way the word is defined in this statute,
[
Footnote 10] and also the
narrower, pejorative definition. [
Footnote 11]
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,"
Page 481 U. S. 479
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
Page 481 U. S. 480
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
Page 481 U. S. 481
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
Page 481 U. S. 482
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.
Page 481 U. S. 483
See also Linmark Associates, Inc. v. Willingboro,
431 U. S. 85,
431 U. S. 96-97
(1977).
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
Page 481 U. S. 484
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
Page 481 U. S. 485
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.
[
Footnote 1]
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.
[
Footnote 2]
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 � 4, App. 57.
[
Footnote 3]
The films are entitled If You Love This Planet, Acid Rain:
Requiem or Recovery, and Acid From Heaven. The first film concerns
"the environmental effects of nuclear war." Complaint � 1, App. 10.
"Acid rain" is formed when nitrogen oxides and sulfur dioxide,
products of fossil fuel combustion, are discharged into the
atmosphere; converted to sulfates, nitrates, sulfuric acids, and
nitric acids through various chemical reactions; and then deposited
as precipitation.
See 1 F. Grad, Treatise on Environmental
Law § 2.09, pp. 2-578 to 2-579 (1986).
[
Footnote 4]
Keene v. Smith, 569 F. Supp. at 1518, 1522. The
District Court found that appellee lacked standing to challenge the
labeling requirement that the Act imposes on the agent of the
foreign principal.
Id. at 1519. That ruling is not now
before this Court.
[
Footnote 5]
Title 22 U.S.C. § 614(a) provides:
"Every person within the United States who is an agent of a
foreign principal and required to register under the provisions of
this subchapter and who transmits or causes to be transmitted in
the United States mails or by any means or instrumentality of
interstate or foreign commerce any political propaganda for or in
the interests of such foreign principal (i) in the form of prints,
or (ii) in any other form which is reasonably adapted to being, or
which he believes will be, or which he intends to be, disseminated
or circulated among two or more persons shall, not later than
forty-eight hours after the beginning of the transmittal thereof,
file with the Attorney General two copies thereof and a statement,
duly signed by or on behalf of such agent, setting forth full
information as to the places, times, and extent of such
transmittal."
[
Footnote 6]
Section 614(b) provides:
"It shall be unlawful for any person within the United States
who is an agent of a foreign principal and required to register
under the provisions of this subchapter to transmit or cause to be
transmitted in the United States mails or by any means or
instrumentality of interstate or foreign commerce any political
propaganda for or in the interests of such foreign principal (i) in
the form of prints, or (ii) in any other form which is reasonably
adapted to being, or which he believes will be or which he intends
to be, disseminated or circulated among two or more persons, unless
such political propaganda is conspicuously marked at its beginning
with, or prefaced or accompanied by, a true and accurate statement,
in the language or languages used in such political propaganda,
setting forth the relationship or connection between the person
transmitting the political propaganda or causing it to be
transmitted and such propaganda; that the person transmitting such
political propaganda or causing it to be transmitted is registered
under this subchapter with the Department of Justice, Washington,
District of Columbia, as an agent of a foreign principal, together
with the name and address of such agent of a foreign principal and
of such foreign principal; that, as required by this subchapter,
his registration statement is available for inspection at and
copies of such political propaganda are being filed with the
Department of Justice; and that registration of agents of foreign
principals required by the subchapter does not indicate approval by
the United States Government of the contents of their political
propaganda. The Attorney General, having due regard for the
national security and the public interest, may by regulation
prescribe the language or languages and the manner and form in
which such statement shall be made and require the inclusion of
such other information contained in the registration statement
identifying such agent of a foreign principal and such political
propaganda and its sources as may be appropriate."
[
Footnote 7]
The poll was entitled Gallup Study of The Effect of Campaign
Disclosures on Adults' Attitudes Toward Candidates (July, 1984).
