Constitutionality of Closing the Palestine Information Office, an Affiliate of the Palestine Liberation Organization

Constitutionality of Closing the Palestine Information Office,

an Affiliate of the Palestine Liberation Organization

The federal governm ent may, w ithout violating the First Amendment or the Bill o f Attainder

C lause o f the Constitution, order the Palestine Inform ation Office in W ashington to close. The

political branches have broad authority to control the flow o f funds into the United States, and

m ay prevent all commerce betw een foreign and dom estic entities, or cut off the supply of all

noninform ational material from a foreign country to a dom estic entity.

Furtherm ore, neither foreign political entities, nor dom estic organizations and individuals to the

extent they profess an identity w ith such entities, have constitutional rights under the First

Am endm ent. The First Amendment also perm its restrictions on the speech and association

rights o f dom estic organizations and individuals when they act pursuant to the direction and

control o f a foreign entity. The same restrictions on the expressive activities o f domestic

organizations and individuals are not perm itted, however, outside the scope o f such a relation-

. ship.

August 14, 1987

M em orandum O p in io n for t h e D epu ty A ttorn ey G en era l

We have been asked to assess the constitutionality of various restrictions on

the Palestine Liberation Organization (PLO) and groups associated with it.

Specifically, we have been asked whether the State Department’s exercise of

its statutory authority under the Foreign Missions Act, 22 U.S.C. §§ 3401 et

seq., to “close” the Palestine Information Office (PIO) in Washington, D.C.,

would be constitutionally permissible. For the reasons discussed below, we

believe that such action by the Secretary of State under the broad authority

accorded him by the Foreign Missions Act over foreign missions would be a

constitutionally permissible exercise of the political branches’ authority over

foreign relations.

We first explore the authority of the political branches to act against foreign

political entities and their agents. Next, we apply that analysis to the specific

case of the PIO. We then discuss the constitutionality of H.R. 2548 and S.

1203, the recently-introduced bills which would prohibit the expenditure of

funds provided by the PLO, or the maintenance of an office “at the behest or

direction of, or with funds provided by” the PLO. These restrictions would also

apply to monies or direction provided by any of the PLO’s “constituent groups,”

its “successors,” and its “agents.”

In sum, we believe that restrictions on the speech of foreign political entities

are permissible, as such entities do not have constitutional rights. Similarly,

104

restrictions on the speech of domestic organizations and individuals professing

an identity with such foreign entities are permissible, as they assume the

constitutional non-status of the foreign entity with which they profess an

identity. Difficulties arise with respect to those organizations or entities which

do not profess an identity with a foreign political entity, but which nonetheless

serve its interests. We believe that restrictions on the speech of such organiza­

tions and on American citizens are permissible if the latter are acting pursuant

to the direction and control of the foreign entity. Furthermore, restrictions on

the ability of domestic organizations and citizens to form such a relationship or

which tend to inhibit the formation of a relationship with a foreign entity are

constitutional. We believe, however, that restrictions on the expressive activi­

ties of American citizens outside the scope of such a relationship with a foreign

entity are impermissible under the First Amendment.

I. General Principles

The fundamental focus of First Amendment analysis in this context must be

on who is asserting the right of speech or of political association. As we

understand the facts, the PIO professes an identity with the PLO, maintaining

that it is the “voice” of the PLO in the United States. The PIO, we also

understand, is staffed by foreign nationals and American citizens. Accordingly,

there are three different juridical entities whose First Amendment rights are

potentially affected by the proposed action. First, there is the PLO itself.

Second, there is the PIO, an organization that professes an identity with, and

perhaps derives its legal status from, the PLO. Finally, there are the American

citizens and foreign nationals who staff the PIO. Thus, before assessing the

speech or associational rights at issue, we must inquire whether and to what

extent these entities possess First Amendment rights.

With respect to foreign sovereigns and states, it is clear that they exist

outside the constitutional compact and have no rights or responsibilities under

it. Rather, their legal rights and duties are exclusively governed by treaties,

international law, and other agreements binding coequal sovereigns in the

international arena. Because the PLO purports to be an independent sovereign

entity, we have little difficulty concluding that it falls into this category.

Real or juridical “persons” not United States citizens possess some constitu­

tional rights while on American soil. Nevertheless, they may constitutionally

be expelled from the United States for exercising these rights, including the

rights of political association or speech, at least if the expulsion is pursuant to a

legitimate foreign policy objective. Accordingly, even if the PIO is viewed as

having a juridical identity distinct from the PLO — or if the PLO is viewed as

a foreign entity without sovereign status — it may nonetheless be banned from

American soil for any bona fide foreign policy reason. The same is true of a

foreign national.

American citizens obviously have the full protection of the First Amendment

and may neither be denied the right to political expression nor expelled because

105

they have engaged in such expression. However, a citizen’s First Amendment

rights must be examined in light of his interaction with a foreign government.

Specifically, it must be determined, in view of this relationship, whose speech

is actually at issue: that of the citizen or of the foreign entity.

For the reasons discussed more fully below, we believe that because the

political branches may deny foreign governments all First Amendment rights,

they may restrict the expressive activities of citizens speaking pursuant to the

direction and control of — that is, as agents o f— the PLO and/or foreclose ties

indicative of such an agency relationship. So long as the scope of the prohibi­

tion on speech does not exceed the contours of the speaker’s relationship with

the foreign government — thereby infringing on the citizen’s independent right

to espouse beliefs in support of foreign powers — we believe it would survive

constitutional scrutiny. Although such restrictions would implicate the citizen’s

ability to gather information and associate with foreign governments, we

believe this limitation would be justified as an incidental effect of the United

States’s necessary and inherent power to preclude foreign encroachment. Fi­

nally, we conclude that the United States political branches may prevent all

commerce between foreign and domestic entities, and may cut off the supply of

all noninformational material from a foreign entity to a domestic entity.

We will examine each of these questions in turn and then apply them to the

specific issues before us.

A. Foreign States

As noted, the starting point of our analysis is that the PLO itself, as a foreign

political entity, has no constitutional rights. This conclusion flows inexorably

from the nature of foreign sovereigns and their interaction with the United

States as a foreign, co-equal sovereign. The United States, as a nation among

nations, is neither subject, nor sovereign, but one among equals. See United

States v. Curtiss-W right E xport Corp., 299 U.S. 304, 315-18 (1936); The

Chinese Exclusion Case, 130 U.S. 581, 604-06 (1889); The Schooner Ex­

change v. M ’Faddon, 11 U.S. (7 Cranch) 116, 136 (1812). The authors of the

Constitution allocated the powers to wage war and conduct diplomacy among

the political branches of the national government, but they did not believe that

the existence of such powers depended on a direct grant in the Constitution.1

Such powers are an inherent and necessary attribute of independent sover­

eignty and the Framers did not intend to diminish this preexisting authority.

As this Office previously stated in connection with proposed legislation to

conduct electronic surveillance of foreign agents:

It was understood by the Framers tMt the United States, as an

entity, derived its power to conduct foreign relations not from its

domestic instrument of government but from its status in inter-

* See 1 M . Farrand, Records of the Federal Convention , 19, 25 (E. Randolph), 316 (J. M adison), 323 (R.

K ing) (1937 ed.); The Federalist No. 15, at 156 (A. H am ilton), No. 42, at 302-03 (J. M adison) (John Harvard

L ibrary ed. 1961).

106

national law as an independent state. Rather than conferring on

the United States the power to wage war and conduct diplo­

macy, the authors of the Constitution understood that they were

only allocating those unquestioned powers among the branches

of the national government and providing sufficient domestic

powers to make them effective. Consistent with this understand­

ing, the Supreme Court has held from the earliest times to the

present that the United States as an entity possesses the full

powers of a sovereign nation not by grant under the Constitution

but under international law.

Letter to Edward P. Boland, Chairman, House Permanent Select Comm, on

Intelligence from John M. Harmon, Assistant Attorney General, Office of

Legal Counsel (Apr. 18, 1978) (Harmon Letter), reprinted in Foreign Intelli­

gence Electronic Surveillance: Hearings on H.R. 5794, H.R. 9745, H.R. 7308,

H.R. 5632 before the Subcomm. on Legislation o f the House Permanent Select

Comm, on Intelligence, 95th Cong., 2d Sess. 23 (1978). See also Kleindienst v.

Mandel, 408 U.S. 753, 762 (1972); Fong Yue Ting v. United States, 149 U.S.

698 (1893); The Chinese Exclusion Case, 130 U.S. 581; The Schooner Ex­

change, 11 U.S. (7 Cranch) 116; Penhallow v. D o a n e’s Adm inistrator, 3 U.S.

(3 Dali.) 54, 80-81 (Paterson, J.).

