EDWIN MEESE, III, ATTORNEY GENERAL OF THE UNITED STATES AND JOSEPH E. CLARKSON, APPELLANTS V. BARRY KEENE No. 85-1180 In the Supreme Court of the United States October Term, 1986 On Appeal from the United States District Court for the Eastern District of California Brief for the Appellants TABLE OF CONTENTS Opinions below Jurisdiction Constitutional and statutory provisions involved Questions Presented Statement: A. Statutory framework B. Factual background C. Proceedings below Summary of argument Argument: I. Appellee lacks standing to challenge Congress's use of the term "political propaganda" in the Foreign Agents Registration Act of 1938 A. Appellee's allegation of a chilling effect does not suffice to confer standing B. Appellee's allegation of injury to his reputation does not confer standing because it is too indirect and is not fairly traceable to the wrong alleged II. Congress's use of the term "political propaganda" in the Foreign Agents Registration Act of 1938 creates no burden on free expression cognizable under the First Amendment A. The term "political propaganda" is defined in the FARA in a content-neutral manner that does not constitute official disapproval of political expression B. Because the statute as written and applied carries no official disapproval of political expression, the Act may not be invalidated on the basis of the connotations that its words may be given C. Even if the statute's use of the term "political propaganda" did embody official disapproval of the speech to which it applies, it would not offend the First Amendment Conclusion Appendix OPINIONS BELOW The opinions of the district court (J.S. App. 1a-31a, 36a-42a) are reported at 619 F. Supp. 1111. An earlier opinion of the district court issuing a preliminary injunction (J.S. App. 44a-65a) is reported at 569 F. Supp. 1513. JURISDICTION The judgment of the district court (J.S. App. 32a-34a) was entered on September 13, 1985. A notice of appeal to this Court (J.S. App. 35a) was filed on October 11, 1985. On October 29, 1985, the district court granted appellants' timely motion to alter or amend the judgment under Fed. R. Civ. P. 59(e), and the district court modified the judgment (J.S. App. 40a). A notice of appeal to this Court from the amended judgment of October 29, 1985 (J.S. App. 43a) was filed on November 12, 1985. On November 27, 1985, Justice Rehnquist extended the time within which to docket the appeal to and including January 9, 1986, and the appeal was docketed on that date. The Court noted probable jurisdiction on April 21, 1986. The jurisdiction of this Court rests on 28 U.S.C. 1252. /1/ CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED 1. The First Amendment to the Constitution of the United States provides, in pertinent part: Congress shall make no law * * * abridging the freedom of speech * * * . 2. The relevant provisions of the Foreign Agents Registration Act of 1938, 22 U.S.C. 611-621, are set forth in an appendix to this brief. App., infra, 1a-5a. QUESTIONS PRESENTED 1. Whether appellee, who is not a foreign agent under the Foreign Agents Registration Act of 1938, 22 U.S.C. 611-621, and who is not subject to the requirements or sanctions of the Act, has standing to challenge the constitutionality of the statutory term "political propaganda" on the ground that use of that term is alleged to ahve chilled his exercise of First Amendment rights. 2. Whether the use of the term "political propaganda" in the Foreign Agents Registration Act of 1938, 22 U.S.C. 611-621, which is expressly defined in the Act in a neutral and valid way, violates the First Amendment because in common usage the word "propaganda" might be understood to have a pejorative meaning. STATEMENT A. Statutory Framework This case arises under the Foreign Agents Registration Act of 1938 (FARA), ch. 327, 52 Stat. 631-633, 22 U.S.C. 611-621. The purpose of the FARA is to protect the national defense, internal security, and foreign relations of the nation by requiring the agents of foreign principals to identify themselves and their principals and to reveal for public scrutiny their efforts to influence this country's foreign policies. 22 U.S.C. 611 note (congressional statement of purposes); Viereck v. United States, 318 U.S. 236, 241 (1943); id. at 250-251 (Black & Douglas, JJ., dissenting); see pages 22-28 & notes 19-22, infra. To accomplish these goals, the FARA establishes a comprehensive registration, reporting, and disclosure scheme for agents of foreign principals. The scheme is enforced by the Attorney General. He is authorized to bring suit to compel compliance with the Act (22 U.S.C. 618(f); 28 C.F.R. 5.1(a)), and to bring criminal actions for wilful violation of any provision of the Act (22 U.S.C. 618(a)). An agent of a foreign principal /2/ must file a registration statement /3/ with the Attorney General and must thereafter periodically provide certain information regarding his relationship with a foreign principal, his sources of income, and the nature of his activities. 22 U.S.C. 612. He must further submit to the Attorney General a copy of any "political propaganda for or in the interest of such foreign principal" that the agent sends through the United States mails or by any means of interest or foreign commerce. 22 U.S.C. 614(a). /4/ The FARA defines the term "political propaganda" to include (22 U.S.C. 611(j)): * * * any oral, visual, graphic, written, pictorial, or other communication or expression by any person * * * which is reasonably adapted to * * * in any * * * way influence a recipient or any section of the public within the United States with reference to the political or public interests, policies, or relations of a government of a foreign country * * * or with reference to the foreign policies of the United States * * * . The agent must mark any such materials with an identification statement containing information specified in the statute. 22 U.S.C. 614(b); see also 22 U.S.C. 614(c). The words "political propaganda" do not appear in the standard identification statement form used for films (Report Form CRM-159; J.A. 16, 57, 59): This material is prepared, edited, issued or circulated by (name and address of registrant) which is registered with the Department of Justice, Washington, D.C. under the Foreign Agents Registration Act as an agent of (name and address of foreign principal). Dissemination reports on this film are filed with the Department of Justice where the required registration statement is available for public inspection. Registration does not indicate approval of the contents of this material by the United States Government. The labeling requirement is applicable only to agents of foreign principals under the Act and does not apply to subsequent disseminators or recipients of the materials, such as appellee. In fact, such people are free to remove the identification statement that a foreign agent must affix to the materials (J.S. App. 49a. 54a-55a & n.2). B. Factual Background The National Film Board of Canada (Ottawa) produces films in Canada, and as an agency of the government of Canada, is a "foreign principal" under the Act. The National Film Board of Canada (New York office) (NFBC-NY) is the agent of the National Film Board of Canada (Ottawa) in the United States and has registered with the Attorney General pursuant to the FARA since 1947 (J.S. App. 5a). /5/ The NFBC-NY does not routinely include the FARA identification statement in its materials, but rather submits a list of its films to the Department of Justice for determination which ones are covered by the Act (id. at 48a). In 1982, the NFBC-NY submitted to the Department of Justice a list of 62 films and videotapes that it had distributed during that year. The Department reviewed five of the films and concluded that three of them included "political propaganda" within the meaning of the Act. Two of the films, Acid from Heaven and Acid Rain: Requiem or Recovery, address the subject of acid rain; the third film, If You Love This Planet, concerns nuclear war. J.S. App. 45a, 48a. C. Proceedings Below In March 1983, appellee, an attorney and California state legislator, brought this action in the United States District Court for the Eastern District of California, challenging the constitutionality of the term "political propaganda" in the Foreign Agents Registration Act. Appellee alleged that he desired to exhibit the three Canadian films but was "deterred from exhibiting the films by a statutory characterization of the films as 'political propaganda'" and that "if he were to exhibit the films while they bore such characterization, his personal, political, and professional reputation would suffer and his ability to obtain re-election and to practice his profession would be impaired" (J.S. App. 45a). Appellee sought a preliminary and permanent injunction against application of the FARA to the three films. 