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BLOCK v. SMITH

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA


April 2, 1984

MITCHELL BLOCK, et al., Plaintiffs,
v.
WILLIAM FRENCH SMITH, et al., Defendants

The opinion of the court was delivered by: RICHEY

OPINION OF UNITED STATES DISTRICT JUDGE CHARLES R. RICHEY.

 I. Introduction

 Plaintiffs in this case are distributors and potential exhibitors of three films produced by the National Film Board of Canada (NFBC). They challenge the United States Department of Justice's application of certain provisions of the Foreign Agents Registration Act (FARA), 22 U.S.C. §§ 611-618 (1983), to these films. To fully understand the nature of this case, it seems necessary to set out the statutory framework of the FARA. A foreign agent who produces or sends a film or films to this country sends a copy thereof to the Department of Justice. The Department then determines whether each film falls within the definition of the term "political propaganda" as defined in the FARA statute and its regulations. The FARA requires that every person acting as an agent *fn1" of a foreign principal *fn2" file a registration statement with the United States Attorney General which provides the agent's name, address and information about the relationship to and activities on behalf of the foreign principal. 22 U.S.C. § 612(a). "Political propaganda" is defined in relevant part as:

 

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

 22 U.S.C. § 611(j).

 If it is determined that an agent is transmitting any "political propaganda" "for or in the interests" of the foreign principal, the agent is required under the FARA to file a statement with the Attorney General within 48 hours of the transmittal of the material setting forth full information as to the places, times and extent of such transmittal. 22 U.S.C. § 614(a). The Act also requires that the agent affix a label to any material that has been deemed "political propaganda." 22 U.S.C. § 614(b). The label is to reveal "that the person transmitting the political propaganda . . . or causing it to be transmitted is registered . . . as an agent of a foreign principal" among other things. The labelling requirement of the FARA is not at issue in this case since the parties, by agreement, determined that the requirement did not apply to the plaintiffs herein. See Defendants' Memorandum at para.. 2; Clarkson Declaration at para. 4; Plaintiff's Memorandum at p. 1. In addition, the statute and the regulations do not require the Department's label of political propaganda to appear on the film at the time of its showing to the public in any theater or other exhibition method where the public might see the film either publicly or privately. Defendants' Statement of Material Facts at para. 9.

 By regulation, the Justice Department requires the filing of Form OBD-69 which calls for the agent to disclose "names and addresses of persons or organizations receiving 100 copies or more" of the materials and specifically for films, the names of any "station, organization, or theater" using the film irrespective of the number of copies received. 28 C.F.R. § 5.401 (1983); See Declaration of Charlie Sims at Exhibit A.

 This case centers around three films that were produced by the NFBC. The NFBC office in New York City has since 1947 registered with the Attorney General's Office as an agent of the NFBC, which they have conceded is a part of the Canadian government. See Defendants' Reply Memorandum at Exhibit A, paras. 6, 9. Its most recent supplemental registration statement describes its activities on behalf of the government of Canada as the:

 

Promotion and distribution through commercial and non-commercial channels of Canadian Government information documentary, and cultural films, filmstrips, and other visual aid materials to public film libraries, educational institutions, government agencies, etc. Activities also include dissemination of catalogues, folders and information sheets describing the films distributed; participation at conferences, seminars and other functions pertaining to the use of audiovisual materials.

 Clarkson Declaration at Exhibit B.

 In accordance with the requirements of the FARA, the NFBC periodically submits information to the Justice Department on its activities, including the titles of films it transmits within the United States. See e.g., Clarkson Declaration at Exhibit B. In the fall of 1982, the Department decided to review five films from a list of 62 films and videotapes distributed by the NFBC during January to June of 1982. See Jensen Statement at p. 6. On January 13, 1983, the Registration Unit of the Justice Department informed the NFBC that three of the five films constituted "political propaganda" within the meaning of 22 U.S.C. § 611(j). Clarkson Declaration at Exhibit A. The three films were entitled If You Love This Planet, a film depicting the perils of nuclear war, and Acid from Heaven and Acid Rain: Requiem or Recovery, two films concerning the alleged detrimental effects of acid rain on the environment.

