EDWIN MEESE, III, ATTORNEY GENERAL OF THE UNITED STATES, AND JOSEPH E. CLARKSON, APPELLANTS V. BARRY KEENE No. 85-1180 In the Supreme Court of the United States October Term, 1986 On Appeal from the United States District Court for the Eastern District of California Reply Brief for the Appellants As is apparent from the opinion of district court, this case concerns the power of Congress to utilize particular terminology in enacting legislation. In this case, the district court found unconstitutional the use of the term "political propaganda" in the sections of the Foreign Agents Registration Act of 1938 (FARA), 22 U.S.C. 611-621, requiring that agents of foreign entities distributing items of political advocacy register and provide certain information to the Attorney General, and attach to the material a disclosure statement setting forth the source and certain other information. 1. As we argued in our opening brief, a person such as the appellee, who has no obligations under the Act and whose only connection with it arises from his desire to use material to which it has been found to apply, does not raise a justiciable claim simply by alleging injury from Congress's choice of words. Appellee does not argue, as the district court concluded, that he has standing to challenge the use of the term "political propaganda" because it amounts to a form of censorship and he is one "whose expression has been censored" (J.S. App. 10a). He does contend, however, that Congress's use of the term "political propaganda" is likely to injure his reputation, and further that he will be injured by the labeling and reporting requirements of the Act. a. In supporting his claim to standing, appellee asserts that his personal and professional reputation -- as an attorney and a legislator -- will be significantly impaired if he shows films that have been classified by the government as political propaganda. Where as here the asserted constitutional defect is not in what is being required by the legislation, but in the words chosen by Congress in articulating the legislative scheme, the "single basic idea" behind Article III standing -- "the idea of separation of powers" (Allen v. Wright, 468 U.S. 737, 752 (1984)) is implicated in a special way. In this case, we submit that the claimed injuries to reputation are not fairly traceable to the government's choice of terminology, and that the remedy of invalidating use of the words "political propaganda" will not remedy the injury claimed. Id. at 753 n.19; Simon v. Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 38, 41 (1976). The failure to establish standing here on the basis of harm to reputation does not result, as appellee misstates our argument, from the fact that it depends on the reactions of third persons (Appellee's Br. 18 n.17). It rather results from the convoluted and uncertain chain of circumstances by which appellee's reputation as a lawyer and a legislator would arguably be affected, and the minimal role that the challenged language would play in bringing that about. As we indicated in our opening brief, the statute's neutral definition of "political propaganda" means that any negative connotations drawn from the term are in spite of the express meaning that Congress gave to it (Appellants' Br. 15). They are, on that account, among others (see ibid.), rather unlikely. We suggest further that the concept of separation of powers must at least embody the power to define and use terminology in a neutral way, notwithstanding any connotations that may attach to it in another context. Assuming, however, that citizens may sometimes bring suit to challenge the connotations of statutory language that Congress has explicitly abjured, there is further reason to doubt appellee's standing based on the particular injuries to reputation that he has asserted. For the primary injuries claimed are to his reputation as a legislator and an attorney (Appellee's Br. 16-17 n.15), and there is little reason to suppose that the mere enjoining of certain terminology would remedy the adverse effects that appellee says are likely to result from public awareness that he is displaying material found to trigger the FARA. Appellee claims that his chances as a candidate for office will be adversely affected, that his ability to communicate his political views will be impaired, and that his future employment in the legal profession will be disrupted (Appellee's Br. 16-17). To the extent that appellee is challenging the use of the words "political propaganda," it is difficult to imagine that similar consequences would not also result under a statute amended in the manner found constitutionally necessary by the district court. The mere substitution of words such as "political advocacy" would leave the full machinery of the statute in effect /1/ and the public is likely to treat the materials covered by the Act in the same manner and with the same degree of skepticism that the public treats the materials now defined as "propaganda" (see Block v. Meese, 793 F.2d 1303, 1312 (D.C. Cir. 1986), cert. denied, No. 85-1837 (July 7, 1986) ("advocacy," if regularly applied to the same materials currently described as "propaganda," "would soon produce the same degree of skepticism that the word 'propaganda' currently evokes")). It would be surprising if reputational harm growing out of "resentment to foreign competition" or the presence within appellee's district "of large and important Naval and