As a direct result of that sovereignty, the United States interacts with foreign

states not within the constitutional system, but as a juridical equal, on the level

of international law and diplomacy. Thus, Chief Justice Marshall spoke of the

“perfect equality and absolute independence of sovereigns” as tied to the fact

that “[o]ne sovereign [is] in no respect amenable to another.” The Schooner

Exchange, 11 U.S. (7 Cranch) at 137. And because no sovereign is “amenable,”

or subject to the other, “the rights and duties of the United States and foreign

sovereignties vis-a-vis one another derive not from the domestic law of either,

but from the mutual agreements contained in treaties and the consensus known

as customary international law.” Harmon Letter, supra, at 5. Simply put, a

foreign political entity such as the PLO, “lies outside the structure of the

union.” Principality o f Monaco v. M ississippi, 292 U.S. 313, 330 (1934). It

“[has taken] no general obligation to abide by the constitutional norms to which

the federal government and the several states are subject, nor are there any

effective means to place [it] on parity with the United States or the states for

purposes of enforcement of particular norms.” Damrosch, Foreign States and

the Constitution, 73 Va. L. Rev. 483, 522 (1987) (Damrosch).2

2 This conclusion — that foreign states have no constitutional rights — is supported by those scholars w ho

have addressed the issue and a num ber o f p n o r opinions by this O ffice. See, e.g.> D amrosch, supra , 73 Va. L.

Rev. at 51 9 -2 3 ; L. H enkin, Foreign Affairs and the Constitution 254 (1972) (foreign governm ents and

foreign diplom ats in th eir official capacity "have no constitutional rights, and there are no constitutional

obstacles, say, to tapping w ires o f foreign em bassies"): Presidential Authority to Settle the Iranian Crisis, 4A

Op. O.L.C. 248, 260 n 9 (1980) (“A foreign nation, however, unlike a foreign national, does not have rights

under the Fifth A m endm ent.”); 5 Intelligence Activities — The National Security Agency and Fourth

Amendment Rights: Hearings on S. Res. 21 Before the Senate Select Committee to Study Governmental

Continued

107

The oft-mentioned “plenary” authority of the federal political branches is a

natural attribute of such sovereignty. See, e.g., Buttfield v. Stranahan, 192 U.S.

470,492—93 (1904); United States v. Curtiss-W right Export Corp., 299 U.S. at

320. All matters of international concern fall within federal power. M issouri v.

H olland, 252 U.S. 416, 432-35 (1920) (foreign affairs power allows federal

government to regulate by treaty even subjects traditionally falling within state

jurisdiction). The converse o f this power is judicial reluctance to set aside

actions affecting foreign relations taken by the political branches. The judiciary

has recognized the need for the United States to “speak with one voice” with

respect to foreign nations. As Justice Jackson stated in Chicago & Southern Air

Lines, Inc. v. Waterman S.S. C orp., 333 U.S. 103, 111 (1948):

It would be intolerable that courts, without the relevant informa­

tion, should review and perhaps nullify actions of the Executive

taken on information properly held secret. . . . [T]he very nature

of executive decisions as to foreign policy is political, not judi­

cial. Such decisions are wholly confided by our Constitution to

the political departments of the government, Executive and

Legislative. They are delicate, complex and involve large ele­

ments of prophecy. They are and should be undertaken only by

those directly responsible to the people whose welfare they

advance or imperil. They are decisions of a kind for which the

Judiciary has neither the aptitude, facilities, nor responsibility

and which has long been held to belong in the domain of

political power not subject to judicial intrusion or inquiry.

Thus, United States courts will not even take cognizance of a constitutional (or

other) claim by a foreign political entity unless the Executive recognizes it. See

U nited S tates v. Pink, 315 U.S. 203 (1942). The “established rule” is one of

“complete deference to the executive branch” in its determination whether to

grant a government access to United States courts. Pfizer, Inc. v. Government

o f India, 434 U.S. 308,319-20 (1978). Accordingly, the political branches may

deny foreign entities as such all constitutional rights and preclude them from

obtaining access to United States courts.

B. F oreign N ationals and Juridical “P ersons ”

For reasons analogous to those set forth above, the Supreme Court has

repeatedly emphasized that the power to exclude or to deport foreign nationals

is “inherent in sovereignty, necessary for maintaining normal international

2 ( . . . continued)

Operations with Respect to Intelligence Activities, 94th C ong., 1st Sess. 6 6 ,7 4 (1975) (statem ent o f Attorney

G eneral Edw ard H. Levi) ( ‘T h e Fourth A m endm ent g uards the right o f the people and it can be urged that it

w as not m eant to apply to foreign nations, th eir agents and collaborators.") (Levi Testimony).

W e do not m ean to suggest that courts o f the U nited States have not entertained suits by foreign nations.

Several cases o f statu to ry interpretation and occasional d icta support the notion that foreign sovereigns

should be treated the sam e as other ju rid ica l persons. See , e.g., Pfizer Inc. v Government o f India, 434 U.S.

308 (1978) (interpreting “person” in § 4 o f the Clayton A ct to include foreign states). Such cases have only

arisen, how ever, in the absence of an e x p lic it directive from the political branches.

108

relations and defending the country against foreign encroachments and dangers

— a power to be exercised exclusively by the political branches of govern­

ment.” M andel, 408 U.S. at 765 (quoting with approval Brief of the United

States). “[OJver no conceivable subject is the legislative power of Congress

more complete than it is over” the admission of aliens. Oceanic Steam N aviga­

tion Co. v. Stranahan, 214 U.S. 320, 339 (1909). A ccord Fiallo v. Bell, 430

U.S. 787, 792 (1977); Hampton v. M ow Sun Wong, 426 U.S. 88 (1976);

Shaughnessy v. United States ex rel. Mezi, 345 U.S. 206 (1953); Fong Yue Ting

v. United States, 149 U.S. 698 (1893). As the Court has noted, “any policy

toward aliens is vitally and intricately interwoven with contemporaneous poli­

cies in regard to the conduct of foreign relations, the war power and mainte­

nance of a republican form of government. Such matters are so exclusively

entrusted to the political branches of government as to be largely immune from

judicial inquiry or interference.” H arisiades v. Shaughnessy, 342 U.S. 580,

588-89 (1952). See also Galvan v. Press, 347 U.S. 522, 531 (1954) (“that the

formulation of these policies is entrusted exclusively to Congress has become

about as firmly embedded in the legislative and judicial tissues of our body

politic as any aspect of our government”).

Pursuant to this sweeping power over immigration and naturalization, “Con­

gress regularly makes rules that would be unacceptable if applied to citizens.”

Fiallo, 430 U.S. at 792 (quoting M athews v. D iaz, 426 U.S. 67, 80 (1976)).

Specifically, Congress may exclude aliens on the basis of criteria that would

clearly be proscribed in the domestic arena, such as political beliefs, sex, and

illegitimacy. See, e.g., Kleindeinst v. Mandel, 408 U.S. 753; Fiallo v. Bell, 430

U.S. 787. Congress has equally broad authority to deport resident aliens on the

basis of political beliefs or affiliation, and may even do so on the basis of

conduct that wholly antedated the relevant prohibitory regulation. See, e.g.,

Galvan, 347 U.S. 522 (upholding deportation of resident alien for former

membership in communist party); H arisiades, 342 U.S. 580 (same). At most,

courts will review the congressional policy choice to determine whether it is

supported by a “facially legitimate and bona fide reason.” Fiallo, 430 U.S. at

795 (quoting M andel, 408 U.S. at 770). If such a reason exists, “the courts will

neither look behind the exercise of that discretion, nor test it by balancing its

justification against the First Amendment interest of those who seek some

communication with the applicant.” M andel, 408 U.S. at 770.

In short, the basic rationale underlying this doctrine is the “accepted maxim

of international law, that every sovereign nation has the power, as inherent in

sovereignty, and essential to self preservation, to forbid the entrance of foreign­

ers within its domain, or to admit them only in such cases and upon such

conditions as it may see fit to prescribe.” Ekiu v. United States, 142 U.S. 651,

659 (1892). Accordingly, deportation is not viewed as “punishment,” but

merely withdrawal of the privilege of remaining in the United States. See

Bugajewitz v. Adams, 228 U.S. 585, 591 (1913).3

3 That aliens may be deported based upon behavior that would be constitutionally protected if undertaken

Continued

109

We can discern no principled basis for concluding that Congress has less

authority with respect to fictional juridical persons, such as foreign corpora­

tions or organizations. Because physical removal of these fictional entities

from the country is obviously impossible, the equivalent of deportation of

individuals would be a cessation of organizational activities and/or expulsion

of corporate assets.

C. U nited States Citizens

American citizens, of course, are subject to the full protection of the First

Amendment and other constitutional provisions. There are two aspects to a

citizen’s First Amendment interests in this context. First, citizens have the right

to engage in political or other expressive activity, collectively or on an indi­

vidual basis. Moreover, they have an interest in receiving information from or

having contact with foreign nationals or other entities.

