Bullfrog Films v. Wick – Government Misconduct – CCR Docket 1988-1989

CCR filed suit on behalf of documentary filmmakers whose films were denied “certificates of educational character” b; the U.S. Information Agency (USIA). Such certificates are granted under an 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 to review the case.

The case is not over, however. While the appeal was pending, the district court ordered the USIA to create new regulations consistent with the Constitution. CCR 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.

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 viewpoint-neutral basis to all documentary films. The case has now been sent back to the district court to determine whether the new law-which is very similar to a proposal CCR made to the USIA years earlier-resolves the case.

David Cole, Margaret L. Ratner,  Michael Ratner, Morton Stavis and Ben Margolis