App. 78-98. The study was based on a telephone survey, in which
five questions were posed to a representative national sample of
adults. The questions tested the effect that publicizing various
events associated with a candidate running for the state
legislature would have on his candidacy. One of the surveyed events
was that the political candidate "arranged to show to [the] public
three foreign films that the Justice Dept. had classified as
Political Propaganda.'" App. 86. The poll concluded that, if
this event occurred, 49.1% of the public would be less inclined to
vote for the candidate. Ibid.; see also id. at 93-94
(sampling tolerances; 95% confidence level that sampling error is
less than four percentage points).
After examining the survey data, the survey research
practitioner who had designed the survey concluded that the charge
of showing political propaganda
"would have a seriously adverse effect on a California State
Legislature candidate's chances [for election] if this charge were
raised during a campaign."
Declaration of Mervin Field � 5, App. 69. The District Court
found that this declaration,
"neither rebutted nor impeached by the defendants, establishes
beyond peradventure of a doubt that whoever disseminates materials
officially found to be 'political propaganda' runs the risk of
being held in a negative light by members of the general
public."
619 F. Supp. 1111, 1124 (1985) (footnote omitted). In addition,
a principal political fundraiser and adviser to appellee, Harry
Bistrin, stated:
"I have no doubt but that some members of the North Coast [of
California] press, present political adversaries, and future
opponents, would openly seize upon the opportunity to utilize the
government's reporting, dissemination and label requirements under
[the Act] to their benefit by portraying the plaintiff as a
disseminator of 'foreign political propaganda.' For these reasons,
the plaintiff has a compelling interest, perhaps more than most
citizens, to ensure that the exercise of his first amendment rights
does not 'boomerang' to be utilized as a deadly weapon against him
in his political career."
Declaration in Support of Plaintiff's Motion for a Preliminary
Injunction, App. 30.
[
Footnote 8]
"Designating material as 'political propaganda' . . . denigrates
the material and stigmatizes those conveying it in a manner that
mere designation of the material as 'political advocacy' would not.
It is my professional judgment that knowledge of such a designation
would be extremely likely to deter persons from viewing or reading
such materials and, diminish and/or slant its communicative value,
in a manner likely to make the reader or viewer suspicious of the
material, far less likely to credit it or accept its
conclusions."
Declaration of Leonard W. Doob � 9, App. 103. The declarant is
Senior Research Associate and Sterling Professor Emeritus of
Psychology at Yale University.
[
Footnote 9]
See Block v. Meese, 263 U.S.App.D.C. 317, 322, 793 F.2d
1303, 1308, (1986) (sole distributor of If You Love This Planet has
standing to challenge classification of film as "political
propaganda"; potential customers declined to take the film because
of the classification).
[
Footnote 10]
See, e.g., Webster's Third New International Dictionary
1817 (1981 ed.) ("doctrines, ideas, argument, facts, or allegations
spread by deliberate effort through any medium of communication in
order to further one's cause or to damage an opposing cause").
[
Footnote 11]
See, e.g., Webster's New World Dictionary, College
Edition 1167 (1968) ("now often used disparagingly to connote
deception or distortion"); The New Columbia Encyclopedia 2226
(1975) ("[A]lmost any attempt to influence public opinion,
including lobbying, commercial advertising, and missionary work,
can be broadly construed as propaganda. Generally, however, the
term is restricted to the manipulation of political beliefs").
[
Footnote 12]
Brief for Appellee 20.
[
Footnote 13]
See 619 F. Supp. at 1125
[
Footnote 14]
The risk of this reputational harm, as we have held earlier in
this opinion, is sufficient to establish appellee's standing to
litigate the claim on the merits. Whether the risk created by the
Act violates the First Amendment is, of course, a separate matter.
The crux of the District Court's analysis of this latter issue is
set forth in this paragraph:
"With respect to the evidentiary question -- does the phrase
'political propaganda,' when officially applied by officials of the
United States Department of Justice, abridge speech -- the Court
has little difficulty. The declaration supplied by Mervin Field,
neither rebutted nor impeached by the defendants, establishes
beyond peradventure of a doubt that whoever disseminates materials
officially found to be 'political propaganda' runs the risk of
being held in a negative light by members of the general public.