The question remains, however, whether one has a constitutional right to act

as an agent or official representative of a foreign government. Citizens, collec­

tively or individually, have a right to engage in whatever political speech they

desire, including speech in support of, or directly derived from, the teachings of

a foreign power hostile to the United States. In our view, however, there is no

First Amendment right to speak as a foreign government. That is, the political

branches, pursuant to their extraordinarily broad foreign affairs authority, may

forbid an individual from establishing a formal agency relationship with a

hostile foreign power or, looked at another way, forbid him from speaking as

the personification of a foreign power.

Of course, this direct prohibition against speech may not extend beyond the

scope of the agency relationship. To the extent that a citizen speaks his own

mind, rather than serves as the voice of his foreign principal, his speech is fully

protected by the guarantees of the First Amendment.

3 ( . . . continued)

by citizen s d oes not m ean that aliens are w holly w ithout constitutional n g h ts while in this country In fact, it

is w ell settled that certain constitutional protections do extend to aliens. For exam ple, the Supreme Court has

stated that “ [flreedom o f speech and o f p re ss is accorded aliens residing in this country." Bridges v. Wixon,

326 U .S. 135, 148 (1945) (citing Bridges v. California , 314 U .S. 252 (1941)). In fact, “the C ourt has treated

certain restrictions on aliens with ‘heightened ju d icial so licitu d e.’" Foley v. Connelie , 435 U.S. 291, 294

(1978) (q u o tin g Graham v. Richardson, 4 0 3 U.S. 365, 372 (1 9 7 !)). N evertheless, the Supreme C ourt has also

recently upheld a New Y ork statute requiring state troopers to be U nited States citizens, Foley v. Connelie,

435 U .S. 291 (1978), a S ta te ’s refusal to em ploy as elem entary and secondary school teachers aliens eligible

fo r U nited States citizen sh ip who failed to seek naturalization, Ambach v. Norwick, 441 U.S. 68 (1979), and

a C alifo rn ia statute prohibiting aliens fro m becom ing “peace o fficers,” Cabell v. Chavez-Salido , 454 U.S.

432 (1982). In d istinguishing these restrictions from those “on lawfully resident aliens that prim arily affect

econom ic in terests," w hich are subject to “heightened judicial scrutiny," the Supreme C ourt has concluded

that “stric t scrutiny is out o f place when th e restriction prim arily serves a political function ” Id. at 439. In any

event, w e need not resolve the difficult question o f precisely w hen restrictions may be placed on an a lie n 's

rights g reater than those placed on citizens. We deal here only w ith the expulsion o f foreign entities, which is

plainly perm issible under Harisiades an d Galvan. For purposes o f this analysis, therefore, we assume that

aliens are en titled to the First Amendment protections o f freedom o f speech and o f association so long as they

rem ain in this country. A ccordingly, d u n n g the discussion set forth above, “citizens" should be understood to

m ean p erm anent resident aliens as well.

110

We do not believe however, that the citizen-agent may transfer these rights

to his foreign principal. We so conclude for two reasons. First, a contrary

conclusion would render the political branches plenary and necessary authority

to preserve national sovereignty largely chimerical. Second, a prohibition

which extends only to an individual’s ability to speak as a foreign sovereign,

but does not otherwise in any way impede his ability to express his ideas, does

no discernible harm to the First Amendment rights of the speaker.

Foreign powers, like all other organizations with a juridical status separate

and distinct from their members and employers, can obviously act only through

individuals. If the political branches were foreclosed from taking any action

against a foreign sovereign solely because it conducted its operations through

American citizens or through alter ego domestic organizations, the federal

government would be utterly disabled from exercising its clear sovereign

power to expel a foreign presence from United States soil.

Although there is a paucity of case law on this specific question, we believe

the political branches’ inherent authority to preclude foreign encroachments

necessarily carries with it a residual authority to treat citizen-agents as instru­

mentalities of a foreign government or sever the official ties that bind them. We

should think, for example, that if the federal government has severed diplo­

matic relations with a foreign nation and expelled its diplomats, then that

government could not continue its operations by having American citizens hold

themselves out as the nation’s “embassy.” As Justice Frankfurter said, “[m]eans

for effective resistance against foreign incursion — whether in the form of

organizations which function, in some technical sense, as ‘agents’ of a foreign

power, or in the form of organizations which, by complete dedication and

obedience to foreign directives, make themselves the instruments of a foreign

power — may not be denied to the national legislature.” Communist Party v.

Subversive A ctivities C ontrol Board, 367 U.S. 1, 96 (1961) (footnote omitted).

Indeed, the Court in that case went so far as to say that to find a constitutional

bar to registration and disclosure requirements of foreign-dominated groups

would “make a travesty of [the First] Amendment and the great ends for the

well-being of our democracy that it serves.” Id. at 89.

For similar reasons, this Office has previously concluded that the “official

conversations on diplomatic premises” of foreign nationals or American citi­

zens employed by a foreign mission were not subject to the protections of the

Fourth Amendment’s prohibition against unreasonable searches or seizures.

Harmon Letter, supra, at 8. We there stated: “[A] state can only act through its

employees. It is therefore inherent in the acquisition of the foreign state’s

communications that the privacy of the individuals speaking them be invaded.”

Id. Similarly, in 1975 Attorney General Levi testified that because the pre­

amble of the Constitution refers to “We the People,” it could “be urged that it

was not meant to apply to foreign nations, their agents and collaborators. Its

application may at least take account of that difference” and therefore justify a

finding that any such search was reasonable. Levi Testimony, supra, at 74. By

analogy, a citizen’s statements in his capacity as an official representative of a

111

foreign power would not be protected “speech” within the meaning of the First

Amendment.

Moreover, a prohibition running only against speaking as the official voice

of a foreign power or foreign political entity would not seem to affect adversely

the speaker’s right as an individual to freedom of speech. Such persons or

organizations remain free to advocate support for the foreign regime and to

advocate its teachings and philosophy. The exclusive disability imposed is the

citizen’s “right” to speak as a representative of a foreign government — to

characterize his words as those of a foreign sovereign.

It is difficult to discern how this restriction could significantly affect the

content or persuasiveness of the speaker’s message. To be sure, it is conceiv­

able in some circumstances that speaking in the name of a foreign sovereign

would enhance the visibility and audience of the agent. But this does not strike

us as an advantage protected by the Constitution, because, by definition, it is

one derived from the existence of an entity without First Amendment rights. If

the only reason people are listening is because the agent is speaking in the name

of a foreign principal, then it follows that the prohibition against the agency

relationship does not impede the a gen t’s ability to contribute to the market­

place of ideas; it only affects negatively his master’s unprotected voice. Simply

put, we do not think the citizen-agent can have it both ways. He may not claim

the right to enhance his speech by stepping into the shoes of a foreign power

without accepting the constitutional disabilities that flow from this foreign

status.

It is important to emphasize that this sort of restriction is not premised on the

content of the political beliefs or views espoused by the speaker, but on the

speaker’s relationship with a foreign government. The Supreme Court has

recognized and attached significance to this distinction in analogous contexts.

For example, in the Communist Party case, the Supreme Court emphatically

rejected the assertion that it was permitting the imposition of burdens against

“any group which pursues unpopular political objectives or which expresses an

unpopular political ideology.” 367 U.S. at 104. As the Court put it:

Nothing which we decide here remotely carries such an implica­

tion. The Subversive Activities Control Act applies only to

foreign-dom inated organizations which work primarily to ad­

vance the objectives o f a world movement controlled by the

government of a foreign country.. . . It applies only to organiza­

tions directed, dominated, or controlled by a particular foreign

country.

Id. (emphasis in original). Similarly, in Zem el v. Rusk, 381 U.S. 1 (1965) and

Regan v. W ald, 468 U.S. 222 (1984), the Supreme Court upheld restrictions on

travel by American citizens to Cuba. In both cases, the court distinguished

prior cases invalidating international travel restrictions on Communist Party

members on the ground that the Communist Party restrictions were based on

political belief and affiliation, while the restriction on travel to Cuba was based

112

on the current policy of the United States toward Cuba’s government. See

Zemel , 381 U.S. at 13; Wald, 468 U.S. at 241. Cf. Aptheker v. Secretary o f

State, 378 U.S. 500 (1964); Kent v. Dulles, 357 U.S. 116 (1958). In short, the

fact that ideological differences often motivate the political branches to take

adverse action against a foreign nation does not mean that restrictions on

United States citizens vis-a-vis that government are “content-based” for First

Amendment purposes.4

Such non-content-based restrictions furthering foreign policy objectives

would, at most, be scrutinized under the test for “incidental” restrictions on

speech employed by the Supreme Court in United States v. O ’Brien, 391 U.S.

