The United States Information Agency lost another round this week in its ongoing fight to preserve a controversial film certification program. A Los Angeles federal judge refused to stay his Oct. 24 decision that ordered the agency to drop several film certification regulations because he ruled them unconstitutional.
The USIA had asked U.S. District Judge A. Wallace Tashima to stay his decision until an appeal of his verdict could be heard by a higher court. The agency's motion, filed Nov. 12, claimed that the USIA had been rendered "powerless" by the decision and therefore could not certify or deny certifications to any films at all.
More than 200 applicants seeking "certificates of educational character" (which often mean waived import duties and taxes for films distributed overseas) have been in bureaucratic limbo at the USIA since the Oct. 24 ruling.
However, in his latest ruling, which was delivered to the USIA this week, Tashima wrote that the agency "misconstrued" his decision, "which does not prohibit (the USIA) from issuing certificates," only from denying certificates on the basis of the regulations judged unconstitutional.
Tashima also wrote that he only had suggested--not ordered, as the agency claimed--that new regulations be written in place of those ruled unconstitutional. Responding to the agency's argument that drafting regulations would be difficult and time-consuming, Tashima wrote that "to draft constitutional regulations cannot amount to irreparable harm or any harm at all, especially when balanced against the infringement of the First Amendment, even for a day."
The agency's general counsel, Joseph Morris, said Thursday that the agency will appeal Tashima's latest ruling and ask for a stay from the U.S. 9th Circuit Court of Appeals. To that end, Tashima did grant the the agency a 21-day stay (until Dec. 24) to allow for the review.
During this interlude, Morris said, "We will move along as many applications as possible." He added that, to his knowledge, all of the backlogged applications would have been approved anyway.
Morris said Tashima's last ruling helped clarify "exactly what he was commanding in his injunction order. He makes it clear that he is purely and simply enjoining us on the basis of the three paragraphs of USIA regulations that he held facially unconstitutional."
The regulations stated that films could not be granted certificates of educational character if they "attempt generally to influence opinion, conviction or policy (religious, economic or political propaganda), to espouse a cause, or conversely, when they seem to attack a particular persuasion."
Although Tashima found those regulations unconstitutional, he left intact others that deny certificates to films that seek only to entertain or that promote a specific company or product.
The regulations were called into question by a group of film makers who filed suit against the agency last December. The film makers claimed that using such provisions to deny certification to six films, which range in topic from childhood to Nicaragua, was unconstitutional and "chilled" their rights to free speech.
The agency filed an appeal in November with the U.S. 9th Circuit Court of Appeals after Tashima ruled in favor of the film makers.
David Cole, attorney at the Center for Constitutional Rights, which filed the suit on behalf of the plaintiffs, found irony in the agency's latest legal maneuvers.
"In arguing to get a stay, the USIA discussed how terrible it would be if film makers had to go without certificates," Cole said. "But their major argument for an appeal is that not having a certificate didn't hurt the plaintiffs--our film makers--in the least."