Opposition Brief — Block v. Meese

RAL ED

(7) | JUN 5 1986

| Supreme Court, U.S.

sini nee

$u the Suprenve Court of the United States

OCTOBER TERM, 1985

MITCHELL BLOCK, ETC., ET AL., PETITIONERS

Vv.

EDWIN MEESE III, ATTORNEY GENERAL OF THE

UNITED STATES, AND JOSEPH E. CLARKSON

ON PETITION FOR A WRIT OF CERTIORARI

BEFORE JUDGMENT TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

LEONARD SCHAITMAN

HAROLD J.. KRENT

Attorneys ;

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTIONS PRESENTED

1. Whether the films in question were properly

classified as “political propaganda” within the mean-

ing of the Foreign Agents Registration Act, 22 U.S.C.

611(j).

2. Whether a regulation promulgated by the De-

partment of Justice exceeds its statutory authority

under the Foreign Agents Registration Act, 22 U.S.C.

611 et seq.

3. Whether the use of the term “political propa-

ganda” in the Foreign Agents Registration Act,

which is expressly defined in the Act in a neutral and

valid way, violates the First Amendment because in

common usage the word “propaganda” might be un-

derstood to have a pejorative meaning.

4, Whether petitioners, who are not foreign

agents under the Act and are not subject to the re-

quirements or sanctions of the Act, have standing

to challenge the constitutionality of the statutory

term “political propaganda.”

(1)

TABLE OF CONTENTS

Page

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I scdccasomanieenanueciais 2

ET en RN Se ne ear 9

ESTEE ree a ce See nner ae ee Se ener 18

TABLE OF AUTHORITIES

Cases: .

Califano v. Yamasaki, 442 U.S. 682 ........................-- 10

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 887 ............ 15

Coleman v. Paccar Inc., 424 U.S. 1301 .......2-220022222-... 9

E.I. du Pont de Nemours & Co. v. Train, 430 U.S.

EE SISSY SSC IEINTE RE RO SS as See ce nN 10

Greene Vv. McElroy, 360 U.S. 474 .................------------- 18

Hannah V. Larche, 368 U.S. 420 ....................-000000----- 18

Johnson V. Fleet Corp., 280 U.S. 320 ......................-- 17-18

Keene v. Smith, 569 F. Supp. 1513, subsequent

opinion, 619 F. Supp. 1111, prob. juris. noted sub

nom. Meese Vv. Keene, No. 85-1180 (Apr. 21,

rote hale elated ae 3h Dake aE A a SE ES 7,8,14

McCulloch v. Sociedad Nacional de Marineros de

ES ES ees eee ee 16, 18

Meese v. Keene, prob. juris. noted, No. 85-1180

SE ee Seren passim

Merck & Co. v. Staats, cert. before judgment de-

BELT ET 11,18

New Haven Inclusion Cases, 399 U.S. 392 ................ 18

Porter ¥. Disken, 826 U.S. 262 ...............................-. 17

Po RS | een 17

SmithKline Corp. v.- Staats, cert. before judgment

8 Sf En en 11, i8

Taylor Vv. McElroy, 360 U.S. 709 .................-.--.--2------ 18

United Parcel Service, Inc. v. Mitchell, 451 U.S. 56.. 10

(mi)

Cases—Continued: Page

United States v. Albertini, No. 83-1624 (June 24,

NIUE. saints coo uli saadces ndlcmaanlaenctunilendodueiamletiiamnmesentaambeion 13

United States v. Mendoza, 464 U.S. 154 .................. 10

Washington Vv. Fishing Vessel Ass’n, 443 U.S. 658.. 18

Constitution, statute, regulation and rule:

U.S. Const. :

PR) BRO aoa omc lerv ey cals Ran NNN. te 6

BE Te nas inconicii ps inasiainlcnadssSanieinaaaaaicamalaadmnadnaecne 0-6

Foreign Agents Registration Act of 1938, 22 U.S.C.