367, 377 (1968). In that case, the Court established four requirements neces­

sary to sustain government action not intended to suppress speech but having

some effect on speech as a by-product of the government action. One must

assess; (1) whether the restriction is within the constitutional power of the

government; (2) whether it furthers an important or substantial interest; (3)

whether the governmental interest is unrelated to the suppression of free

expression; and (4) whether the incidental restriction on alleged First Amend­

ment freedoms is any greater than is essential to the furtherance of that

interest.5 In two later cases, the Court apparently added a fifth criterion: that

there be available alternative means of communication. City o f Renton v.

Playtime Theatres, Inc., 475 U.S. 41 (1986); Young v. American Mini-Theatres

Inc., 427 U.S. 50 (1976). As explained below, restrictions on an agency

relationship with a foreign government — ranging from outright prohibition of

the relationship to those restrictions which tend to inhibit its formation — meet

4 Restrictions on the physical presence o f a foreign sovereign in the U nited States do have the collateral

consequence o f lim iting som ew hat the ability o f citizens directly to receive inform ation and ideas from that

sovereign. The Suprem e C ourt in Mandel held that such a lim itation is sufficient to trigger a First Amendm ent

inquiry. H ow ever, as noted, the finding that the reason for the restriction w as facially legitim ate and bona fide

obviates the need for further consideration or balancing o f the c itizen's First A mendment interest. See

Mandel, 408 U .S. at 770. Again, Zemel and Wald add further support outside the specific im m igration

context. Both cases held that C ongress’ decision to foreclose travel to a foreign country for a w eighty foreign

policy interest, to which the courts will give substantial deference, is sufficient to justify the dim inished

inform ation-gathering ability resulting from the travel ban. As the Zemel court put it:

There are few restrictions on action which could not be clothed by ingenious argum ent in the garb

o f decreased data flow. For exam ple, the prohibition o f unauthorized entry into the W hite House

dim inishes the citizen 's opportunities to gather information he m ight find relevant to his opinion

on the w ay the country is being run, but that does not make entry into the W hite H ouse a First

A m endm ent right. The right to speak in public does not carry with it the unrestrained n g h t to

gather inform ation.

381 U.S. at 16-17. We think this principle would apply w ith at least equal force in this context; w e can

perceive no distinction betw een preventing Americans from traveling abroad to exchange inform ation with

foreigners and preventing foreigners from traveling here to exchange inform ation with A m ericans.

s This test was used by this O ffice in analyzing the proposed closure o f the Rhodesia Inform ation O ffice.

See M em orandum from John M. H annon, A ssistant Attorney G eneral, O ffice of Legal Counsel at 5 -8 (Dec.

13, 1977) (H arm on M em orandum ). The O'Brien test was also applied in a series of low er court decisions

which upheld restrictions on the importation o f publications and films under the T rading with the Enemy Act,

a situation sim ilar to that presented here. See Teague v. Regional Comm’r o f Customs, 404 F.2d 4 4 1 ,4 4 5 (2d

Cir. 1968), cert, denied, 394 U.S. 977 (1969), American Documentary Files, Inc. v. Secretary o f the

Treasury, 344 F. Supp 703 (S.D.N.Y. 1972). Cf. Welch v. Kennedy, 319 F. Supp. 945 (D D.C. 1970). A

sim ilar conclusion was reached by the Third C ircuit in Veterans A Reservists fo r Peace in Vietnam v.

Regional Comm'r o f Customs, 459 F.2d 676 (3d Cir.), cert. denied , 409 U.S. 933 (1972).

113

each of these criteria. This is certainly true of a regulation mandating the

closure of offices maintained at the direction of the PLO, which is, in fact, a

less restrictive alternative to a complete prohibition of the relationship:

1. Plainly, a decision to prohibit a relationship with — or to close an office

directed and controlled by — a hostile foreign entity is within the constitutional

foreign affairs power of government.

2. The action furthers an important interest of the United States government.

In the specific case of the PLO, it “was directly responsible for the murder of an

American citizen on the Achille Lauro cruiseliner in 1985,” S. 1203, 100th

Cong., 1st Sess. (1987); it has taken credit for and been implicated in the

murders of dozens of United States citizens, including that of a United States

ambassador overseas; and it has violated numerous international laws as ex­

pressed in several international conventions, see, e.g.. Convention for the

Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal

Convention), Sept. 23, 1971, 24 U.S.T. 564, T.I.A.S. No. 7570; Convention on

the Prevention and Punishment of Crimes Against Internationally Protected

Persons, Including Diplomatic Agents (New York Convention), Dec. 12,1973,

28 U.S.T. 1975, T.I.A.S. No. 8532 (quoted in Tel-Oren v. Libyan Arab Repub­

lic, 726 F.2d 774, 806-07 (D.C. Cir. 1984), cert, denied, 470 U.S. 1003

(1985)). It is vital for the United States, as a world leader in the fight against

terrorism, to be able to deny to the PLO access to its shores, and to give force to

the Executive’s decision not to recognize it.

3. The governmental interest here is not directed at suppressing free speech.

Prohibiting a citizen from serving as the agent of a foreign government effectu­

ates the President’s decision not to recognize a foreign political entity, as does

closing the offices of the PLO or those of its agents. In the specific case of the

PLO, the purpose of the closure is to discourage terrorism and international

lawlessness. What is at stake here is “the very delicate, plenary and exclusive

power of the President” in the field of international relations,” United States v.

Curtiss-W right E xport Corp., 299 U.S. 304, 319 (1936), which includes the

constitutional authority and responsibility to recognize, or not to recognize, the

representatives of a foreign state or regime, see United States v. Pink, 315 U.S.

203, 229 (1942). Again, with respect to the PLO, if other offices of the PLO or

its agents were present in the United States, including offices that do not

engage in expressive activity, they would similarly be closed. Thus, the closing

of the PLO’s offices — or those of its principals or partners — is only

incidental to the fulfillment of the President’s decision not to recognize the

PLO and of the purposes that decision is intended to achieve. Also, the

restriction on speech is not great — speech o f the PLO is prohibited, but speech

o f others favoring the PLO or advancing the PLO’s interests is not.

4. Whatever incidental restriction is imposed on alleged First Amendment

freedoms in prohibiting agency relationships, or in closing the PLO’s offices,

or those of its agents, is no more than the minimum necessary to carry out the

President’s decision with respect to foreign political entities such as the PLO.

Neither Congress nor the President could act to expel a foreign political entity

114

from the United States if such an entity could continue to direct the actions of

agents here or if the closing of that foreign entity’s office were forbidden. The

essence of a presence is an office. So long as the PLO and its agents have agents

and offices here, the President’s decision to expel the PLO as a sign of

nonrecognition is not fully executed.

5. Finally, in assessing the available alternative means of communication, it

is important to note what these kinds of restrictions on an agency relationship

with a foreign political entity does not do. In the case of the proposed closure, it

does not prevent anyone in the United States from engaging in “independent

advocacy” of the Palestinian cause, raising money from the public, or using

personal funds in any amount for this purpose. This includes Palestinians in the

United States (although they could not, of course, be supported by funds

transferred in violation of any legislation which prohibited such a funds trans­

fer). Cf. Buckley v. Valeo , 424 U.S. 1,47-54 (1976). Prohibiting a citizen from

acting as an agent or closing a foreign entity’s office would not place our

government in the role of censor or as an inspector or appraiser of ideas.

Lamont v. Postm aster General, 381 U.S. 301 (1965).

In sum, with respect to closure of the PIO, the availability of alternative

means for communication minimizes the possibility that Americans will not be

able to communicate the point of view of the PLO. The same can be said about

the termination of an agency relationship with any foreign political entity.

These alternatives serve to demonstrate that the restrictions are no greater than

necessary and that the government’s purpose is plainly not to curtail the free

flow of ideas and open debate of issues of national importance. See P ell v.

Procunier, 417 U.S. 817, 824-28 (1974). Cf. Kleindienst v. M andel, 408 U.S.

at 765. The PLO may freely mail material to the United States, provide

interviews to the American and world press, place political advertising, and use

any means of communication other than offices or agents supported by funds in

a manner that would violate the proposed restriction.

Accordingly, we believe that the First Amendment permits the federal gov­

ernment to prevent a direct agency relationship between a foreign sovereign

and domestic organizations or persons. We are constrained, however, to add

several important caveats to avoid any misunderstanding of this general statement.

First, and perhaps most important, we must emphasize the distinction be­

tween prohibiting an agency relationship and attaching unrelated burdens on

the basis of that agency relationship. The Court has struck down a variety of

schemes which directly punish or withhold privileges or benefits of citizenship

because of membership in a political organization. For example, the Court

invalidated blanket restrictions on the right of citizens to travel abroad and to

be employed in a defense facility where the statute “sweeps indiscriminately

across all types of association with Communist action groups, without regard to

the quality and degree of membership.” United States v. Robel, 389 U.S. 258,

262 (1967); Aptheker v. Secretary o f State, 378 U.S. 500, 506-07 (1964).