Air Force bases" (Appellee's Br. 16-17) were to disappear when the same films subject to the same registration and disclosure requirements were shown after a change in terminology. Thus even assuming that one may challenge legislation based on the connotations of words which Congress has fully defined, appellee has not shown that his injury stems primarily from the pejorative colloquial understanding of the term "political propaganda" considered apart from the rest of the statutory scheme and that different terminology will not lead to the same public reaction. b. In our opening brief we explained that appellee is a bystander to the FARA. Appellee is not a foreign agent and is not subject to any of the Act's labeling or reporting requirements or sanctions. The district court also found that "(appellee) is not * * * injured in any way whatsoever by the labeling requirement" of the FARA (J.S. App. 55a). Nonetheless, appellee contends (Br. 10-13) that he is injured by the labeling requirement in one of two ways: either he must "communicate a message with which he disagrees, a message that disparages his own message reflected in the film" (Appellee's Br. 10), or he must go to some "effort, expense, or delay" in order to delete the label from the film beforehand (id. at 12). These arguments do not materially enhance the standing argument focused narrowly on the effects of the words "political propaganda." To a substantial extent, this argument is derivative of the primary standing claim of injury to reputation and is significant as one possible means by which the public might become aware of the classification of the films as political propaganda. Thus, if the Court finds the very attack upon the statute's terminology to be inherently non-justiciable or finds the injury to his reputation to be one that will not be remedied by the relief sought and granted, the labeling requirement adds nothing to that argument. Insofar as the objection to labeling goes to the actual contents of the label and alleges compelled communication with which appellee disagrees, it is noteworthy that the label is entirely factual and does not require appellee to endorse any viewpoint. /2/ It does not even use the term "political propaganda," and thus would only make one aware that that term had been applied to the film who was familiar with the operation of the Act. Also, as one with no obligations whatsoever under the Act, appellee is, of course, not required to label a film with the identification statement required of foreign agents, and is free to remove any label affixed by a foreign agent. /3/ Appellee may also exhibit the films without displaying the label, simply by advancing the film. /4/ There is no finding below, nor any allegation in appellee's complaint, that removing the label or exhibiting a film without it burdens appellee in any significant way; he thus cannot establish standing on this ground (Diamond v. Charles, No. 84-1379 (Apr. 30, 1986), slip op. 12; Bender v. Williamsport Area School District, No. 84-773 (Mar. 25, 1986), slip op. 11-14; see Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 722-723 (1985). c. Appellee also contends (Br. 13-15) that he will be injured by the reporting provisions of the FARA and the implementing regulations, because a foreign agent is likely to list him on the standard reporting form as a recipient of a film the agent has distributed. Being listed on that form, appellee contends, will in turn injure him during a political campaign, if this fact is revealed by an opponent during its closing days. Appellee has failed to show, however, that he has been or will be injured by the reporting provisions of the FARA. His complaint does not allege that the NFBC-NY or any other foreign agent has listed him as a recipient of the films in dispute (J.A. 45-51). Appellee obtained the films more than three years ago (id. at 110), and the FARA and its implementing regulations require a foreign agent to file a dissemination report with the Department of Justice within 48 hours of the distribution of materials covered by the Act, or, in some circumstances, on a monthly basis (see 22 U.S.C. 614(a); 28 C.F.R. 5.401(c) and (d)). Even assuming that appellee obtained the three films from the NFBC-NY, which he has not alleged, there is no basis for concluding that the NFBC-NY will list him on a future dissemination report. The reporting form does not require and provides no place for appellee to be listed as a recipient of any such films, because he is not a "station, organization, or theater" (J.A. 17). Appellee asserts (Br. 14) that he could be identified on a dissemination report as a "public official," but the form only requests and allows space for the number of public officials who have received materials covered by the FARA, not their identity (J.A. 17). Moreover, appellee has not alleged that he will exhibit other films distributed by the NFBC-NY or by another foreign agent. Accordingly, appellee's claim that he will be injured by the Act's reporting requirement is insufficient to establish his standing. See California Bankers Ass'n v. Schultz, 416 U.S. 21, 67-69 (1974) (the fact that a person is a bank depositor does not give him standing to challenge bank reporting regulations applicable only to limited types of transactions). 