The Supreme Court’s 5-3 decision in Meese v. Keene, 481 U.S. 465 (1987), affirmed the authority of the federal government to classify, and to regulate the dissemination of, foreign political films. The Court held that the enabling statute at issue did not abridge, but enhanced, the First Amendment’s freedom of expression regarding the exhibition and content of films.

Federal law let attorney general categorize foreign films as propaganda

Although films constitute protected speech according to the Court’s decision in Burstyn v. Wilson (1952), the Foreign Agents Registration Act (FARA) of 1938 empowers the attorney general to categorize films and other communications produced by a foreign government for dissemination in the United States as “political propaganda.”

In 1982 the Department of Justice classified three Canadian films, two concerning acid rain and a third examining the effects of nuclear war, as political propaganda. Two lawsuits challenged the constitutionality of the designations on First Amendment grounds. A. Mitchell Block, sole distributor of one of the films, claimed infringement of the First Amendment right to disseminate ideas. Barry Keene, a California senator, argued that the classification compelled him to choose between risking damage to his reputation for showing films identified as political propaganda or surrendering his First Amendment right to exhibit the films.

Court upheld the classification system

In Block v. Meese (1986), the United States Court of Appeals for the District of Columbia Circuit upheld the constitutionality of the government’s classification scheme, and the Supreme Court denied review. Instead, the Supreme Court overturned the decision of the United States District Court for the Eastern District of California in Keene v. Meese (1985). In the latter case, the district court had concluded that classifying a foreign film as propaganda was pejorative; that the classification deterred exhibitors from showing the films, thus rendering them unavailable to American citizens as a means of personal expression; and that the classification process was unjustified because of the absence of a compelling state interest. The district court enjoined FARA’s designation of communications as political propaganda.

The majority in Meese v. Keene focused narrowly on the classification process itself. Justice John Paul Stevens argued for the majority that the government imposed no restraint on distribution of materials, but rather “required the disseminators . . . to make additional disclosures that would better enable the public to evaluate” the propaganda. Instead, the court injunction “withholds information from the public” by denying to consumers the information that the films are classifiable as political propaganda. Justice Stevens also appealed to the history of FARA to support the claim that its definition of political propaganda “is a broad, neutral one rather than a pejorative one.” He denied “any adverse impact on the distribution of foreign advocacy materials” as a consequence of classification.

Blackmun concluded the classification system was unconstitutional

In dissent, Justice Harry A. Blackmun argued that the purpose of FARA was to discourage the dissemination of foreign political films and that their classification as political propaganda was pejorative and deterred exhibition. Justice Blackmun concluded that FARA’s classification system unconstitutionally restricted political communications.

This article was originally published in 2009. Richard A. “Tony” Parker is an Emeritus Professor of Speech Communication at Northern Arizona University. He is the editor of Speech on Trial: Communication Perspectives On Landmark Supreme Court Decisions which received the Franklyn S. Haiman Award for Distinguished Scholarship in Freedom of Expression from the National Communication Association in 1994.

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