These cases reflect the now well-established rule that punishing or restricting a

citizen’s freedom solely on the basis of association with a group is impermis­

115

sible unless it is shown that “the group itself possessed unlawful goals and .. .

the individual held a specific intent to further those illegal aims.” NAACP v.

C laiborne H ardw are Co., 458 U.S. 886, 920 (1982).

Because somewhat analogous, albeit not identical, First Amendment inter­

ests are implicated in the context of association with foreign governments, it

might well be argued that establishing such penalties because of association

with a foreign sovereign constitutes similar imposition of “guilt by associa­

tion.” On the other hand, the Court has upheld the imposition of regulations on

organizations “substantially directed, dominated, or controlled by the foreign

government or foreign organization controlling the world Communist move­

ment . . . and . . . operating] primarily to advance [its] objectives.” Communist

P arty, 367 U.S. at 8. We note, however, that the regulations at issue in

Communist P arty largely related to registration and disclosure of membership

lists, which are not generally perceived as particularly severe infringements on

the freedom of association or speech.

More important for present purposes, it must again be emphasized that the

restrictions at issue in Robel, Aptheker, and Communist Party are different in

degree and kind from a prohibition directed precisely and only at the act of

representation itself. In those cases, the government used the fact of an agency

relationship to burden the organization directly, or its members’ pursuit of

important activities unrelated to participation in the association. In contrast, a

policy preventing a formal agency relationship between foreign and domestic

entities runs only to representation, it does not burden speech as such.

Citizens affected by the regulation remain entirely free to associate with

like-minded citizens, unburdened by regulations and uninhibited in their ability

to express their views. The only impediment to First Amendment interests is

the prohibition on the domestic organization’s official representation of a

foreign power. For the reasons discussed previously, we do not view such a

facial decoupling as a serious infringement on the freedoms to speak or to

associate. Thus a regulation prohibiting, for example, a public relations firm

from officially representing a foreign government would pass constitutional

muster, while a regulation restricting the firm’s other business dealings be­

cause of its representation of the foreign entity might well not.

Our second important caveat is that unless the domestic organization offi­

cially acknowledges or professes an identity with the foreign power, it is

difficult to define with any precision whether and under what circumstances

there is a nexus sufficient to treat a domestic organization as legally indistin­

guishable from a foreign power, with the attendant constitutional disabilities.

Such definitional problems are particularly acute with respect to single-pur­

pose organizations, as opposed to individuals or firms which represent a

number of different clients. First, there is no bright-line test analogous to

citizenship to distinguish American from foreign corporations or associations.

Second, unlike individuals, many organizations exist for only one purpose and

are defined by that purpose. That is, organizations whose sole purpose is to act

on behalf of or advance the interests of a foreign government have no life

116

outside that relationship. Thus, while it is quite possible readily to differentiate

between an individual’s or, say, a law firm’s official and other activities, it is

not possible to do so with respect to a single-purpose organization. A ban on

acting as an agent of a foreign power is a ban on the existence of such a single­

purpose organization determined to be an agent even if this determination is

made in the face of its contrary assertions. Thus, discerning the nationality of a

single-purpose organization presents distinct conceptual difficulties, and a

finding of an agency relationship with respect to such organizations has par­

ticularly serious consequences.6 Although this question is not raised by the

proposed closure of the PIO, it is raised by the proposed legislation, which

prohibits maintaining offices for or receiving funds from, the PLO’s agents.

Various Supreme Court cases dealing with Communist Party membership

provide the most direct guidance. As noted above, Robel and Aptheker invali­

dated penalties imposed on unknowing party members who did not have a

specific intent to further the Party’s unlawful aims. Similarly, in Bridges v.

Wixon, 326 U.S. 135 (1945), the Supreme Court refused to allow the deporta­

6 This does not m ean, o f course, that the courts are foreclosed from m aking such an inquiry. A person or

association which does not openly profess an identity w ith, o r hold itself out as the voice of, a foreign

sovereign may nonetheless be treated as such against its w ishes. Supreme C ourt precedent strongly indicates

that the U nited States need not accept a dom estic organization’s statem ents regarding its relationship w ith a

foreign governm ent at face value, but may look behind this to determ ine w hether an agency relationship in

fact exists. As previously indicated, the Supreme Court gave effect to C ongress' definition o f the Com m unist

Party as an organization “substantially directed, dom inated o r controlled” by a foreign pow er even though the

Party itse lf vigorously resisted any such designation. See Communist Party, 367 U.S. at 8 -9 . M oreover, in

First National City Banks. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611 (1983), the Court found

that a Cuban bank which the Cuban governm ent had established as a separate juridical entity should

nonetheless not be treated as such, despite the international law principle that a foreign sovereign’s d eterm i­

nation concerning the separate legal status o f its institutions is presum ptively valid. Id. at 623-28. Conclud*

ing that Cuba could not “reap the benefits o f o u r courts w hile avoiding the obligations o f international law ,”

id. at 634, the C ourt declined to “adhere blindly to the corporate form w hen doing so w ould cause . . . an

injustice.” Id. at 632. The C ourt found that the bank's corporate form could not be “interposed to defeat

legislative policies.” Id. at 630. “To hold otherw ise would perm it governm ents to avoid the requirem ents of

international law sim ply by creating juridical entities w henever the need a rises.” Id. at 633. Cf. National City

Bank v. Republic o f China, 348 U S. 3 5 6,360, 362 (1955) (“w e have a foreign government invoking our law,

like any other litigant, but it wants our law free from the claim s o f justice” ).

Thus, the Suprem e Court did not give dispositive effect to the views o f the Cuban governm ent or the bank

concerning the b a n k 's juridical status, but “pierced the corporate veil” to determ ine the actual relationship

betw een the C uban governm ent and the bank. Because the C ourt decided the case solely on the basis of

international law and equity, w ithout any specific congressional guidance, it follows a fortiori that the courts

need not give preclusive effect to a foreign sovereign's characterizations o f its institution's legal status where

Congress o r the Executive has expressed a contrary view. The political branches’ view o f the status o f foreign

entities are given substantial deference by the courts. Cf. Republic o f Mexico v. Hoffman , 324 U.S. 30, 35

(1945) (“it is therefore not for the c o u rts . . . to allow immunity on new grounds which the governm ent has not

seen fit to recognize’’); Baker v. Carr, 369 U.S. 186, 216, 217 (1962). In this regard, we note that

congressional statu tes treat distinct juridical entities as foreign states or agents pursuant to definitions

relating to the extent o f the foreign sovereign’s financial or other control over the entity. See, e.g , Foreign

Agents R egistration Act, 22 U.S.C. §§ 61 1 -6 2 0 ; Foreign Intelligence Surveillance Act, 18 U.S.C. §§ 2511,

2518, 2519, 50 U .S.C. §§ 1801-1811; Trading w ith the Enem y Act, 50 U .S.C. app §§ 1-44; International

Em ergency Econom ic Powers Act, 50 U.S.C. §§ 1701-1706; Foreign Sovereign Imm unities Act, 28 U.S.C.

§ 1603(b)(2).

We therefore conclude that the federal governm ent m ay treat citizens or dom estic organizations as

instrum entalities o f foreign sovereigns even when the citizen or domestic organization disavow s such status.

N onetheless, for First Amendm ent purposes, the circum stances in which this “piercing the veil” approach

would be appropriate would be quite lim ited and are most d ifficult to describe in the abstract.

117

tion of an alien who was not proven to be a “member” of the Communist Party

and who did not meet the nonexclusive statutory definition of “affiliation.” Nar­

rowly defining the statute and the concept of “affiliation,” the Bridges Court said:

Whether intermittent or repeated, the act or acts tending to prove

“affiliation” must be of that quality which indicates an adher­

ence to or a furtherance of the purposes or objectives of the

proscribed organization as distinguished from mere cooperation

with its unlawful activities. The act or acts must evidence a

working alliance to bring the program to fruition.

326 U.S. at 144—45. Although this line of cases is not directly on point, it may

be argued by analogy that if “mere cooperation in the lawful activities” of an

organization with unlawful aims is not sufficient to vest an individual member

with liability for those proscribed purposes, then a person’s or organization’s

mere cooperation with a foreign power is not sufficient to establish a represen­

tative or agency relationship for First Amendment purposes. Rather, there must

be a “specific intent” or “working alliance to bring the [foreign power’s]

program to fruition.”

