Judge Invalidates USIA Standards in Approving Films

Deciding a politically sensitive lawsuit that charged the federal government with censorship, a federal judge in Los Angeles ruled Friday that the U.S. Information Agency illegally refused to approve six educational films for overseas distribution.

U.S. District Judge A. Wallace Tashima ordered the Information Agency to reconsider its refusal to grant the films “certificates of educational character”--which signal foreign governments to waive import duties and taxes on educational films--and said the agency’s guidelines for picking films that qualify for the certificates “on their face violate the First and Fifth amendments to the Constitution.”

The regulations that Tashima declared invalid outline the agency’s administration of a 1949 international treaty written to “promote the free flow” of educational, scientific and cultural films throughout the world.

Tashima said the agency’s guidelines, which prohibit granting certificates to films presenting opinions or points of view on controversial subjects, effectively prevent financially strapped independent film makers from distributing their films abroad.

Ten film makers from four production companies filed the suit in December. Because they claimed no damages, the case was not argued before a jury.

Chilling Effect Claimed

The film makers said the U.S. Information Agency used the regulations to censor opinions that were at odds with those of the Reagan Administration. They claimed that the agency’s refusal to grant the export certificates “chilled” their right to make and distribute films that “present a point of view that is considered unfavorable” by the government.

The judge said in his 41-page ruling that the regulations are vague and unenforceable. They are “inherently incapable of objective application” and, in some instances, “hopelessly unclear,” Tashima wrote.

“These regulations are not merely flexible,” Tashima wrote, “they are boundless” and put the Information Agency “in the position of determining what is the ‘truth’ about America, politically and otherwise.

“This, above all else, the First Amendment forbids.”

Tashima permanently enjoined the agency from enforcing its regulations for certifying films until it formulates “standards consistent” with the Constitution.

Michael Ratner, legal director of the New York-based Center for Constitutional Rights, which represented the film makers, called the judge’s ruling “a major free-speech victory. It’s a way of taking the Reagan Administration out of being the ideological censor of what goes out to other countries.”

‘Wonderful News’

“It’s wonderful, wonderful news,” said John Hoskyns-Abrahall, an Oley, Pa., film distributor whose company, Bullfrog Films, decided to fight the agency when it refused in 1982 to certify a film about the health and environmental impact of uranium mining on a New Mexico Indian reservation.

The ruling, Hoskyns-Abrahall said, “means there is no secret agenda as to what films can represent the U.S. in educational institutions around the world.”

A USIA attorney said the agency will review the decision before deciding whether to appeal.

“We may simply be able to rewrite our regulations,” said Joseph Morris, agency general counsel. “It is still my belief that the treaty, the regulations and the conduct of the USIA have been constitutional and lawful.”

The Information Agency had argued that the issue before the court was a tax matter and not, as the film makers argued, one of free speech and censorship.

Morris said the ruling will put its certification process on hold until new guidelines can be written. He estimated that more than 100 films are awaiting review.

From 1981 through 1985, USIA officials approved about 30,000 films and rejected 80.

Among those rejected were the six films named in the lawsuit: “In Our Own Backyards: Uranium Mining in the United States”; “Peace: A Conscious Choice”; “Whatever Happened to Childhood?”; “Save the Planet”; “Ecocide: A Strategy of War,” and “From the Ashes . . . Nicaragua Today.”

Standards for Refusal

The agency refused certificates to the films when, in its opinion, they “attempt generally to influence opinion, conviction or policy (religious, economic or political propaganda), to espouse a cause, or conversely, when they seem to attack a particular persuasion.”

Among the rejected films, the agency said, is one that leaves the impression “that the U.S. has been the aggressor” in the Nicaraguan war and another that offers a picture of drug use and pregnancy among American teen-agers that could be “misunderstood by foreign audiences.”

At the same time, however, the agency approved a film that plays down the role of industrial polluters in the formation of acid rain while detailing the natural causes of the phenomenon, and another that argues women should “submit” to the wills of their husbands.

Tashima said the regulations that allowed the agency such wide discretion were “a broad invitation to subjective or discriminatory enforcement that the Constitution forbids.”