1. On September 7, 1983, the district court denied the government's motion to dismiss and granted appellee's motion for a preliminary injunction (J.S. App. 44a-65a). The court held that appellee had standing to challenge the use of the term "political propaganda" in the FARA, and particularly its application to the three films which he desired to exhibit (id. at 49a-54a). It further held that the complaint stated a claim for relief (id. at 55a-56a), indeed, that it raised a "substantial question warranting litigation" (id. at 57a). Finding the Act's use of the words "political propaganda" and its labeling requirement to place a very heavy burden of hardship on appellee (id. at 63a-64a), the district court entered a preliminary injunction preventing appellants from applying any of the requirements of the Foreign Agents Registration Act to the three films in question pending the disposition of this case (id. at 65a). Although the court recognized that appellee lacked standing to challenge the labeling requirement applicable to the NFBC-NY, the court nonetheless concluded that it was impossible to give appellee any effective interim relief without exempting these films from the labeling and reporting requirements of the Act (id. at 64a). Accordingly, the court entered an injunction to that effect (ibid.). 2. On September 12, 1985, the district court granted summary judgment for appellee on his request for a permanent injunction (J.S. App. 1a-31a). The court adhered to its prior ruling that appellee had standing to challenge the validity of the statutory term "political propaganda" (id. at 7a-16a). The court explained that appellee claimed that the statute's use of the derogatory term "propaganda" "puts (him) to the Hobsen's choice of foregoing the use of the three Canadian films for the exposition of his own views or suffering an injury to his reputation" (id. at 15a). Appellee's claim therefore was that the statutory term amounted to an indirect form of censorship, which was sufficient to provide him with standing (id. at 10a). On the merits, the district court held that Congress's use of the term "political propaganda" violated the First Amendment (J.S. App. 19a-29a). While recognizing that the statute defines "political propaganda" in a "neutral" way carrying "no negative connotation" (id. at 20a), the court noted that "the term 'propaganda' as used in ordinary speech is a word of reproach" (id. at 19a (citation omitted)), and predicted that "whoever disseminates materials officially found to be 'political propaganda' runs the risk of being held in a negative light by members of the general public" (id. at 26a). The court found no "historical or semantic support" for the argument that "the First Amendment was not intended to apply where Congress enacts a statute whose purpose is entirely proper, but which inadvertently burdens speech by the terms in which it is couched" (id. at 24a). In any event, the court stated that there was no inadvertence here -- that, indeed, "congress enacted the portion of FARA at issue in order to suppress or restrict that which it found abhorrent," and that it deliberately used "a term of opprobrium" in order "to discourage or suppress speech" (id. at 25a). Finding "no justification" for the use of the phrase "political propaganda" (J.S. App. 28a), the court permanently enjoined enforcement of "any portion of the Foreign Agents Registration Act which incorporates the term 'political propaganda' as a term of art. 22 U.S.C. Sections 611(j) and 614(a)(b) and (c)" (id. at 31a). The court also held that these provisions were severable from the remainder of FARA and that its ruling did not adjudicate the validity of any other part of the Act (id. at 30a). /6/ SUMMARY OF ARGUMENT I. Plaintiff lacks standing to challenge the constitutionality of the use of the term "political propaganda" in the Foreign Agents Registration Act. Plaintiff's allegation that the use of that term to describe certain foreign political expression interferes with his freedom to exhibit these films simply amounts to a claim that the statute impermissibly "chills" his right to speak. Allegations of a subjective "chill," without more, however, are insufficient to confer standing on appellee. Laird v. Tatum, 408 U.S. 1 (1972). Appellee's second alleged injury -- injury to his reputation -- is also insufficient, because no such injury can fairly be traced to the language of the statute itself. Allen v. Wright, 468 U.S. 737 (1984); Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26 (1976). Because the statute defines the term "political propaganda" in a nonpejorative, content-neutral manner, any stigma to appellee results not from Congress's use of this term, but from the uninformed or misinformed beliefs of members of the public. Public misunderstanding of the meaning of a clearly defined statutory term cannot be attributed to Congress. II. The district court erred in ruling that the First Amendment is violated by the use of the term "political propaganda" to refer to the materials to be submitted and labeled under the Act. The Act defines that term in a content-neutral manner that does not express official disapproval of the foreign political expression so defined. The legislative history of the FARA shows that Congress did not adopt the Act or that term for the purpose of suppressing speech. The actual administration of the Act shows that this term has been applied in an even-handed manner, demonstrating that the term "political propaganda" is not limited to disfavored speech. If negative inferences accompany the use of the term "propaganda," they stem primarily from the public's reaction to foreign attempts to influence this nation's policies, rather than from the use of that term to describe such efforts. Finally, even if Congress had used this term to express official disapproval of such expression, that expression would not be unconstitutional, because it is ancillary to a legitimate congressional purpose: disclosure of the identity of foreign agents in order to allow the public to appraise their expression in light of their identities and allegiances to foreign principals. ARGUMENT I. APPELLEE LACKS STANDING TO CHALLENGE CONGRESS'S USE OF THE TERM "POLITICAL PROPAGANDA" IN THE FOREIGN AGENTS REGISTRATION ACT OF 1938 It is well settled that Article III requires the party who invoked the authority of a federal court to "'show that he personally has suffered some actual or threatened injury'" (Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472, (1982) (citation omitted)). This injury must be "'"distinct and palpable"'" rather than "'abstract' or 'conjectural' or 'hypothetical'" (Allen v. Wright, 468 U.S. 737, 751 (1984) (citations omitted)). Moreover, the requisite injury-in-fact must be caused by "the challenged action of the defendant," rather than "the independent action of some third party not before the court" (Simon v. Eastern Kentucky Welfare Rights Org., 426 U.S. 26, 41-42 (1976); Allen, 468 U.S. at 751, 757-761). And, of course, the plaintiff bears the burden of establishing his standing (Warth v. Seldin, 422 U.S. 490, 501-502, 517-518 (1975)). The power to seek judicial review "is not to be placed in the hands of 'concerned bystanders,' who will use it simply as a 'vehicle for the vindication of value interests'" (Diamond v. Charles, No. 84-1379 (Apr. 30, 1986), slip op. 7). Appellee had precisely that status under the FARA. Appellee is not an "agent of a foreign principal" under the Act and is not subject to any of the requirements or sanctions the Act prescribes. The identification statement that a registered, foreign agent must use to label a film does not use the phrase "political propaganda," and, in any event, appellee is free to remove any such label when he exhibits these films (J.S. App. 54a-55a). Nonetheless, appellee claims that the statutory term "political propaganda" has injured him in two ways. First, he claims that it prevents him from exhibiting these films "without interference" so long as they are classified as "political propaganda" under the Act (J.A. 49 (Amended Complaint para. 13)). Second, he alleges that his "personal and professional reputations" will be damaged by exhibiting a film classified as "political propaganda," because he "would be falsely, maliciously, and unlawfully identified as the disseminator of distorted or untrue information on behalf of a foreign power" (J.A. 49, 50 (Amended Complaint paras. 