I | crc, ichieateibicdhaccseninaestncbcediantdeicneapencceniioabdacaincemnstecetioanenpten 2

I cement 2

a ncseneinemininntinancionmsiad 3

nc steneniounesn inne 3, 13, 14

ee I nieesademnseebiacilanmemaetians 2

I a ccrenesisach anieenrasaelaaaaein 3

ee el 3, 4,138, 14, 15

a ancoaenpnonneniaiuiauaite 3

CN aidammenineeial won 3

RAS I ce Rep SSSR MLS ORT ED 4

earl a ns ce nk RPO chee esl ae 1

ee ca cncrcetapoeninenneeceineamiennaisicaheaaanlii 4,14

BS Wile ii siinicasiacatsinstonsocornncaesonnesnessndinianeenmnnanes 9

Miscellaneous:

H.R. Rep. 1470, 89th Cong., 2d Sess. (1966) -........... 8,9,14

Iu the Supreme Court of the United States

OCTOBER TERM, 1985

No. 85-1837

MITCHELL BLOCK, ETC., ET AL., PETITIONERS

Vv.

EDWIN MEESE III, ATTORNEY GENERAL OF THE

UNITED STATES, AND JOSEPH E. CLARKSON

ON PETITION FOR A WRIT OF CERTIORARI

BEFORE JUDGMENT TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE RESPONDENTS IN OPPOSITION

OPINION BELOW

The opinion of the district court (Pet. App. 1a-

37a) is reported at 583 F. Supp. 1288.

JURISDICTION

The judgment of the district court (Pet. App. 38a)

was entered on April 2, 1984. On May 16, 1984,

petitioners filed a notice of appeal to the United

States Court of Appeals for the District of Columbia

Circuit (No. 84-5318). The court of appeals heard

(1)

2

argument on February 12, 1985, but has not yet

rendered a decision. The petition for a writ of cer-

tiorari before judgment was filed on May 5, 1986.

The jurisdiction of this Court to review the case by

the writ of certiorari before final judgment in the

court of appeals is invoked under 28 U.S.C. 1254(1)

and 28 U.S.C. 2101(e).

STATEMENT

1. This case, like Meese v. Keene, prob. juris.

noted, No. 85-1180 (Apr. 21, 1986), arises under the

Foreign Agents Registration Act of 19388 (FARA),

22 U.S.C. 611 et seg. As Congress has explained, it is

the policy and purpose of this Act * * * to pro-

tect the national defense, internal security, and

foreign relations of the United States by re-

quiring public disclosure by persons engaging in

propaganda activities and other activities for or

on behalf of foreign governments, foreign politi-

cal parties, and other foreign principals so that

the Government and the people of the United

States may be informed of the identity of such

persons and may appraise their statements and

actions in the light of their associations and

activities.

22 U.S.C. 611 note.

FARA establishes a comprehensive scheme of reg-

istration, reporting, and disclosure for “agents” of

“foreign principals.” The Act defines “foreign prin-

cipal” to include “a government of a foreign coun-

try.” 22 U.S.C. 611(b)(1). In addition, it defines

“agent of a foreign principal” to mean in relevant

part “any person who acts as an agent, representa-

tive, employee, or servant * * * of a foreign princi-

pal” and “who directly or through any other person

* * * engages within the United States in political

activities for or in the interests of such foreign

principal.” 22 U.S.C. 611(c).

An agent of a foreign principal as defined in the

Act is required to file with the Attorney General a

registration statement incorporating specified infor-

mation. 22 U.S.C. 612. In addition such agent is re-

quired to submit to the Attorney General a copy of

any “political propaganda for or in the interests of

such foreign principal” that the agent transmits in

the United States mail or by any means of interstate

or foreign commerce. 22 U.S.C. 614(a). The Act

defines the term “political propaganda” to include

any communication that:

is reasonably adapted to * * * in any * * * way

influence a recipient or any section of the public

within the United States with reference to the

political or public interests, policies, or relations

of a government of a foreign country * * * or

with reference to the foreign policies of the

United States.

