Constitutionality of Closing the Palestine Information Office,

an Affiliate of the Palestine Liberation Organization

The federal government may, without violating the First Amendment or the Bill of Attainder 

Clause o f the Constitution, order the Palestine Information Office in Washington to close. The 

political branches have broad authority to control the flow of funds into the United States, and 

may prevent all commerce between foreign and domestic entities, or cut off the supply of all 

noninformational material from a foreign country to a domestic entity.

Furthermore, neither foreign political entities, nor domestic organizations and individuals to the 

extent they profess an identity with such entities, have constitutional rights under the First 

Amendment. The First Amendment also permits restrictions on the speech and association 

rights o f domestic organizations and individuals when they act pursuant to the direction and 

control o f a foreign entity. The same restrictions on the expressive activities of domestic 

organizations and individuals are not permitted, however, outside the scope of such a relation- 

. ship.

August 14, 1987

M e m o r a n d u m O p i n i o n f o r t h e D e p u t y A t t o r n e y G e n e r a l

We have been asked to assess the constitutionality of various restrictions on 

the Palestine Liberation Organization (PLO) and groups associated with it. 

Specifically, we have been asked whether the State Department’s exercise of 

its statutory authority under the Foreign Missions Act, 22 U.S.C. §§ 3401 et

seq., to “close” the Palestine Information Office (PIO) in Washington, D.C., 

would be constitutionally permissible. For the reasons discussed below, we 

believe that such action by the Secretary of State under the broad authority 

accorded him by the Foreign Missions Act over foreign missions would be a 

constitutionally permissible exercise of the political branches’ authority over 

foreign relations.

We first explore the authority of the political branches to act against foreign 

political entities and their agents. Next, we apply that analysis to the specific 

case of the PIO. We then discuss the constitutionality of H.R. 2548 and S. 

1203, the recently-introduced bills which would prohibit the expenditure of 

funds provided by the PLO, or the maintenance of an office “at the behest or 

direction of, or with funds provided by” the PLO. These restrictions would also 

apply to monies or direction provided by any of the PLO’s “constituent groups,” 

its “successors,” and its “agents.”

In sum, we believe that restrictions on the speech of foreign political entities 

are permissible, as such entities do not have constitutional rights. Similarly,

104
restrictions on the speech of domestic organizations and individuals professing 

an identity with such foreign entities are permissible, as they assume the 

constitutional non-status of the foreign entity with which they profess an 

identity. Difficulties arise with respect to those organizations or entities which 

do not profess an identity with a foreign political entity, but which nonetheless 

serve its interests. We believe that restrictions on the speech of such organizations and on American citizens are permissible if the latter are acting pursuant 

to the direction and control of the foreign entity. Furthermore, restrictions on 

the ability of domestic organizations and citizens to form such a relationship or 

which tend to inhibit the formation of a relationship with a foreign entity are 

constitutional. We believe, however, that restrictions on the expressive activities of American citizens outside the scope of such a relationship with a foreign 

entity are impermissible under the First Amendment.

I. General Principles

The fundamental focus of First Amendment analysis in this context must be 

on who is asserting the right of speech or of political association. As we 

understand the facts, the PIO professes an identity with the PLO, maintaining 

that it is the “voice” of the PLO in the United States. The PIO, we also 

understand, is staffed by foreign nationals and American citizens. Accordingly, 

there are three different juridical entities whose First Amendment rights are 

potentially affected by the proposed action. First, there is the PLO itself. 

Second, there is the PIO, an organization that professes an identity with, and 

perhaps derives its legal status from, the PLO. Finally, there are the American 

citizens and foreign nationals who staff the PIO. Thus, before assessing the 

speech or associational rights at issue, we must inquire whether and to what 

extent these entities possess First Amendment rights.

With respect to foreign sovereigns and states, it is clear that they exist 

outside the constitutional compact and have no rights or responsibilities under 

it. Rather, their legal rights and duties are exclusively governed by treaties, 

international law, and other agreements binding coequal sovereigns in the 

international arena. Because the PLO purports to be an independent sovereign 

entity, we have little difficulty concluding that it falls into this category.

Real or juridical “persons” not United States citizens possess some constitutional rights while on American soil. Nevertheless, they may constitutionally 

be expelled from the United States for exercising these rights, including the 

rights of political association or speech, at least if the expulsion is pursuant to a 

legitimate foreign policy objective. Accordingly, even if the PIO is viewed as 

having a juridical identity distinct from the PLO — or if the PLO is viewed as 

a foreign entity without sovereign status — it may nonetheless be banned from 

American soil for any bona fide foreign policy reason. The same is true of a 

foreign national.

American citizens obviously have the full protection of the First Amendment 

and may neither be denied the right to political expression nor expelled because

105
they have engaged in such expression. However, a citizen’s First Amendment 

rights must be examined in light of his interaction with a foreign government. 

Specifically, it must be determined, in view of this relationship, whose speech 

is actually at issue: that of the citizen or of the foreign entity.

For the reasons discussed more fully below, we believe that because the 

political branches may deny foreign governments all First Amendment rights, 

they may restrict the expressive activities of citizens speaking pursuant to the 

direction and control of — that is, as agents of— the PLO and/or foreclose ties 

indicative of such an agency relationship. So long as the scope of the prohibition on speech does not exceed the contours of the speaker’s relationship with 

the foreign government — thereby infringing on the citizen’s independent right 

to espouse beliefs in support of foreign powers — we believe it would survive 

constitutional scrutiny. Although such restrictions would implicate the citizen’s 

ability to gather information and associate with foreign governments, we 

believe this limitation would be justified as an incidental effect of the United 

States’s necessary and inherent power to preclude foreign encroachment. Finally, we conclude that the United States political branches may prevent all 

commerce between foreign and domestic entities, and may cut off the supply of 

all noninformational material from a foreign entity to a domestic entity.