In the Communist Party case, as previously noted, the Court upheld restric­

tions on domestic organizations “substantially directed, dominated, or con­

trolled by” a particular foreign government or organization. There the Court

focused on whether such domination could exist only if the foreign government

had the “power, in the event o f noncompliance, effectively to enforce obedi­

ence to its will.” 367 U.S. at 36. The Court concluded that this level of

domination was not necessary so long as there existed a “relationship in which

one entity so much holds ascendancy over another that it is predictably certain

that the latter will comply with the directions expressed by the former solely by

virtue of that relationship, and without reference to the nature and content of

the directions.” Id. at 38.

The Court upheld the Subversive Activity Board’s findings that such a

relationship exists between the Communist Party and foreign Communist

powers on the basis of the eight factors set forth in the legislation. Among these

factors were: (i) the extent to which an organization’s policies were formulated

and carried out and its activities performed to effectuate the policies of the

foreign enemy; (ii) the extent to which its views did not deviate from those of

such foreign entities; (iii) the extent to which it received financial or other aid,

directly or indirectly from or at the direction of a foreign power; (iv) the extent

to which it sent members or representatives to any foreign country for instruc­

tion or training in the foreign power’s principles; (v) the extent to which it

reported to the foreign power; (vi) the extent to which its principal leaders or a

substantial number of its members were subject to a recognized or disciplinary

power of such foreign entity or its representative; and (vii) the extent to which

its principal leaders or a substantial number of its members considered the

allegiance they owed to the United States as subordinate to their obligations to

a foreign entity. See 367 U.S. at 13-14.

118

As noted, the Court held that the relationship between the Communist Party

and foreign powers was sufficient to justify registration and disclosure require­

ments that would be constitutionally impermissible with respect to domestic

political organizations in the absence of such a relationship.

We also stress that any finding of an agency relationship which is based

primarily on the similarity between the speech and political activities of the

domestic and foreign entities would be constitutionally unsound. The basic

rationale for this conclusion is that restrictions on the speech of domestic

organizations may be premised on a relationship with a foreign government,

but not on the content of the organization’s speech. Accordingly, finding an

agency relationship on the basis of the content of a domestic group’s speech

would render this analysis wholly circular and ensnare within its ambit purely

domestic groups exercising their First Amendment right to speak in support of

foreign entities. Accordingly, similarity of speech cannot be used as a signifi­

cant or primary indicium of agency.

So long as an organization does not profess an identity with a foreign entity,

we believe it would be very difficult to establish an agency relationship

sufficient to justify restrictions on expressive activities allegedly within the

scope of that relationship absent a direct financial or contractual relationship.

We do not believe that such a nexus could be established by virtue of a

comparison between the speech of the domestic and foreign entities. Beyond

this, any agency analysis would necessarily be a fact-specific inquiry concern­

ing similarity of personnel between the two organizations, whether compliance

with the foreign sovereign is voluntary, the nature and extent of contacts

between the two organizations, and so forth.

In sum, we believe it is constitutionally permissible til* treat domestic agents

of foreign governments as unprotected by the Constitution and to sever formal

non-speech links between the foreign and domestic entities, but that it is

impermissible to restrict the expressive or other activities of American citizens

unrelated to their association with a foreign government. We will now apply

these general principles to the specific legislation before us.

II. Application of General Principles

As noted above, the first step in the First Amendment analysis is to identify

the party asserting the right of speech or of political association. The PLO is a

foreign sovereign or political entity for constitutional purposes. Although the

United States chooses not to recognize the PLO as such, the PLO nonetheless

interacts with the United States as a foreign political entity within the structure

of international law.

The PLO has been accorded observer status at the United Nations, G.A. Res.

3237, 29 U.N. GAOR, 29th Sess., Supp. No. 31, at 4, U.N. Doc. A/9631

(1974). It is reported to have diplomatic relations with approximately one

hundred countries throughout the world. See Kassim, The Palestine Liberation

O rganization’s Claim To Status: A Juridical Analysis Under International

119

Law, 9 Denv. J. Int’l L. & Pol. 1, 2-3 (1980). It considers itself a “state” for the

purposes of international law, and it claims privileges and immunities gener­

ally extended only to a sovereign nation and its representatives.

Although the United States does not afford diplomatic status to the PLO, it

accords to the members of the PLO Observer Mission certain privileges relat­

ing to entry into and residence in the United States, as well as transit to the

United Nations, by virtue of the Headquarters Agreement between the United

States and the United Nations. 21 U.S.T. 1416. These privileges would other­

wise be denied to these individuals under the so-called Solarz Amendment. See

22 U.S.C. § 2691(c). In addition, the PLO claims that it is entitled to even

greater privileges and immunities than are accorded under the Headquarters

Agreement, although the United States has consistently resisted these claims.

The PLO plainly views itself as a foreign sovereign in its relationship to the

United States, not “amenable” to United States sovereignty. The Schooner

Exchange, 11 U.S. (7 Cranch) at 137. As a foreign political entity, the PLO

does not itself enjoy constitutional protection.7

Whether the PIO is a foreign political entity for purposes of constitutional

standing is more problematic. It might plausibly be asserted that the PIO is a

juridical entity separate and distinct from the PLO, and is thus not a foreign

political entity as such. We need not definitively resolve this issue since the

PIO is, at most, a foreign juridical person and/or professes an official identity

with the PLO. If it is a foreign “person,” it is subject to expulsion for any bona

fid e foreign policy reason, regardless of whether that reason is premised on

political activities. In any event, because it maintains and professes an identity

with the PLO, the same rules governing the United States’ legal relationship

with the PLO apply to the PIO.

Accordingly, it is immaterial whether the PIO (or the PLO itself) is consid­

ered a foreign state or a foreign person, or whether it is viewed as an official

representative and voice of the United States of the PLO; in either event, it may

be expelled from American soil consistent with the Constitution. Cutting off

foreign funding and prohibiting the maintenance of an office are ways in which

this permissible goal may be accomplished.

In fact, we have previously so concluded in a virtually identical context. In

1977, this Office concluded that a proposed executive order to close the

Rhodesian Information Office (RIO) was constitutional. Harmon Memoran­

dum, supra, at 2. There, as here, the United States did not recognize as a

legitimate sovereign the government maintaining the office. The order closing

7 It w ould be anom alous if the E xecutive's decision to w ithhold recognition from a foreign political entity

— w ith respect to w hich it has complete discretion — invested that entity with rights greater than those

enjoyed by friendly sovereigns present in th e United States. It is clear, for exam ple, that the PLO w ould not be

recognized by A m erican courts as a ju rid ical entity capable o f bringing a constitutional claim. United States

v. Pink* 315 U .S. 203, 229 (1942) N either will the argum ent that the PLO is not a sovereign nation bring it

w ithin the constitutional fold. The PLO cannot have it both ways: it is cither a foreign political entity

claim in g aspects o f sovereignty interacting with the U nited States w ithin the structure of international law, or

it is a p urely dom estic organization, subject to the sovereignty o f the U nited States and all o f its law s, with no

diplom atic status.

120

the RIO was pursuant to a program of international sanctions in which the

United States had participated for twelve years. The United States viewed the

government as an “illegal racist minority regime.” 77 Dep’t St. Bull. 64 (1977)

(quoted in Harmon Memorandum, supra, at 2-3). Plainly, the United States did

not regard Rhodesia as a “co-equal” sovereign, and had no formal diplomatic

relations with Rhodesia. Nevertheless, interpreting Mandel, this Office con­

cluded that any limits placed on the information-gathering abilities of citizens

were indistinguishable from that involved in M andel and were therefore per­

missible. We stated:

A fair reading of that decision suggests that in a case such as

the present one involving a foreign affairs power where Con­

gress has conferred discretion on the Executive, a showing that

the reason for the action is facially legitimate and bona fide

would conclude the matter. Clearly as we have shown, that is the

case here.

Harmon Memorandum, supra, at 4. The reason justifying closure in that case

— that the United States was obligated as a matter of international law to

implement United Nations Resolution 409 imposing mandatory sanctions on

the government in Southern Rhodesia — was certainly no more legitimate than

the reasons here. The PLO is an avowed terrorist organization. It is a declared

policy of the United States that terrorism presents a serious danger to civil

order. That policy has been embodied in a wide array of legislation. For

example, Congress has asserted jurisdiction over terrorist attacks against United

States aircraft, 18 U.S.C. § 32, and against American citizens abroad, 18

U.S.C. § 2331. The President is authorized to provide special assistance to

other parties to combat terrorism, 22 U.S.C. § 2349aa-2, to ban imports to and

exports from Libya, 22 U.S.C. § 2349aa-8, or any other country supporting

terrorism, 22 U.S.C. § 2349aa-9. The closing of offices maintained at the

direction of the PLO would further serve this important policy.