See Gallup Study of the Effect of Campaign Disclosures on
Adults' Attitudes Toward Candidates, July, 1984; Plaintiff's
Exhibit A, Declaration of Mervin D. Field, at 3. For this reason,
the Court finds that Congress' use of the phrase 'political
propaganda' to describe the materials subject to the registration
and reporting requirements constitutes a burden on speech by making
such materials unavailable to all but the most courageous. Since
the exercise of First Amendment rights often requires an act of
courage, it is important to note that the courage required by the
operation of FARA is not the courage of one's convictions, but the
courage to use materials officially censured by the
government."
619 F. Supp. at 1124-1126.
An obvious flaw in this reasoning is that the materials that
satisfy the definition of "political propaganda" are not "materials
officially censured by the government." The statutory term is a
neutral one, and in any event, the Department of Justice makes no
public announcement that the materials are "political
propaganda."
[
Footnote 15]
"What emerged from extended Congressional investigations,
hearings and deliberations was this Act, intended to provide an
appropriate method to obtain information essential for the proper
evaluation of political propaganda emanating from hired agents of
foreign countries. As the House and Senate Committees considering
the Bill said, it 'does not in any way impair the right of freedom
of speech, or of a free press, or other constitutional rights.'
Resting on the fundamental constitutional principle that our
people, adequately informed, may be trusted to distinguish between
the true and the false, the bill is intended to label information
of foreign origin so that hearers and readers may not be deceived
by the belief that the information comes from a disinterested
source. Such legislation implements, rather than detracts, from the
prized freedoms guaranteed by the First Amendment. No strained
interpretation should frustrate its essential purpose."
Viereck v. United States, 318 U.
S. 236,
318 U. S. 251
(1943) (Black, J., dissenting).
[
Footnote 16]
The Act, as adopted in 1938, did not use the term "political
propaganda." In 1942, the Act was amended to add the term and to
require that materials meeting the definition of "political
propaganda" be labeled with an identification statement, and a copy
provided to the Attorney General. Act of Apr. 29, 1942, ch. 263, §§
1, 4, 56 Stat. 248, 255, 22 U.S.C. §§ 611, 614. The statute states
that the policy and purpose of the Act are to require
"public disclosure by persons engaging in propaganda activities
and other activities for or on behalf of . . . 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."
22 U.S.C. § 611 note (Policy and Purpose). The House Report
stated,
"[T]hese amendments do not change the fundamental approach of
the statute, which is one not of suppression or of censorship, but
of publicity and disclosure."
H.R.Rep. No. 1547, 77th Cong., 1st Sess., 2, 4 (1941). When
Congress again amended the Act in 1966, it retained the expression
"political propaganda" to describe the materials subject to the
requirements of the Act.
[
Footnote 17]
The Chief of the Registration Unit, Internal Security Section,
Criminal Division of the Department of Justice, submitted a
nonexhaustive list of films reported by agents under § 4 of the
Act. The film titles support the conclusion that the Act's
definition of "propaganda" is indeed a neutrally applied one which
includes allies as well as adversaries of the United States. The
titles and their foreign principals include, Berlin Means Business
and More (Berlin Economic Development Corporation); Hong Kong Style
(Government of Hong Kong); A Conversation with Golda Meir
(Consulate General of Israel); and Ballad of a Soldier
(Sovexportfilm). A television videotape entitled What is Japan
Doing About Energy? (the Government of Japan) is also included in
the list. Second Declaration of Joseph E. Clarkson, Exhibit B, App.
60-63.
[
Footnote 18]
The implications of judicial parsing of statutory language to
determine if Congress' word choices violate the First Amendment are
discussed in
Block v. Meese, 263 U.S.App.D.C. at 327-328,
793 F.2d at 1313-1314.
[
Footnote 19]
See, e.g., 26 U.S.C. § 501(c)(3) (excluding from the
charitable deduction those charitable organizations whose
activities include in substantial part "carrying on propaganda, or
otherwise attempting, to influence legislation"); 36 U.S.C. §
1304(a) (no substantial part of the activities of United Services
Organizations "shall involve carrying on propaganda, or otherwise
attempting to influence legislation"); 5 U.S.C. § 4107(b)(1)
(agency may not train employee by, in, or through a non-Government
facility a substantial part of the activities of which is "carrying
on propaganda, or otherwise attempting, to influence
legislation").
