The opinion of the court was delivered by: FLANNERY
This matter comes before the court on cross-motions for summary judgment. The government brought this action to require the defendant, a New York corporation that publishes The Irish People, a weekly newspaper, to register as the agent of a foreign principal under the Foreign Agents Registration Act of 1938, as amended, ("FARA"), 22 U.S.C. 611, et seq. The government claims that The Irish People is an agent of the Irish Northern Aid Committee, ("INAC"), which in turn, is the registered agent of the Irish Republican Army. See Attorney General v. INAC, 530 F. Supp. 241 (S.D.N.Y. 1981), aff'd 668 F.2d 159 (2d Cir. 1982).
I. Statutory Requirements.
FARA requires that all persons acting as agents of foreign principals must file a registration statement with the Attorney General. 22 U.S.C. § 612(a). The key section of the Act, for the purposes of this court's determination of the motions at bar, is the definition of the term "agent of a foreign principal." Id. at § 611(c). That term includes:
any person who acts as an agent, representative, employee, or servant, or any person who acts in any other capacity at the order, request, or under the direction or control, of a foreign principal or of a person any of whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a foreign principal, and who directly or through any other person --
(i) engages within the United States in political activities for or in the interests of such foreign principal;
(ii) acts within the United States as a public relations counsel, publicity agent, information-service employee or political consultant for or in the interests of such foreign principal;
(iii) within the United States solicits, collects, disburses, or dispenses contributions, loans, money, or other things of value for or in the interest of such foreign principal.
Id. The requirements of the Act relevant to defendant can be divided into three categories. Initially, the government must prove that defendant acted at the order, request, or under the direction or control of an entity. Secondly, that entity must be a foreign principal. Finally, defendant must engage in the alleged political activity for, or in the interests of the foreign principal. The second requirement is not in dispute in the present case. INAC is a registered agent of the IRA. The court will consider the remaining requirements in turn, but first it must address the standard to be applied to the evaluation of the motions at bar.
Plaintiff argues that because the application of FARA affects First Amendment rights, the government must make a compelling factual showing and establish its case by clear and convincing evidence. Although this argument might be appropriate in a discussion of proposed jury instructions, it has no place in the consideration of a motion for summary judgment. In fact, the government must meet the more exacting standard established by the Federal Rules of Civil Procedure. As stated in the rules, the moving party must establish that "there is no genuine issue as to any material fact." Fed. R. Civ. P. 56(c). In the context of a motion for summary judgment the court must not resolve factual differences, but can only determine, giving every reasonable inference to the opponent of the motion, whether any factual differences exist. See, e.g., Exxon Corp. v. Federal Trade Commission, 213 U.S. App. D.C. 356, 663 F.2d 120 (D.C. Cir. 1980). The court must now examine the record in light of the above standard.
In order to meet the first requirement of proving that defendant is an agent of INAC some type of relationship between the two parties must be proved. Defendant argues that plaintiff must prove that INAC directed and controlled The Irish People. This, however, directly contradicts the plain language of the statute. The requirements of the statute are stated in the disjunctive. As the United States Court of Appeals for the Second Circuit held in examining the same statute, the relationship required by the Act need not meet the Restatement standard.
Attorney General v. INAC, supra, 668 F.2d at 161. The Restatement focuses on control, but that is only one of the possible connections that the government need prove between INAC and The Irish People. The Second Circuit announced a more lenient standard in the above-cited case. Id. The court stated that the real test was whether the action in question was undertaken at the "request" of the foreign principal.
The court now turns to an examination of the record in this case to determine the relationship, if any, ...