The Harmon Memorandum also analyzed the closing of the RIO with respect

to the constitutional rights of United States citizens. Applying the O ’Brien test,

this Office concluded that closing the information office of a foreign entity is a

valid exercise of government power. See also “The President’s Authority to

Take Certain Actions Relating to Communications from Iran (Dec. 27, 1979),”

4A Op. O.L.C. 153, 158 (1980) (opining that the United States probably could

sever “all telephonic, postal, communication satellite, and microwave links”

with Iran in connection with the hostage crisis).

We conclude therefore that, whatever standard of analysis is adopted, the

proposed closure does not violate the First Amendment.

III. An Analysis of S. 1203 and H.R. 2587

H.R. 2587 and S. 1203 each contain three basic prohibitions. They make

unlawful, “if the purpose is to further the interests of the Palestine Liberation

121

Organization or any of its constituent groups . . . or any agent thereof’: (1) the

receipt of “anything of value, except informational materials,” from the PLO,

its constituent groups or agents; (2) the expenditure of any such funds; (3) the

establishment or maintenance o f an office in the United States “at the behest or

direction of or with funds provided by” the PLO, its constituent groups or

agents. H.R. 2587, § 3, 100th Cong., 1st Sess. (1987). Section 4 of H.R. 2587

and of S. 1203 states that “the Attorney General shall take the necessary steps

and institute the necessary legal action to effectuate the policies and provisions

of this section.”

As an initial matter, we believe that requiring the Executive Branch to take

legal action against offices connected with the PLO may well unconstitution­

ally infringe on the President’s right to receive ambassadors, and therefore

recommend against the enactment of this legislation. The right to decide

whether to accord to the PLO diplomatic status and what that diplomatic status

should be is encompassed within the right of the President to receive ambassa­

dors. U.S. Const, art. II, § 3. This power is textually committed to the Execu­

tive alone. See Baker v. Carr, 369 U.S. 186, 212-13 (1962); Jones v. United

States, 137 U.S. 202, 213 (1890). Under the proposed bills, the President may,

as a practical matter, establish diplomatic relations with the PLO only if he

certifies to the President pro tem pore of the Senate and to the Speaker of the

House that the PLO, and “its constituent groups, and all successors and agents

of the PLO groups, no longer practice or support terrorist actions anywhere in

the world.” In our view, attaching such conditions to the Executive’s absolute

power to receive ambassadors constitutes a serious infringement on the

President’s recognition authority. This problem is seriously exacerbated by the

provision directing that the Attorney General “shalV' take necessary legal

action to enforce the bill’s prohibitions.

To be constitutional, therefore, two changes would have to be made to the

proposed legislation. First, § 5(b) of each bill should be changed so that it

would permit the establishment of any PLO diplomatic premises the President,

for whatever reason, elects to recognize formally.8 Next, the section requiring

the Attorney General to take the steps necessary to effectuate the policies of the

bill, must be changed to authorize him to take such steps. With that preface, we

now turn to a discussion of the specific provisions of the bills and their validity

under the First Amendment.

A. R estriction o f PLO Funds

We have little doubt that the political branches may prohibit the flow of

funds into the United States. This choice to “accommodat[e] the exigencies of

self-preservation and the values of liberty,” Communist Party, 367 U.S. at 96,

is within the authority of the political branches. This Office reached that

8 This change w ould have the salutary e ffe c ts o f excepting the PLO O bserver M ission to the U nited N ations

and precluding the need to repeal this legislation in the ev en t U nited States policy changes regarding

diplom atic recognition o f the PLO.

122

conclusion in assessing the constitutionality of the imposition of mandatory

sanctions on Rhodesia, see Harmon Memorandum, supra, at 3, and has as­

sumed the constitutionality of the International Emergency Economic Powers

Act, 50 U.S.C. §§ 170-176, which gives the President the power to regulate

direct investment, see “Legality of Certain Non-Military Action Against Iran,”

4A Op. O.L.C. 223, 223-24 (1980). See also Nielsen v. Secretary o f the

Treasury, 424 F.2d 833 (D.C. Cir. 1970) (upholding constitutionality of prede­

cessor act); Pike v. United States, 340 F.2d 487 (9th Cir. 1965) (upholding

constitutionality of predecessor act). Congress has often acted to freeze or seize

foreign state property. For example, the Trading with the Enemy Act, 50

U.S.C. app. §§ 1-44, has been used to block assets of, and prevent funds

transfers to, adversaries including North Korea and North Vietnam. Cuban

assets frozen in response to Castro’s nationalization program are still blocked.

See Cuban Assets Control Regulations, 31 C.F.R. § 515 (1986). Economic

sanctions have been imposed against numerous countries, including the Soviet

Union, see 15 C.F.R. § 385.2 (1986), Libya, see 15 C.F.R. § 385.7 (1986),

South Africa, see Exec. Order No. 12532, 3 C.F.R. 387 (1985); Comprehensive

Anti-Apartheid Act of 1986, Pub. L. No. 99-440, 100 Stat. 1086 (1986), and

Nicaragua, see Nicaragua Trade Control Regulations, 31 C.F.R. § 540 (1986).

The Supreme Court has upheld restrictions on the contributions of funds

intended for use to finance exercise of the right of freedom of expression in far

more sensitive areas. Buckley v. Valeo, 424 U.S. 1, 29 (1976). Here, where any

impingement on speech is plainly incidental to the prohibition of funds trans­

fers — a nonspeech activity — the restrictions on the receipt of PLO funds is

surely constitutional.9

B. F irst Amendment Concerns

However, the prohibition against opening or maintaining an office “at the

behest or direction o f ’ the PLO clearly has a broader reach than proposed

restrictions applying only to the PIO as currently constituted or its constituent

groups. Accordingly, we must determine whether opening such an office is an

act of agency for the PLO or whether the bill otherwise survives constitutional

scrutiny.

The language of the proposed bills may not be sufficiently precise to reach

only agents of the PLO. This inquiry turns in large part on how one defines the

meaning of “at the behest. . . o f ’ and the prohibition of maintaining an office

for, and receiving funds from, agents of the PLO. As discussed above, the more

attenuated the nexus between a foreign power and the domestic citizen or

organization, the more constitutionally suspect the restriction.

Given the importance of the concept of agency to our analysis and to the

proposed legislation, we turn to a description of the circumstances in which a

9 We assume as a m atter o f logic that a perm issible restriction on the receipt of funds necessarily m akes

perm issible a prohibition o f the expenditure o f those sam e funds. The latter merely serves to im plem ent the

former.

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domestic organization or person is accorded the constitutional nonstatus of the

foreign power for all purposes or, alternatively, the circumstances in which

there are sufficient links between the foreign and domestic entities to justify

some less intrusive restrictions on the domestic actor. We also set forth various

formulations of agency to determine which might best be added to the legisla­

tion to cure any potential vagueness or overbreadth problems.

The myriad of formulations used to define an agency relationship “carries

meaning only as a situation in human relationships which arises and takes

shape in different modes and patterns in the context of different circum­

stances.” Communist Party , 367 U.S. at 37. Moreover, any such attempt at a

regulatory definition should be as narrow and as precise as feasible in order to

enhance its constitutional viability. For, as a general rule, “even though the

governmental purpose be legitimate and substantial, that purpose cannot be

pursued by means that broadly stifle fundamental personal liberties when the

end can be more narrowly achieved.” Shelton v. Tucker, 364 U.S. 479, 488

(1960). Although the general rule is tempered in the foreign affairs field by the

Court’s oft-repeated admonition that regulations in this area may sweep with a

broader brush and that distinctions “need not be as ‘carefully tuned to alterna­

tive considerations,’” 10 it nonetheless remains true that precision in regulation

is an important virtue when First Amendment interests are implicated.

Activities at the extremes are easy to classify. Plainly, First Amendment

protection extends to all the expressive activities of the United States citizen

who, without ever having contact with a PLO, forms an organization called

“Friends of the PLO,” finances it entirely without PLO funds, and writes or

distributes literature spreading the teachings of the PLO. It is equally clear that

an official diplomatic agent is “identified completely with the foreign state” so

that “his communications, like his acts, are treated as if they were those of the

sending state.” Harmon Letter, supra, at 7. Although the PLO is not recognized

by the United States and thus has no agents with official diplomatic status, by

analogy we think it clear that if a member of the PLO addresses the United

Nations on behalf of the PLO, his “speech” is not protected by the Constitution.

His speech is protected solely by the agreement between the United States and

the United Nations, which is the reason and the condition for the PLO’s official

presence in the United States.