22 U.S.C. 611(j).

The agent must mark any such materials with an

identification statement that sets forth the relation

between the agent and the materials, explains that

the agent is registered with the Department of Justice

under the Act and discloses the name of the agent

and the foreign principal, advises that the agent’s

registration statement and the disseminated mate-

rials are available for inspection at the Department

of Justice, and contains a disclaimer that registra-

tion of the agent does not indicate approval by the

United States of the contents of the materials. 22

U.S.C. 614(b) ; see also 22 U.S.C. 614(c). The stand-

ard form of the identification statement for films does

not use the statutory term “political propaganda”

and reads as follows:

4

This material is prepared, edited, issued or cir-

culated by (name and address of registrant)

which is registered with the Department of Jus-

tice, Washington, D.C. under the Foreign Agents

Registration Act as an agent of (name and ad-

dress of foreign principal). Dissemination re-

ports on this film are filed with the Department

of Justice where the required registration state-

ment is available for public inspection. Regis-

tration does not indicate approval of the con-

tents of this material by the United States Gov-

ernment.

C.A. App. 257. The labeling requirement is appli-

cable only to agents of foreign principals under the

Act and does not apply to subsequent disseminators

or recipients of the materials, such as petitioners. In

fact, such people are free to remove the identifica-

tion statement that the foreign agent was required

to affix to the materials (Pet. App. 5a-6a, 15a-16a,

31a).

Finally, the Act requires the agent to submit to

the Attorney General a report setting forth the

places, times, and extent of the agent’s dissemination

of “political propaganda” for or in the interests of

the foreign principal. See 22 U.S.C. 614(a) ; see also

22 U.S.C. 616(a). A regulation of the Department

of Justice provides that the dissemination report shall

“T]]ist the names and addresses of persons or organ-

izations receiving 100 copies or more [of the ma-

terials]”’ and, for films, identify the “[n]ame of sta-

tion, organization, or theater using [the films],” the

“Td]ate or dates [the films were] broadcast or shown,”

and the “[e]stimated attendance.” See 28 C.F.R.

5.401(b), incorporating by reference DOJ Form

OBD-69 (Pet. App. 44a-45a).

5

2. The National Film Board of Canada (Ottawa)

produces films in Canada. It is an agency of the

government of Canada and thus a “foreign principal”

under the Act. The National Film Board of Canada

(New York office) (NFBC-NY) is the agent of the

National Film Board of Canada (Ottawa) in the

United States and since 1947 has registered with the

Attorney General pursuant to FARA (Pet. App. 6a).

In a recent registration statement, the NFBC-NY

has described its activities in part as the “[p]romo-

tion and distribution through commercial and non-

commercial channels of Canadian Government infor-

mation” (id. at 7a). In complying with the provi-

sions of FARA, the NFBC-NY does not routinely

label its materials in the first instance but instead

submits films as requested by the Department of

Justice for a determination of those that are covered

by the Act (ibid.).

In 1982, the NFBC-NY submitted to the Depart-

ment a list of 62 films and videotapes that it had

distributed during that year. The Department re-

viewed five of the films and concluded that three

of them included “political propaganda” within the

meaning of the Act. Two of the films, Acid from

Heaven and Acid Rain: Requiem or Recovery, ad-

dress the subject of acid rain; the third film, Jf You

Love This Planet, concerns nuclear war. Pet. App.

8a. The same three films are at issue in Meese v.

Keene, supra.

3. On March 9, 1983, petitioners commenced the

instant action for declaratory and injunctive relief

in the United States District Court for the District

of Columbia. They argued that the use of the term

“political propaganda” in FARA, as applied to the

three films in question, violated the First Amend-

6

ment. In addition, they challenged the Department

of Justice’s classification of the films as “political

propaganda” within the meaning of the statute. Fi-

nally, they contested the validity of the Department’s

regulation prescribing the contents of the required

dissemination reports.