Like "propaganda," the word "lobbying" has negative
connotations.
See The New Columbia Encyclopedia 1598
(1975) ("The potential for corruption . . . has given lobbying an
unsavory connotation"). Although the Federal Regulation of Lobbying
Act, 2 U.S.C. §§ 261-270, uses this semantically slanted word, we
are not aware of any suggestion that these negative connotations
violate the First Amendment.
See United States v. Harriss,
347 U. S. 612
(1954) (construing and upholding constitutionality of statute's
registration and reporting requirements).
JUSTICE BLACKMUN, with whom JUSTICE BRENNAN and JUSTICE MARSHALL
join, dissenting in part.
The Court, in this case today, fails to apply the
long-established "principle that the freedoms of expression must be
ringed about with adequate bulwarks."
Bantam Books, Inc. v.
Sullivan, 372 U. S. 58,
372 U. S. 66
(1963). While I agree with the Court's conclusion that appellee has
standing, I do not agree that the designation "political
propaganda," imposed by the Department of Justice on three films
from Canada about acid rain and nuclear war, pursuant to the
Foreign
Page 481 U. S. 486
Agents Registration Act (Act), 52 Stat. 631, as amended, 22
U.S.C. §§ 611-621, presents no obstacle to expression protected by
the First Amendment.
I
The Court's decision rests upon its conclusion that the term
"political propaganda" is neutral and without negative connotation.
It reaches this conclusion by limiting its examination to the
statutory definition of the term and by ignoring the realities of
public reaction to the designation. But even given that confined
view of its inquiry, it is difficult to understand how a statutory
categorization which includes communication that "instigates . . .
civil riot . . . or the overthrow of . . . government . . . by any
means involving the use of force or violence," § 611(j)(2), can be
regarded as wholly neutral. Indeed, the legislative history of the
Act indicates that Congress fully intended to discourage
communications by foreign agents.
The Act grew out of the investigations of the House UnAmerican
Activities Committee, formed in 1934 to investigate Nazi propaganda
activities in the United States and the dissemination of subversive
propaganda controlled by foreign countries attacking the American
form of government.
See H.R. Res.198, 73d Cong., 2d Sess.
(1934), 78 Cong.Rec. 13-14 (1934). [
Footnote 2/1] The Act mandated disclosure, not direct
censorship,
Page 481 U. S. 487
but the underlying goal was to control the spread of propaganda
by foreign agents. This goal was stated unambiguously by the House
Committee on the Judiciary: "We believe that the spotlight of
pitiless publicity will serve as a deterrent to the spread of
pernicious propaganda." H.R.Rep. No. 1381, 75th Cong., 1st Sess., 2
(1937).
In 1942, Congress revised the Act, 56 Stat. 248, ch. 263, at the
request of the Department of Justice in order to strengthen the
Government's "chief instrument . . . for controlling foreign agent
activity in the theater of political propaganda." Hearings on H.R.
6045 before Subcommittee No. 4 of the House Committee on the
Judiciary, 77th Cong., 1st Sess., Ser. No. 9, p. 24 (1941) (1941
Hearings) (statement of Lawrence M. C. Smith, Chief, Special
Defense Unit, Department of Justice). The amendments included the
definition of propaganda in addition to labeling and reporting
requirements virtually identical to those imposed under the current
version of the Act. The Department of Justice explained that it
sought to counter secret propaganda efforts
"[i]n view of the increased attempts by foreign agents at the
systematic manipulation of mass attitudes on national and
international questions, by adding requirements to keep our
Government and people informed of the nature, source, and extent of
political propaganda distributed in the United States."
Id. at 25. And, as in the original Act, the amended
version furthered Congress' desire to disable certain types of
speech by the use of disclosure requirements designed to bring
about that result. [
Footnote
2/2]
The meaning of "political propaganda" has not changed in the 45
years since Congress selected those two words. While the Act is
currently applied primarily to foreign policy
Page 481 U. S. 488
advocacy, the designation it employs continues to reflect the
original purposes of the Act and continues to carry its original
connotations. For example, a Department of Justice representative
recently recognized:
"[I]t is fair to say that the original act reflected a perceived
close connection between political propaganda and subversion. It is
this original focus . . . and therefore the pejorative connotations
of the phrases 'foreign agent' and 'political propaganda' which has
caused such misunderstanding over the years."
