Parties: Meese v. Keene
Date: 1987-04-28
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Paragraph: 30 - Likewise, despite the absence of any direct abridgment of speech, the District Court in this case assumed that the reactions of the public to the label "political propaganda" would be such that the label would interfere with freedom of speech. In Virginia Pharmacy Bd., we squarely held that a zeal to protect the public from "too much information" could not withstand First Amendment scrutiny
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Paragraph: 51 - Because the Court believes that the term "political propaganda" is neutral, it concludes that "the Act places no burden on protected expression." Ante, at 480. The Court's error on neutrality leads it to ignore the practical effects of the classification, which create an indirect burden on expression. As a result, the Court takes an unjustifiably narrow view of the sort of government action that can violate First Amendment protections. Because Congress did "not pose any obstacle to appellee's access to the materials he wishes to exhibit" in that it "did not prohibit, edit, or restrain the distribution of advocacy materials," ibid., the Court thinks that the propaganda classification does not burden speech. But there need not be a direct restriction of speech in order to have a First Amendment violation. The Court has recognized that indirect discouragements are fully capable of a coercive effect on speech, American Communications Assn. v. Douds, 339 U.S. 382, 402, 70 S.Ct. 674, 685, 94 L.Ed. 925 (1950), and that the First Amendment protections extend beyond the blatant censorship the Court finds lacking here.
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Paragraph: 51 - N101* But there need not be a direct restriction of speech in order to have a First Amendment violation. The Court has recognized that indirect discouragements are fully capable of a coercive effect on speech, American Communications Assn. v. Douds, 339 U.S. 382, 402, 70 S.Ct. 674, 685, 94 L.Ed. 925 (1950), and that the First Amendment protections extend beyond the blatant censorship the Court finds lacking here. N102* "[T]he fact that no direct restraint or punishment is imposed upon speech . . . does not determine the free speech question."
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Paragraph: 39 - N57* I do not agree that the designation "political propaganda," imposed by the Department of Justice on three films from Canada about acid rain and nuclear war, pursuant to the Foreign Agents Registration Act (Act), 52 Stat. 631, as amended, 22 U.S.C. §§ 611-621, presents no obstacle to expression protected by the First Amendment.
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Paragraph: 51 - N58* Because the Court believes that the term "political propaganda" is neutral, it concludes that "the Act places no burden on protected expression." Ante, at 480. The Court's error on neutrality leads it to ignore the practical effects of the classification, which create an indirect burden on expression. As a result, the Court takes an unjustifiably narrow view of the sort of government action that can violate First Amendment protections. Because Congress did "not pose any obstacle to appellee's access to the materials he wishes to exhibit" in that it "did not prohibit, edit, or restrain the distribution of advocacy materials," ibid., the Court thinks that the propaganda classification does not burden speech. But there need not be a direct restriction of speech in order to have a First Amendment violation. The Court has recognized that indirect discouragements are fully capable of a coercive effect on speech, American Communications Assn. v. Douds, 339 U.S. 382, 402, 70 S.Ct. 674, 685, 94 L.Ed. 925 (1950), and that the First Amendment protections extend beyond the blatant censorship the Court finds lacking here. N59* "[T]he fact that no direct restraint or punishment is imposed upon speech . . . does not determine the free speech question."
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Paragraph: 55 - But the District Court's holding here—that a derogatory classification impermissibly inhibits protected expression—did not impose a ban; it merely lifted a disclosure requirement, as in the other cases cited above. Under the District Court's ruling, opponents of the viewpoint expressed by the National Film Board of Canada remained completely free to point out the foreign source of the films. The difference was that dialogue on the value of the films and the viewpoints they express could occur in an atmosphere free of the constraint imposed by Government condemnation. It is the Government's classification of those films as "political propaganda" that is paternalistic. For that Government action does more than simply provide additional information. It places the power of the Federal Government, with its authority, presumed neutrality, and assumed access to all the facts, behind an appellation designed to reduce the effectiveness of the speech in the eyes of the public.
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Paragraph: 26 - First, the term "political propaganda" does nothing to place regulated expressive materials "beyond the pale of legitimate discourse." Ibid. Unlike the scheme in Lamont v. Postmaster General, the Act places no burden on protected expression. We invalidated the statute in Lamont as interfering with the addressee's First Amendment rights because it required N60* "an official act (viz., returning the reply card) as a limitation on the unfettered exercise of the addressee's First Amendment rights." 381 U.S., at 305, 85 S.Ct., at 1495. The physical detention of the materials, not their mere designation as "communist political propaganda," was the offending element of the statutory scheme. The Act N61* "se[t] administrative officials astride the flow of mail to inspect it, appraise it, write the addressee about it, and await a response before dispatching the mail." Id., at 306, 85 S.Ct., at 1496. The Act in this case, on the other hand, does not pose any obstacle to appellee's access to the materials he wishes to exhibit. Congress did not prohibit, edit, or restrain the distribution of advocacy materials in an ostensible effort to protect the public from conversion, confusion, or deceit.
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Paragraph: 49 - Appellee does not argue that his speech is deterred by the statutory definition of "propaganda." He argues, instead, that his speech is deterred by the common perception that material so classified is unreliable and not to be trusted, bolstered by the added weight and authority accorded any classification made by the all-pervasive Federal Government. Even if the statutory definition is neutral, it is the common understanding of the Government's action that determines the effect on discourse protected by the First Amendment.
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