Without reaching the merits, the district court dis-

missed the action for lack of standing (Pet. App.

la-37a). ‘Upon close examination of the complaint,

affidavits and declarations submitted to the Court by

[petitioners], and after construing these documents

in favor of [petitioners]” (id. at 14a), the court con-

cluded that petitioners “failed to meet their burden”

(id. at 15a) to establish Article III standing because

of the absence of cognizable “ ‘injury in fact’” and

the lack of any alleged injury that is “fairly trace-

able to [respondents’] conduct” (id. at 1la).

The district court first noted that petitioners “have

not alleged that their rights to obtain, exhibit or

view the three films have been interfered with be-

cause of the Department of Justice action” and that

“Tijndeed, it is undisputed that they could not allege

such injury because the FARA does not prohibit for-

eign advocacy or place any limitations on the avail-

ability or showing of any material deemed to be ‘po-

litical propaganda’ ” (Pet. App. 15a). Likewise, the

court noted “that the registration, dissemination, and

labelling requirements of the FARA do not apply to

any of the [petitioners] in this case” (id. at 15a-

16a) since they are not foreign agents under the Act.

Although not directly subject to FARA, petition-

ers alleged three types of harm to themselves from

the application of the statute to the Canadian films.

First, they contended that the statutory phrase “po-

litical propaganda” is a pejorative term that stig-

7

matizes them as distributors and exhibitors of the

films. Second, they asserted economic injury because

of the alleged adverse reaction of potential viewers

to the fact that the film had been determined to meet

the statute’s definition of “political propaganda.”

Third, petitioners argued that the term “political

propaganda” disparaged the films and prejudiced

viewers against their content, thus chilling petition-

ers’ right to exhibit the films and interfering with

their ability to communicate effectively.

All of these alleged injuries rest at bottom on the

contention that the term “political propaganda” as

used in FARA is pejorative and derogatory. The dis-

trict court found no basis for that claim and con-

cluded that the asserted harm to petitioners is at best

“highly speculative” (Pet. App. 23a) and “in all like-

lihood * * * non-existent” (7d. at 25a) :

In order to find allegations of factually specific

injury, the Court would be forced to make sev-

eral assumptions concerning the reaction of the

public to the listing of plaintiffs in the dissemi-

nation reports. First, the Court would have to

assume that the public would react negatively

to a film labelled “political propaganda” despite

the neutral definition of the term provided in the

FARA. See 22 U.S.C. §611(j). Additionally,

the Court would have to assume that this “nega-

tive reaction” would cause potential audience

members to discount the films’ messages or avoid

the films completely. Finally, the court would

have to assume that the public will lose respect

for the plaintiffs because they chose ‘to show the

movies, even though it is clear that the FARA

does not, on its face denigrate the “aesthetic,

artistic or educational merits” of the films. The

Court cannot make such assumptions for the

8

plaintiffs in the absence of any facts tending to

show that such fears are concrete or likely to

materialize as actual injury.

Id. at 23a-24a (footnotes omitted). Emphasizing that

“FARA does not define the term [‘political propa-

ganda’] in any negative fashion” (id. at 26a n.9) and

that the statutory definition is ‘neutral [and] non-

pejorative” (id. at 27a), the court found that the

injuries alleged by petitioners ‘“‘would be due to the

public’s false impression that the government had

negatively classified the films rather than due to the

government’s attaching of a neutrally defined word

under the FARA” (id. at 26a n.9) and that “nothing

the government has said or done can reasonably be

interpreted to lead to [such injuries]” (id. at 25a).

Finally, the district court noted its disagreement

with the decision of Judge Ramirez in Keene V.

Smith, 569 F. Supp. 1513 (1983), subsequent opinion,

619 F. Supp. 1111 (E.D. Cal. 1985), prob. juris.

noted sub nom. Meese v. Keene, No. 85-1180 (Apr.

21, 1986). The court indicated its view that, con-

trary to Judge Ramirez’s ruling, “[t]he speculative

nature of such injuries [alleged by the plaintiff in

Keene] should have precluded a finding of standing”’

(Pet. App. 29a n.10). In addition, in contrast to

Judge Ramirez’ analysis, the court below concluded

that Congress, in using the term “political propa-

ganda” in FARA, did not act “to impose negative

connotations on the materials so as to deter audience

viewing” (id. at 28a); rather, “Congress sought to

inform the public of the nature of foreign materials

on ‘matters which on the domestic level would be

called a policy matter’” (id. at 3la, quoting H.R.