2.a. Appellee (Br. 20-23) and amici (ACLU et al. Br. 13-27; Playboy Enterprises, Inc., et al. Br. 5-6; Freedom To Read Foundation Br. 15-17) claim that the term "political propaganda" regulates political speech on the basis of its content. That claim is flawed. To the extent that appellee claims that Congress can never adopt a disclosure statute applicable only to particular types of speech, his claim is foreclosed by United States v. Harris, 347 U.S. 145 (1954) (upholding Federal Regulation of Lobbying Act, 2 U.S.C. 261-270), and Buckley v. Valeo, 424 U.S. 1 (1976) (upholding contribution disclosure requirements of Federal Election Campaign Act of 1971). To the extent that appellee claims that Congress has sought to discriminate among different types of political speech on the basis of viewpoint, appellee has misunderstood the statutory scheme. More generally, the FARA and its definition of "political propaganda" are completely consistent with the Court's definition of "content-neutral" speech regulations: namely, "those that 'are justified without reference to the content of the regulated speech'" (City of Renton v. Playtime Theatres, Inc., No. 84-1360 (Feb. 25, 1986), slip op. 6 (emphasis in original), quoting Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771 (1976)). The text of the FARA clearly states that its purpose is to inform the public of foreign efforts to influence domestic political debate in order to protest the nation's vital interests (22 U.S.C. 611 note (congressional statement of the purposes); Viereck v. United States, 318 U.S. 236, 241 (1943)), and the legislative history of the Act amply proves that Congress meant what it said (Appellants' Br. 23-27). /5/ The statutory definition of "political propaganda" implements this goal. The definition is wholly neutral and includes "'all communications issued by foreign agents, whether friendly or unfriendly, whether violent or mild'" (Block v. Meese, 793 F.2d at 1310 (quoting United States v. Kelly, 51 F.Supp. 362, 363 (D.D.C. 1943)). The all-inclusive definition of "political propaganda," coupled with the purpose of the Act, shows that Congress has not violated its "'paramount obligation of neutrality in its regulation of protected communication'" (City of Renton v. Playtime Theatres, Inc., slip op. 7, quoting Young v. Playtime Theatres, Inc., slip op. 7, quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 70 (1976) (plurality opinion)). To be sure, the definition is limited to speech by foreign agents designed to influence the Nation's foreign policies. To that extent, the FARA treats foreign political expression differently from domestic political debate. But Congress plainly had a rational and compelling basis for concern about foreign efforts to influence the domestic political debate during the period preceding our entry into World War II and during the war itself, and appellee has offered nothing to show that this concern lacks force today. The goal Congress sought to achieve through the Act -- protecting the "national defense, internal security, and foreign relations" of the nation by ensuring that the public would be aware of the efforts of foreign agents to influence domestic political debate (22 U.S.C. 611 note) -- is also "unrelated to the suppression of free expression" (City of Renton v. Playtime Theatres, Inc., slip op. 6). The definition and the entire Act are concerned with where the material comes from, rather than with the content of the speech. Cf. id. at 5-6. Accordingly, the FARA, like the zoning ordinance at issue in City of Renton v. Playtime Theatres, Inc., supra, does not violate "the fundamental principle that underlies (the Court's) concern about 'content-based' speech regulations: that 'government may not grant the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views'" (slip op. 7, quoting Police Dep't of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972)). b. Appellee (Br. 23-32) and amici (ACLU et al. Br. 15-27; Playboy Enterprises, Inc., et al. Br. 6-18; Freedom To Read Foundation Br. 9-17) contend that the FARA, by defining as "political propaganda" certain types of materials a person wishes to disseminate and endorse, indirectly restrains his freedom of speech. /6/ The Act achieves this goal, they argue, by impugning appellee's expression and subjecting him to official condemnation and public criticism by his constituents and the public in general. /7/ Appellee and amici contend in essence that a person wishing to engage in political speech is entitled under the First Amendment to be free from expressions by the government that in any way call his ideas into question. In fact, appellee argues that he is entitled to heightened First Amendment protection, since he is an elected official subject to disapproval by the electorate at the polls (Appellee's Br. 16-17). /8/ Appellee and amici err in focusing on the definition of "political propaganda" in isolation from the remainder of the FARA. The Act sought to ensure that "hearers and readers may not be deceived by the belief that the information (disseminated by a foreign agent) comes from a disinterested source" (Viereck, 318 U.S. at 251 (Black & Douglas, JJ., dissenting)), a goal that even the district court found "consistent with the loftiest conceptions of the First Amendment" (J.S. App. 25a). Any sunshine law like the FARA will therefore lead certain members of the public to disbelieve or discredit the opinions of the persons whose identities are revealed. In the case of foreign efforts to influence domestic political debate, Congress made the judgment, and has adhered to that