We will examine each of these questions in turn and then apply them to the 

specific issues before us.

A. Foreign States

As noted, the starting point of our analysis is that the PLO itself, as a foreign 

political entity, has no constitutional rights. This conclusion flows inexorably 

from the nature of foreign sovereigns and their interaction with the United 

States as a foreign, co-equal sovereign. The United States, as a nation among 

nations, is neither subject, nor sovereign, but one among equals. See United

States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315-18 (1936); The

Chinese Exclusion Case, 130 U.S. 581, 604-06 (1889); The Schooner Exchange v. M ’Faddon, 11 U.S. (7 Cranch) 116, 136 (1812). The authors of the 

Constitution allocated the powers to wage war and conduct diplomacy among 

the political branches of the national government, but they did not believe that 

the existence of such powers depended on a direct grant in the Constitution.1 

Such powers are an inherent and necessary attribute of independent sovereignty and the Framers did not intend to diminish this preexisting authority.

As this Office previously stated in connection with proposed legislation to 

conduct electronic surveillance of foreign agents:

It was understood by the Framers tMt the United States, as an 

entity, derived its power to conduct foreign relations not from its 

domestic instrument of government but from its status in inter-

* See 1 M. Farrand, Records of the Federal Convention, 19, 25 (E. Randolph), 316 (J. Madison), 323 (R. 

King) (1937 ed.); The Federalist No. 15, at 156 (A. Hamilton), No. 42, at 302-03 (J. Madison) (John Harvard 

Library ed. 1961).

106
national law as an independent state. Rather than conferring on 

the United States the power to wage war and conduct diplomacy, the authors of the Constitution understood that they were 

only allocating those unquestioned powers among the branches 

of the national government and providing sufficient domestic 

powers to make them effective. Consistent with this understanding, the Supreme Court has held from the earliest times to the 

present that the United States as an entity possesses the full 

powers of a sovereign nation not by grant under the Constitution 

but under international law.

Letter to Edward P. Boland, Chairman, House Permanent Select Comm, on 

Intelligence from John M. Harmon, Assistant Attorney General, Office of 

Legal Counsel (Apr. 18, 1978) (Harmon Letter), reprinted in Foreign Intelligence Electronic Surveillance: Hearings on H.R. 5794, H.R. 9745, H.R. 7308,

H.R. 5632 before the Subcomm. on Legislation o f the House Permanent Select

Comm, on Intelligence, 95th Cong., 2d Sess. 23 (1978). See also Kleindienst v. 

Mandel, 408 U.S. 753, 762 (1972); Fong Yue Ting v. United States, 149 U.S. 

698 (1893); The Chinese Exclusion Case, 130 U.S. 581; The Schooner Exchange, 11 U.S. (7 Cranch) 116; Penhallow v. D oane’s Administrator, 3 U.S. 

(3 Dali.) 54, 80-81 (Paterson, J.).

As a direct result of that sovereignty, the United States interacts with foreign 

states not within the constitutional system, but as a juridical equal, on the level 

of international law and diplomacy. Thus, Chief Justice Marshall spoke of the 

“perfect equality and absolute independence of sovereigns” as tied to the fact 

that “[o]ne sovereign [is] in no respect amenable to another.” The Schooner

Exchange, 11 U.S. (7 Cranch) at 137. And because no sovereign is “amenable,” 

or subject to the other, “the rights and duties of the United States and foreign 

sovereignties vis-a-vis one another derive not from the domestic law of either, 

but from the mutual agreements contained in treaties and the consensus known 

as customary international law.” Harmon Letter, supra, at 5. Simply put, a 

foreign political entity such as the PLO, “lies outside the structure of the 

union.” Principality o f Monaco v. Mississippi, 292 U.S. 313, 330 (1934). It 

“[has taken] no general obligation to abide by the constitutional norms to which 

the federal government and the several states are subject, nor are there any 

effective means to place [it] on parity with the United States or the states for 

purposes of enforcement of particular norms.” Damrosch, Foreign States and

the Constitution, 73 Va. L. Rev. 483, 522 (1987) (Damrosch).2

2 This conclusion — that foreign states have no constitutional rights — is supported by those scholars who 

have addressed the issue and a number o f pnor opinions by this Office. See, e.g.> Damrosch, supra, 73 Va. L. 

Rev. at 519-23; L. Henkin, Foreign Affairs and the Constitution 254 (1972) (foreign governments and 

foreign diplomats in their official capacity "have no constitutional rights, and there are no constitutional 

obstacles, say, to tapping wires of foreign embassies"): Presidential Authority to Settle the Iranian Crisis, 4A 

Op. O.L.C. 248, 260 n 9 (1980) (“A foreign nation, however, unlike a foreign national, does not have rights 

under the Fifth Amendment.”); 5 Intelligence Activities — The National Security Agency and Fourth

Amendment Rights: Hearings on S. Res. 21 Before the Senate Select Committee to Study Governmental

Continued

107
The oft-mentioned “plenary” authority of the federal political branches is a 

natural attribute of such sovereignty. See, e.g., Buttfield v. Stranahan, 192 U.S. 

470,492—93 (1904); United States v. Curtiss-W right Export Corp., 299 U.S. at 

320. All matters of international concern fall within federal power. Missouri v. 

Holland, 252 U.S. 416, 432-35 (1920) (foreign affairs power allows federal 

government to regulate by treaty even subjects traditionally falling within state 

jurisdiction). The converse of this power is judicial reluctance to set aside 

actions affecting foreign relations taken by the political branches. The judiciary 

has recognized the need for the United States to “speak with one voice” with 

respect to foreign nations. As Justice Jackson stated in Chicago & Southern Air

Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948):

It would be intolerable that courts, without the relevant information, should review and perhaps nullify actions of the Executive 

taken on information properly held secret. . . . [T]he very nature 

of executive decisions as to foreign policy is political, not judicial. Such decisions are wholly confided by our Constitution to 

the political departments of the government, Executive and 

Legislative. They are delicate, complex and involve large elements of prophecy. They are and should be undertaken only by 

those directly responsible to the people whose welfare they 

advance or imperil. They are decisions of a kind for which the 

Judiciary has neither the aptitude, facilities, nor responsibility 

and which has long been held to belong in the domain of 

political power not subject to judicial intrusion or inquiry.

