Bullfrog Films v. Wick – Government Misconduct – CCR Docket Fall 1995

Ten years after CCR filed suit on behalf of documentary filmmakers whose films were denied “certificates of  educational character” by the U.S. Information Agency (USIA), the agency, after input from CCR, finally adopted a constitutional set of regulations governing the granting of such certificates.

And in January 1995, the USIA agreed to settle the case by granting all of the films educational certificates, and paying plaintiffs’ attorneys’ fees.

The “certificates of educational character” are granted under the international treaty designed to facilitate the free flow of ideas among nations. They are important because the treaty exempts certified documentaries from customs duties and other import restrictions, thus easing international distribution.

The suit, brought in Los Angeles federal district court in 1985, charged the USIA with using the certification process in a politically-biased manner to prevent certain films from being seen abroad. Those films which the USIA 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 allowed 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’s decision, holding that the regulations gave the USIA “a virtual license to censor.” After the Ninth Circuit denied a petition for rehearing, the government decided not to ask the Supreme Court lo review the case.

When the USIA promulgated new regulations, CCR challenged them as well, and in May 1988 the district court rejected the new rules and ordered the USIA to provide plaintiffs with educational certificates. The USIA appealed the decision to the Ninth Circuit.

While the decision was on appeal, Congress enacted a statute in response to the litigation that requires the USIA to grant educational certificates on a view-point basis to all documentary films.

David Cole, Margaret Ratner, Michael Ratner and Ben Margolis