Appeals Court Invalidates U.S. Rules Used to Block Educational Film Exports

Regulations used by the U.S. Information Agency to refuse certification for overseas distribution of U.S.-made educational films that advocate a cause or seek to influence policy are unconstitutional, a federal appellate court ruled Tuesday.

The disputed USIA rules violate the First Amendment because they “limit expressions of opinion on issues of public controversy,” a three-member panel of the U.S. 9th Circuit Court of Appeals held.

Court’s Reasoning

In upholding an October, 1986, ruling by Los Angeles federal Judge Wallace Tashima, Circuit Judge Cecil F. Poole wrote:

“The regulations do not pass constitutional muster: They are neither justified by a compelling government purpose nor narrowly tailored. We also hold that the regulations are void for vagueness under the due process clause of the Fifth Amendment.

“The regulations are so ambiguous that they provide USIA officials with a virtual license to engage in censorship. In this case, that license has been exercised.”

Jane Taylor, representing the USIA in Washington, said the agency has not received a copy of the court’s decision. “We will have no comment until we have a chance to receive the documents and review them,” she said. The Department of Justice also declined comment.

Ten film makers from four production companies filed suit in December, 1985, charging that the USIA used the regulations to censor their films because they contained opinions not held by the Reagan Administration.

By refusing to issue “certificates of educational character,” the USIA “chilled” the rights of producers to make films with a viewpoint considered unfavorable to the government, they claimed.

The USIA is charged with issuing the certificates under a 1949 treaty to “promote the free flow” of educational, scientific and cultural films throughout the world. The certificates serve as a notice to foreign governments that certified films should be exempt from taxes and import duties.

While the USIA certified most films it viewed, the agency maintained that it had the power to disapprove films for foreign distribution if they “attempted generally to influence opinion, conviction or policy (religious, economic or political propaganda) to espouse a cause.”

After Tashima’s 1986 decision, the USIA withheld approval of all educational films for more than a year while it appealed his ruling and prepared new regulations. The president of Bullfrog Films of Oley, Pa., John Hoskyns-Abrahall, is one of the plaintiffs who charged that the USIA engaged in censorship by enforcing its regulations. He greeted Tuesday’s ruling as “really great news” because it upheld the First Amendment rights of film makers.

Uranium Mining Film

As far as his company is concerned, however, he said it is now too late to distribute “In Our Own Backyards: Uranium Mining in the United States,” which the USIA refused to certify in 1982. The film explored the impact on health and environment of uranium mining on the Navajo Indian reservation in New Mexico.

Among other films rejected by the USIA and named in the lawsuit were “Peace: A Conscious Choice,” “Whatever Happened to Childhood?” “Save the Planet,” “Ecocide: A Strategy of War,” and “From the Ashes . . . Nicaragua Today.”

Attorney David Cole, who represented the Center for Constitutional Rights and the film makers in the case, said that the court’s finding confirms that the USIA “for too long has viewed itself as the safeguard of truth in America.”

According to Cole, Tashima issued another ruling in the case only last Friday, holding that new USIA certification regulations--which the judge had earlier ordered the agency to draft--are still unconstitutional.