11, 14)). Neither allegation is sufficient to establish standing to challenge the constitutionality of the statutory use of this term. A. Appellee's Allegation Of A Chilling Effect Does Not Suffice To Confer Standing Appellee's first allegation of injury is that he is being prevented from showing the films by the chilling effect of the term "political propaganda." Such an allegation is plainly insufficient to confer standing under this Court's decision in Laird v. Tatum, 408 U.S. 1 (1972). There, the plaintiffs challenged an Army intelligence gathering program on the ground that it chilled their First Amendment right of speech and assembly, but the Court held that they lacked standing to sue (408 U.S. at 10-16). As the Court explained, a plaintiff "who alleges that the exercise of his First Amendment rights is being chilled" by the existence of governmental program does not "without more" have standing to challenge the constitutionality of that program (id. at 10). The Court noted that "in each of the ( ) cases (in which it had considered a "chilling effect" argument), the challenged exercise of governmental power was regulatory, proscriptive, or compulsory in nature, and the complainant was either presently or prospectively subject to the regulations, proscriptions, or compulsions that he was challenging" (id. at 11). Thus, while the Court recognized that "governmental action may be subject to constitutional challenge even though it has only an indirect effect on the exercise of First Amendment rights" (id. at 12-13), the Court held that "(a)llegations of a subjective 'chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm" (id. at 13). See also United Public Workers v. Mitchell, 330 U.S. 75, 86-91 (1947); United Presbyterian Church v. Reagan, 738 F.2d 1375, 1378-1380 (D.C. Cir. 1984). /7/ The applicability of Laird is in no way altered by the district court's conclusion that appellee "is not * * * complaining of a 'chilling effect' on the exercise of his First Amendment rights; he is complaining of a species of censorship" (J.S. App. 10a). No actual or threatened censorship is remotely involved in this case. The government has not restrained appellee from exhibiting these films; he has not been subjected to or threatened with any type of sanction or penalty for doing so; and he did not need the prior approval of a governmental licensing board to exhibit them. Moreover, the fact that appellee may voluntarily elect to forego use of the films rather than have his name linked to "political propaganda" does not by itself satisfy standing. Without concrete proof of independent and objective consequences flowing from the government's action, a party's personal choice to relinquish the right to speech is not cognizable injury under Laird v. Tatum, supra. Standing is not conferred upon those who merely "'feel inhibited'" (Younger v. Harris, 401 U.S. 37, 42 (1971). Absent a direct threat of a sanction, such as a criminal penalty, standing can only be predicated on a showing of imminent, actual harm. United Public Workers v. Mitchell, 330 U.S. at 89-90. B. Appellee's Allegation Of Injury To His Reputation Does Not Confer Standing Because It Is Too Indirect And Is Not Fairly Traceable To The Wrong Alleged Appellee's second alleged harm -- injury to his reputation /8/ -- is of a type which, in some instances, may serve as a basis for standing. See Allen v. Wright, 468 U.S. at 754-755. In this case, however, appellee's asserted injury to his reputation can result only by a series of occurrences, some of which are unlikely and most of which are not of the government's doing. Accordingly, the claim of causation alleged by appellee is so indirect and uncertain that it cannot be said that the asserted injury will in fact result, or, if it does, that it is the consequence of the statutory label, rather than of the independent actions of third parties. Id. at 751, 757-761; Eastern Kentucky, 426 U.S. at 38, 41. The FARA (1) defines "political propaganda" in a way recognized by the district court to carry "no negative ocnnotation" (J.S. App. 20a), (2) requires that a label not using this term, and not at issue in this case, be affixed to material fitting that neutral definition, and (3) leaves persons such as appellee completely free to remove or conceal the label. In order for appellee to be injured by the statute's use of that term, then, the members of the public must first become aware that the material has been found appropriate for labeling under the Act, either by appellee's decision to display the label or by some other means. They must also become aware that the statutory term used to refer to such material is "political propaganda," which is not apparent from the label affixed to the film. Finally, they must remain ignorant of the neutral manner in which the statute defines that term, and must independently attach a significant negative value judgment, first, to the film itself and, second, to the person exhibiting it. Given the indirect, and convoluted character of this necessary chain of events, both the fact of injury /9/ and its causation by the government's choice of words are highly speculative. Such "unadorned speculation will not suffice to invoke the federal judicial power" (Diamond v. Charles, slip op. 11 (quoting Eastern Kentucky, 426 U.S. at 44)). /10/ In Eastern Kentucky, the Court held that plaintiffs lacked standing to challenge the decision to grant a federal tax exemption to a hospital not providing more than emergency room care to indigents, ruling that it was purely speculative whether the hospitals' treatment policies would be altered if their tax exemptions were revoked (426 U.S. at 42-43). The causal connection between the injury suffered by the plaintiffs -- the hospitals' denial of nonemergency medical treatment -- and the relief they requested -- revocation of the hospitals' tax exempt status -- was sufficiently uncertain to break the chain of causation necessary to establish standing (id. at 40-46). Similarly, in Allen v. Wright, supra, the Court held that the chain of causation between the IRS's decision to grant federal tax exemptions to allegedly discriminatory private schools and the effect that the IRS's decision would have on the ability of children to obtain an education in a racially integrated school was also too attenuated to provide standing. 468 U.S. at 757-761. The Court found that that claim of injury was too dependent on the collective action of third parties, the parents of the children attending the private schools, whose decisions where to send their chidren might have a significant impact on the ability of public school students to receive an integrated education, to conclude that there was a sufficient causal connection between the IRS's decision and the plaintiff's alleged injury. Id. at 758-759. In this case, if appellee has suffered any injury from the statute's use of the term "political propaganda," that injury plainly flows from the subjective impressions of third parties, and not the government's classification of the films. Here Congress defined its terminology precisely. The uninformed or misinformed reaction of the public cannot be attributable to Congress. Congress on occasion may use terms whose ambiguity or shading gives rise to a somewhat different meaning than the one intended. All that can be expected, however, is a reasonably lucid articulation of the legislative policy. Otherwise, a statute would be hostage to the public's perception of the legislative scheme, and a determination of constitutionality would hinge on the particular nuances in vogue at any given time. /11/ II. CONGRESS'S USE OF THE TERM "POLITICAL PROPAGANDA" IN THE FOREIGN AGENTS REGISTRATION ACT OF 1938 CREATES NO BURDEN ON FREE EXPRESSION COGNIZABLE UNDER THE FIRST AMENDMENT In holding that Congress's use of the term "political propaganda" in the FARA unconstitutionally abridged appellee's First Amendment rights, the district court endorsed what it rightly termed a "novel" conclusion (J.S. App. 16a). The district court did not find that the FARA, or its use of the term "political propaganda," directly restricts appellee's freedom of speech in any way. Notably absent from this case are any restrictions on the acquisition or exhibition by appellee of the films in dispute, /12/ any conditioning of his receipt or exhibition of the films on an official act of some type, /13/ such as advance registration, /14/ or any suppression of his exhibition of the films by threat or intimidation. /15/ Rather, the district court held that, by requiring exhibitors of films defined by teh FARA as "political propaganda" to have, in the court's words, "the courage to use materials officially censured by the government," the statutory definition of "political propaganda," without more, "constitutes a burden on speech