Thus, United States courts will not even take cognizance of a constitutional (or 

other) claim by a foreign political entity unless the Executive recognizes it. See

United States v. Pink, 315 U.S. 203 (1942). The “established rule” is one of 

“complete deference to the executive branch” in its determination whether to 

grant a government access to United States courts. Pfizer, Inc. v. Government

o f India, 434 U.S. 308,319-20 (1978). Accordingly, the political branches may 

deny foreign entities as such all constitutional rights and preclude them from 

obtaining access to United States courts.

B. Foreign Nationals and Juridical “Persons ”

For reasons analogous to those set forth above, the Supreme Court has 

repeatedly emphasized that the power to exclude or to deport foreign nationals 

is “inherent in sovereignty, necessary for maintaining normal international

2 ( .. . continued)

Operations with Respect to Intelligence Activities, 94th C ong., 1 st Sess. 6 6 ,7 4 (1975) (statement o f Attorney 

General Edward H. Levi) (‘T h e Fourth Amendment guards the right o f the people and it can be urged that it 

was not m eant to apply to foreign nations, their agents and collaborators.") (Levi Testimony).

We do not mean to suggest that courts o f the United States have not entertained suits by foreign nations. 

Several cases of statutory interpretation and occasional dicta support the notion that foreign sovereigns 

should be treated the sam e as other juridical persons. See, e.g., Pfizer Inc. v Government o f India, 434 U.S. 

308 (1978) (interpreting “person” in § 4 o f the Clayton A ct to include foreign states). Such cases have only 

arisen, how ever, in the absence of an explicit directive from the political branches.

108
relations and defending the country against foreign encroachments and dangers

— a power to be exercised exclusively by the political branches of government.” Mandel, 408 U.S. at 765 (quoting with approval Brief of the United 

States). “[OJver no conceivable subject is the legislative power of Congress 

more complete than it is over” the admission of aliens. Oceanic Steam N avigation Co. v. Stranahan, 214 U.S. 320, 339 (1909). Accord Fiallo v. Bell, 430 

U.S. 787, 792 (1977); Hampton v. Mow Sun Wong, 426 U.S. 88 (1976); 

Shaughnessy v. United States ex rel. Mezi, 345 U.S. 206 (1953); Fong Yue Ting

v. United States, 149 U.S. 698 (1893). As the Court has noted, “any policy 

toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power and maintenance of a republican form of government. Such matters are so exclusively 

entrusted to the political branches of government as to be largely immune from 

judicial inquiry or interference.” Harisiades v. Shaughnessy, 342 U.S. 580, 

588-89 (1952). See also Galvan v. Press, 347 U.S. 522, 531 (1954) (“that the 

formulation of these policies is entrusted exclusively to Congress has become 

about as firmly embedded in the legislative and judicial tissues of our body 

politic as any aspect of our government”).

Pursuant to this sweeping power over immigration and naturalization, “Congress regularly makes rules that would be unacceptable if applied to citizens.” 

Fiallo, 430 U.S. at 792 (quoting Mathews v. Diaz, 426 U.S. 67, 80 (1976)). 

Specifically, Congress may exclude aliens on the basis of criteria that would 

clearly be proscribed in the domestic arena, such as political beliefs, sex, and 

illegitimacy. See, e.g., Kleindeinst v. Mandel, 408 U.S. 753; Fiallo v. Bell, 430 

U.S. 787. Congress has equally broad authority to deport resident aliens on the 

basis of political beliefs or affiliation, and may even do so on the basis of 

conduct that wholly antedated the relevant prohibitory regulation. See, e.g.,

Galvan, 347 U.S. 522 (upholding deportation of resident alien for former 

membership in communist party); Harisiades, 342 U.S. 580 (same). At most, 

courts will review the congressional policy choice to determine whether it is 

supported by a “facially legitimate and bona fide reason.” Fiallo, 430 U.S. at 

795 (quoting Mandel, 408 U.S. at 770). If such a reason exists, “the courts will 

neither look behind the exercise of that discretion, nor test it by balancing its 

justification against the First Amendment interest of those who seek some 

communication with the applicant.” Mandel, 408 U.S. at 770.

In short, the basic rationale underlying this doctrine is the “accepted maxim 

of international law, that every sovereign nation has the power, as inherent in 

sovereignty, and essential to self preservation, to forbid the entrance of foreigners within its domain, or to admit them only in such cases and upon such 

conditions as it may see fit to prescribe.” Ekiu v. United States, 142 U.S. 651, 

659 (1892). Accordingly, deportation is not viewed as “punishment,” but 

merely withdrawal of the privilege of remaining in the United States. See

Bugajewitz v. Adams, 228 U.S. 585, 591 (1913).3

3 That aliens may be deported based upon behavior that would be constitutionally protected if undertaken

Continued

109
We can discern no principled basis for concluding that Congress has less 

authority with respect to fictional juridical persons, such as foreign corporations or organizations. Because physical removal of these fictional entities 

from the country is obviously impossible, the equivalent of deportation of 

individuals would be a cessation of organizational activities and/or expulsion 

of corporate assets.

C. United States Citizens

American citizens, of course, are subject to the full protection of the First 

Amendment and other constitutional provisions. There are two aspects to a 

citizen’s First Amendment interests in this context. First, citizens have the right 

to engage in political or other expressive activity, collectively or on an individual basis. Moreover, they have an interest in receiving information from or 

having contact with foreign nationals or other entities.