 Because the Department had found the films to fall within the "political propaganda" definition of § 611(j), the NFBC was informed that it would be required to affix a label identifying the foreign source of the films, and in addition, be required to file the statement concerning the dissemination of the materials pursuant to § 614 of the FARA. Pursuant to 28 C.F.R. § 5.2, the plaintiffs in this case, who are not affiliated with the NFBC, wrote the Department of Justice in an attempt to clarify their obligations under the FARA. When the Department did not respond, this action ensued. *fn3"

 Plaintiffs seek to prohibit the United States Department of Justice from enforcing the provisions of the FARA with respect to the three NFBC films. Specifically, the plaintiffs claim that by labelling the films as "political propaganda", the Department has injured their First Amendment rights. Plaintiffs claim that this action will deter members of their potential audiences from seeing the films and that the action "damages the processes of self-government" by denigrating the films' messages. Plaintiffs' Memorandum at para.. 8. Additionally, they claim that the reporting of their names to the Department of Justice as exhibitors of the films will cause injury to their reputation since they will be stigmatized as exhibitors of "un-American" or "unpatriotic" materials. See Plaintiffs' Memorandum at p. 9, n. *. Given these allegations, plaintiffs claim they have or will suffer sufficient injury in fact which enables them to assert the claim that the FARA is unconstitutional on its face or as applied.

 The Court has before it cross-motions for summary judgment and defendants Motion to dismiss on the ground that plaintiffs lack standing to maintain this action. Upon consideration of the parties' memoranda and the entire record herein, the Court is compelled under these facts and under the law to conclude that plaintiffs have failed to allege sufficient facts to meet the requirement of standing and thus grants defendants' Motion to Dismiss.

 II. PLAINTIFFS LACK STANDING TO MAINTAIN THIS ACTION

 "Standing is an absolute condition which the plaintiff must meet in order to maintain an action." Winpisinger v. Watson, 202 U.S. App. D.C. 133, 628 F.2d 133, 137 (D.C. Cir. 1980). The doctrine is employed "to refuse to determine the merits of a legal claim, on the ground that even though the claim may be correct, the litigant advancing it is not properly situated to be entitled to its judicial determination." Id. at 137. Defendants claim that the plaintiffs in this case have failed to allege "any facts" in support of their claim of injury. Defendants' Memorandum at pp. 3, 10. Because the plaintiffs have not alleged "injury in fact" and since such injury, if any, is not fairly traceable to the defendants' conduct, the court finds that plaintiffs have no standing to maintain this lawsuit.

 In order to have standing, the plaintiffs must demonstrate that they have suffered or will suffer some injury-in-fact from the defendants' actions. Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 60 L. Ed. 2d 66, 99 S. Ct. 1601 (1979). It must be an injury "that is peculiar to himself or to a distinct group of which he is a part, rather than one 'shared in substantially equal measure by all or a large class of citizens.'" Id. at 100, citing Warth v. Seldin, 422 U.S. 490, 499, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975). The injury-in-fact requirement insures that a case or controversy exists under Article III, § 2, cl. 1 of the United States Constitution. Valley Forge College v. Americans United For Separation of Church and State, Inc., 454 U.S. 464, 472, 70 L. Ed. 2d 700, 102 S. Ct. 752 (1982); Duke Power Co v. Carolina Environmental Study Group, 438 U.S. 59, 72, 57 L. Ed. 2d 595, 98 S. Ct. 2620 (1978).

 To satisfy the Article III requirements, the plaintiffs must show that they personally have suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendants. Gladstone, 441 U.S. at 99; Warth, 422 U.S. at 499. Such injury must be "distinct and palpable" as opposed to speculative or attenuated, Warth, 422 U.S. at 501, and the "party seeking review must allege facts showing that he is himself adversely affected. . . ." Sierra Club v. Morton, 405 U.S. 727, 740, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972)(emphasis added).

