Court Voids U.S. Rules on Documentary Film Exports

The government’s attempt to ban the tax-free export of documentary films that advocate a cause or seek to influence policy was struck down by a federal appeals court Tuesday as a “virtual license to engage in censorship.”

The U.S. Information Agency regulations, which govern the international circulation of thousands of films each year, violate the constitutional right of freedom of expression by discriminating on the basis of content, said the U.S. 9th Circuit Court of Appeals.

It was the second victory in less than a week for independent film makers challenging the USIA’s attempt to regulate the content of U.S.-produced educational films that are to be shown commercially in other countries. Film makers need the agency’s approval to qualify for an exemption from foreign nations’ import taxes.

U.S. District Judge A. Wallace Tashima of Los Angeles, whose 1986 ruling invalidating the agency’s first set of regulations was upheld Tuesday, declared Friday that rewritten rules allowing the agency to label some exported films “propaganda” is also unconstitutional.

Saying the propaganda label was an attempt to circumvent his first ruling, Tashima ordered the USIA to draft a third set of rules that do not discriminate on the basis of content, and to grant provisional approval to six films whose producers had filed the suit.

The films include “From the Ashes,” a sympathetic portrayal of the 1979 Nicaraguan revolution; “In Our Own Backyards,” on the dangers of uranium mining, and “Whatever Happened to Childhood?” on drug problems among children.

“This is a great victory for the First Amendment and obviously important for film makers, many of whom have lost significant amounts of money” because of the USIA restrictions, said David Lerner, spokesman for the Center for Constitutional Rights, which represented the film makers.

The USIA and Justice Department declined comment on both rulings. The USIA had responded to Tashima’s 1986 ruling by withholding approval of all documentary films for more than a year while it appealed the ruling and drafted new regulations.

The regulations implement a 1954 treaty, signed by about 60 nations, aimed at encouraging the international circulation of educational, scientific and cultural films. The treaty exempts films from import fees if both the sending and the receiving nation certify their educational character. A law passed by Congress in 1966 gave that responsibility to the USIA.

Under the agency’s regulations, a certificate of approval is withheld from films that “by special pleading 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.”

They also forbid certification of any film that “may lend itself to misinterpretation, or misrepresentation of the United States or other countries . . . or which appears to have as (its) purpose or effect to attack or discredit economic, religious or political views or practices.”

The appeals court said implementation of the treaty required some judgments based on a film’s educational content. But in a 3-0 ruling, the court said the USIA’s regulations drew “content-based lines forbidden by the First Amendment” guarantee of free expression.

“The USIA forces film makers to choose between exercising their right to free speech and forgoing benefits . . . or curtailing their speech and obtaining the benefits,” said the opinion by Judge Cecil Poole.

The government cannot offer a benefit, like eligibility for favorable tax treatment, on the condition that the recipient give up a constitutional right, Poole said.

He also said the provisions on espousing a cause or attempting to influence opinion “limit expressions of opinion on issues of public controversy,” an area particularly protected by the Constitution.

Noting that the USIA has approved a pro-nuclear power film while rejecting the film on the dangers of uranium mining, Poole said both the regulations and the agency’s practices “seem to disapprove materials that criticize and approve those that accept the prevailing state of affairs.”

“The regulations are so ambiguous that they provide USIA officials with a virtual license to engage in censorship,” Poole said.