Bullfrog Films v. Wick – Government Misconduct – CCR Docket 1989-1990

In 1985 the CCR filed suit on behalf of documentary filmmakers whose films were denied “certificates of educational character” by the U.S. information Agency (USIA). Such certificates are granted pursuant to  an international treaty  to facilitate the free flow of ideas among nation s and are impor­tant because the treaty exempts certified documentaries from Customs duties and other import restrictions easing interna­tional distribution.

The suit, filed in a Los Angeles federal district court, charges the USIA with using the certification process in a politically bi­ased manner to prevent certain films from being seen abroad. Those films which the US IA views as critical of U.S. policies and practices–particularly on the topics of nuclear war, environmental problems, and Central America–were denied certificates of educational character on the ground that they “present a point of view.” Yet industry­ sponsored films on similar subjects, such as the Edison Electric Institute’s “To Catch a Cloud: A Thoughtful Look at Acid Rain,” were granted certificates.

The district court struck down the process used by the USIA as unconstitutional.  It held that the USIA’s regulations were hope­lessly vague and impermissibly permitted USIA officials to play the role of censor. It enjoined the USIA from denying certificates to any film based on the challenged regula­tions. The USIA appealed, and in May 1988 the Ninth Circuit Court of Appeals unani­mously affirmed the district court, holding that the regulation gave the USIA  “a virtual license.”  After the Ninth Circuit  denied a petition for rehearing, the govern­ment decided not to ask the Supreme Court to review the case.

The case is not over, however. While the appeal was pending, the district court ­ordered the USIA to come up with new regu­lations consistent with the Constitution. The filmmakers challenged the new regulations, and in May 1988, the  district court rejected the new rules and ordered the USIA to provide plaintiffs with educational certifi­cates. The USIA appealed that decision to the Ninth Circuit, where it is still pending. A third set of regulations has been issued, but is not yet in effect.

David Cole, Margaret Ratner, Michael Ratner, Morton Stavis, with CCR cooperating attor­ney Ben Margolis