The question remains, however, whether one has a constitutional right to act 

as an agent or official representative of a foreign government. Citizens, collectively or individually, have a right to engage in whatever political speech they 

desire, including speech in support of, or directly derived from, the teachings of 

a foreign power hostile to the United States. In our view, however, there is no 

First Amendment right to speak as a foreign government. That is, the political 

branches, pursuant to their extraordinarily broad foreign affairs authority, may 

forbid an individual from establishing a formal agency relationship with a 

hostile foreign power or, looked at another way, forbid him from speaking as 

the personification of a foreign power.

Of course, this direct prohibition against speech may not extend beyond the 

scope of the agency relationship. To the extent that a citizen speaks his own 

mind, rather than serves as the voice of his foreign principal, his speech is fully 

protected by the guarantees of the First Amendment.

3 ( .. . continued)

by citizens does not m ean that aliens are w holly w ithout constitutional nghts while in this country In fact, it 

is well settled that certain constitutional protections do extend to aliens. For example, the Supreme Court has 

stated that “[flreedom o f speech and of press is accorded aliens residing in this country." Bridges v. Wixon,

326 U.S. 135, 148 (1945) (citing Bridges v. California, 314 U.S. 252 (1941)). In fact, “the Court has treated 

certain restrictions on aliens with ‘heightened judicial solicitude.’" Foley v. Connelie, 435 U.S. 291, 294 

(1978) (quoting Graham v. Richardson, 403 U.S. 365, 372 (197!)). Nevertheless, the Supreme Court has also 

recently upheld a New York statute requiring state troopers to be United States citizens, Foley v. Connelie, 

435 U.S. 291 (1978), a State’s refusal to em ploy as elementary and secondary school teachers aliens eligible 

for United States citizenship who failed to seek naturalization, Ambach v. Norwick, 441 U.S. 68 (1979), and 

a C alifornia statute prohibiting aliens from becoming “peace officers,” Cabell v. Chavez-Salido, 454 U.S. 

432 (1982). In distinguishing these restrictions from those “on lawfully resident aliens that primarily affect 

econom ic interests," which are subject to “heightened judicial scrutiny," the Supreme Court has concluded 

that “strict scrutiny is out o f place when the restriction prim arily serves a political function ” Id. at 439. In any 

event, we need not resolve the difficult question o f precisely when restrictions may be placed on an alien's 

rights greater than those placed on citizens. We deal here only with the expulsion of foreign entities, which is 

plainly perm issible under Harisiades and Galvan. For purposes of this analysis, therefore, we assume that 

aliens are entitled to the First Amendment protections o f freedom of speech and o f association so long as they 

rem ain in this country. Accordingly, dunng the discussion set forth above, “citizens" should be understood to 

m ean perm anent resident aliens as well.

110
We do not believe however, that the citizen-agent may transfer these rights 

to his foreign principal. We so conclude for two reasons. First, a contrary 

conclusion would render the political branches plenary and necessary authority 

to preserve national sovereignty largely chimerical. Second, a prohibition 

which extends only to an individual’s ability to speak as a foreign sovereign, 

but does not otherwise in any way impede his ability to express his ideas, does 

no discernible harm to the First Amendment rights of the speaker.

Foreign powers, like all other organizations with a juridical status separate 

and distinct from their members and employers, can obviously act only through 

individuals. If the political branches were foreclosed from taking any action 

against a foreign sovereign solely because it conducted its operations through 

American citizens or through alter ego domestic organizations, the federal 

government would be utterly disabled from exercising its clear sovereign 

power to expel a foreign presence from United States soil.

Although there is a paucity of case law on this specific question, we believe 

the political branches’ inherent authority to preclude foreign encroachments 

necessarily carries with it a residual authority to treat citizen-agents as instrumentalities of a foreign government or sever the official ties that bind them. We 

should think, for example, that if the federal government has severed diplomatic relations with a foreign nation and expelled its diplomats, then that 

government could not continue its operations by having American citizens hold 

themselves out as the nation’s “embassy.” As Justice Frankfurter said, “[m]eans 

for effective resistance against foreign incursion — whether in the form of 

organizations which function, in some technical sense, as ‘agents’ of a foreign 

power, or in the form of organizations which, by complete dedication and 

obedience to foreign directives, make themselves the instruments of a foreign 

power — may not be denied to the national legislature.” Communist Party v. 

Subversive Activities Control Board, 367 U.S. 1, 96 (1961) (footnote omitted). 

Indeed, the Court in that case went so far as to say that to find a constitutional 

bar to registration and disclosure requirements of foreign-dominated groups 

would “make a travesty of [the First] Amendment and the great ends for the 

well-being of our democracy that it serves.” Id. at 89.

For similar reasons, this Office has previously concluded that the “official 

conversations on diplomatic premises” of foreign nationals or American citizens employed by a foreign mission were not subject to the protections of the 

Fourth Amendment’s prohibition against unreasonable searches or seizures. 

Harmon Letter, supra, at 8. We there stated: “[A] state can only act through its 

employees. It is therefore inherent in the acquisition of the foreign state’s 

communications that the privacy of the individuals speaking them be invaded.” 

Id. Similarly, in 1975 Attorney General Levi testified that because the preamble of the Constitution refers to “We the People,” it could “be urged that it 

was not meant to apply to foreign nations, their agents and collaborators. Its 

application may at least take account of that difference” and therefore justify a 

finding that any such search was reasonable. Levi Testimony, supra, at 74. By 

analogy, a citizen’s statements in his capacity as an official representative of a

111
foreign power would not be protected “speech” within the meaning of the First 

Amendment.

Moreover, a prohibition running only against speaking as the official voice 

of a foreign power or foreign political entity would not seem to affect adversely 

the speaker’s right as an individual to freedom of speech. Such persons or 

organizations remain free to advocate support for the foreign regime and to 

advocate its teachings and philosophy. The exclusive disability imposed is the 

citizen’s “right” to speak as a representative of a foreign government — to 

characterize his words as those of a foreign sovereign.