Rep. 1470, 89th Cong., 2d Sess. 7 (1966) )—a “ ‘par-

ticularly sensitive area[] in which the line between

9

political and non-political action is difficult to define’ ”

(Pet. App. 30a, quoting H.R. Rep. 1470, supra, at 4).

4. On May 16, 1984, petitioners appealed the dis-

trict court’s judgment to the United States Court of

Appeals for the District of Columbia Circuit. The

court of appeals heard oral argument on February

12, 1985, and the case remains under submission.

ARGUMENT

1. Petitioners urge the Court to grant a writ of

certiorari before judgment in order to consider this

case together with Meese vy. Keene, prob. juris. noted,

No. 85-1180 (Apr. 21, 1986). To the extent that

petitioners wish to be heard on the questions that

are presented in Keene, their interests are adequately

protected by the opportunity to appear as amici

curiae in that case. In fact, petitioners did submit

an amicus brief at the jurisdictional stage in Keene.

Petitioners do not confine themselves to the ques-

tions presented in Keene and instead invite the Court

to address several issues that Keene does not raise.

However, petitioners have failed to demonstrate that

those issues warrant this Court’s review at all, let

alone that they satisfy the stringent standard for

certiorari before judgment:

A petition for a writ of certiorari to review a

case pending in a federal court of appeals, before

judgment is given in such court, will be granted

only upon a showing that the case is of such im-

perative public importance as to justify the de-

viation from normal appellate practice and to

require immediate settlement in this Court.

Sup. Ct. R. 18. See also Coleman v. Paccar Inc.,

424 U.S. 1301, 1804 n.* (1976) (Rehnquist, Circuit

Justice) (certiorari before judgment “is an ex-

10

tremely rare occurrence”). As the petition itself

makes clear, the new issues that petitioners seek to

interject merely involve statutory questions on which

there is no conflict in the circuits.

Indeed, certiorari before judgment would be espe-

cially unwarranted in the circumstances of this case.

Because the district court dismissed the complaint on

grounds of standing without reaching the merits of

petitioners’ claims, there has been no ruling below

on the issues of statutory construction raised by peti-

tioners. Thus, the Court is being asked not to review

a decision of a lower court but instead to pass upon

these issues in the first instance, much like a district

court acting on cross-motions for summary judgment.

Moreover, to our knowledge, no court has adjudi-

cated the issues advanced by petitioners, and con-

sequently this Court would be without the benefit of

the considered views of the federal courts and their

thorough exploration of the legal issues. See United

States v. Mendoza, 464 U.S. 154, 160 (1984) ; Cali-

fano v. Yamasaki, 442 U.S. 682, 701-702 (1979) ;

E.I. du Pont de Nemours & Co. v. Train, 480 U.S.

112, 135 n.26 (1977).’

Finally, since the case has already been briefed

and argued in the court of appeals, it would be a

waste of judicial resources to forestall at this junc-

ture a decision that has been under advisement for

some 15 months.

Just as an amicus curiae is not permitted to ex-

pand the questions presented by the parties (see,

e.g., United Parcel Service, Inc. v. Mitchell, 451 U.S.

56, 60 n.2 (1981) ), so too petitioners, as strangers to

1JIn their amicus brief at the jurisdictional stage in Keene

(at 3, 5-6, 19), petitioners emphasized the importance of

allowing the court of appeals to proceed to decision in Block.

11

the Keene litigation, should not be allowed to intro-

duce new issues into that case. If the court of ap-

peals had decided Block after probable jurisdiction

was noted in Keene, this Court’s normal practice

would be simply to hold a petition for certiorari in

Block pending the outcome of Keene. Surely there

is no more reason here, where the court of appeals

has not yet rendered its decision, for this Court to

grant review. Accordingly, the petition for a writ

of certiorari before judgment should be denied. See

Merck & Co. v. Staats, cert. before judgment denied,

449 U.S. 1038 (1980); SmithKline Corp. v. Staats,

cert. before judgment denied, 449 U.S. 1088 (1980).