judgment for more than four decades, that the benefits to the public and the nation from disclosure of the identities of foreign agents outweighs any resulting burden on their ability to engage in speech. This Court has assumed that Congress's judgment is valid (see Communist Party of the United States v. Subversive Activities Control Bd., 367 U.S. 1, 99-100 (1961)), two Members of the Court have expressly so declared (Viereck, 318 U.S. at 251 (Black & Douglas, JJ., dissenting)), and every lower court to consider the question has upheld the constitutionality of Congress's judgment (Appellants' Br. 34 n.27). If the FARA as a whole is a valid exercise of Congress's authority, as this Court has assumed, then the definition of "political propaganda," which serves only an incidental role in the statutory scheme, is equally valid. Cf. Posadas de Puerto Rico Associates v. Tourism Co., No. 84-1903 (July 1, 1986). Not least among the reasons for refusing to recognize a right to be free from adverse governmental comment is the impossibility of its judicial definition and enforcement. As the court explained in Block v. Meese, 793 F.2d at 1313, "(t)he practical problems of excluding the government from ideological debate are alone enough to suggest that, even if it were a socially desirable objective, it is not an objective to be pursued by the courts." Unless the government were foreclosed from engaging in ideological debate, appellee's theory would require the courts, without the benefit of any guidance in the text or history of the First Amendment, to decide what constitutes official government action for this purpose and to distinguish among a statute like the FARA, a concurrent resolution of both houses of Congress, a presidential address, a statement of a cabinet member, a speech by a member of Congress, or a statement by the head of a political party. /9/ Appellee's theory, moreover, would require courts to engage in the line-by-line dissection of such statements to ensure that no statement of any type deterred any person from believing a speaker unless the government could demonstrate a compelling interest for its choice of words. Appellee essentially asks the courts to act as the censor of the political speech of the representative branches of government. For the foregoing reasons and those set forth in our opening brief, the judgment of the district court should be reversed and the case remanded to that court with directions to dismiss the complaint for lack of standing. In the alternative, the judgment of the district court should be reversed and the case remanded to that court with directions to enter judgment for appellants. Respectfully submitted. CHARLES FRIED Solicitor General NOVEMBER 1986 /1/ Appellee did not argue below for invalidation of any provision except the use of the term "political propaganda" (J.S. App. 29a-30a). The district court explicitly found that the operation of the statute as a whole, apart from that phrase, presented no First Amendment violation (J.S. App. 27a). /2/ The standard identification statement form used for films is reprinted in our opening brief (at 4-5) and in the Joint Appendix (at 16, 57, 59). /3/ It is not clear from the record that the films that appellee showed contained the label. The district court did note that the films were obtained and exhibited by appellee after the district court entered a preliminary injunction on September 7, 1983, but did not indicate from whom they were received (J.S. App. 6a n.2). /4/ Appellee, like the district court, finds it odd that the FARA grants him the freedom to remove the label that a foreign agent must affix to a film, and he claims that this feature of the Act is inconsistent with its stated purpose. Appellee's Br. 11; J.S. App. 55a n.2. Appellee has misunderstood the statutory scheme. Congress required that the public be made aware of a speaker's identity only when that party is a foreign agent; the labeling requirement therefore applies only when a foreign agent distributes political propaganda, as defined by the Act. Congress was not concerned with the political discourse of parties, such as appellee, who are not foreign agents. For that reason, Congress did not require such parties to include an identification statement in whatever films they choose to exhibit. Our construction of the Act's labeling requirements therefore hardly eviscerates Congress's intent. /5/ Appellee argues (Br. 32-46) that Congress deliberately chose this term to suppress disfavored speech. That claim misconstrues the legislative history of the Act. Moreover, appellee ignores both the text of the Act as well as the most recent amendments in 1966. In that year, Congress reiterated that the purpose of the FARA was only to disclose the identity of foreign agents, not to suppress their speech (Appellants' Br. 26-27 n.22). Thus, even if Congress had originally enacted the FARA in 1938 to suppress foreign political speech, Congress certainly made clear in 1966 that this is not the Act's purpose. /6/ The very indirect character of the alleged restraint distinguishes this case from outright prohibitions on certain types of speech, such as those involved in FCC v. League of Women Voters, 468 U.S. 364 (1984) (provision of Public Broadcasting Act forbidding grantees of money from Corporation for Public Broadcasting from engaging in editorializing found to violate First Amendment), Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530 (1980) (invalidating on First Amendment grounds an order prohibiting a public utility from including discussions of controversial issues with its billing statements), and First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) (state criminal statute prohibiting specified corporations from spending money to influence elections found to violate the First Amendment). Indeed, the Court in League of Women Voters suggested that the government could require public broadcasting stations to broadcast a disclaimer, much like the one required under the FARA, that the station's editorials do not represent the views of the government. 