 At an "irreducible minimum," article III also requires that the injury can be fairly traced to the challenged actions of the defendants and that the injury is "likely to be redressed by a favorable decision." Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 41, 48 L. Ed. 2d 450, 96 S. Ct. 1917 (1976); Valley Forge, 454 U.S. at 472; Common Cause v. Department of Energy, 702 F.2d 245, 250 (D.C. Cir. 1983); Winpisinger v. Watson, 202 U.S. App. D.C. 133, 628 F.2d 133, 139 (D.C. Cir. 1980). Even if these criteria are met, a plaintiff may still lack standing "under the prudential principles by which the judiciary seeks to avoid deciding questions of broad social import where no individual rights would be vindicated. . . ." Gladstone, 441 U.S. at 99-100.

 Upon close examination of the complaint, affidavits and declarations submitted to the Court by plaintiffs, and after construing these documents in favor of the plaintiffs, as dictated by Warth v. Seldin, 422 U.S. 490, 501, 45 L. Ed. 2d 343, 95 S. Ct. 2197 (1975) the Court concludes that plaintiffs have failed to meet their burden under Article III.

 A. Plaintiffs Have Failed To Allege Injury-In-Fact

 At the outset, it is important to note two things concerning plaintiffs' allegations of injury in this case. First, plaintiffs have not alleged that their rights to obtain, exhibit or view the three films have been interfered with because of the Department of Justice action. Indeed, it is undisputed that they could not allege such injury because the FARA does not prohibit foreign advocacy or place any limitations on the availability or showing of any material deemed to be "political propaganda". Cf. Jensen Statement at 7. Additionally, the Court notes that the registration, dissemination, and labelling requirements of the FARA do not apply to any of the plaintiffs in this case. See Clarkson Declaration at para. 4; Stipulation of June 13, 1983 (agreed that plaintiffs in this case are not "agents of a foreign principal" under the FARA). Plaintiffs, therefore, cannot allege that they are injured because of any requirement in the FARA for action on their part. *fn4"

 Plaintiffs do argue that defendants have caused injury by designating the three films as "political propaganda". More specifically, they claim that "defendants have deterred members of each plaintiff's audience for the films who would have viewed them but for the . . . classification" and that by officially "denigrating" the films' messages, damaged the "processes of self-government by inducing the public to discount both the content of the films and the groups exhibiting them." Plaintiffs' Memorandum at p. 8.

 The complaint, by itself, does not allege any specific facts tending to show injury to the plaintiffs. For those claims still existing in this case, *fn5" the complaint notes that the defendants "have caused and are continuing to cause plaintiff irreparable injury by (1) inaccurately stigmatizing him as a disseminator of foreign political propaganda; [and] (2) improperly denigrating the aesthetic, artistic and educational value of the films as political propaganda." See Complaint at paras. 17-21. Since the complaint was filed, plaintiffs have submitted a series of declarations in support of their Motion for Summary Judgment, and in order to more specifically allege their particular injuries. The Court concludes, however, that these additional materials amount to no more than speculative personal opinions on the effect of the Justice Department's classification of the films as "political propaganda" and of the requirement that the NFBC provide a list of those organizations that receive copies of the films. As such, the Court is unable to find allegations of a "distinct and palpable" injury.

 1. The Dissemination Report

 Under § 4 of the FARA, agents of a foreign principal who transmit materials determined to be "political propaganda" under the Act are required to file a statement with the Attorney General "setting forth full information as to the places, times, and extent of such transmittal." 22 U.S.C. § 614(a). For films, this includes places of exhibition. 28 C.F.R. § 5.401 (1983).