2. Petitioners nevertheless argue that considera-

tions of sound judicial administration militate in

favor of certiorari before judgment in this case. For

the reasons discussed above, however, sound judicial

management hardly counsels that the Court should

grant certiorari before judgment on statutory ques-

tions that do not now warrant review and that have

not been decided by either of the courts below or by

any other court. In any event, petitioners’ substan-

tive contentions are without merit,’ and granting cer-

tiorari before judgment in this case would not result

in the advantages that petitioners claim.

a. Petitioners first assert that the three Canadian

films were not properly classified under FARA be-

cause the term “political propaganda” in the Act

applies only to materials that are “subversive—i.e.,

2 Because petitioners have not addressed the merits of the

questions they present and do not rely on the merits as a basis

for certiorari before judgment, we shall outline our position

on those issues only briefly. For the convenience of the Court,

a copy of the government’s brief in the court of appeals is

being lodged with the Clerk.

12

designed to overthrow the United States government

‘ illegally or to damage the nation—or ‘propaganda’

in the commonly accepted usage of that term—+.e.,

put forward with ulterior motives as part of an ef-

fort to mislead” (Pet. 11-12 (footnote omitted) ).

They urge the Court to address this statutory issue

in order to obviate the issue presented in Keene of

whether the phrase “political propaganda” in FARA

is unconstitutionally pejorative (see Pet. 3-4, 11, 13).

Petitioners’ argument is insubstantial. As we dis-

cuss in our jurisdictional statement in Keene (at

13-17, 21-25), the statutory term “political propa-

ganda” has a neutral meaning that is not pejorative

or derogatory. This is clear from the face of the

statute, which expressly defines “political propa-

ganda” in a neutral and valid way, and from the

legislative history of the Act, which demonstrates

that Congress did not intend the term to have a more

limited, disparaging construction. Moreover, peti-

tioners’ interpretation is inconsistent with the settled

application of the statute since the time of its en-

actment more than four decades ago. In short, there

is no basis for the contrived definition that petition-

ers seek to impress on the statute.

Nor would this issue enable the Court to avoid

consideration of our constitutional argument in

Keene.’ An integral part of our analysis in Keene

is that the phrase “political propaganda” in FARA

has a neutral rather than a pejorative meaning—

precisely the issue that petitioners raise in support

of their request for certiorari before judgment. Thus,

granting review in this case would not eliminate the

* As shown by our jurisdictional statement in Keene, the

validity of FARA is sufficiently clear that the Court need not

strain to construe the statute to avoid a constitutional problem.

13

need for the Court to confront our submission in

Keene. Conversely, certiorari before judgment is not

necessary here to allow the Court to consider the

congressional understanding of the term “political

propaganda.” *

b. Petitioners also assert that FARA applies only

to materials that are “transmitted in a foreign prin-

cipal’s political interest” (Pet. 12-138 (emphasis in

original) ) and therefore that the Act does not extend

to the three Canadian films because they were dis-

tributed “solely for artistic and commercial, not po-

litical, purposes” (Pet. 13). This proffered reading

of the Act is plainly incorrect. By its terms, the

statute requires only that materials satisfying the

definition of “political propaganda” in 22 U.S.C.

611(j) be transmitted “for or in the interests of such

foreign principal.” 22 U.S.C. 614(a). Nothing in

Section 614(a) differentiates among the various pos-

sible interests of the foreign principal, which at all

events could not be readily determined in most in-

stances. In fact, the language “for or in the inter-

ests of” a foreign principal, upon which petitioner-

ers’ argument rests, was added in 1966 simply to

clarify that the Act does not cover the dissemination

of materials by foreign agents acting in their own

interest rather than in the interest of the foreign

4In the particular circumstance involved in Keene, where

the statutory issue is essentially subsumed in the constitutional

question presented, the Court would be free—even without

granting certiorari before judgment in Block, and even though

the statutory issue was not separately raised in the district

court ia Keene—to give the term “political propaganda” a

narrow definition if, in undertaking the constitutional analysis

in Keene, it concludes that the Act should be so construed.