Oversight Hearing before the Subcommittee on Civil and
Constitutional Rights of the House Committee on the Judiciary, 98th
Cong., 1st Sess., 3 (1983) (testimony of D. Lowell Jensen,
Assistant Attorney General, Criminal Division, Department of
Justice).
Even if Congress had enacted the "propaganda" designation at
issue here with a completely neutral purpose, that would not be
sufficient for the First Amendment inquiry, for the Court has
"long recognized that even regulations aimed at proper
governmental concerns can restrict unduly the exercise of rights
protected by the First Amendment."
Minneapolis Star & Tribune Co. v. Minnesota Comm'r of
Revenue, 460 U. S. 575,
460 U. S. 592
(1983). The Court today, however, fails to undertake this inquiry.
It concludes that the statutory definition of "political
propaganda" is a "neutral one,"
ante at
481 U. S. 479,
n. 14, and dismisses the District Court's holding as resting on a
"potential misunderstanding of [the statute's] effect,"
ante at
481 U. S.
478.
A definition chosen by Congress is controlling as to the scope
of the statute, but the Court has never held that Congress' choice
of a definition precludes an independent determination of a
statute's constitutionality based upon its actual effect.
See
FEC v. Massachusetts Citizens for Life, Inc., 479 U.
S. 238,
479 U. S. 255
(1986) (plurality opinion) ("The fact that the statute's practical
effect may be to discourage protected speech is sufficient to
characterize [it] as an infringement
Page 481 U. S. 489
on First Amendment activities"). In
Lamont v. Postmaster
General, 381 U. S. 301
(1965), the "communist political propaganda" that was detained by
the Postmaster and delivered only upon the addressee's request was
defined by reference to the same "neutral" definition of "political
propaganda" in the Act that is at issue here.
Id. at
381 U. S.
302-303. Yet the Court examined the effects of the
statutory requirements and had no trouble concluding that the need
to request delivery of mail classified as "communist political
propaganda" was "almost certain to have a deterrent effect" upon
debate.
Id. at
381 U. S. 307.
The reason was certainly the disapprobation conveyed by the
classification:
"Public officials, like schoolteachers who have no tenure, might
think they would invite disaster if they read what the Federal
Government says contains the seeds of treason. Apart from them, any
addressee is likely to feel some inhibition in sending for
literature which federal officials have condemned as 'communist
political propaganda.'"
Ibid. I do not see why the analysis here should be any
different, or why the statutory definition should be given any
greater weight, in the case of the elected public official who
wishes to exhibit films that the Federal Government has categorized
as "political propaganda."
I can conclude only that the Court has asked, and has answered,
the wrong question. Appellee does not argue that his speech is
deterred by the statutory definition of "propaganda." He argues,
instead, that his speech is deterred by the common perception that
material so classified is unreliable, and not to be trusted,
bolstered by the added weight and authority accorded any
classification made by the all-pervasive Federal Government. Even
if the statutory definition is neutral, it is the common
understanding of the Government's action that determines the effect
on discourse protected by the First Amendment.
Page 481 U. S. 490
We need not speculate as to the common reaction to the term
"propaganda," or rely only on the Court's assessment in
Lamont
v. Postmaster General, supra, of the negative connotations it
raises. Appellee has submitted testimony of an expert in the study
of propaganda, unrebutted by appellants. According to the
declaration of Leonard W. Doob, Sterling Professor Emeritus of
Psychology at Yale University:
"[T]he designation 'political propaganda' of a film or book by
the government is pejorative, denigrating to the material, and
stigmatizing to those disseminating it. . . . [A]s the history of
the last seventy years suggests, to call something propaganda is to
assert that it communicates hidden or deceitful ideas; that
concealed interests are involved; that unfair or insidious methods
or [
sic] being employed; that its dissemination is
systematic and organized in some way."
App. 101.
