The President’s Authority to Take Certain Actions

Relating to Communications from Iran

T h e President has sta tu to ry and constitutional auth o rity , subject to First A m endm ent 

lim itations, to limit o r em bargo alto g eth er video o r audio com m unications from Iran 

w hich aggrav ate the present crisis, either unilaterally o r in com pliance w ith U nited 

N ations Security C ouncil sanctions.

T h e First A m endm ent requires that any action taken to limit com m unications from Iran 

be narro w ly tailored and sw eep no m ore b roadly than the underlying justification 

requires. A restriction that severs all com m unications links w ith Iran w ould be subject 

to less exacting F irst A m endm ent scrutiny than a m ore lim ited restriction based in 

w hole o r in part on the co n ten ts o f the com m unication.

December 27, 1979 

M EM ORAND UM O PIN IO N FO R T H E A TTO R N E Y G E N E R A L

You have asked us to provide an overview of the legal issues raised 

by executive action, either unilaterally or in compliance with United 

Nations Security Council sanctions, that would have the effect of prohibiting importation of certain types of television messages or transmissions from Iran. Specifically, the action would address video messages 

that aggravate the hostage situation by creating in the minds of the 

captors the impression that they have a vehicle for manipulating public 

opinion in this country. These video messages might include statements 

by the Ayatollah Khomeini, messages from the student captors, or tapes 

of mob demonstrations in front of the American Embassy in Tehran. 

We consider first the President’s statutory and constitutional authority 

to proceed with and without a Security Council resolution. We then 

outline the First Amendment limits on that authority.

I. Authority

Article 41 of the United Nations C harter gives the Security Council 

authority to “decide what measures not involving the use of armed 

force are to be employed to give effect to its decisions.” The range of 

measures appears to be quite broad, and may “include complete or 

partial interruption of economic relations and of rail, sea, air, postal, 

telegraphic, radio, and other means of communication, and the severance of diplomatic relations.” Therefore, Article 41 can be construed to 

include an international news embargo: a complete or selective restriction of news transmitted—either directly or indirectly—from a particu153
lar country. It would at the very least include severance of the means 

of transmission that link the embargoed country with the outside world, 

e.g., microwave transmission links.

Under 22 U.S.C. §287c, the President by executive order may implement a Security Council resolution and, to that end,

. . . investigate, regulate or prohibit, in whole or in part, 

economic relations or rail, sea, air, postal, telegraphic, 

radio, and other means of communication between any 

foreign country or any national thereof or any person 

therein and the United States or any person subject to the 

jurisdiction thereof, or involving any property subject to 

the jurisdiction of the United States.

We think that this provision does constitute a broad grant of authority 

by Congress to the President. Subject to First Amendment limitations, 

it would appear to em power him to prevent importation of video or 

audio messages from Iran, certain leaders of that nation, or particular 

citizens within that nation, and thereby prevent their display to the 

American people via radio and television. Section 287c(b) states that 

anyone convicted of violating such an executive order would be subject 

to a fine of not more than $10,000 and imprisonment of not more than 

10 years. In the event of violation by a corporation, §287c provides for 

the fining and imprisonment of officers, directors, and agents of the 

corporation and the seizure o f corporate property involved in the 

violation. (There is no injunctive provision in the statute.)

Should the President wish to impose a message embargo unilaterally, 

i.e„ without the benefit of a Security Council resolution, other sources 

of statutory and constitutional authority are arguably available to him.

1. The International Em ergency Economic Powers Act (IEEPA ), 50 

U.S.C. § 1701-06 (Supp. I 1977), affords the President the authority in a 

national emergency to

. . . investigate, regulate, direct and compel, nullify, void, 

prevent or prohibit, any acquisition, holding, withholding, 

use, transfer, withdraw al, transportation, importation or 

exportation of, or dealing in, or exercising any right, 

power, or privilege with respect to, or transactions involving, any property in which any foreign country or a 

national thereof has any interest; by any person, or with 

respect to any property, subject to the jurisdiction of the 

United States.

50 U.S.C. § 1702(a)(1)(B). That authority is subject to the significant 

proviso that it does not include “the authority to regulate or prohibit 

directly or indirectly any postal, telegraphic, telephonic, or other per154
sonal communication, which does not involve a transfer of anything of 

value.” 50 U.S.C. § 1702(b).

Because of this proviso we think there are some restrictions directed 

toward communications that are not within the terms of the IEEPA . 

We think that the Act could properly be invoked to limit the use of 

Iranian facilities by American networks including the use of broadcasting studios, transmission lines, and local film crews. In short, the economic dimension of news broadcasting could be directly regulated. But 

it probably does not afford authority to regulate the communications 

dimension per se. On this distinction between economic and noneconomic considerations, two statements in the pertinent House committee 

report are worth review:

As a further substantive constraint, the scope of the authorities should be clearly limited to the regulation o f 

international economic transactions. Therefore the bill 

does not include authorities more appropriately lodged in 

other legislation, such as authority to regulate purely domestic transactions or to respond to purely domestic circumstances, or authority to control noneconomic aspects 

of international intercourse such as personal communications or humanitarian contributions.