It is difficult to discern how this restriction could significantly affect the 

content or persuasiveness of the speaker’s message. To be sure, it is conceivable in some circumstances that speaking in the name of a foreign sovereign 

would enhance the visibility and audience of the agent. But this does not strike 

us as an advantage protected by the Constitution, because, by definition, it is 

one derived from the existence of an entity without First Amendment rights. If 

the only reason people are listening is because the agent is speaking in the name 

of a foreign principal, then it follows that the prohibition against the agency 

relationship does not impede the agent’s ability to contribute to the marketplace of ideas; it only affects negatively his master’s unprotected voice. Simply 

put, we do not think the citizen-agent can have it both ways. He may not claim 

the right to enhance his speech by stepping into the shoes of a foreign power 

without accepting the constitutional disabilities that flow from this foreign 

status.

It is important to emphasize that this sort of restriction is not premised on the 

content of the political beliefs or views espoused by the speaker, but on the 

speaker’s relationship with a foreign government. The Supreme Court has 

recognized and attached significance to this distinction in analogous contexts. 

For example, in the Communist Party case, the Supreme Court emphatically 

rejected the assertion that it was permitting the imposition of burdens against 

“any group which pursues unpopular political objectives or which expresses an 

unpopular political ideology.” 367 U.S. at 104. As the Court put it:

Nothing which we decide here remotely carries such an implication. The Subversive Activities Control Act applies only to 

foreign-dom inated organizations which work primarily to advance the objectives of a world movement controlled by the 

government of a foreign country.. . . It applies only to organizations directed, dominated, or controlled by a particular foreign

country.

Id. (emphasis in original). Similarly, in Zemel v. Rusk, 381 U.S. 1 (1965) and 

Regan v. Wald, 468 U.S. 222 (1984), the Supreme Court upheld restrictions on 

travel by American citizens to Cuba. In both cases, the court distinguished 

prior cases invalidating international travel restrictions on Communist Party 

members on the ground that the Communist Party restrictions were based on 

political belief and affiliation, while the restriction on travel to Cuba was based

112
on the current policy of the United States toward Cuba’s government. See 

Zemel, 381 U.S. at 13; Wald, 468 U.S. at 241. Cf. Aptheker v. Secretary o f

State, 378 U.S. 500 (1964); Kent v. Dulles, 357 U.S. 116 (1958). In short, the 

fact that ideological differences often motivate the political branches to take 

adverse action against a foreign nation does not mean that restrictions on 

United States citizens vis-a-vis that government are “content-based” for First 

Amendment purposes.4

Such non-content-based restrictions furthering foreign policy objectives 

would, at most, be scrutinized under the test for “incidental” restrictions on 

speech employed by the Supreme Court in United States v. O ’Brien, 391 U.S. 

367, 377 (1968). In that case, the Court established four requirements necessary to sustain government action not intended to suppress speech but having 

some effect on speech as a by-product of the government action. One must 

assess; (1) whether the restriction is within the constitutional power of the 

government; (2) whether it furthers an important or substantial interest; (3) 

whether the governmental interest is unrelated to the suppression of free 

expression; and (4) whether the incidental restriction on alleged First Amendment freedoms is any greater than is essential to the furtherance of that 

interest.5 In two later cases, the Court apparently added a fifth criterion: that 

there be available alternative means of communication. City o f Renton v. 

Playtime Theatres, Inc., 475 U.S. 41 (1986); Young v. American Mini-Theatres

Inc., 427 U.S. 50 (1976). As explained below, restrictions on an agency 

relationship with a foreign government — ranging from outright prohibition of 

the relationship to those restrictions which tend to inhibit its formation — meet

4 Restrictions on the physical presence o f a foreign sovereign in the United States do have the collateral 

consequence of limiting somewhat the ability o f citizens directly to receive information and ideas from that 

sovereign. The Supreme Court in Mandel held that such a limitation is sufficient to trigger a First Amendment 

inquiry. However, as noted, the finding that the reason for the restriction was facially legitimate and bona fide

obviates the need for further consideration or balancing of the citizen's First Amendment interest. See

Mandel, 408 U.S. at 770. Again, Zemel and Wald add further support outside the specific immigration 

context. Both cases held that C ongress’ decision to foreclose travel to a foreign country for a weighty foreign 

policy interest, to which the courts will give substantial deference, is sufficient to justify the diminished 

information-gathering ability resulting from the travel ban. As the Zemel court put it:

There are few restrictions on action which could not be clothed by ingenious argument in the garb 

of decreased data flow. For example, the prohibition o f unauthorized entry into the White House 

diminishes the citizen's opportunities to gather information he might find relevant to his opinion 

on the way the country is being run, but that does not make entry into the White House a First 

Amendment right. The right to speak in public does not carry with it the unrestrained nght to 

gather information.

381 U.S. at 16-17. We think this principle would apply with at least equal force in this context; we can 

perceive no distinction between preventing Americans from traveling abroad to exchange information with 

foreigners and preventing foreigners from traveling here to exchange information with Americans.

s This test was used by this Office in analyzing the proposed closure of the Rhodesia Information Office. 

See M emorandum from John M. Hannon, Assistant Attorney General, Office of Legal Counsel at 5-8 (Dec. 

13, 1977) (Harmon M emorandum). The O'Brien test was also applied in a series of lower court decisions 

which upheld restrictions on the importation of publications and films under the Trading with the Enemy Act, 

a situation sim ilar to that presented here. See Teague v. Regional Comm’r o f Customs, 404 F.2d 441,445 (2d 

Cir. 1968), cert, denied, 394 U.S. 977 (1969), American Documentary Files, Inc. v. Secretary o f the

Treasury, 344 F. Supp 703 (S.D.N.Y. 1972). Cf. Welch v. Kennedy, 319 F. Supp. 945 (D D.C. 1970). A 

similar conclusion was reached by the Third Circuit in Veterans A Reservists for Peace in Vietnam v. 