Cf. United States v. Albertini, No. 83-1624 (June 24, 1985),

slip op. 4.

14

principal. See H.R. Rep. 1470, 89th Cong., 2d Sess.

13 (1966).

In addition, this statutory issue does not present

a limiting construction that would obviate the ques-

tion of the constitutionality of the phrase “political

propaganda” in FARA. The constitutional validity

of the definition of “political propaganda” in 22

U.S.C. 611(j) is entirely distinct from the issue

whether, in order to be covered by the Act, such ma-

terials must be disseminated in the political interests

of the foreign principal under 22 U.S.C. 614(a).

While petitioners’ construction, if accepted, would

avoid the need to rule on the constitutional question

in Keene itself, it would neither prevent the consti-

tutional question from arising in FARA cases in

the future nor change in any way the nature of that

question. Especially since this statutory issue was

not raised below in Keene and is not subsumed in

our jurisdictional statement, it provides no basis for

granting certiorari before judgment here.

ec. Section 614(a) of Title 22 requires that foreign

agents file dissemination reports “setting forth full

information as to the places, times, and extent” of

their transmittals of materials covered by the Act.

In addition, 22 U.S.C. 620 provides that “[t]he At-

torney General may at any time make * * * [and]

prescribe * * * such rules, regulations, and forms as

he may deem necessary to carry out the provisions

of this subchapter.” Pursuant to those provisions,

Department of Justice regulations and prescribed

forms, 28 C.F.R. 5.401(b) (see Pet. App. 44a-45a),

specify that the required dissemination reports shall

“Tljist names and addresses of persons or organ-

izations receiving 100 copies or more [of covered

materials]” and, for films, identify the “[n]ame of

15

[the] station, organization or theater using [the

film],” the “[d]ate or dates [the film was] broadcast

or shown,” and the “[e]stimated attendance.” Peti-

tioners argue (Pet. 14) that this regulation exceeds

the scope of the Attorney General’s statutory au-

thority.

This issue—which was not raised in Keene and

has never been decided by any court "—does not jus-

tify the grant of certiorari before judgment here.

The validity of the regulation under the Act does

not bear on the constitutionality of the phrase “po-

litical propaganda” in FARA. Moreover, petition-

ers have utterly failed to substantiate their bare

assertion that the regulation “go[es] well beyond”

(Pet. 14) the statutory provision that foreign agents

submit reports to the Attorney General “setting forth

full information as to the places, times, and extent”

of their dissemination of covered materials (22

U.S.C. 614(a)). Nor have petitioners offered any

ground to overcome the deference that is accorded

an agency’s interpretation of the statute it admin-

isters. See, e.g., Chevron U.S.A. Ine. v. NRDC, 467

U.S. 837 (1984). In short, this issue plainly does not

warrant review by certiorari before judgment and

would only add another, unrelated question to those

presented in Keene.

d. Finally, petitioners contend that certiorari be-

fore judgment is appropriate to consider the issue

of their standing to sue. In petitioners’ view, their

claim of standing is stronger than that of Keene.

Thus, petitioners argue, review in this case would

obviate the need to resolve the issue of Keené’s stand-

5 Indeed, petitioners themselves did not raise this statutory

issue in the court of appeals in this case.

16

ing and better enable the Court to reach the merits

of the constitutionality of FARA.

We, of course, agree with petitioners’ recognition

(Pet. 17, 19) that Keene’s standing is at best open

to substantial doubt. But that consideration pro-

vides no basis for certiorari before judgment.

First, as explained in our brief in the court of

appeals (at 16-39), we do not believe that petition-

ers—any r-ore than Keene—have standing to bring

this lawsuit. Indeed, the district court so held here.

Accordingly, notwithstanding petitioners’ blithe as-

sertions, their standing is far from clear.