 Although no dissemination reports have been filed yet by the NFBC, plaintiffs claim that the potential injury is concrete enough to justify a finding of standing. The Court disagrees. The vast majority of "factual" allegations on this issue that plaintiffs place before the Court in opposition to Defendants' Motion to Dismiss are statements that plaintiffs "do not wish" or "object" to their names being reported to the Justice Department as exhibitors or distributors of "political propaganda". Cleveland Declaration at para. 8 (New York Attorney General's office asked the NFBC for an assurance that its name would not be reported); Kulick Declaration at para. 8; Sauer Declaration at para. 8; Brown Declaration at para. 7 ("EDF objects to its name being provided to the Department of Justice"); Cohen Declaration at para. 4 (ETF does not wish its name . . . to be reported to the federal government . . ."; Poryles Declaration at para. 2 (Biograph "objects" to revealing its name.); Shields Declaration at para. 4 (New York Library Association does not want its name reported to the Department of Justice). Plaintiffs' desires, no matter how genuine, cannot be transformed into facts showing injury due to the reporting of their names.6

 In Field v. Brown, 198 U.S. App. D.C. 39, 610 F.2d 981, 989-90 (D.C. Cir. 1979), cert. denied, 446 U.S. 939, 64 L. Ed. 2d 792, 100 S. Ct. 2160 (1980), this Circuit noted:

 

plaintiffs are not entitled to invoke the judicial power to determine the constitutionality of a statute unless they can demonstrate that they have sustained, or are in immediate danger of sustaining, a direct injury as the result of enforcement of the statute. See, e.g. Laird v. Tatum, 408 U.S. 1, 13, 92 S. Ct. 2318, 33 L. Ed. 2d 154 (1972), Ex parte Levitt, 302 U.S. 633, 634, 58 S. Ct. 1, 82 L. Ed. 493 (1937). Stated differently, a plaintiff must present "a claim of specific present objective harm or a threat of specific future harm." Laird v. Tatum, 408 U.S. at 14, 92 S. Ct. at 2326.

 The only additional allegations the Court can find in plaintiffs' pleadings are generalized allegations that each plaintiff will somehow be "stigmatized" in a negative fashion as an exhibitor or distributor of "political propaganda." Block Declaration at para. 15 ("We are stigmatized as distributors of foreign political propaganda . . . a term which has negative connotations to the American public. . . . A number of callers have expressed the views . . . that we are communists . . ."); Shields Declaration at para. 4 (New York Library Association); Brown Declaration at para. 7 (Environmental Defense fund "will be known as a disseminator of . . . political propaganda, . . . [a] characterization which undermines our credibility as a scientifically responsible, politically independent organization. . . . Stigmatization is likely to damage EDF's reputation, and impair [its] ability to raise funds."); Cohen Declaration at paras. 6-7 (Environmental Task Force "does not want to be characterized as a disseminator of political propaganda because of the . . . adverse impact it would likely have on our role as communicators of credible data. . . . Such a designation has the connotation to many Americans of "un-American or communist' activity. . . ."); Poryles Declaration at paras. 4-6 (Biograph Theater is concerned that disclosure of its name will label it an exhibitor of political propaganda. Such a disclosure denigrates its reputation as a theater showing only films of "aesthetic, artistic or educational merit".)

 These allegations are highly speculative. In order to find allegations of factually specific injury, the Court would be forced to make several assumptions concerning the reaction of the public to the listing of plaintiffs in the dissemination reports. First, the Court would have to assume that the public would react negatively to a film labelled "political propaganda" despite the neutral definition of the term provided in the FARA. See 22 U.S.C. § 611(j). Additionally, the Court would have to assume that this "negative reaction" would cause potential audience members to discount the films' messages or avoid the films completely. *fn7" Finally, the court would have to assume that the public will lose respect for the plaintiffs because they chose to show the movies, even though it is clear that the FARA does not, on its face denigrate the "aesthetic, artistic or educational merits" of the films. *fn8" The Court cannot make such assumptions for the plaintiffs in the absence of any facts tending to show that such fears are concrete or likely to materialize as actual injury. See Winpisinger v. Watson, 202 U.S. App. D.C. 133, 628 F.2d 133 (D.C. Cir. 1980). Plaintiffs have failed to allege any facts showing any damage to their respective reputations. Although Plaintiff Block claims that several callers have expressed the view that his company is "communist," nothing the government has said or done can reasonably be interpreted to lead to that conclusion. In addition the Court cannot find any evidence in the record of any potential viewer or customer of the plaintiffs who has refused or will refuse to deal with the plaintiffs because of their acceptance or potential acceptance of the films.