See also ante at
481 U. S. 474,
n. 8. It simply strains credulity for the Court to assert that
"propaganda" is a neutral classification.
II
Because the Court believes that the term "political propaganda"
is neutral, it concludes that "the Act places no burden on
protected expression."
Ante at
481 U. S. 480.
The Court's error on neutrality leads it to ignore the practical
effects of the classification, which create an indirect burden on
expression. As a result, the Court takes an unjustifiably narrow
view of the sort of government action that can violate First
Amendment protections. Because Congress did "not pose any obstacle
to appellee's access to the materials he wishes to exhibit" in that
it "did not prohibit, edit, or restrain the distribution of
advocacy materials,"
ibid., the Court thinks that the
propaganda classification does not burden speech. But there need
not be a direct restriction of speech in order to have a First
Amendment violation. The Court has recognized that indirect
discouragements are fully capable of a coercive effect on speech,
American Communications Assn. v. Douds, 339 U.
S. 382,
339 U. S. 402
(1950), and that the First
Page 481 U. S. 491
Amendment protections extend beyond the blatant censorship the
Court finds lacking here. "[T]he fact that no direct restraint or
punishment is imposed upon speech . . . does not determine the free
speech question."
Ibid.
In
Bantam Books, Inc. v. Sullivan, 372 U. S.
58 (1963), for example, the Court struck down a Rhode
Island statute authorizing a commission to designate morally
objectionable material. The Court rejected the State's argument
that the First Amendment was not violated because the Commission
did not "regulate or suppress obscenity,"
id. at
372 U. S. 66,
finding that through the use of
informal sanctions, "the
Commission deliberately set out to achieve the suppression of
publications deemed
objectionable,' and succeeded in its aim,"
id. at 372 U. S. 67.
There likewise was no overt restraint on speech in Lamont.
The Postmaster General argued there that, because an addressee had
only to return a card in order to receive the publication, "only
inconvenience, and not an abridgment, is involved." 381 U.S. at
381 U. S. 309
(concurring opinion). But, as was stated there, "inhibition as well
as prohibition against the exercise of precious First Amendment
rights is a power denied to government." Ibid. [Footnote 2/3]
By ignoring the practical effect of the Act's classification
scheme, the Court unfortunately permits Congress to accomplish by
indirect means what it could not impose directly -- a restriction
of appellee's political speech. Political discourse is burdened by
the Act because Congress' classification scheme inhibits
dissemination of classified films. In deciding whether or not to
show a film, individuals and institutions are
Page 481 U. S. 492
bound to calculate the risk of being associated with materials
officially classified as propaganda. Many, such as appellee,
reasonably will decline to assume the necessary risk. That risk is
particularly high for those who are accountable to the public,
among them librarians and elected officials, to cite obvious
examples. In addition, the official designation taints the message
of a classified film by lessening its credence with viewers. For
the film to carry its full force and meaning, an exhibitor must
attempt to dispel skepticism flowing from the notion that the film
is laced with lies and distortions. These burdens are too great and
too real in practical terms to be ignored simply because they are
imposed by way of public reaction, rather than through a direct
restriction on speech.
The Court perceives no burden on First Amendment rights,
because
"Congress simply required the disseminators of [propaganda]
material to make additional disclosures that would better enable
the public to evaluate the import of the propaganda."
Ante at
481 U. S. 480.
Yet, in its discussion of standing, the majority recognizes that
the practical effect of the "disclosure" is to place a film
exhibitor on the defensive, for this "disclosure" would require the
exhibitor to take affirmative steps to avoid harm to his or her
reputation.
Ante at
481 U. S. 475.
Moreover, disclosure requirements are not inherently consistent
with the First Amendment, and do not necessarily serve to advance
discourse. The Court often has struck down disclosure requirements
that threatened to have a
"deterrent and 'chilling' effect on the free exercise of
constitutionally enshrined rights of free speech, expression, and
association."
Gibson v. Florida Legislative Investigation Comm.,
372 U. S. 539,
372 U. S. 557
(1963);
see also Brown v. Socialist Workers '74 Campaign
Comm., 459 U. S. 87,
459 U. S. 100
(1982) (names of campaign contributors and recipients of funds);
Talley v. California, 362 U. S. 60 (1960)
(identification of names and addresses of authors of handbills);
N.A.A.C.P. v. Alabama, 357 U. S. 449,
357 U. S. 462
(1958) (membership lists).