by making such materials unavailable to all but the most courageous" (J.S. App. 26a-27a). The district court also found that Congress "understood and intended" this phrase "as a term of opprobrium" in order "to discourage or suppress speech" (id. at 25a). Contrary to the district court's belief, however, neither the meaning of the term "political propaganda," nor the effect of the statute as applied, suggests that it amounts to official disapproval or denigration of the material so classified. It simply reflects the congressional judgment that, in view of the wide range of motives that may inspire such material, it is best viewed and evaluated with an awareness as to its source. Moreover, even if this judgment by Congress, or negative connotations of the terminology it chose, is viewed as constituting an official disapproval of each item of material so classified, it is a judgment which Congress could properly make without offense to the First Amendment, in the execution of its constitutional powers. A. The Term "Political Propaganda" Is Defined In The FARA In A Content-Neutral Manner That Does Not Constitute Official Disapproval of Political Expression 1. The district court's premise -- that the term "political propaganda" serves as a badge of official disapproval (J.S. App. 25a) -- finds no support in the text of the statute. The statutory definition includes "any * * * communication * * * reasonably adapted to * * * influence a recipient * * * with reference to the political or public interests, policies, or relations" of a foreign government or foreign political party, or the foreign policies of this nation. 22 U.S.C. 611(j). It describes in nonjudgmental terms a certain category of communications. That the Act proceeds to impose certain labeling and disclosure requirements on these communications, while not restricting their dissemination in any way, does not indicate a judgment of any kind on the merit of each particular item so classified. It merely reflects Congress's conclusion that public consideration of the material will be enhanced by awareness of its source. This neutral use of the term "propaganda" is consistent with general usage and understanding. Webster's Third New International Dictionary 1817 (1981) defines "propaganda" in one definition as "doctrines, ideas, argument, facts, or allegations spread by deliberate effort through any medium of communication in order to further one's cause or to damage an opposing cause." /16/ Further, Congress has used "propaganda" in a nonpejorative manner in other statutes, /17/ and this Court has used this term in that manner as well. /18/ In determining whether the statutory definition of "political propaganda" constitutes official disapproval of expression, the text of the statute is controlling. It is well settled that "(s)tatutory definitions control the meaning of statutory words" (Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198, 201 (1949)), and that it is "both within the right and the wisdom of Congress not to trust to the colloquial or the dictionary meaning of * * * (a word), but to write its own" (62 Cases of Jam v. United States, 340 U.S. 593, 596 (1951)). Where, as here, Congress has defined a particular statutory term, that definition excludes "colloquial meanings" (Western Union Telegraph Co. v. Lenroot, 323 U.S. 490, 502 (1945)). More generally, the text of the FARA emphatically identifies the objectives of the Act in a way that does not prejudge any particular item of "political propaganda." The text of the FARA makes clear that it simply seeks "public disclosure by persons engaging in propaganda activities and other activities for or on behalf of * * * foreign principals," so that both the public and the government can "appraise (foreign agents') statements and actions in light of their associations and activities" (22 U.S.C. 611 note). The text of a statute provides the surest guide to Congress's intent (see Board of Governors v. Dimension Financial Corp., No. 84-1274 (Jan. 22, 1986), slip op. 12), and various sections of a statute should be read as a whole (see Philbrook v. Glodgett, 421 U.S. 707, 713 (1975)). This statement of purpose, coupled with the broad and non-pejorative statutory definition of "political propaganda," clearly shows that Congress made no a priori value judgment -- beyond that of the appropriateness of disclosure -- regarding communications so defined. 2. The legislative history of the FARA also supports that conclusion. While stimulated by concerns about Nazi propaganda, after substantial consideration Congress made the decision to cover the propaganda activities of all foreign agents. /19/ When the term "political propaganda" and the labeling and submission requirements were added in 1942, Congress made plain that it did not intend to restrict the speech of foreign agents, /20/ or to single out only information from hostile nations. In fact, the neutral scope of the 1942 amendments was nearly their undoing. President Roosevelt initially vetoed the amendments, on the ground that they could interfere with the joint activities of the United States and its wartime allies. /21/ Congress responded to his concerns by authorizing him to create an exemption for agents of those nations whose interests be deemed vital to the national defense. /22/ 3. The administration of the Act by the Department of Justice reveals that the term "political propagenda" has not been applied to suggest official disapproval of any particular foreign political expression. Even in time of war, the FARA was consistently applied to friend and foe alike. See Report of the Attorney General to the Congress of the United States on the Administration of the Foreign Agents Registration Act of 1938, at 100-101 (1945). The record in this case also shows that the term "political propaganda" is not used to smear a film as "un-American, twisted, and pernicious" (J.S. App. 25a). That term has been found applicable to films disseminated by close friends and allies, such as Canada, which is responsible for transmitting the three films at issue here, and to materials that reflect policy positions taken by this nation (see Block v. Meese, slip op. 14), such as Plight of the Soviet Jewry: Let My People Go, a film distributed on behalf of the Consulate General of Israel, The Wall of Terror, a film distributed on behalf of the German Consulate General, and Trade -- Who Needs It?, a film distributed on behalf of the Government of Japan. J.A. 60, 61, 63. The day-to-day operation of the Act therefore reinforce its literal meaning. See Block v. Meese, slip op. 14; cf. FDIC v. Philadelphia Gear Corp., No. 84-1972 (May 27, 1986), slip op. 12-13. 4. Notwithstanding the clarity of the neutral definition of "political propaganda" in the FARA, as well as its even-handed application, the district court invalidated the use of this term in part because Congress "understood and intended (this phrase) as a term of opprobrium, * * * by which it intended to discourage or suppress speech" (J.S. App. 25a). For two reasons, this conclusion of a devious motive on the part of Congress does not support the court's ruling. First, it is well settled that a statute may not be invalidated under the First Amendment on the ground that the legislation, while proper on its face, was motivated by hostility towards freedom of speech when the legislature adopted the act. As the Court explained in United States v. O'Brien, 391 U.S. 367, 383-384 (1968), and reiterated last Term in City of Renton v. Playtime Theatres, Inc., No. 84-1360 (Feb. 25, 1986), slip op. 5-6, "(i)t is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative purpose" (O'Brien, 391 U.S. at 383; City of Renton, slip op. 5-6). /23/ The district court's inquiry into legislative motive is therefore irrelevant, because a statute may not be invalidated "on the ground that it is unwise legislation which Congress had the undoubted power to enact and which could be reenacted in its exact form if the same or another legislator made a 'wiser' speech about it" (391 U.S. at 383). Second, Congress did not, in fact, adopt this language in order to "suppress or restrict that which it found abhorrent" (J.S. App. 25a). The district court's ascription of such a purpose is belied not only by the statutory definition and the legislative history, but also by the fact that any negative connotations of the phrase derive primarily from the public's reaction to the source and purpose of the material it describes. To whatever extent the term "propaganda" induces a reaction of suspicion and caution, it is mainly due to the word but to the phenomenon it describes: public expression designed to further one's cause. Where, as here, the cause is related to