About 100 films and other audio-visual materials remain trapped in a bureaucratic logjam in the United States Information Agency's film certification program--the result of an Oct. 24 decision in a Los Angeles federal court declaring sections of the program's regulations unconstitutional.
"We need to study the decision and figure out what it means for the future operation of the program," USIA General Counsel Joseph Morris told The Times. "It's difficult to sort out what we can still do."
The regulations--based on a 1949 international treaty promoting the free flow of audio-visual materials--dictate the evaluation procedure for scientific, educational or cultural films submitted by film distributors seeking "certificates of educational character." The certificates waive often costly import duties and taxes overseas.
Three weeks ago, U.S. District Judge A. Wallace Tashima ruled that the USIA illegally denied certification to six documentaries made by film makers who filed a controversial lawsuit against the agency last December. The film makers, represented by the Center for Constitutional Rights, claimed that the USIA censored films that did not reflect the Reagan Administration's political philosophy.
By putting its certification program on hold, the USIA may be plunging into new controversy, since Tashima did not order the program halted. He specified that the agency immediately stop using several provisions in the regulations.
In a related development, a Justice Department spokeswoman said that Justice was still deciding whether to appeal the decision on behalf of the USIA, contrary to USIA officials' published statements that an appeal was pending.
The Justice Department handles litigation on behalf of the USIA, spokeswoman Amy Brown explained. "We, in effect, become the lawyer and the agency (becomes) the client," she said. "Any decision to appeal must come from the solicitor general of the Justice Department, and so far he's made no decision on what will be done."
The USIA's Morris termed the conflicting reports from the two government agencies "a technical matter. The decision (to appeal) has been made at the highest official level."
He added that the agency will ask Tashima to clarify his 41-page decision and request a stay of his order (prohibiting the use of certain provisions) until the U.S. 9th Circuit Court of Appeals hears the case.
"We are on two tracks right now," Morris said. "We are involved in litigation, as well as a serious process of study and consultation to do the regulatory magic (rewriting the regulations in a manner deemed constitutional) that the court invited us to do."
Morris said that until the USIA's questions are clarified by Tashima, the agency remains confused about using its certification program.
Morris indicated, however, that the agency would not wait until the end of the appeals process to proceed with revising the questioned portions of the regulations.
"The regulatory process done correctly is time consuming, and that's assuming we knew precisely what words we wanted to write as regulations," he said.
"Still, I'm not the sort to shy away from a challenge to ingenuity. If there was a way we could resolve the controversy and devise new rules that were considered to be faithful to the treaty obligations, nothing would please me more."
Over the past five years, the agency has certified 30,589 films and rejected 80, fewer than 1%. "This information will be presented to the court," he said, "to point out that the implementation of his (Tashima's) decision imperils the process for the other 99.5% certified films as well. It raises a question in the weighing and balancing of interest."
But David Cole, attorney for the Center for Constitutional Rights--the New York-based public-interest law firm that filed the film makers' lawsuit that triggered the court decision--disagreed with Morris on the halt in the certification program.
"If they (USIA officials) don't understand the opinion, that's their problem," Cole said Monday. "But if they won't certify anyone's films while they decide what to do, they'll violate even more film makers' First Amendment rights."
Tashima ordered the agency to stop using provisions that reject films that "attempt generally to influence opinion, conviction or policy (religious, economic or political propaganda)" or ones that lent themselves to "misinterpretation or misrepresentation of the United States" or "attack or discredit economic, religious or political views or practices."
Tashima called the provisions' language "the most offensive of the entire regulatory scheme, because it places the government in the position of determining what is the 'truth' about America, politically and otherwise."