COURT OK’S LABEL ON THREE FILMS

Justice Department Tag of Canadian Works as ‘Political Propaganda’ Is Upheld in Opinion Written by Reagan Nominee to Supreme Court

A Washington federal appeals court said Friday that the Justice Department may label as “political propaganda” three Canadian films dealing with the subjects of nuclear war and acid rain.

In a 26-page opinion written by Judge Antonin Scalia, whom President Reagan nominated to the U.S. Supreme Court on Tuesday, the three-member appeals panel said the term “political propaganda” is not an unconstitutional government pronouncement that the films contain “misstatements” and “half-truths.”

That was the position taken by the American Civil Liberties Union and film distributors, the appellants in the controversial case that attracted widespread attention three years ago among film makers and First Amendment scholars.

The ACLU and the films distributors sought to block the Justice Department from classifying the Canadian documentaries as political propaganda because, they said, the label would discourage people from distributing or viewing the films in this country.

The three films include the Academy Award-winning documentary “If You Love This Planet” featuring anti-nuclear activist Helen Caldicott. The other films are “Acid From Heaven” and “Acid Rain: Requiem or Recovery.” All were produced by the National Film Board of Canada.

Jack Valenti, president of the Washington-based Motion Picture Assn. of America, said Friday the government should not label “anything that the American people see, hear or read.”

Valenti said: “I have no objection to saying that a film is made by the National Film Board of Canada--that’s like saying MGM--but beyond that, I don’t think the government should be involved.”

“It’s a fine line we have to draw,” Valenti said. “Some people might say that ‘Apocalyse Now’ was propaganda against the war in Vietnam.”

In the Toronto offices of the Canadian film board, news of the decision was met with surprise. A spokeswoman there said the board was unaware that the decision had been made.

Judge Scalia’s opinion was dated Wednesday, one day after Reagan announced Scalia’s selection as a Supreme Court justice, but the decision wasn’t released by the appeals court until Friday.

In 1983, the Justice Department evoked a rarely used regulation requiring that the films’ distributors add a disclaimer at the beginning of the movies that the films did not reflect U.S. government policy. The classification was done with the authority of a 38-year-old law. It required that any film sent to this country by a registered foreign agent (such as Canada’s film board) be labeled if it engages in political advocacy.

According to U.S. law, the disclaimers must state that the films are registered with the Department of Justice, but registration “does not indicate approval of the contents of this material by the United States government.”

In addition, distributors of the documentaries are required to file “dissemination reports” with the Justice Department detailing the kinds of organizations that ask to see the films and, in cases in which 100 or more prints are requested, the organzations’ names and addresses.

Canadian government officials at the time called the Justice Department’s move an “extraordinary interference” with free speech and “something you would expect from the Soviet Union.”

The Washington appeals court disagreed. The court said the ACLU and film industry’s complaints about the labeling essentially was “encapsulated in their assertion that the unconstitutionality would be cured if the statutory text were changed from ‘political propaganda’ to ‘political advocacy.’ ”

However, the court’s decision said that in current usage the word advocacy connotes taking a position but does not--as does the word propaganda-- deliberately seek to disseminate that position widely.

“In short, it seems to us that in labeling something ‘propaganda,’ the government is not expressing its own disapproval but is merely identifying an objective category of speech which the public generally disapproves,” the court said. “Unless the identification itself is inaccurate or unconstitutional (which the appellants do not contend) there is no conceivable basis for a First Amendment objection.”

The appeals court ruling upheld a lower court decision finding that the appellants failed to show that they were or would be injured by the classification. The lower court said the labeling did not “impose negative connotations” on the films.

Some other films that have been required to carry the disclaimer include: the Israeli-made “A Conversation With Golda Meir” and “Plight of Soviet Jewry: Let My People Go”; South Africa’s “Strategic Minerals,” and, from West Germany, “Berlin Means Business and More.”

In April, the Supreme Court agreed to decide a California case dealing with the same issue of the labeling of the three Canadian films. U.S. District Judge Raul A. Ramirez ruled in that case that the labeling was unconstitutional because “to characterize a particular expression of political ideas as ‘propaganda’ is to denigrate those ideas.”