Regional Comm'r o f Customs, 459 F.2d 676 (3d Cir.), cert. denied, 409 U.S. 933 (1972).

113
each of these criteria. This is certainly true of a regulation mandating the 

closure of offices maintained at the direction of the PLO, which is, in fact, a 

less restrictive alternative to a complete prohibition of the relationship:

1. Plainly, a decision to prohibit a relationship with — or to close an office 

directed and controlled by — a hostile foreign entity is within the constitutional 

foreign affairs power of government.

2. The action furthers an important interest of the United States government. 

In the specific case of the PLO, it “was directly responsible for the murder of an 

American citizen on the Achille Lauro cruiseliner in 1985,” S. 1203, 100th 

Cong., 1st Sess. (1987); it has taken credit for and been implicated in the 

murders of dozens of United States citizens, including that of a United States 

ambassador overseas; and it has violated numerous international laws as expressed in several international conventions, see, e.g.. Convention for the 

Suppression of Unlawful Acts Against the Safety of Civil Aviation (Montreal 

Convention), Sept. 23, 1971, 24 U.S.T. 564, T.I.A.S. No. 7570; Convention on 

the Prevention and Punishment of Crimes Against Internationally Protected 

Persons, Including Diplomatic Agents (New York Convention), Dec. 12,1973, 

28 U.S.T. 1975, T.I.A.S. No. 8532 (quoted in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 806-07 (D.C. Cir. 1984), cert, denied, 470 U.S. 1003 

(1985)). It is vital for the United States, as a world leader in the fight against 

terrorism, to be able to deny to the PLO access to its shores, and to give force to 

the Executive’s decision not to recognize it.

3. The governmental interest here is not directed at suppressing free speech. 

Prohibiting a citizen from serving as the agent of a foreign government effectuates the President’s decision not to recognize a foreign political entity, as does 

closing the offices of the PLO or those of its agents. In the specific case of the 

PLO, the purpose of the closure is to discourage terrorism and international 

lawlessness. What is at stake here is “the very delicate, plenary and exclusive 

power of the President” in the field of international relations,” United States v. 

Curtiss-W right Export Corp., 299 U.S. 304, 319 (1936), which includes the 

constitutional authority and responsibility to recognize, or not to recognize, the 

representatives of a foreign state or regime, see United States v. Pink, 315 U.S. 

203, 229 (1942). Again, with respect to the PLO, if other offices of the PLO or 

its agents were present in the United States, including offices that do not 

engage in expressive activity, they would similarly be closed. Thus, the closing 

of the PLO’s offices — or those of its principals or partners — is only 

incidental to the fulfillment of the President’s decision not to recognize the 

PLO and of the purposes that decision is intended to achieve. Also, the 

restriction on speech is not great — speech o f the PLO is prohibited, but speech 

o f others favoring the PLO or advancing the PLO’s interests is not.

4. Whatever incidental restriction is imposed on alleged First Amendment 

freedoms in prohibiting agency relationships, or in closing the PLO’s offices, 

or those of its agents, is no more than the minimum necessary to carry out the 

President’s decision with respect to foreign political entities such as the PLO. 

Neither Congress nor the President could act to expel a foreign political entity

114
from the United States if such an entity could continue to direct the actions of 

agents here or if the closing of that foreign entity’s office were forbidden. The 

essence of a presence is an office. So long as the PLO and its agents have agents 

and offices here, the President’s decision to expel the PLO as a sign of 

nonrecognition is not fully executed.

5. Finally, in assessing the available alternative means of communication, it 

is important to note what these kinds of restrictions on an agency relationship 

with a foreign political entity does not do. In the case of the proposed closure, it 

does not prevent anyone in the United States from engaging in “independent 

advocacy” of the Palestinian cause, raising money from the public, or using 

personal funds in any amount for this purpose. This includes Palestinians in the 

United States (although they could not, of course, be supported by funds 

transferred in violation of any legislation which prohibited such a funds transfer). Cf. Buckley v. Valeo, 424 U.S. 1,47-54 (1976). Prohibiting a citizen from 

acting as an agent or closing a foreign entity’s office would not place our 

government in the role of censor or as an inspector or appraiser of ideas. 

Lamont v. Postmaster General, 381 U.S. 301 (1965).

In sum, with respect to closure of the PIO, the availability of alternative 

means for communication minimizes the possibility that Americans will not be 

able to communicate the point of view of the PLO. The same can be said about 

the termination of an agency relationship with any foreign political entity. 

These alternatives serve to demonstrate that the restrictions are no greater than 

necessary and that the government’s purpose is plainly not to curtail the free 

flow of ideas and open debate of issues of national importance. See Pell v. 

Procunier, 417 U.S. 817, 824-28 (1974). Cf. Kleindienst v. Mandel, 408 U.S. 

at 765. The PLO may freely mail material to the United States, provide 

interviews to the American and world press, place political advertising, and use 

any means of communication other than offices or agents supported by funds in 

a manner that would violate the proposed restriction.

Accordingly, we believe that the First Amendment permits the federal government to prevent a direct agency relationship between a foreign sovereign 

and domestic organizations or persons. We are constrained, however, to add 

several important caveats to avoid any misunderstanding of this general statement.

First, and perhaps most important, we must emphasize the distinction between prohibiting an agency relationship and attaching unrelated burdens on 

the basis of that agency relationship. The Court has struck down a variety of 

schemes which directly punish or withhold privileges or benefits of citizenship 

because of membership in a political organization. For example, the Court 

invalidated blanket restrictions on the right of citizens to travel abroad and to 

be employed in a defense facility where the statute “sweeps indiscriminately 

across all types of association with Communist action groups, without regard to 

the quality and degree of membership.” United States v. Robel, 389 U.S. 258, 

262 (1967); Aptheker v. Secretary o f State, 378 U.S. 500, 506-07 (1964). 