the interests of foreign nation, it is hardly surprising that it may be viewed skeptically. As Judge Scalia recently stated in a similar case (Block v. Meese, slip op. 13 (citations and footnote omitted; emphasis in original)): It seems to us not quite true that, as asserted in a district court opinion involving the same provision at issue here (with whose holding we disagree) "'(p)olitical propaganda' is ordinarily and commonly understood to mean material that contains half-truths, distortions, and omissions." * * * It is understood to mean precisely the type of political speech the dictionary definitions quoted above describe (and which no other English word accurately describes) -- which type of speech is, in turn, generally regarded as more likely than other speech to contain "half-truths, distortions, and omissions." For precisely this reason, it is illogical to suppose, as appellee does (see Mot. to Aff. 10), that the objection is really to the use of the word "propaganda." Once the character of the material as defined in the statute is understood, whatever term is used will engender the same public reaction. B. Because The Statute As Written And Applied Carries No Official Disapproval Of Political Expression, The Act May Not Be Invalidated On The Basis Of The Connotations That Its Words May Be Given The Constitution simply does not, as the district court believed, require Congress to devise "the best solution to a knotty problem to draftsmanship" or "demand that those whose business is communication communicate with their audience in terms of their audience's linguistic conventions" (J.S. App. 29a). Inherent difficulties in draftsmanship can often preclude Congress from enacting a provision completely free from unintended or extraneous potential connotations. This is particularly true where the connotations that a term may have depend on the context in which it is used. See Block v. Meese, slip op. 13-14 n.3 ("(u)ndoubtedly, one would not describe the ideological efforts of one's own church or nation as 'propagandizing,' though they are such -- just as one would prefer to describe one's brother-in-law as a merchant rather than a used-car-salesman"). It is enough that the terms be reasonably clear so that an ordinary person exercising common sense can sufficiently understand the statutory scheme. /24/ Cf. Cole v. Richardson, 397 U.S. 238, 240 (1970) (Harlan, J., concurring) ("almost any word or phrase may be rendered vague and ambiguous by dissection with a semantic scalpel," but "(t)his kind of semantic inquiry" "amounts to little more than verbal calisthenics"). Even where constitutionally protected activities are involved, it is not the role of the judiciary to secondguess Congress's decision on issues that are inherently matters of judgment and discretion. /25/ In Buckley v. Valeo, 424 U.S. 1, 82-84 (1976), for instance, this Court sustained the $10 and $100 thresholds for the recordkeeping and reporting requirements of the Federal Election Campaign Act of 1971, 2 U.S.C. 431 et seq. The Court recognized that the threshold levels "are indeed low" and "may well discourage participation by some citizens in the political process" (424 U.S. at 83). It nonetheless rejected a constitutional challenge to the levels Congress set even though Congress may not have been able to assert a compelling justification for those particular levels, explaining (ibid.) "we cannot require Congress to establish that it has chosen the highest reasonable threshold. The line is necessarily a judgmental decision, best left in the context of this complex legislation to congressional discretion." So, too, Congress cannot be expected to use the most precise language or language that will not have a negative meaning for some members of the public, /26/ and it certainly need not articulate a compelling interest for the use of every word in a statute. Otherwise, the judiciary would become a "panel of grammarians" (Flora v. United States, 362 U.S. 145, 150 (1960)), and a determination of constitutionality could well turn on the changing nuances or shadings of the language used in a statute. C. Even If The Statute's Use Of The Term "Political Propaganda" Did Embody Official Disapproval Of The Speech To Which It Applies, It Would Not Offend The First Amendment Even if the Act's use of the term "political propaganda" does in fact express official disapproval and denigration of the expression to which it applies, it is nonetheless constitutionally valid as a reasonable exercise of Congress's legislative power, which places only the most attenuated burden on free expression. The district court in this case acknowledged (J.S. App. 25a) the validity of the statute's basic purpose -- "to protect the national defense, internal security, and foreign relations of the United States by requiring (certain) public disclosure(s by foreign agents) * * * so that the Government and the people of the United States * * * may appraise their statements and actions in the light of their associations and activities" (22 U.S.C. 611 note). Every court that has addressed the question has upheld the constitutionality of the disclosure provisions of the FARA. /27/ Although this Court has never expressly addressed the issue, it has assumed that the FARA is a valid exercise of Congress's plenary authority to regulate and protect the nation's foreign policy and internal security. See Communist Party of the United States v. SACB, 367 U.S. 1, 99-100 (1967); id. at 138-140 (Black, J., dissenting); see also Viereck v. United States, 318 U.S. at 251 (Black & Douglas, JJ., dissenting). /28/ Moreover, this Court has upheld a variety of other types of federal disclosure laws that are similar to the FARA. /29/ Even if "propaganda" is a term carrying some negative connotations and these connotations were intended, it would be surprising, indeed, if Congress had the constitutional power to establish registration and disclosure requirements relating to agents of foreign principals, but lacked the incidental authority to state an official view that such material, given its source and nature, should be viewed with skepticism. Cf. Posadas de Puerto Rico Associates v. Tourism Co., No. 84-1903 (July 1, 1986), slip op. 14-15 (whether the legislature should engage in "'counterspeech'" or regulation is a matter of legislative discretion). It is no answer to point to cases where the government expresses a view with regard to a certain category of expression and takes concrete action to impair or discourage its dissemination, which concrete action is the basis for objection. See Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963); Lamont v. Postmaster General, 381 U.S. 301 (1965). /30/ Here, the government has not prevented appellee from exhibiting these films in any way. See T. Emerson, The System of Freedom of Expression 708 (1970) (Bantam Books is best characterized as an instance of government "action," rather than "expression"). Put more broadly, the business of legislating is the business of making value judgments, and it is unavoidable that those judgments will at times find statutory expression in words which may be taken to reflect negatively on a particular idea or point of view. This precise point was made by the District of Columbia Court of Appeals in Block v. Meese, slip op. 16-17: A rule excluding official praise or criticism of ideas would lead to the strange conclusion that it is permissible for the government to prohibit racial discrimination, but not to criticize racial bias; to criminalize polygamy, but not to praise the monogamous family; to make war on Hitler's Germany, but not to denounce Nazism. It is difficult to imagine how many governmental pronouncements, dating from the beginning of the Republic, would have been unconstitutional on that view of things. Consider, for example, the disparagement of pacificism contained in the Joint Resolution of March 29, 1800, commending the action of Captain Thomas Truxton and the crew of the United States frigate Constellation in their engagement with the French ship of war La Venegeance, and specifically praising the conduct of midshipman James Jarvis, "who gloriously preferred certain death to an abandonment of his post." 2 Stat. 87 (1800). A state's selection of history and government textbooks for use in its public schools represents a most forceful and influential expression of official approval and disapproval of ideas. It cannot be a response to these points that the only subjects off-limits to the government are those as to which there is less than substantial unanimity among the people -- thus permitting official positions on war heroism and motherhood, but excluding nuclear disarmament and acid rain. That distinction