 The injury is not only speculative, but in all likelihood, non-existent. This case is unlike the case of Lamont v. Postmaster General, 381 U.S. 301, 14 L. Ed. 2d 398, 85 S. Ct. 1493 (1965) where individuals were required to fill out a card requesting that information determined to be " communist political propaganda" be sent to them. The term "communist" is a word that is commonly deemed to be characteristic of un-American or anti-democratic conduct. "Political propaganda" is a term that can refer to both American and foreign advocacy of a particular viewpoint. One who exhibits materials that have not been clearly pejoratively labelled is not injured by the compilation of a list of such exhibitors by the federal government. *fn9"

 2. The "Political Propaganda" Classification

 Plaintiffs have alleged that the Department of Justice's classification of the films as "political propaganda" under 22 U.S.C. § 611(j) has deterred members of plaintiffs' audiences from viewing the films and has "denigrated" the film's message thereby restricting the free flow of information protected by the First Amendment. Plaintiffs' Memorandum at p. 8. The term "political propaganda" is defined in the FARA, and it is a fundamental cannon of statutory construction that " unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning." Perrin v. United States, 444 U.S. 37, 42, 62 L. Ed. 2d 199, 100 S. Ct. 311 (1979). In this case, the term is otherwise defined and the court must therefore defer to the neutral, non-pejorative definition contained in the FARA.

 The Court wishes to recognize, however, a point raised by Judge Ramirez in the Eastern District of California. In Keene v. Smith, 569 F. Supp. 1513 (1983), Judge Ramirez noted that "it may be beyond the power of Congress to determine, for example, that all materials addressing public policy issues and originating from foreign sources shall hereinafter be called 'poison' . . ." Id. at slip op. 20. Recognizing that such labelling may be inappropriate given the clear negative connotations to the word "poison", and given the Court's obligation to subject statutes implicating First Amendment rights with "exacting scrutiny", Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 56 L. Ed. 2d 1, 98 S. Ct. 1535 (1978), the Court will briefly examine the purpose of the FARA in order to determine whether the act was designed to impose negative connotations on the materials so as to deter audience viewing. With such a finding, the allegations of government action in this case could be enough to find standing. *fn10"

 In Attorney General v. Irish People, Inc., 221 U.S. App. D.C. 406, 684 F.2d 928 (D.C. Cir. 1982), the D.C. Circuit extensively reviewed the caselaw and legislative history of the FARA. The Court quoted the Supreme Court decision in Viereck v. United States, 318 U.S. 236, 87 L. Ed. 734, 63 S. Ct. 561 (1943):

 

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.

 Subsequent to extensive amendments to the Act, one Court still noted that:

 

The purpose of the act is to protect the interests of the United States by requiring complete public disclosure by persons acting for or in the interest of foreign principals. . . . These disclosures offer the Government and our people the opportunity to be informed and therefore enable them to understand the purposes for which they act.

 Attorney General v. INAC, 346 F. Supp. 1384, 1390 (S.D.N.Y.), aff'd mem., 465 F.2d 1405 (2d Cir.), cert. denied, 409 U.S. 1080, 93 S. Ct. 679, 34 L. Ed. 2d 669 (1972).

