Hezbollah TV -- Never Mind?

[Marty Lederman]

Chip is almost certainly correct -- on the constitutional question.  But there may well be a serious statutory problem with the case, because of a speech-protective carve-out in the law.  

Turns out the charge against Iqbal is under IEEPA, which broadly allows the President to impose national-security-based import and transaction embargoes with identified foreign nations and entities (50 USC 1701-1702).  See http://www.nytimes.com/2006/08/26/nyregion/26hezbollah.html?ref=nyregion.  (I have not been able to find the indictment online.   If anyone has it, it would probably be helpful to look at it before we get too far afield.)

As Chip notes, Iqbal almost certainly had to pay the Hezbollah station, Al Manar, for the right to import the television feed.  And he's probably being prosecuted for that import transaction, rather than for the domestic broadcast of the shows.  The indictment thus would be the same, as Chip indicates, if he had paid Hezzbollah for imported baskets or pita, rather than for the right to rebroadcast tv shows -- or, perhaps even more to the point, even if Iqbal had purchased and imported the broadcasts, but had never disseminated them to the public.

As such, it's hard to see a serious First Amendment problem under current doctrine.  General embargoes of imports and other financial transactions have been regularly upheld under O'Brien analysis, even as applied to conduct undertaken for expressive purposes, to finance expressive activities, or to import expressive materials.  See, e.g., Teague v. Regional Commissioner, 404 F.2d 441 (2d Cir. 1968) (upholding ban on importing informational materials from China, North Korea, & Vietnam); Vietnam v. Regional Commissioner, 459 F.2d 676 (3d Cir. 1972) (upholding restrictions on import of Chinese informational materials from North Vietnam); Capital Cities v. Brady, 740 F. Supp. 1007 (SDNY 1990) (upholding regulatory licensing requirements on broadcasting sporting events from Cuba); see also U.S. v. Hammoud, 381 F.3d 316, 329 (4th Cir. 2004) (ban on material aid to Hezzbollah is constitutional even if ban might have incidental impact on speech and expression); HLP v. Reno, 205 F.3d at 1135-1136 (elaborating on the same point).  

These cases have distinguished Lamont as a case in which the government was singled out expression because of its impact on the audience.  IEEPA and analogous "material aid" restrictions, by contrast, are aimed at suppressing the flow of (fungible) money to certain countries and organizations that can use it for terrorist (or other disfavored, non-speech-related) purposes.  

I think there may, however, be a serious statutory question.  The so-called "Berman Amendment" to IEEPA, 50 USC 1702(b)(3), provides that "the authority granted to the President by this section does not include the authority to regulate or prohibit, directly or indirectly-- . . . (3) the importation from any country, ... whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to, publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD-ROMs, artworks, and news wire feeds."

The Executive branch had construed the original version of the Berman Amendment not to include "intangible" materials, such as broadcasts -- see the Capital Cities case, above -- but Congress amended the exemption in 1994 to broadly cover any information in any "format or medium of transmission."  The Conference Report explained (1994 U.S.C.C.A.N. at 483):
  The language [of the original 1988 exemption] was explicitly intended, by including the words "directly or indirectly," to have a broad scope. However, the Treasury Department has narrowly and restrictively interpreted the language in ways not originally intended. The present amendment is only intended to address some of those restrictive interpretations, for example limits on the type of information that is protected or on the medium or method of transmitting the information. The committee of conference intends these amendments to facilitate transactions and activities incident to the flow of information and informational materials without regard to the type of information, its format, or means of transmission, and electronically transmitted information, transactions for which must normally be entered into in advance of the information's creation. 
The 1994 amendment, however, did not expressly correct another limiting construction imposed by regulation.  Then, and now, the relevant regulations provide that the Berman Amendment "does not authorize transactions related to informational materials not fully created and in existence at the date of the transaction. . . . .  Such prohibited transactions include, without limitation, payment of advances for informational materials not yet created and completed."  See 31 C.F.R. § 595.206(b)(2); 31 C.F.R. § 500.206(c).


In other words, the Executive branch construes the exemption not to cover contracts for the import of future works, such as, e.g., books yet to be published or (as presumably in this case) television broadcasts created after the date of the contract.  Frankly, I don't see how the Berman Amendment can be construed so as not to exempt "not fully created" informational materials -- particularly in light of the express reference to "news wire feeds."  (See also the Conference Report, which specifically purports to protect transactions "entered into in advance of the information's creation.")  But that appears to be the basis on which the government is acting here.  Don't be surprised if Iqbal challenges this regulatory carve-out on statutory grounds.



----- Original Message ----- 
From: "Lupu" <iclupu at law.gwu.edu>
To: <schweber at polisci.wisc.edu>; <Mark.Scarberry at pepperdine.edu>; <conlawprof at lists.ucla.edu>; <DavidEBernstein at aol.com>
Sent: Friday, August 25, 2006 2:53 PM
Subject: Re: Man Charged With Relaying Hezbollah TV


> This discussion has been very valuable, but I suspect that Mr. Iqbal is 
> being charged with supporting a designated terrorist group by 
> engaging in a forbidden transaction with them -- that is, paying money 
> or some other goods of value in exchange for the right to broadcast 
> Hezbollah TV in the U.S.  If that is so, don't the First Amendment 
> questions disappear? (That is, it doesn't matter whether Iqbal is paying 
> Hezbollah for baskets, or pita bread, or TV footage -- paying them for 
> anything violates the law, because it supports them financially).  Or do 
> those on the list believe that the First Amendment requires an 
> exemption from the "no support" statute if the buyer is acquiring (and 
> retransmitting) communicative material?  
> 
> I seriously doubt that the charges relate to Hezbollah's foreign origins, 
> or to the content of the broadcast.  If (for example) Al-Jazeera has not 
> been designated a terrorist organization, then buying their footage and 
> showing it in the U.S. cannot be made a crime unless the broadcast 
> includes unprotected speech (threats, Brandenburg-type incitement, 
> etc.).
> 
>
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