clear, that is most assuredly not the case. In Teague, the
Second Circuit upheld the constitutionality of the Cuban embargo
although it entirely prohibited the importation of all
"informational materials," which is now permitted by the Berman
Amendment. The restrictions upheld in Teague would have been
clearly constitutionally invalid in a domestic context.
Moreover, even in the domestic context, the Supreme Court has
recognized that the First Amendment must be flexibly applied
depending upon the nature of the regulation imposed, the type of
speech at issue, the context in which the regulation arises, and
the purpose for which the regulation is imposed. See Ward v.
Rock Against Racism, ___ U.S. ___, 109 S.Ct. 2746, 2757-58, 105
L.Ed.2d 661 (1989); Red Lion Broadcasting v. FCC, 395 U.S. 367,
387-90, 89 S.Ct. 1794, 1805-07, 23 L.Ed.2d 371 (1969); Teague,
supra, 404 F.2d at 446.
Therefore, it is far from clear that the OFAC's construction of
the Berman Amendment in this case violates the First Amendment.
Moreover, the cases relied upon by ABC, see DeBartolo Corp. v.
Florida Gulf Coast Bldg. & Const., 485 U.S. 568, 575-76, 108
S.Ct. 1392, 1397-98, 99 L.Ed.2d 645 (1988); NLRB v. Catholic
Bishop of Chicago, 440 U.S. 490, 499-500, 99 S.Ct. 1313,
1318-19, 59 L.Ed.2d 533 (1979), have no relevance to the exercise
of the Executive's authority to conduct foreign affairs and,
thus, do not support ABC's broad proposition that deference here
would violate the First Amendment.
This conclusion is further supported by the circumstance that
substantial constitutional issues of separation of powers and the
authority of the Executive to conduct foreign affairs would be
raised by an overly expansive interpretation of the Berman
Amendment. As plaintiff concedes, see Plaintiff's Supplemental
Memorandum at 3, the Berman Amendment is in derogation of the
Executive's constitutional authority to conduct foreign affairs
by the use of embargoes on trade with hostile nations, a power
found constitutionally valid in Teague. Although the government
has not challenged the constitutionality of that limitation in
this case, the Court must nevertheless be careful to balance the
First Amendment constitutional issues that could arise from
deference to the agency's interpretation against those
constitutional issues which may arise if insufficient latitude is
given to the Executive in the conduct of foreign affairs.
In addition, the Court is not persuaded by ABC's claim that the
Regulations impermissibly discriminate between the print and
broadcast media. By precluding payments for exclusive television
rights to the Games, the OFAC has not denied ABC a benefit
enjoyed by any newspaper or magazine. ABC does not contend, and
has not established, that the OFAC has permitted anyone,
including the printed media, to pay the Cuban Government for the
right to exclusively cover the Games. Moreover, both newspapers
and broadcasters have the same right to obtain those games in
tangible form, e.g. videotapes, and to use them in any way that
they wish upon the payment of appropriate royalties after they
have been produced. Furthermore, coverage of the Games on a
non-exclusive basis will be permitted by the OFAC for all types
of media so long as royalty payments are not made to the Cuban
ABC's reliance on cases like Smith v. Daily Mail Publishing
Co., 443 U.S. 97, 99 S.Ct. 2667, 61 L.Ed.2d 399 (1979) and The
Florida Star v. B.J.F., ___ U.S. ___, 109 S.Ct. 2603, 2613, 105
L.Ed.2d 443 (1989) is misplaced. Those cases involved
content-based restrictions imposed upon one type of media that
were not imposed on others. Since those content-based
discriminations were not supported by a compelling state
interest, they were invalidated. No such content-based
discriminatory restrictions are contained in the Regulations at
issue. See Ward, supra, 109 S.Ct. at 2754 (regulations are
content-neutral if application does not depend on disagreement
with message conveyed and serves purposes unrelated to the
suppression of speech)*fn13; Teague, supra,
404 F.2d at 445.*fn14 Likewise, in Lakewood v. Plain
Dealer Publ. Co., 486 U.S. 750, 759, 108 S.Ct. 2138, 2145, 100
L.Ed.2d 771 (1988), the Court struck down a local ordinance
empowering the mayor, in his discretion, to grant permits for the
placement of newspaper racks on public property because the
ordinance created the substantial danger that the government
official may discriminate against certain speakers because of the
content or viewpoint of the newspaper. Here, there has been no
showing of such discrimination.
ABC also argues that the Regulations are irrational and
arbitrary in that they do not serve the interests of preventing
the payment of substantial sums to Cuba because the Regulations
permit royalty payments for works in existence but prohibit
royalty payments for works not yet in being. See P's Memo at
34; Transcript at 63. However, "[m]atters relating to the conduct
of foreign relations . . . are so exclusively entrusted to the
political branches as to be largely immune from judicial inquiry
or interference." Wald, supra, 468 U.S. at 242, 104 S.Ct. at
3038 (quoting Harisiades v. Shaughnessy, 342 U.S. 580, 589, 72
S.Ct. 512, 519, 96 L.Ed. 586 (1952)); Haig v. Agee,
453 U.S. 280, 292, 101 S.Ct. 2766, 2774, 69 L.Ed.2d 640 (1981); United
States v. Curtiss Wright Export Corp., 299 U.S. 304, 319-20, 57
S.Ct. 216, 220-21, 81 L.Ed. 255 (1936). Therefore, the Court's
inquiry into the wisdom of executive action must end if the
Executive has advanced a "facially legitimate and bona fide
reason" for the distinction made. See Kleindienst v. Mandel,
408 U.S. 753, 770, 92 S.Ct. 2576, 2585, 33 L.Ed.2d 683 (1972).
Tested by that standard, the Court cannot say that it was
irrational for the OFAC to conclude that payments of the type at
issue here presented a greater potential for assisting a hostile
foreign government than payments for tangible informational
materials already in being.
Lastly, ABC contends that the proposed transaction is
authorized pursuant to the general licensing provision for news
gathering activities, see 31 C.F.R. § 515.560(a)(1)(ii)*fn15,
and that therefore the OFAC has misapplied its own regulations.
See P's Memo at 27-31. However, an agency's interpretation of
its own regulations is entitled to controlling weight unless that
interpretation is contrary to the plain language of the
regulations. See INS v. Stanisic, 395 U.S. 62, 72, 89 S.Ct.
1519, 1525, 23 L.Ed.2d 101 (1969). The OFAC's determination that
a broadcasting rights agreement does not fall within the news
gathering license is not contrary to the general licensing
provision in question especially since that regulation does not
on its face deal with such agreements, but merely authorizes
transactions incident to travel to Cuba for news gathering
purposes. Moreover, the OFAC's construction of that provision is
supported by and consistent with other regulations that expressly
exclude telecommunication transmissions from the scope of
"informational materials," see 31 C.F.R. at § 515.332(b)(2);
prohibit payment of royalties for works not yet in being, see
id. at §§ 515.206(c), 515.545(b);
and prohibit agreements for the purchase of television
rights. Id. at § 515.565(c)(1). For similar reasons, the Court
also rejects ABC's suggestion and Amici's claim that the
Regulations are void for vagueness.
In sum, the Court concludes that the Regulations are not
contrary to the Berman Amendment and that the Berman Amendment as
construed is constitutional.
For the reasons set forth above, plaintiff's motion for summary
judgment is denied and defendant's motion for summary judgment is
granted. The Complaint is dismissed and the Clerk shall enter
judgment for the defendant and close the above-captioned action.
It is SO ORDERED.