Moreover, review in this case would not obviate the

need to address the question of standing. On the con-

trary, it would simply require the Court to resolve

the standing of one plaintiff rather than another.

And if, as we contend, Keene is held to lack stand-

ing, and if a court in the future should again in-

validate the “political propaganda” provision, there

will be time enough for this Court to consider the

constitutionality of FARA in a case that works its

way through the judicial system in the normal

course.°

In addition, the Court’s resolution of the question

of standing in Keene will illuminate if not dispose of

® Petitioners’ reliance (Pet. 4) on McCulloch v. Sociedad

Nacional de Marineros de Honduras, 372 U.S. 10 (1963), is

misplaced. First, in contrast to the instant situation, the

“companion cases” decided in McCulloch “involv[ed] the same

facts” (372 U.S. at 12) and presented the identical legal issue.

Furthermore, granting certiorari before judgment in the re-

lated cases enabled the Court to avoid a jurisdictional question

in the lead case and thus to reach the merits of the issue that

warranted its review; here, on the other hand, review in Block

would not obviate the question of standing but would simply

substitute one standing issue for another.

17

the issue of standing in this case. If the court of

appeals had already decided petitioners’ case, this

Court’s customary approach would be to hold the en-

suing petition for certiorari pending decision of

Keene. There is no reason for any different treat-

ment here, especially since petitioners seek the ex-

traordinary step of circumventing the court of ap-

peals altogether.

We also note the inconsistency in petitioners’ posi-

tion before this Court. On the one hand, they urge

the Court to grant certiorari before judgment on the

issue of standing in order to ensure that the Court

reaches the merits of the constitutionality of FARA.

On the other hand, as discussed above, they urge the

Court to grant certiorari before judgment on certain

statutory issues in order to obviate the need for the

Court to consider the merits of the constitutional

issue. Petitioners certainly cannot have it both ways.

But beyond that, petitioners have presented no rea-

son that would warrant certiorari before judgment

in this case on any issue.

e. Petitioners are not aided by the cases they cite

regarding certiorari before judgment (Pet. 3 n.1).

None of those cases concerned an attempt, as here,

to interject new and separate issues into a pending

proceeding. Rather, in those instances in which the

Court has granted review, the issues raised in the

respective cases were substantially identical. More-

over, on each occasion, the decisions under review

either involved the same court of appeals, so that the

circuit had already passed upon the legal question

presented in the petition for certiorari before judg-

ment,’ or pertained to a single dispute and presented

™ See Porter v. Dicken, 328 U.S. 252, 254 (1946), and Porter

v. Lee, 328 U.S. 246, 251 n.8 (1946) ; Johnson v. Fleet Corp.,

18

potentially inconsistent legal obligations that could

not be jointly fulfilled by the parties.“ No compara-

ble circumstances are presented in this case, and the

exceptional procedure for certiorari before judgment

is inappropriate here. See Merck & Co. v. Staats,

cert. before judgment denied, 449 U.S. 1038 (1980) ;

SmithKline Corp. v. Staats, cert. before judgment de-

nied, 449 U.S. 1088 (1980).

CONCLUSION

The petition for a writ of certiorari before judg-

ment should be denied.

Respectfully submitted.

CHARLES FRIED

Solicitor General

RICHARD K. WILLARD

Assistant Attorney General

LEONARD SCHAITMAN

HAROLD J. KRENT

Attorneys

JUNE 1986

280 U.S. 320, 322-325 (1930). See also Taylor v. McElroy,

360 U.S. 709, 709-710 (1959), and Greene v. McElroy, 360

U.S. 474 (1959).

8 See New Haven Inclusion Cases, 399 U.S. 392, 414, 418

(1970); McCulloch v. Sociedad Nacional de Marineros de

Honduras, 372 U.S. 10, 12 (1968). See also Washington v.

Fishing Vessel Ass’n, 443 U.S. 658, 671-674 (1979) ; Hannah

v. Larche, 363 U.S. 420, 422-423 & n.3, 428-430 (1960).

W ov. S. GOVERNMENT PRINTING OFFice; 1986 491507 20243