SIGNIFICANCE: BULLFROG FILMS V. WICK

Case Name: Bullfrog Films v. Wick
Citation: 847 F.2d 502 (9th Cir. 1988)
Topics: Political Speech; Public Funding

The “Beirut Agreement” was a treaty designed to promote the circulation of “educational, scientific, and cultural” audio-visual works. Works falling within the treaty’s scope received various benefits, including exemption from import duties. The United States Information Agency (USIA) was responsible for certifying films that qualified under the treaty. The plaintiffs here were filmmakers, production, and distribution companies whose films were denied certification. The plaintiffs alleged that the regulations used by the USIA to determine whether a work qualified under the treaty were unconstitutional. Generally, the two contested regulations prohibited certification of materials which discredited or advocated any political, religious, or economic views; sought to influence opinion or policy; or lent themselves to misinterpretation or misrepresentation.

In assessing whether the regulations interfered with freedom of speech, the Court had three central findings. First, the Court held that the regulations drew distinctions on the basis of content, and also possibly on the basis of viewpoint. The Court further concluded the USIA’s proscription on films limited expressions of opinion on issues of public controversy. Finally, the Court held the regulations conditioned the conferral of a benefit on the relinquishment of a constitutional right.

For these three reasons, the Court concluded that the USIA regulations were therefore subject to strict scrutiny. To justify its regulations the USIA therefore had to show the regulations were “necessary to serve a compelling state interest” and “narrowly drawn to achieve that end.” The Court rejected the USIA’s argument that the proscription was justified by foreign policy concerns and concluded the regulations violated the First Amendment.

The Court also held the regulations were void for vagueness. The Court applied a strict vagueness analysis due to the high First Amendment stakes, fearful that uncertain meanings would lead citizens to steer too widely outside of the unlawful zone. Here the Court held the regulations were so ambiguous that they provided USIA officials with a virtual license to engage in censorship.

This case is significant for the Court’s decision to find the regulations unconstitutional, which entailed not deferring to Congress and/or the President on foreign affairs and trade issues, which is often the case.