H. Rep. No. 459, 95th Cong., 1st Sess. 10-11 (1977). The report goes 

on to state:

[W]hile it should be the purpose of the legislation to 

authorize tight controls in time of national emergency, 

these controls should not extend to the total isolation of 

the people of the United States from the people of any 

other country. Such isolation is not only unwise from a 

foreign policy standpoint, but enforcement of such isolation can also entail violation of First Amendment rights of 

freedom of expression if it includes, for example, prohibitions on exchange of printed matter, or on humanitarian 

contributions as an expression o f religious convictions.

Id. at 11.

2. A second, and probably the best, source of statutory authority is 

22 U.S.C. § 1732. It provides:

W henever it is made known to the President that any 

citizen of the United States has been unjustly deprived of 

his liberty by or under the authority of any foreign government, it shall be the duty of the President forthw ith to 

demand of that government the reasons of such imprisonment; and if it appears to be -wrongful and in violation of 

the rights of American citizenship, the President shall

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forthw ith demand the release of such citizen, and if the 

release so demanded is unreasonably delayed or refused, 

the President shall use such means, not amounting to acts 

of war, as he may think necessary and proper to obtain or 

effectuate the release; and all the facts and proceedings 

relative thereto shall as soon as practicable be communicated by the President to Congress.

This provision was passed by Congress in 1868 and has never been 

utilized. It is striking both in the breadth of the authority it confers and 

in its apparent textual appropriateness for the present situation. We 

think that this section can plausibly be read to authorize the President 

to take all actions—short of acts of w ar and consistent with specific 

constitutional prohibitions—necessary to obtain the release of the hostages.

3. The President arguably has statutory authority to prevent the use 

of COM SAT satellites for the broadcast of inflammatory newsreels 

from Iran. Section 721 of Title 47 of the United States Code gives the 

President authority to

(4) exercise such supervision over relationships of 

[COMSAT] with foreign governments or entities or with 

international bodies as may be appropriate to assure that 

such relationships shall be consistent with the national 

interest and foreign policy of the United States.

T he problem with relying on this section in the proposed fashion is that 

the President is not attempting to regulate the relationship of COM SAT 

with a foreign nation, but with American corporations that are attem pting to transmit information about that nation. While we have not had 

time as yet to study the application of this statute, we are unaware of 

any occasion on which this pow er has been utilized.

4. Finally, there is an argument that the President has the inherent 

constitutional authority to take the proposed action on the basis of his 

plenary role in foreign affairs. United States v. Curtiss-Wright Export

Corp., 299 U.S. 304, 320 (1936). That is, in the absence of an express 

limitation on his authority by Congress, the President can take all 

action necessary to protect American nationals overseas, unless again 

these actions violate specific constitutional restrictions. Analysis would 

proceed along the lines of Mr. Justice Jackson’s concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952). An 

argument similar to the one we have presented to the D.C. Circuit in 

the Iranian student deportation case could be made. The President’s 

power, we could contend, is at its greatest in this arena because he has 

considerable and well recognized constitutional powers in the foreign 

affairs area, and those powers have been augmented by Congress’

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delegation to the President o f all the pow er the legislature possesses to 

respond to acts by foreign powers that deprive Americans of their 

liberty (i.e., the 1868 untested statute). Even without relying on that 

particular statutory delegation, we could argue that the President is 

moving into Mr. Justice Jackson’s “zone o f tw ilight” where exigency 

demands that the constitutional scheme permit prompt executive action, 

although a similar restriction would be within the legislative pow er of 

Congress. It should be noted that a potential response to this argument 

is that by passing the IEEPA , Congress has defined the express manner 

by which the President is to impose nonmilitary sanctions on a foreign 

government.

In considering which “authority” base to assert, it will be important 

to weigh the fact that under both the U.N. sanction alternative and 

under IE E PA a criminal sanction is readily available. Absent reliance 

on ill-fitting espionage laws, there are no criminal sanctions for failures 

to comply with actions based on the President’s constitutional powers 

or on the 1868 statute.

II. First Amendment

Regardless w hether the President relies on a Security Council resolution or some other basis for the proposed action, he still is bound by 

First Amendment limitations. It is clear that U.S. treaty obligations are 

subject to constitutional scrutiny and, specifically, First Amendment 

scrutiny. R eid v. Covert, 354 U.S. 1 (1957). The First Amendment 

protects the rights of Americans to receive information and ideas, 

including those from abroad. Kleindienst v. Mandel, 408 U.S. 753, 762- 

63 (1972).

The nature of First Amendment scrutiny will depend upon the type 

of restriction imposed by Security Council or independent executive 

action. The proposed action might simply consist of a ban on certain 

specified types of television broadcasts. Transmission of the broadcast 

despite the ban could subject the network to criminal sanctions, but 

there would be no prior restraint. Alternatively, the President might 

institute a licensing scheme whereby all broadcasts of a particular class 

must be cleared by federal authorities before they can be broadcast 

domestically. This is a classic prior restraint and subject to more exacting scrutiny.

