Film censorship: USIA regulations challengedAuthor(s): Nancy BlodgettSource: ABA Journal, Vol. 72, No. 3 (March 1,1986), p. 34Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/20758639 .

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A scene from a film deni^ ^ovmg C-125K ̂ rcraft of the

type used in Vietnam for defoliation activities.

Drugs at work

Employee testing challenged

As more private employers require em

ployees to submit to drug tests, lawyers predict the tests will face a variety of legal challenges. As many as 25 percent of the major

corporations in the United States now engage in drug screening before hiring new employees, according to Dr. Michael

Walsh of the National Institute on Drug Abuse.

A prediction "My guess is that in the next year the

number will double," said Walsh, noting that many corporations are also develop ing programs to test current employees. Estimates are that five to six million

Americans currently are using cocaine, and that 23 million are using marijuana, said Walsh. He said that in some cases

drug screening is excluding as many as half of the job applicants.

Typical of the companies doing drug testing, IBM began screening new em

ployees in 1984. The company also tests current employees believed to be using drugs, according to an IBM spokesman.

Drug tests generally have been upheld as a valid condition for hiring a new

employee, according to Donald Cohen, a member of the ABA Committee on De

velopment of the Law of Individual

Rights and Responsibilities in the Work

place.

Random drug testing More questionable are drug tests of

employees who already have been hired. In the public sector, some courts have ruled random drug testing to be a Fourth Amendment violation.

For instance, a Florida appeals court last fall prohibited random testing of po lice officers and firefighters, holding that

drug tests are only permissible if part of an annual examination or if there is a reasonable suspicion that a police officer or firefighter is using drugs. (See Feb. 1, 1986 Journal, page 20.) Although private employers are not

subject to the same Fourth Amendment restrictions, a number of other possible legal challenges to the tests exist. A 34-year-old computer programmer,

Barbara Luck, is suing Southern Pacific

Transportation Company in state court in San Francisco (No. 843230) after being fired last summer for failing to provide a urine sample as part of a companywide

Film censorship USIA regulations challenged

American independent filmmakers have filed suit challenging U.S. Informa tion Agency regulations under which the agency has denied certification of their films' educational character, allegedly for

political reasons.

Not getting certified means higher for eign import taxes and makes distributing the films "next to impossible," according to the New York-based Center for Con stitutional Rights.

First Amendment challenge Representing the plaintiffs, CCR law

yer David Cole argued that the USIA certification denial to a variety of films for foreign distribution violated the First Amendment. Films denied certification include In Our Own Backyards, on the hazards of uranium mining; Secret Agent, a look at the use of Agent Orange in Vietnam; and Save the Planet, a docu mentary about nuclear technology and war.

The USIA processes applications for certification of films' educational charac ter in accordance with 22 CFR ? 502.1 et seq. It adopted these regulations after the United States signed the "Beirut Agree ment" in 1948.

The Beirut Agreement is a multi nation treaty requiring signators to grant certificates to documentary films of an educational, scientific or cultural charac

ter to facilitate their international distri bution.

The two sections of 22 CFR that are

being challenged are ?502.6 (b) (3) and

(5). Section three says the USIA does not

certify films that attempt to "influence opinion, conviction or policy (religious, economic, or political propaganda), or

espouse a cause."

Section five provides that the USIA cannot certify a film that "may lend itself to misinterpretation or misrepresentation of the United States ... or which appear

to have as their purpose or effect to attack or discredit economic, religious, or

political views or practices." "When the government is purportedly

implementing a treaty or statute that asks them to determine what is educational and to decide this based on whether it's a

viewpoint they are comfortable with, that is censorship," said Cole.

"We do not censor films at this agen cy," said Richard Carlson, USIA Direc tor of Public Information. "The USIA has handled films the same way for the past 30 years. No changes have been made under the Reagan administra tion."

In fact, the percentage of films denied certification was lower in the last four years than under the Carter administra tion, according to Carlson.

Supreme Court case cited In support of the plaintiffs' case, Cole

cited Board of Education, Island Trees Union Free School District No. 26 v. Pico, 457 U.S. 853 (1982). The Supreme Court there held, in part, that "local school boards may not remove books from school libraries simply because they dislike the ideas contained in those books and seek by their removal to 'prescribe what shall be orthodox in politics, natio nalism, religion and other matters of

opinion.'"

Plaintiffs, including 16 filmmakers and

production companies, allege that the USIA denies certificates to films that

develop a subject in such a way that U.S. policies or agencies are criticized, on the

ground that they present "a point of view," while granting certificates to films with viewpoints favorable to U.S. policies or agencies.

Films certified by the USIA that the

plaintiffs allege present a point of view include: To Catch a Cloud: A Thoughtful Look at Acid Rain by the Edison Electric Institute; Radiation . . . Naturally by the Atomic Industrial Forum; The Family: God's Pattern for Living by the Moody Institute of Science; and Hong Kong: A

Story of Human Freedom and Progress by the Liberty Fund. ?Nancy Blodgett

34 ABA Journal, The Lawyer's Magazine

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