would raise the intolerable prospect of the courts' deciding what ideas are sufficiently popular to be granted government support -- the object being, presumably, to assure that only the ideas of insular minorities will suffer official disparagement. CONCLUSION The judgment of the district court should be reversed and the case remanded to that court with directions to dismiss the complaint for lack of standing. In the alternative, the judgment of the district court should be reversed and the case remanded to that court with directions to enter judgment for appellants. Respectfully submitted, CHARLES FRIED Solicitor General RICHARD K. WILLARD Assistant Attorney General DONALD B. AYER Deputy Solicitor General PAUL J. LARKIN, JR. Assistant to the Solicitor General LEONARD SCHAITMAN HAROLD J. KRENT Attorneys JULY 1986 /1/ For the reasons given in the Jurisdictional Statement (at 2 n.1), the appeal was timely as measured from the date of either judgment entered by the district court. /2/ An "agent of a foreign principal" includes "any person who acts as an agent, representative, employee, or servant * * * of a foreign principal" and "who directly or through any other person * * * engages within the United States in political activities for or in the interests of such foreign principal" (22 U.S.C. 611(c)(1)(i)). A "'foreign principal'" includes "a government of a foreign country" (22 U.S.C. 611(b)(1)). /3/ The registration statement must include, among other things, the agent's name and nationality; a comprehensive statement of the nature of the agent's business; the name of every foreign principal for whom the agent is acting; the terms of the agreement between the agent and the foreign principal; the activities engaged in by the agent, including a detailed statement of any political activities; and the compensation or reimbursement received by the agent and the expenditures made by the agent. 22 U.S.C. 612; see also 28 C.F.R. 5.200, 5.201; Report Form OBD-63. /4/ The FARA also requires the agent to submit to the Attorney General a report setting forth the places, times, and extent of such dissemination. 22 U.S.C. 614(a); see also 22 U.S.C. 616(a). /5/ In its 1983 registration, the Film Board described its activities in part as (J.A. 27): Promotion and distribution through commercial and noncommercial channels of Canadian Government information, documentary and cultural films, filmstrips, and other visual aid materials to public film libraries, educational institutions, government agencies, etc. * * * /6/ Appellants thereafter moved pursuant to Fed. R. Civ. P. 59(e) to alter the district court's judgment to limit it to only the three films in question. The district court granted the motion and modified its judgment accordingly (J.S. App. 40a). The district court also denied appellants' motion for a stay pending appeal (id. at 40a-42a). /7/ As the court explained in United Presbyterian Church v. Reagan, 738 F.2d at 1378-1379 (emphasis in original): "(C)hilling effect" * * * is foreclosed as a basis for standing by the Supreme Court's holding in Laird v. Tatum * * * . All of the Supreme Court cases employing the concept of "chilling effect" involve situations in which the plaintiff has unquestionably suffered some concrete harm (past or immediately threatened) apart from the "chill" itself. * * * "Chilling effect" is cited as the reason why the governmental imposition is invalid rather than as the harm which entitles the plaintiff to challenge it. * * * * * (T)he standing question * * * (is) whether the fear (of a "chilling effect") constitutes cognizable harm. On th(is) latter point, Tatum is clear and categorical: "(a)llegations of a subjective 'chill' are not . . . adequate." See also 738 F.2d at 1379 n.1 (quoting G. Gunther, Cases and Materials on Constitutional Law 1186-1187 (10th ed. 1980)). /8/ Insofar as appellee alleges harm to his chances for reelection (see Mot. to Aff. 4-5), he raises a type of injury that is significantly more attenuated than an impaired reputation. The district court did not rely on this argument, and we submit that the injury appellee asserts is even more indirect and speculative than his general allegation that his reputation has been impaired. For that reason, it does not suffice to confer standing. See Winpisinger v. Watson, 628 F.2d 133, 139 (D.C. Cir.), cert. denied, 446 U.S. 929 (1980). /9/ See J.A. 110 (Declaration of Barry Keene as Regards Having Exhibited the Three Films) ("After obtaining a preliminary injunction, * * * I arranged to exhibit the films. The films were exhibited in an auditorium in the basement of the West Wing of the State Capitol Building, Sacramento, California, beginning at noon on July 6, 1983, to a standing room only audience of the general public and legislative staff."); see also Canadian Films and the Foreign Agents Registration Act: Oversight Hearing Before the Subcomm. on Civil and Constitutional Rights of the House Comm. on the Judiciary, 98th Cong., 1st Sess. 40-41 (1983) (Rep. Conyers) ("(t)here is a sort of comic element about the whole thing in that by labeling something the Government doesn't necessarily approve of you attract attention to it * * * and citizens' appetites are whetted enormously to see what it is that got the label * * * . Certainly in this instance there has been a totally warming effect on the films that have been involved."). /10/ This case differs materially from Block v. Meese, No. 84-5318 (D.C. Cir. June 18, 1986), cert. denied, No. 85-1837 (July 7, 1986), where a plaintiff engaged in the commercial distribution of foreign films on a substantial scale was found to have standing to challenge the FARA. The court there noted plaintiff's allegation that his sales would be significantly reduced as a result of the classification of the films and of the publication of the names of organizations and theatres exhibiting them, and cited to affidavits of organizations declining to purchase the films for precisely these reasons. Slip op. 6-7. In this case neither appellee nor the persons to whom plaintiff proposed to exhibit the films would have their names disclosed or reported in any way. Insofar as Block contains dicta suggesting that mere public misunderstanding of the term "propaganda" would suffice to give standing (slip op. 8), we respectfully disagree. /11/ Assuming an injury to appellee's reputation caused in some sense by the statute's classification and labeling scheme, alleviation of that injury is not "'likely' to follow from a favorable decision" invalidating use of the term "propaganda" (Allen, 468 U.S. at 751; Eastern Kentucky, 426 U.S. at 38, 41). Appellee's requested relief -- that the term "advocacy" be substituted in its stead (Mot. to Aff. 9-10), leaving the functioning of the statute otherwise unchanged -- would accomplish little or nothing. Anyone aware of the reason for the substitution is likely to treat the term "advocacy" simply as a euphemism for the existing term "propaganda." And anyone aware of the statutory objective -- to allow public appraisal of foreign source material in light of the identity of its source -- is likely nonetheless to approach the material with a sense of skepticism. One can imagine the government being required to substitute one term after another, chasing an unattainable goal, despite the fact that each successive statutory term carries only the message that the material's source and purpose recommends it for careful and perhaps skeptical consideration. /12/ See City of Renton v. Playtime Theatres, Inc., No. 84-1360 (Feb. 25, 1986); Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976); Erznozick v. City of Jacksonville, 422 U.S. 205 (1975). /13/ See Lamont v. Postmaster General, 381 U.S. 301 (1965). /14/ See Thomas v. Collins, 323 U.S. 516 (1945). /15/ See Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). /16/ The fact that the term is also sometimes used to carry a disparaging meaning, see, e.g., Webster's New World Dictionary 1138 (2d ed. 1972) (definition No. 3: "now often used disparagingly to connote deception or distortion"), does not suggest that it must be or is always so used. /17/ Section 501(c)(3) of the Internal Revenue Code (26 U.S.C.) (emphasis added) exempts organizations which carry on substantial political activity from the charitable deduction: Corporations, and any community chest, fund or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes * * * no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation * * * . In addition, Congress has delimited the powers of United Service Organizations so that "(n)o substantial part of the activities of the corporation shall involve carrying on propaganda, or otherwise attempting to influence legislation" (36 