Meese v. Keene
Does the Foreign Agents Registration Act's requirement that materials distributed by agents of foreign governments be labeled 'political propaganda' violate the First Amendment's protections of free speech?
The Decision
5-3 decision · Opinion by John Paul Stevens · 1987
Majority Opinion— John Paul Stevensconcurring ↓dissent ↓
The Supreme Court reversed the District Court's decision by a vote of 5–3, ruling that FARA's use of the term 'political propaganda' does not violate the First Amendment. Justice John Paul Stevens wrote the majority opinion.
First, the Court addressed standing. The majority agreed that Keene had demonstrated a sufficiently concrete and personal injury to bring the case. The Court found that Keene faced two distinct types of harm: the risk that being associated with materials labeled 'political propaganda' could damage his reputation in his community, and the risk that it could be used against him politically, threatening his electoral prospects. These injuries, the Court held, were not abstract or speculative — they were real enough to give Keene a legitimate stake in the outcome.
On the merits, however, the Court ruled against Keene. The majority reasoned that FARA does not prohibit, edit, or restrain the distribution of any material. Anyone remained free to distribute the Canadian films, and the public remained free to view them. The statute merely added a disclosure requirement so that the audience would know the material was disseminated by or on behalf of a foreign agent. The majority emphasized that the Act does not prevent Keene from adding his own commentary, explaining why he finds the films valuable, or publicly disagreeing with the government's classification.
The Court acknowledged that the word 'propaganda' carries negative connotations in everyday speech, but concluded that the statutory definition was a neutral, comprehensive classification covering a wide range of communications. The majority found that Congress was not expressing disapproval of the materials by using this term — it was simply identifying a category of expression subject to disclosure requirements. The Court stressed that the First Amendment does not protect individuals from having to confront and respond to a government label; it protects them from government suppression or punishment of speech. Since FARA neither suppressed speech nor imposed penalties for speaking, the Act survived constitutional scrutiny.
The majority also observed that Keene's real complaint was that the label might persuade the public to view the films negatively — but the First Amendment does not guarantee speakers the right to be free from government speech or classifications that might influence public perception, so long as the government does not actually restrict the speaker's ability to communicate.
Concurring Opinions
There were no separately published concurring opinions of particular note in this case. Justice Anthony Kennedy did not participate in the consideration or decision of the case.
Dissenting Opinions
Harry A. Blackmunjoined by William J. Brennan Jr., Thurgood Marshall
Justice Blackmun argued that the term 'political propaganda' is inherently pejorative and that applying this official government label to protected expression places a real and substantial burden on First Amendment rights. He contended that the majority naively dismissed the powerful stigmatizing effect of the word 'propaganda' and ignored the practical reality that the label deters people from distributing and engaging with the covered materials.
- The word 'propaganda' universally connotes manipulation, deception, and attempts at brainwashing — no statutory definition can strip away the deeply negative meaning the public attaches to the term
- By officially branding materials as 'political propaganda,' the government effectively discourages their dissemination and biases audiences against the content before they ever encounter it, which constitutes a real burden on speech
- The government could easily achieve its legitimate disclosure objectives by using a neutral term rather than the loaded word 'propaganda,' and its choice to retain the stigmatizing label serves no purpose beyond prejudicing audiences against the materials
- The majority's distinction between outright censorship and government labeling that chills speech is too formalistic — the First Amendment should protect against government actions that practically deter the free flow of ideas, not just those that legally prohibit it
Background & Facts
Barry Keene was a California State Senator who wanted to show three Canadian documentary films to his constituents and the public. The films — 'If You Love This Planet' (an Academy Award–winning documentary about nuclear war featuring Dr. Helen Caldicott), 'Acid Rain: Requiem or Recovery,' and 'Acid from Heaven' (both about the environmental effects of acid rain) — were produced by the National Film Board of Canada. Because the Film Board was registered as an agent of a foreign government under the Foreign Agents Registration Act of 1938 (FARA), the U.S. Department of Justice classified these films as 'political propaganda' under the statute.
FARA did not ban any materials or prevent anyone from viewing or distributing them. However, it required that materials disseminated in the United States by or on behalf of registered foreign agents be labeled with certain disclosures — including the identity of the foreign agent — and that copies be filed with the Department of Justice. Critically, the statute used the term 'political propaganda' to describe the category of covered materials, defining it broadly to include communications intended to influence public opinion on matters of political interest.
Keene argued that he wanted to exhibit the films but was deterred from doing so because the 'political propaganda' label would stigmatize him in the eyes of his voters. He feared that his political opponents could use the fact that he screened materials officially classified as 'propaganda' against him in future elections. He filed suit against Attorney General Edwin Meese III, claiming the labeling provision violated his First Amendment rights.
The U.S. District Court for the Eastern District of California ruled in Keene's favor, holding that the term 'political propaganda' was unconstitutional because it placed a burden on protected expression by effectively discouraging people from disseminating foreign-produced materials. The government appealed directly to the Supreme Court, which noted probable jurisdiction to resolve the important First Amendment question.
The Arguments
The government argued that the Foreign Agents Registration Act's use of the term 'political propaganda' did not violate the First Amendment because the statute did not restrict, prohibit, or censor any speech — it merely required disclosure of the foreign source. The term 'political propaganda' was a neutral, technical definition within the statute, not a government endorsement or condemnation of the materials' content.
- FARA does not prevent anyone from distributing, viewing, or possessing the materials in question — it only requires transparency about their foreign origin
- The term 'political propaganda' is defined broadly in the statute as a legal term of art and does not carry the pejorative connotation that ordinary usage might suggest
- Congress has a legitimate interest in ensuring the American public knows when communications are being made on behalf of foreign governments, and labeling requirements serve this informational purpose
Keene argued that the government's labeling of the Canadian films as 'political propaganda' deterred him from exhibiting them and burdened his First Amendment rights. He contended that the label carried an inherently negative connotation that stigmatized both the materials and anyone who distributed them, effectively chilling protected speech.
- The common understanding of 'political propaganda' is overwhelmingly negative, implying manipulation and dishonesty, regardless of the statute's technical definition
- Being publicly associated with materials the government officially classifies as 'propaganda' would damage Keene's reputation with voters and harm his electoral prospects
- The labeling requirement functions as a practical deterrent to distributing the films, placing an unconstitutional burden on the exercise of First Amendment rights