W hether seen as a prior restraint or as a less severe form of action, 

the government—as a minimum—must put forward a “compelling interest” in order to justify the restriction. M oreover, there must be a 

close nexus between the proposed restriction and the purported interest, 

e.g., Police Department o f the City o f Chicago v. Mosely, 408 U.S. 92, 95- 

96 (1972), and the action taken must be narrowly tailored and may 

sweep no more broadly than the underlying justification requires. The 

justification in this case might be that the Iranian governm ent’s and the

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captors’ ability to gain access to American television prolongs the 

captivity of the hostages by affording the abductors a stage that they 

are unwilling to yield, and that if they are denied the organs of 

publicity, the rationale for holding the hostages will dissipate, resulting 

in their release.

This characterization of the United States’ interest necessarily 

prom pts a subsidiary question. Precisely what communications prolong 

the crisis? If the proposed restrictions are too narrow, thus permitting 

effective publication of Iranian grievances in some form, it can be 

argued that the United States does not have a compelling interest in the 

restriction actually imposed because it does not materially advance the 

stated government interest. If, on the other hand, the restriction is 

stated broadly, such as a ban on all display of film generated in Iran, 

the restriction will be subject to the argument that it is overbroad, 

particularly if the print media could continue to use pictures from Iran. 

Any restriction must have a clearly defined purpose and an intelligible 

scope in light of that purpose if there is to be any chance of passing 

judicial scrutiny.

O f course, an even more demanding standard would apply if the 

action includes a licensing system whereby the Executive would pass 

on telecasts before they are transmitted to the American public. As the 

Supreme Court has repeatedly stated, any “system of prior restraints of 

expression comes to this Court bearing a heavy presumption against its 

constitutional validity.” New York Times Co. v. United States, 403 U.S. 

713, 714 (1971). W hatever the justification here, we would have a 

difficult time demonstrating the sort of direct, immediate and irreparable harm required to withstand this most exacting form of scrutiny. The 

cases, as confirmed by our experience with the Iranian student demonstrations, do how ever suggest tw o guiding considerations: (1) a court is 

likely to accord substantial deference to the factual assertions and 

educated, albeit speculative, judgm ents of the President’s foreign affairs 

experts; and (2) our chances of success may turn significantly on the 

extent to w hich we can demonstrate to a court that the action taken is 

finely tuned and narrow. Indeed, the few cases that are close to being 

on point suggest that we would improve the likelihood of success if we 

can claim that the regulation here affects only time, place, or manner 

and is not designed to stifle the flow of ideas of information.

We note that the communications embargo could take a third form 

that might raise less troublesome First Amendment problems but which 

would probably have limited practical effect. That would be a restriction that simply severs all telegraphic, telephonic, postal, communications satellite, and microwave links with Iran. This would not be a 

content-based measure and would be subject to less exacting First 

Amendment scrutiny as a result. It could be justified as another step in 

the effort to isolate Iran politically and economically from the rest of

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the world. As a practical measure, we do not think, however, such a 

restriction would prove useful. American networks could continue to 

gather film in Tehran and transmit it to the United States from facilities 

outside Iran. It would probably have only a temporary disruptive effect 

on the ability of the abductors to command international and American 

forums.

It was this type of incidental restriction on First Amendment communication that this Office addressed in 1977, when at issue was a proposed executive order prohibiting the use or transfer of any funds 

within the United States for the purpose of maintaining in this country 

an office or agent of the government of Rhodesia. This order was 

intended to implement U.N. Resolution 409. Since one effect of the 

order would be the closing of the Rhodesian Information Office in the 

United States, it was argued by opponents of the order that the necessary consequence would be to reduce unconstitutionally the flow of 

ideas in this country. We advised that since the impact on the Inform ation Office was merely incidental to this G overnm ent’s legitimate interest in joining the U.N. effort to effect the diplomatic and economic 

isolation of Rhodesia, the order withstood First Amendment scrutiny. 

It was not an attempt to restrict communication per se. See, e.g., Veterans and Reservists for Peace in Vietnam v. Regional Commissioner, 459 

F.2d 676 (3d Cir.), cert, denied, 409 U.S. 933 (1972) (Trading with the 

Enemy Act restriction on unauthorized dealings in merchandise constitutional although literature within definition of merchandise).

III. Conclusion

Our thoughts here are necessarily preliminary, and we will continue 

to consider these issues as well as the more long-range question of the 

possible effects of any action touching these types of communications. 

Our assessment at this stage, however, is, first, that an acceptable 

authority base for action either through the United Nations or unilaterally can be found and that, second, any action we can hypothesize 

carries with it significant First Amendment problems.

L a r r y A . H a m m o n d

Acting Assistant Attorney General

Office o f Legal Counsel

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