In between these two extremes lies a constitutional gray area. Consideration

of other formulations used to describe various agency relationships may shed

some light on where a line may properly be drawn. The Restatement of Agency

defines an “agent” as a “fiduciary relation [with the principal] which results

from a manifestation of consent by one person to another that the other shall act

on his behalf and subject to his control.” Restatement (Second) o f Agency, § 1

(1958). We think that this definition would withstand constitutional scrutiny,

because the requirement of manifest consent to the principal’s control may

fairly be said to cloak the agent with the constitutional non-status of his foreign

10 Fiallo, 4 3 0 U .S. at 799 n.8 (quoting Trimble v. Gordon , 4 3 0 U.S. 762, 772 (1977)).

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principal. We also think that the definition of an “agent of a foreign power”

contained in the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801(b),

would be constitutionally defensible. “Agent of a foreign power” is there

defined as:

(1) Any person other than a United States person, who —

(A) acts in the United States as an officer or employee of a

foreign power, or as a member of a [group engaged

in international terrorism or activities in preparation

therefor];

(B) acts for or on behalf of a foreign power which engaged

in clandestine intelligence activities of the United States

. . . or when such a person knowingly aids or abets any

person in the conduct of such activities . . . .

50 U.S.C. § 1801(b).

In contrast, we believe the definition of an agent used under the Foreign

Agents Registration Act probably sweeps too broadly to impose restrictions

other than registration requirements. In that Act, an agent is defined, inter alia,

as “any person who acts as a representative . . . or . . . in any other capacity at

the request of . . . a foreign principal . . . [and who] engages in political

activities within the United States for or in the interest of such foreign principals]

. . . .” 22 U.S.C. § 611(c)(1) (Foreign Agents Registration Act of 1938, as

amended). Courts are apt to require as narrow and restrictive a definition of agency

as possible to limit the potential infringement on citizens’ First Amendment rights.

Thus, if “behest” is read to mean “at the request o f ’ the PLO, the legislation

probably sweeps within its ambit action taken outside of an agency relation­

ship. Voluntarily acquiescing in a single request by Yasir Arafat to open or

maintain an office is not sufficient to establish that one is thereby acting as his

agent; it may be “mere cooperation” with the PLO. “Behest” may be read far

more narrowly, however, thus minimizing such over-breadth problems.

W ebster's Third International D ictionary defines “behest” as “a command; a

mandate; an injunction.” The American H eritage D ictionary, however, defines

behest as both “[a]n order or authoritative command” and “a request or bidding.”

It is thus unclear whether the bill imposes a prohibition that embraces the

acts of citizens who are not PLO agents or reaches only those persons who, by

virtue of their agency relationship with the PLO, have adopted its constitu­

tional nonstatus. This definitional ambiguity is of obvious significance. Com­

mands are generally given by a principal to an agent; requests are made by one

co-equal party to another. Acceding to an “order” or “authoritative command”

of the PLO to open an office could thus naturally be viewed as an act of agency,

while acquiescing in a request should not be so viewed.11

11 For this reason w e would have serious doubts about any proposed bill that, for exam ple, would prohibit

speech or the dissem ination o f inform ation “at the behest o f the PLO.” O f course, neither H.R. 2587 nor S.

1203 imposes such a direct prohibition on expressive activity. Rather, they restrict only the m aintenance o f an

Continued

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Accordingly, we believe that the safer course would be to change the

language of H.R. 2587 and S. 1203 to eliminate the phrase “at the behest o f ’

and to draft the bill focusing only on those acting at the “direction” and/or

“control” of the PLO. As noted above, this language has been deemed accept­

able by the Supreme Court in the past in the Communist Party case. It avoids

the problem of including within the statute’s restrictions the kind of conduct

considered to be constitutionally-protected “affiliation.” Alternatively, if the

phrase “at the behest o f’ is to be included in the bill, the legislative history

should indicate as clearly as possible that the more restrictive definition of

“behest” is the one intended for use in applying the statute.

C. B ill o f A ttainder

Finally, that the PLO is named in the bill does not make it unconstitutional as

a bill of attainder, for it is not “a law that legislatively determines guilt and

inflicts punishment upon an identifiable individual without provision of the

protections of a judicial trial.” Nixon v. A dm inistrator o f General Services, 433

U.S. 425, 468 (1977). As noted above, the Bill of Attainder clause of the

Constitution does not apply to the PLO. Furthermore, with respect to American

citizens, these bills do not satisfy any of the three requirements that make a bill

of attainder: (i) they lack the requisite specification for affected persons; (ii)

they are not a legislatively-imposed punishment; and (iii) punishment is not

being imposed without a judicial trial. Selective Service System v. Minnesota

P ublic Interest Research Group, 468 U.S. 841, 847 (1984).

First, the statutes do not use past activity as ‘“ a point of reference for the

ascertainment of particular persons ineluctably designated by the legislature’

for punishment.” Id. (quoting Communist Party, 367 U.S. at 87). Congress’

purpose here is to discourage terrorism and to give effect to the Executive’s

decision not to recognize the PLO. The acts would apply only to those who

contravene their prohibitions; any individual can avoid their application simply

by not engaging in the forbidden activities.

Next, even if the specificity element is deemed satisfied, the bills do not

implicate the Bill of Attainder clause because they do not “inflict forbidden

11 (. . . continued)

office a t the PL O ’s behest. Thus, we believe the bills m ight nonetheless withstand constitutional scrutiny.

M aintaining an office, w hile perhaps an im portant sym bolic action, is not a restriction on speech per se. The

incidental restriction on speech seems necessary to a legitim ate foreign policy goal, and the restriction does

not prevent the flow o f inform ation about th e PLO to A m erican citizens. For exam ple, the PLO and its agents

m ay provide interview s to the press, issue press releases, place political advertising, and so forth. See United

States v. O'Brien, 391 U.S. 367, 377 (1968). O f course the PL O ’s citizen-friends, acting in their individual

capacities, m ay continue to communicate inform ation as they choose.

N or do the b ills unduly restrict the associational rights o f American citizens. Zemel v. Rusk, 381 U S. 1

(1965) an d Regan v. Wald, 468 U. S. 222 (1984), establish that the right to associate w ith foreign entities is by

no m eans absolute. See Kleindienstv. Mandel, 408 U.S. 753 (1972). The restriction on the maintenance o f an

o ffice — like the restrictions on travel by A m erican citizens to Cuba — furthers im portant foreign policy

o bjectiv es o f the U nited States. Each is b a se d on the current policy of the U nited States tow ards that foreign

e ntity w ith w hich association is restricted. The restriction is incidental to the achievem ents o f important

foreign policy goals and is narrow ly drawn.

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punishment,” Selective Service , 468 U.S. at 852. The sanction is merely forbid­

ding the maintenance of an office on behalf of, and the receipt or expenditure of

funds from the PLO. Citizens ‘“ carry the keys of their prison in their own

pockets,’” Id. at 853 (quoting Shillitani v. United States, 384 U.S. 364, 368

(1966)). The bill serves important nonpunitive goals: to combat worldwide

terrorism and deter the PLO’s illegal activities.12 Forbidding the PLO to be

represented here is “plainly a rational means,” id., towards accomplishing the

congressional goal of deterring the PLO’s terrorist activities. Congress seeks

not to punish, but to promote compliance with international law. No punish­

ment has been imposed without a judicial trial. No one is punished by the

statute automatically — the Attorney General must bring an action to enforce

the statute in court.

The Communist Party case supports this conclusion that the bills are not bills

of attainder. There, the bill was aimed at the Communist Party as an identifi­

able entity. 367 U.S. at 82. The Court held that the “Act is not a bill of

attainder,” for “[i]t attaches not to specified organizations but to described

activities in which an organization may or may not engage.” 367 U.S. at 86.

Domestic organizations supporting the PLO are simply prohibited from main­

taining an office on its behalf or at its direction and from receiving money from

it. Forbearance from such activities will insulate the group or individual from

prosecution. In enacting either of these bills, Congress would be making a

legislative finding to regulate activity “potentially dangerous to the national

interest.” Id. at 88. They are not bills of attainder.

C o n c lu sio n

The PLO qua PLO, as a foreign entity, has no constitutional rights. Nor do

those individuals and organizations who act at the direction and control of the

PLO, even if engaged in otherwise constitutionally protected activities, so long

as they act in their capacity as agents of the PLO. Although the determination

of when and whether an individual or group is acting as the agent of a foreign

entity is a difficult one, a restriction can be narrowly drawn to limit the

application of the restriction to United States citizens only insofar as they are

acting as the PLO’s agents. H.R. 2587 and S. 1203, to the extent that they might

require the closing of the PIO, therefore, are constitutional so long as the PIO

either is itself a foreign entity or is an agent of the PLO, acting at its direction

and control. Broad restrictions on the receipt of funds in the United States from

the PLO or its agents are in any event constitutional.

M ic h a e l A. C a r v in

Acting Assistant Attorney General

Office o f Legal Counsel

12 In this context, it is worth noting that the bill would continue in effect only until such time as the

President certifies that the PLO no longer practices o r supports terrorism . H.R. 2S87, § 5; S. 1203, § S.

127