These cases reflect the now well-established rule that punishing or restricting a 

citizen’s freedom solely on the basis of association with a group is impermis115
sible unless it is shown that “the group itself possessed unlawful goals and .. . 

the individual held a specific intent to further those illegal aims.” NAACP v. 

Claiborne Hardware Co., 458 U.S. 886, 920 (1982).

Because somewhat analogous, albeit not identical, First Amendment interests are implicated in the context of association with foreign governments, it 

might well be argued that establishing such penalties because of association 

with a foreign sovereign constitutes similar imposition of “guilt by association.” On the other hand, the Court has upheld the imposition of regulations on 

organizations “substantially directed, dominated, or controlled by the foreign 

government or foreign organization controlling the world Communist movement . . . and . . . operating] primarily to advance [its] objectives.” Communist

Party, 367 U.S. at 8. We note, however, that the regulations at issue in 

Communist Party largely related to registration and disclosure of membership 

lists, which are not generally perceived as particularly severe infringements on 

the freedom of association or speech.

More important for present purposes, it must again be emphasized that the 

restrictions at issue in Robel, Aptheker, and Communist Party are different in 

degree and kind from a prohibition directed precisely and only at the act of 

representation itself. In those cases, the government used the fact of an agency 

relationship to burden the organization directly, or its members’ pursuit of 

important activities unrelated to participation in the association. In contrast, a 

policy preventing a formal agency relationship between foreign and domestic 

entities runs only to representation, it does not burden speech as such.

Citizens affected by the regulation remain entirely free to associate with 

like-minded citizens, unburdened by regulations and uninhibited in their ability 

to express their views. The only impediment to First Amendment interests is 

the prohibition on the domestic organization’s official representation of a 

foreign power. For the reasons discussed previously, we do not view such a 

facial decoupling as a serious infringement on the freedoms to speak or to 

associate. Thus a regulation prohibiting, for example, a public relations firm 

from officially representing a foreign government would pass constitutional 

muster, while a regulation restricting the firm’s other business dealings because of its representation of the foreign entity might well not.

Our second important caveat is that unless the domestic organization officially acknowledges or professes an identity with the foreign power, it is 

difficult to define with any precision whether and under what circumstances 

there is a nexus sufficient to treat a domestic organization as legally indistinguishable from a foreign power, with the attendant constitutional disabilities. 

Such definitional problems are particularly acute with respect to single-purpose organizations, as opposed to individuals or firms which represent a 

number of different clients. First, there is no bright-line test analogous to 

citizenship to distinguish American from foreign corporations or associations. 

Second, unlike individuals, many organizations exist for only one purpose and 

are defined by that purpose. That is, organizations whose sole purpose is to act 

on behalf of or advance the interests of a foreign government have no life

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outside that relationship. Thus, while it is quite possible readily to differentiate 

between an individual’s or, say, a law firm’s official and other activities, it is 

not possible to do so with respect to a single-purpose organization. A ban on 

acting as an agent of a foreign power is a ban on the existence of such a singlepurpose organization determined to be an agent even if this determination is 

made in the face of its contrary assertions. Thus, discerning the nationality of a 

single-purpose organization presents distinct conceptual difficulties, and a 

finding of an agency relationship with respect to such organizations has particularly serious consequences.6 Although this question is not raised by the 

proposed closure of the PIO, it is raised by the proposed legislation, which 

prohibits maintaining offices for or receiving funds from, the PLO’s agents.

Various Supreme Court cases dealing with Communist Party membership 

provide the most direct guidance. As noted above, Robel and Aptheker invalidated penalties imposed on unknowing party members who did not have a 

specific intent to further the Party’s unlawful aims. Similarly, in Bridges v. 

Wixon, 326 U.S. 135 (1945), the Supreme Court refused to allow the deporta6 This does not mean, of course, that the courts are foreclosed from making such an inquiry. A person or 

association which does not openly profess an identity with, or hold itself out as the voice of, a foreign 

sovereign may nonetheless be treated as such against its wishes. Supreme Court precedent strongly indicates 

that the United States need not accept a domestic organization’s statements regarding its relationship with a 

foreign government at face value, but may look behind this to determine whether an agency relationship in 

fact exists. As previously indicated, the Supreme Court gave effect to C ongress' definition o f the Communist 

Party as an organization “substantially directed, dominated or controlled” by a foreign power even though the 

Party itself vigorously resisted any such designation. See Communist Party, 367 U.S. at 8 -9 . M oreover, in 

First National City Banks. Banco Para El Comercio Exterior de Cuba, 462 U.S. 611 (1983), the Court found 

that a Cuban bank which the Cuban government had established as a separate juridical entity should 

nonetheless not be treated as such, despite the international law principle that a foreign sovereign’s determ ination concerning the separate legal status of its institutions is presumptively valid. Id. at 623-28. Conclud* 

ing that Cuba could not “reap the benefits of our courts while avoiding the obligations o f international law,” 

id. at 634, the Court declined to “adhere blindly to the corporate form when doing so would cause . . . an 

injustice.” Id. at 632. The Court found that the bank's corporate form could not be “interposed to defeat 

legislative policies.” Id. at 630. “To hold otherwise would permit governments to avoid the requirements of 

international law simply by creating juridical entities whenever the need arises.” Id. at 633. Cf. National City

Bank v. Republic o f China, 348 U S. 356,360, 362 (1955) (“we have a foreign government invoking our law, 

like any other litigant, but it wants our law free from the claims of justice”).