U.S.C. 1304(a)). See also 5 U.S.C. 4107. /18/ For instance, in Lehman v. City of Shaker Heights, 418 U.S. 298, 304 (1974), this Court explained that if political advertisements were not banned on public rapid transit vehicles, "(u)sers would be subjected to the blare of political propaganda." In National Association of Letter Carriers v. Austin, 418 U.S. 264, 280 n.14 (1974), the Court, in discussing a union's organizational activities, stated that "(i)t seems likely that the Executive Order was similarly not intended to limit union propaganda or prohibit any other method of peaceful persuasion." The Court characterized union informational activities in a similar manner in NLRB v. Drivers Local 639, 362 U.S. 274, 279 (1960), recognizing the "right in unions to 'use all lawful propaganda to enlarge their membership.'" /19/ The Act traces its lineage to a resolution passed by the House of Representatives on March 20, 1934, authorizing a special committee to investigate the extent of Nazi propaganda and similar forms of subversive foreign influence in the United States. H.R. Res. 198, 73d Cong., 2d Sess., 78 Cong. Rec. 11069. The McCormick Committee, as it was known, recommended that Congress adopt legislation requiring foreign agents to register with the federal government. H.R. Rep. 153, 74th Cong., 1st Sess. 23 (1935). While the McCormack Committee was particularly concerned with the spread of Nazi, Fascist, and Communist propaganda (see id. at 3-23), the Committee advised Congress to require "all publicity, propaganda, or public-relations agents or other agents or agencies, who represent in this country any foreign government or a foreign political party or foreign industrial or commercial organization" to register with the federal government (ibid.). As the committee's report stated (id. at 23 (emphasis added)): Congress should enact a statute requiring all publicity, propaganda, or public-relations agents or other agents or agencies, who represent in this country any foreign government or a foreign political party or foreign industrial or commercial organization, to register with the Secretary of State of the United States, and to state the name and location of such foreign employer, the character of the service to be rendered, and the amount of compensation paid or to be paid therefor. Congress endorsed the McCormack Committee's recommendations that foreign agents should be required to register with the government and that the registration requirement should be broadly defined to include such agents of every stripe. While Congress was concerned that "there are many persons in the United States representing foreign governments or foreign political groups, who are supplied by such foreign agencies with funds to foster unAmerican activities, and to influence the external and internal policies of this country" (H.R. Rep. 1381, 75th Cong., 1st Sess. 1-2 (1937); S. Rep. 1783, 75th Cong., 3d Sess. 2 (1938)), the Act was not limited to only those persons espousing allegedly subversive ideas and programs. The statutory definition of "agent of a foreign principal," which was taken virtually verbatim from the McCormack Committee's report, covered "any person who acts * * * as a public-relations counsel, publicity agent, or as agent, servant, representative, or attorney for a foreign principal" as well as "any person who receives compensation from or is under the direction of a foreign principal" (22 U.S.C. (1940 ed.) 611(d)). "The purpose" of the Act, Congress explained, was "to make available to the American public the sources that promote and pay for the spreading of such foreign propaganda," which is "usually conducted in secrecy" (H.R. Rep. 1381, supra, at 2; S. Rep. 1783, supra, at 2). By applying the principles underlying the labeling requirements of the federal food and drug laws to "a different field, that of political propaganda," the Act would force foreign agents "to come out 'in the open,'" without prohibiting "(s)uch propaganda" in any way (H.R. Rep. 1381, supra, at 2; S. Rep. 1783, supra, at 2). As the committee reports explained, Congress decided to "require all persons who are in the United States for political propaganda purposes" -- not only for the purpose of "establishing in the United States a foreign system of government," but also for any other "purpose of a political propaganda nature" -- to register with the government. H.R. Rep. 1381, supra, at 2; S. Rep. 1783, supra, at 2. In that way, by shining "the spotlight of pitiless publicity" on foreign agents and their principals (H.R. Rep. 1381, supra, at 2; S. Rep. 1783, supra, at 2), Congress sought to ensure that "our people * * * (would) know the sources" of the information and attempts at persuasion that they were receiving (H.R. Rep. 1381, supra, at 2; S. Rep. 1783, supra, at 2). /20/ Act of Apr. 29, 1942, ch. 263, 56 Stat. 248 et seq. During Congress's consideration of the 1942 amendments, the Department of Justice successfully opposed the addition of a requirement that foreign agents submit political propaganda to the Department before it was transmitted by a foreign agent, on the ground that the requirement might constitute a forbidden prior restraint. See Amending Act Requiring Registration of Foreign Agents: Hearings on H.R. 6045 Before Subcomm. No. 4 of the House Comm. on the Judiciary, 77th Cong., 1st Sess. 42 (1941) (L.M.C. Smith, Chief Special Defense Unit, Dep't of Justice) (hereinafter cited as House Hearings). The House report stressed that "(i)t cannot be emphasized too strongly that these amendments do not change the fundamental approach of the statute, which is one not of suppression or of censorship, but of publicity and disclosure" (H.R. Rep. 1547, 77th Cong., 1st Sess. 2 (1941)), and that purpose was repeatedly emphasized during the debate on the amendments. See S. Rep. 913, 77th Cong., 1st Sess. 2 (1941); 87 Cong. Rec. 10022 (1941) (Sen. Kilgore); id. at 10050 (Rep. Fish) (bill "applies to all nations, the British, the French, Norwegian (sic), and all the rest who have propaganda agents in this country"); id. at 10050, 10052 (Rep. McLaughlin); ibid. (Rep. Michener); id. at 10063 (Rep. McLaughlin); see also House Hearings 14, 16, 17, 18, 19-20, 25, 26 (L.M.C. Smith); id. at 34 (Vincent M. Miles, Solicitor, Post Office Dep't); id. at 42, 49-51 (L.M.C. Smith); id. at 52-53 (Rep. Voorhis). The statutory definition of "political propaganda" was also entirely neutral, covering "all communications issued by foreign agents, 'whether friendly or unfriendly, whether violent or mild'" (Block v. Meese, slip op. 10, quoting United States v. Kelly, 51 F. Supp. 362, 363 (D.D.C. 1943)). Discussing that definition, the Senate report explained that it was "comprehensively defined" to ensure that "all political propaganda disseminated by agents of foreign principals" would be subject to the disclosure requirements of the Act (S. Rep. 913, 77th Cong., 1st Sess. 9 (1941)). The definition of "political propaganda" was intended to be "a broad one" (ibid.; see H.R. Rep. 1547, supra, at 3), since Congress considered it "desirable that any material which (a foreign agent) disseminate(d) that may be classed as political propaganda be properly labeled and copies filed" (S. Rep. 913, supra, at 9). The labeling and filing requirements were added so that "(w)ith all this information at their disposal, recipients of such propaganda can properly appraise its worth" (H.R. Rep. 1547, supra, at 4; see S. Rep. 913, supra, at 9). /21/ Veto Message from the President of the United States (H.R. Doc. 611, 77th Cong., 2d Sess. 2 (1942)). /22/ See 22 U.S.C. 613(f); H.R. Rep. 2038, 77th Cong., 2d Sess. 2 (1942); S. Rep. 1227, 77th Cong., 2d Sess. 2 (1942); 88 Cong Rec. 3178 (1942) (Sen. Danaher); Block v. Meese, slip op. 10. In fact, during World War II, agents of the British Government, agents of the London Fire Brigade, and agents of the Spanish Ambassador, to list but a few, registered under the Act. Report of the Attorney General to the Congress of the United States on the Administration of the Foreign Agents Registration Act of 1938 (1945). The Attorney General also noted in his report that "the great bulk of propaganda in this period is that which, distributed by agents of foreign governments, has centered on building up reservoirs of good will and friendship. The contributions our Allies have made to the common war effort, their resistance to the Axis, conditions under Axis occupation, and similar war topics have formed a principal part of such propaganda, although the history and culture of a foreign country, its political, economic, and social problems, are frequently, and in some instances mainly, stressed" (id. at 32). The 1966 amendments to the Act also