 The very existence of the label "political propaganda" neither causes injury to plaintiffs nor inhibits the exercise of the public's right to know. It is clear that Congress sought to bring out in the open those activities by a foreign agent "carried on in particularly sensitive areas in which the line between political and non-political action is difficult to define." H.R. Rep. No. 1470, 89th Cong., 2d Sess. 4 (1966), reprinted in, U.S. Code Cong. & Admin. News 1966, p. 2400. Specifically, Congress sought to inform the public of the nature of foreign materials on "matters which on the domestic level would be called a policy matter . . .". Id. at 7, U.S. Code Cong. & Admin. News 1966, at p. 2403. Acid rain and nuclear war, the issues addressed in the three films in this case are just such issues in which the Government seeks full disclosure of information. The Court notes that the classification of the films as "political propaganda", or a similar classification may be the only way to ensure full disclosure since the labelling requirements of 22 U.S.C. § 614 do not apply to exhibitors once they receive the films from the NFBC. Since the classification by itself does not show injury in fact, the Court now proceeds to examine the additional information and pleadings provided to the Court in Opposition to Defendants' Motion to Dismiss.

 As with the issue of the dissemination reports, the Court finds that plaintiffs have failed to allege specific facts constituting injury that are not speculative in nature. Most of the allegations concerning this issue are speculative opinions as to the effects of the classification. *fn11" Ballantyne Declaration at para. 7 ("classification . . . will seriously discourage many citizens from attending any viewing"); Kulick Declaration at para. 7; Sauer Declaration at para. 7; Converse Declaration at para. 7; Erlandson Declaration at para. 6; Cleveland Declaration at para. 9; Shields Declaration at para. 5 (New York Library Association "believes" that classification will prejudice attitudes of potential viewers.); Brown Declaration at para. 10 (Environmental Defense fund stated that "classification will adversely affect the perception of viewers as to the objectivity and scientific merit of the information presented in the films."); Cohen Declaration at para. 6 (the classification "may" also deter some citizens from viewing the films at all); Poryles Declaration at para. 5 (Biograph Theater objects to the classification "so that its audience can freely judge the worth of each film").

 The Court can find no allegations of fact that would indicate that audiences have diminished or that citizens are not seeing the films because of the "political propaganda" classification. In addition, there is no evidence in the record of any citizens who have had their opinion of the movies altered in any respect because of the classification. *fn12" On the contrary, there is some evidence to indicate that the movies are not being affected by the classification. Plaintiff Block admits that distribution of the film If You Love This Planet has been profitable and that he plans to continue distributing the film. Block Declaration at para. 9. Additionally, even though Timothy Lyons, the President of the University Film & Video Association, claims that the classification "threaten[s] the free and open exchange of ideas", in the midst of the controversy, his Association decided to make the film available to participants at a recent film conference. Lyons Declaration at para. 6-7.

 III. CONCLUSION

 The pleadings and record herein demonstrate that the statute, the regulations, and the actions of the Department of Justice thereunder, in connection with this case, do not explicitly or implicitly label the exhibitors in question or distributors of the three films in question as disseminating anything other than a "communication" 'relative to . . . the political or public interests, policies, or relations of a government of a foreign country . . . '". The speculation in the declarations of this record by the plaintiff that the foregoing means that they are on a list of organizations disseminating communist propaganda do not come close to a showing of injury-in-fact under the law. The label "political propaganda" does not mean "communist propaganda" or that the individuals or organizations receiving the films are un-American or communists. Anyone in the American public who visits a theater to see the films or advertisements about it will not be subjected to any denigrating label or be restricted in any fashion by the federal government from viewing the films.

 The Court concludes that because the plaintiffs in this case have failed to allege any injury beyond that which is abstract and speculative, they do not have standing to challenge the actions of the Department of Justice under the FARA. As such, plaintiffs' complaint shall be dismissed for failure to state a case or controversy under the United States Constitution. The Court will enter an order in accordance with the foregoing of even date herewith. [EDITOR'S NOTE: The following court-provided text does not appear at this cite in 583 F. Supp.]

 ORDER

 Upon consideration of Defendant's Motion To Dismiss on the ground that plaintiffs lack standing to maintain this action, the plaintiffs opposition thereto, and the entire record herein, and for the reasons set forth in the accompanying opinion, it is this 2nd day of April, 1984, hereby

 ORDERED that defendants' motion be, and the same is hereby, granted. It is further

 ORDERED that the above-captioned case be dismissed from the Court's docket.


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