468 U.S. at 395. This case is also readily distinguishable from those involving requirements that one assist in the dissemination of views with which one disagrees. Pacific Gas & Electric Co. v. Public Util. Comm'n, No. 84-1044 (Feb. 25, 1986) (public utility may not be compelled to include in billing envelopes statements of persons who disagree with its policies). /7/ The asserted impugning effects resulting from the use in the Act of the words "political propaganda" bear no resemblance to the evidence of "threats, harrassment, or reprisals" which this Court has found sufficient to justify exemption from disclosure provisions of state or federal law. Brown v. Socialist Workers '74 Campaign Comm., 459 U.S. 87, 93 (1982); Buckley v. Valeo, 424 U.S. 1, 74 (1976); NAACP v. Alabama, 357 U.S. 449, 462-463 (1958). There is likewise no comparison between the mere utilization of certain terminology in reference to certain First Amendment protected material, and explicit public disclosure requirements pertaining to identity and affiliation with an unpopular cause. Finally, the governmental interest in an informed public, able to assess foreign-source material in light of its origins, is certainly more urgent than the vaguely directly concerns which have guided some of the disclosure statutes that the Court has invalidated. See Talley v. California, 362 U.S. 60 (1960). /8/ Appellee's claim that public officials are entitled to special protection by the First Amendment is inconsistent with well-settled principles of First Amendment law. Cf., e.g., Philadelphia Newspapers, Inc. v. Hepps, No. 84-1491 (Apr. 21, 1986), slip op. 7-8; Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964) ("speech concerning public affairs is more than self-expression; it is the essence of self-government"). Appellee also suggests (Br. 31 n.35) that the FARA causes a delay in the dissemination of the materials covered by the Act, but that suggestion is plainly wrong. The FARA does not forbid a foreign agent from distributing such materials until the government reviews them. The Act and its implementing regulations only require that a foreign agent submit a copy of all such materials to the government within 48 hours after it has been distributed or, in some cases, on a monthly basis (22 U.S.C. 614(a); 28 C.F.R. 5.401(c) and (d)). In fact, in 1942, at the request of the Justice Department, Congress deleted a proposed amendment to the Act that would have required a foreign agent to submit a copy of such material to the Department before the material could be disseminated (Appellants' Br. 25 n.20). Any delay in the distribution of the films at issue in this case stems from the fact that the NFBC sought the Department's assistance in determining whether these films fit within the Act. The NFBC was at all times free to make this determination on its own and to distribute the films. /9/ Appellee makes no effort to limit the scope of the First Amendment right he endorses. Presumably any speech by any government official in his official capacity on any subject is subject to challenge under his theory. This is particularly true since appellee's argument rests on the claim that the term "propaganda" has an empirically provable, and negative, effect on public opinion. Appellee's argument does not foreclose the possibility that a court will decide what opinions the President may express about the foreign political speech covered by the Act; that possibility alone is sufficient to require that appellee's argument be rejected. Amici (ACLU et al. Br. 21; Playboy Enterprises, Inc., et al. Br. 14-15) make a limited effort to circumscribe the scope of the First Amendment right they and appellee endorse. Amicus ACLU et al. say nothing more than that this case is at the end of the spectrum; they fail to explain how wide that spectrum is or how different types of political speech can be fit along it. Amicus Playboy Enterprises et al. argue that speech by government officials should be forbidden whenever it "will suggest governmental condemnation, and thus will cause a substantial segment of the public to shun or reject the private speech without serious consideration of its merit" (at 14-15 (emphasis in original)). That standard is little better than none at all. Amicus offers no explanation of what constitutes a "substantial segment of the public" or "serious consideration" of the merits of speech; every derogatory statement (however that term is defined) by a public official can be deemed to be condemnation under amicus's theory. In addition, amicus has failed to explain why only government condemnation is forbidden, and not also governmental praise. See Block v. Meese, 793 F.2d at 1313. Finally, that standard has no application to this case, because appellee's speech is clearly public, not private (J.A. 46-47, 110-111).