demonstrate that Congress still regarded the purpose of the Act as requiring foreign agents to disclose their identities and allegiances to inform the public of their motives for engaging in advocacy, regardless of the particular message they conveyed. See S. Rep. 875, 88th Cong., 2d Sess. 5 (1964) ("(t)he 'pitiless spotlight of publicity,' which Congressman Emanuel Celler so aptly referred to as the purpose of this legislation 25 years ago remains its purpose today"); id. at 9, 11-12; 110 Cong. Rec. 16033, 16035 (1964) (Sen. Fulbright); S. Rep. 875, 88th Cong., 2d Sess. 2 (1964); S. Rep. 143, 89th Cong., 1st Sess. 5, 9, 11-12 (1965); 111 Cong. Rec. 6985 (1965) (Sen. Fulbright); H.R. Rep. 1470, 89th Cong., 2d Sess. 2 (1966) ("(t)he act is intended to protect the interests of the United States by requiring complete disclosure by persons acting for or in the interests of foreign principals where their activities are political in nature or border on the political. Such political disclosures as required by the act will permit the Government and the people of the United States to be informed as to the identities and activities of such persons and so be better able to appraise them and the purposes for which they act"); 112 Cong. Rec. 10536 (1966) (Rep. Tuck); ibid. (Rep. Poff); id. at 10537 (Rep. McCulloch); ibid. (Rep. Celler); id. at 10538 (Rep. Dorn); id. at 13827-13828 (Sen. Fulbright). /23/ In O'Brien, the defendant challenged the constitutionality of a federal statute making it a crime to destroy a Selective Service System registration card, on the ground that the statute was motivated by congressional hostility towards the destruction of draft cards as a means of voicing disapproval of the nation's participation in the Vietnam war. In upholding the statute, the Court made clear that the presence of substantial and legitimate purposes for the act, not the absence of illegitimate ones, was sufficient to sustain the constitutionality of the statute. O'Brien also expressly refused to undertake the inquiry into legislative motive that the district court followed in this case. 391 U.S. at 383-384. In City of Renton, the court of appeals had struck down a municipal ordinance restricting the location of adult movie theatres, ruling that the ordinance was invalid if "a motivating factor," however slight, in the municipality's decision to adopt the ordinance was the intent to restrict the theatre owners' exercise of their First Amendment rights. Slip op. 5-6 (citation omitted). Relying on O'Brien, this Court reversed the court of appeals, stating that "(t)his view of the law was rejected in * * * O'Brien" (City of Renton, slip op. 6), and that "(t)he district court's finding as to 'predominant' intent" was "more than adequate" to sustain the ordinance (ibid.). /24/ Although the district court is correct (J.S. App. 24a) that the First Amendment may be violated even if the legislature did not have an invidious intent in drafting a statute (see, e.g., Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 460 U.S. 575 (1983)), here the alleged injury arises not from the statute as written, but from the subjective perception of third parties who may misunderstand the statutory scheme. /5/ If Congress had supplied no definition of the term "political propaganda," a federal court confronting a First Amendment challenge to the statute would "have a duty" (United States v. 12 200-Ft. Reels of Film, 413 U.S. 123, 130 n.7 (1973)) to follow the "cardinal principle" (Crowell v. Benson, 285 U.S. 22, 62 (1932)) of construing the statute, if fairly possible, to avoid the constitutional defect. See also New York v. Ferber, 458 U.S. 747, 769 n.24 (1982). "The judicial function is 'not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations'" (Selective Service System v. Minnesota Pub. Interest Research Group, 468 U.S. 841, 850 (1984) (citation omitted)). Accordingly, a court with the undefined term "political propaganda" would seek to interpret the statute in a neutral way that both accorded with Congress's intent and would be constitutionally permissible. Surely, the FARA is open to no greater challenge because Congress itself has supplied such a neutral definition in the statute. /26/ The statute here is quite similar to the one reviewed by the Court in United States v. Harriss, 347 U.S. 612 (1954), which involved a challenge to the reporting and disclosure requirements of the Federal Regulation of Lobbying Act, 2 U.S.C. 261-270. There, the Court construed several provisions of the Act in a manner clarifying its registration and reporting requirements. It then rejected a First Amendment challenge to these requirements (347 U.S. at 625-626): Under these circumstances, we believe that Congress, at least within the bounds of the Act as we have construed it, is not constitutionally forbidden to require the disclosure of lobbying activities. To do so would be to deny Congress in large measure the power of self-protection. "Lobbying," like "propaganda," carries negative connotations at least in the minds of some. See United States v. Finance Committee to Re-elect the President, 507 F.2d 1194, 1201 (D.C. Cir. 1974) ("(l)obbying is of course a pejorative term, but another name for it is petitioning for the redress of grievances"). If those connotations posed no problem in upholding the statute in Harriss against a First Amendment challenge, a similar conclusion would seem to follow here. /27/ See Attorney General v. The Irish People, Inc., 684 F.2d 928, 935 & n.23 (D.C. Cir. 1982) (Wilkey, J.), cert. denied, 459 U.S. 1172 (1983), id. at 956 (Wald & Bazelon, JJ.); Attorney General v. Irish Northern Aid Committee, 530 F. Supp. 241, 253 (S.D.N.Y. 1981), aff'd, 668 F.2d 159 (2d Cir. 1982); Attorney General v. Irish Northern Aid Committee, 346 F. Supp. 1384 (S.D.N.Y.), aff'd mem., 465 F.2d 1405 (2d Cir.), cert. denied, 409 U.S. 1080 (1972); United States v. Peace Information Center, 97 F. Supp. 255, 260 (D.D.C. 1951). /28/ While Justice Black disagreed with the majority with respect to the scope of the statutory registration requirements, he fully agreed with the majority's articulation of the congressional purpose underlying the Act, and he found that purpose constitutionally valid (318 U.S. at 250-251 (emphasis added)): The general intent of the Act was to prevent secrecy as to any kind of political propaganda activity by foreign agents. * * * * * * * Resting on the fundamental constitutional principle that our people, adequately informed, may be trusted to distinguish between the true and the false, the bill is intended to label information of foreign origin so that hearers and readers may not be deceived by the belief that the information comes from a disinterested source. Such legislation implements rather than detracts from the prized freedoms guaranteed by the First Amendment. /29/ See Buckley v. Valeo, supra (upholding contribution disclosure requirements of the Federal Election Campaign Act of 1971); United States v. Harriss, supra (upholding disclosure requirements imposed on lobbyists by the Federal Regulation of Lobbying Act enacted as Title III of the Legislative Reorganization Act of 1946, ch. 753, 60 Stat. 839); Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913) (upholding 39 U.S.C. (1952 ed.) 234, postal law requiring all mailed, second-class materials such as newspapers or magazines clearly to identify all paid advertisements); cf. FCC v. League of Women Voters, 468 U.S. 365, 395 (1984) (suggesting that the government could require public broadcasting stations to broadcast a disclaimer when they editorialize stating that the editorial does not represent the views of the government). /30/ In Bantam Books, a state commission sent notices to book distributors that certain books were obscene, and the trial court found that these notices compelled the distributors to cease selling the books and to withdraw all outstanding books from retailers. This Court found that the commission's directives constituted a series of unlawful "prior administrative restraints" (372 U.S. at 66-72) that took the form of "thinly veiled threats to institute criminal proceedings against them" (id. at 68). Similarly, in Lamont, the statute required the Postmaster General to detain and deliver only on the addressee's request foreign mail deemed by the Postmaster to constitute "communist political propaganda." The Court invalidated the statute on the ground that "it requires 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; see id. at 307). The government's detention of the material and the requirement that a person affirmatively ask to receive it, not the label used to describe it, was found an unconstitutional infringement of the First Amendment. Appendix