Page 481 U. S. 493
The Court likens the injunction issued by the District Court to
the state ban on advertising prices of prescription drugs struck
down in
Virginia Pharmacy Bd. v. Virginia Citizens Consumer
Council, Inc., 425 U. S. 748
(1976).
Ante at
481 U. S.
481-482. But there is a significant difference between
the "paternalistic strategy of protecting the public from
information,"
ante at
481 U. S. 481,
by way of a ban on information and a prohibition of the Government
disparagement at issue in this case. A ban on advertising does
indeed "enforc[e] silence," in the words of Justice Brandeis.
Whitney v. California, 274 U. S. 357,
274 U. S. 377
(1927) (concurring opinion). But the District Court's holding here
-- that a derogatory classification impermissibly inhibits
protected expression -- did not impose a ban; it merely lifted a
disclosure requirement, as in the other cases cited above. Under
the District Court's ruling, opponents of the viewpoint expressed
by the National Film Board of Canada remained completely free to
point out the foreign source of the films. The difference was that
dialogue on the value of the films and the viewpoints they express
could occur in an atmosphere free of the constraint imposed by
Government condemnation. It is the Government's classification of
those films as "political propaganda" that is paternalistic. For
that Government action does more than simply provide additional
information. It places the power of the Federal Government, with
its authority, presumed neutrality, and assumed access to all the
facts, behind an appellation
designed to reduce the
effectiveness of the speech in the eyes of the public.
III
Appellants have not even attempted to articulate any
justification for saddling the expression of would-be film
exhibitors with the classification "political propaganda." Yet this
Court has held consistently that a limitation on First Amendment
freedoms can be justified only by a compelling governmental
interest.
FEC v. Massachusetts Citizens for Life,
Page 481 U. S. 494
Inc., 479 U.S. at
479 U. S. 256;
NAACP v. Button, 371 U. S. 415,
371 U. S. 438
(1963). The asserted purpose of the Act's classification scheme
is
"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. 249. But this goal has been rendered incapable of
justifying even the slightest burden on speech, for appellants
interpret the Act in a way that nullifies its effectiveness as a
disclosure mechanism.
There are two ways in which the purpose of the Act to inform the
public is fulfilled. First, the Act requires films transmitted by
foreign agents to be "conspicuously marked" with the name and
address of the agent and the foreign principal, and, second, the
Act requires dissemination reports for the film and the agent's
registration statement to be placed on file with the Department of
Justice, available for public inspection. §§ 614(a), (b), (c), and
616(a);
see ante at
481 U. S. 470,
and nn. 5 and 6. [
Footnote 2/4] The
public is able to learn of its opportunity to examine these files
by reading the label affixed to the film.
See ante at
481 U. S. 471.
[
Footnote 2/5]
Page 481 U. S. 495
The purposes of the Act could be fulfilled by such a process
without categorizing the films as "political propaganda." But the
importance of conveying any of this information to the public is
belied by the Government's position that the informative label can
be removed by appellee.
See Declaration of Joseph E.
Clarkson, Chief, Registration Unit, Internal Security Section,
Criminal Division, Department of Justice. App. 22. After the
complaint in this case (which included a challenge to the labeling
requirement) was filed in the District Court, the Department of
Justice asserted that it
"has never construed the Act to apply to a person in
[appellee's] position, and thus has not, does not, and will not
require [appellee] to attach the neutral statutory disclaimer to,
or exhibit the disclaimer on said films if he obtains them."
Ibid. The only reasonable interpretation of this
statement is that any exhibitor would be "a person in [appellee's]
position," and thus exempt from the labeling requirements. But if
the labeling requirements apply to the foreign agent only, and can
be removed by recipients of the film, the information will never
reach the public, its intended audience. This nullification of the
primary purpose of the statute means that the classification of the
films as "political propaganda" places a purely gratuitous burden
on a would-be exhibitor, and serves no governmental interest at
all, let alone a compelling one.
Even if appellants could assert a compelling interest, the
propaganda classification carries a derogatory meaning that is
unnecessary to the asserted purpose of the Act. The Department of
Justice admitted as much in a letter regarding proposed changes in
the legislation:
"We believe Congress should . . . consider replacing the broad
definition of 'political propaganda,' which currently defines
materials that must be labeled, with a more concise definition,
more narrowly focused on the United States political process. We
would also support the use of a more neutral term like political
'advocacy' or 'information' to denominate information that must
be
Page 481 U. S. 496
labeled."
Letter, dated August 8, 1983, to the Honorable Robert W.
Kastenmeier, Chairman, Subcommittee on Courts, Civil Liberties and
the Administration of Justice, of the House Committee on the
Judiciary, from Edward C. Schmults, Deputy Attorney General,
Department of Justice. App. 118. [
Footnote 2/6]
Given that position, the Court errs in tolerating even the
slightest infringement of First Amendment rights by governmental
use of a classification deemed unnecessary by those who enforce it.
I respectfully dissent.
[
Footnote 2/1]
One of the countermeasures the Committee recommended in light of
the danger posed by foreign propaganda was that all propaganda
agents who represented any foreign government or foreign political
party be required to register with the Secretary of State. H.R.Rep.
No. 153, 74th Cong., 1st Sess., 23 (1935). This requirement became
the centerpiece of the Act, which was motivated by concern with
the
"many persons in the United States representing foreign
governments or foreign political groups, who are supplied by such
foreign agencies with funds and other materials to foster
un-American activities, and to influence the external and internal
policies of this country, thereby violating both the letter and the
spirit of international law, as well as the democratic basis of our
own American institutions of government."
H.R.Rep. No. 1381, 75th Cong., 1st Sess., 1-2 (1937).
[
Footnote 2/2]
See, e.g., 1941 Hearings 20 (statement of Lawrence M.
C. Smith) ("And . . . as Justice Holmes has said, champagne that is
put in the light and left in the light goes flat, and that is the
way we have found it to be, that these bad political organizations
cannot survive in the pitiless light of publicity").
[
Footnote 2/3]
See also Freedman v. Maryland, 380 U. S.
51,
380 U. S. 59 (1966)
(film censorship program unconstitutional in the absence of
procedural safeguards because otherwise, as a practical matter, "it
may prove too burdensome to seek review of the censor's
determination");
Speiser v. Randall, 357 U.
S. 513,
357 U. S. 526
(1968) (state program placing burden on taxpayers to prove they did
not advocate overthrow of United States declared unconstitutional
because, "[i]n practical operation, . . . this procedural device
must necessarily produce a result which the State could not command
directly. It can only result in a deterrence of speech which the
Constitution makes free").
[
Footnote 2/4]
The statutory requirement that a foreign agent submit two copies
of the material it distributes, § 614(a), is relaxed for motion
pictures. Two copies need not be filed so long as the agent files
dissemination reports monthly and submits either a filmstrip
showing the required labeling on the film or an affidavit
"certifying that the required label has been made a part of the
film." 28 CFR § 5.400(c) (1986). Dissemination reports require a
description of the propaganda material, the number of copies
transmitted, the dates and means of transmission, and the number of
each type of recipient: libraries, public officials, newspapers,
etc. For films, the report must also list the "name of [the]
station, organization, or theater using," the dates it was shown,
and the estimated audience. App. 17. A person who willfully
violates the registration or filing requirements is subject to a
fine of up to $10,000 and/or imprisonment for not more than five
years. § 618(a)(2).
[
Footnote 2/5]
Failure to comply with the labeling requirement is punishable by
a fine of not more than $6,000 and/or imprisonment for not more
than six months.
Ibid.
[
Footnote 2/6]
The Justice Department also has favored altering the disclosure
statement. In the same letter, Deputy Attorney General Schmults
said:
"We would . . . favor amending the Act to permit use of simpler
and more neutral language in the disclosure label, to avoid
unnecessary negative connotations that may be inferred from the
disclosure statement (as, for instance, from the current statement
that the United States Government has not approved the contents of
the message)."