Thus, the Supreme Court did not give dispositive effect to the views of the Cuban government or the bank 

concerning the bank's juridical status, but “pierced the corporate veil” to determine the actual relationship 

between the Cuban government and the bank. Because the Court decided the case solely on the basis of 

international law and equity, without any specific congressional guidance, it follows a fortiori that the courts 

need not give preclusive effect to a foreign sovereign's characterizations o f its institution's legal status where 

Congress or the Executive has expressed a contrary view. The political branches’ view o f the status o f foreign 

entities are given substantial deference by the courts. Cf. Republic o f Mexico v. Hoffman, 324 U.S. 30, 35 

(1945) (“it is therefore not for the c o u rts. . . to allow immunity on new grounds which the government has not 

seen fit to recognize’’); Baker v. Carr, 369 U.S. 186, 216, 217 (1962). In this regard, we note that 

congressional statutes treat distinct juridical entities as foreign states or agents pursuant to definitions 

relating to the extent of the foreign sovereign’s financial or other control over the entity. See, e.g , Foreign 

Agents Registration Act, 22 U.S.C. §§ 611-620; Foreign Intelligence Surveillance Act, 18 U.S.C. §§ 2511, 

2518, 2519, 50 U.S.C. §§ 1801-1811; Trading with the Enemy Act, 50 U.S.C. app §§ 1-44; International 

Em ergency Economic Powers Act, 50 U.S.C. §§ 1701-1706; Foreign Sovereign Immunities Act, 28 U.S.C. 

§ 1603(b)(2).

We therefore conclude that the federal government may treat citizens or domestic organizations as 

instrumentalities o f foreign sovereigns even when the citizen or domestic organization disavows such status. 

Nonetheless, for First Amendment purposes, the circumstances in which this “piercing the veil” approach 

would be appropriate would be quite limited and are most difficult to describe in the abstract.

117
tion of an alien who was not proven to be a “member” of the Communist Party 

and who did not meet the nonexclusive statutory definition of “affiliation.” Narrowly defining the statute and the concept of “affiliation,” the Bridges Court said:

Whether intermittent or repeated, the act or acts tending to prove 

“affiliation” must be of that quality which indicates an adherence to or a furtherance of the purposes or objectives of the 

proscribed organization as distinguished from mere cooperation 

with its unlawful activities. The act or acts must evidence a 

working alliance to bring the program to fruition.

326 U.S. at 144—45. Although this line of cases is not directly on point, it may 

be argued by analogy that if “mere cooperation in the lawful activities” of an 

organization with unlawful aims is not sufficient to vest an individual member 

with liability for those proscribed purposes, then a person’s or organization’s 

mere cooperation with a foreign power is not sufficient to establish a representative or agency relationship for First Amendment purposes. Rather, there must 

be a “specific intent” or “working alliance to bring the [foreign power’s] 

program to fruition.”

In the Communist Party case, as previously noted, the Court upheld restrictions on domestic organizations “substantially directed, dominated, or controlled by” a particular foreign government or organization. There the Court 

focused on whether such domination could exist only if the foreign government 

had the “power, in the event of noncompliance, effectively to enforce obedience to its will.” 367 U.S. at 36. The Court concluded that this level of 

domination was not necessary so long as there existed a “relationship in which 

one entity so much holds ascendancy over another that it is predictably certain 

that the latter will comply with the directions expressed by the former solely by 

virtue of that relationship, and without reference to the nature and content of 

the directions.” Id. at 38.

The Court upheld the Subversive Activity Board’s findings that such a 

relationship exists between the Communist Party and foreign Communist 

powers on the basis of the eight factors set forth in the legislation. Among these 

factors were: (i) the extent to which an organization’s policies were formulated 

and carried out and its activities performed to effectuate the policies of the 

foreign enemy; (ii) the extent to which its views did not deviate from those of 

such foreign entities; (iii) the extent to which it received financial or other aid, 

directly or indirectly from or at the direction of a foreign power; (iv) the extent 

to which it sent members or representatives to any foreign country for instruction or training in the foreign power’s principles; (v) the extent to which it 

reported to the foreign power; (vi) the extent to which its principal leaders or a 

substantial number of its members were subject to a recognized or disciplinary 

power of such foreign entity or its representative; and (vii) the extent to which 

its principal leaders or a substantial number of its members considered the 

allegiance they owed to the United States as subordinate to their obligations to 

a foreign entity. See 367 U.S. at 13-14.

118
As noted, the Court held that the relationship between the Communist Party 

and foreign powers was sufficient to justify registration and disclosure requirements that would be constitutionally impermissible with respect to domestic 

political organizations in the absence of such a relationship.

We also stress that any finding of an agency relationship which is based 

primarily on the similarity between the speech and political activities of the 

domestic and foreign entities would be constitutionally unsound. The basic 

rationale for this conclusion is that restrictions on the speech of domestic 

organizations may be premised on a relationship with a foreign government, 

but not on the content of the organization’s speech. Accordingly, finding an 

agency relationship on the basis of the content of a domestic group’s speech 

would render this analysis wholly circular and ensnare within its ambit purely 

domestic groups exercising their First Amendment right to speak in support of 

foreign entities. Accordingly, similarity of speech cannot be used as a significant or primary indicium of agency.

So long as an organization does not profess an identity with a foreign entity, 

we believe it would be very difficult to establish an agency relationship 

sufficient to justify restrictions on expressive activities allegedly within the 

scope of that relationship absent a direct financial or contractual relationship. 

We do not believe that such a nexus could be established by virtue of a 

comparison between the speech of the domestic and foreign entities. Beyond 

this, any agency analysis would necessarily be a fact-specific inquiry concerning similarity of personnel between the two organizations, whether compliance 

with the foreign sovereign is voluntary, the nature and extent of contacts 

between the two organizations, and so forth.

In sum, we believe it is constitutionally permissible til* treat domestic agents 

of foreign governments as unprotected by the Constitution and to sever formal 

non-speech links between the foreign and domestic entities, but that it is 

impermissible to restrict the expressive or other activities of American citizens 

unrelated to their association with a foreign government. We will now apply 

these general principles to the specific legislation before us.

II. Application of General Principles

As noted above, the first step in the First Amendment analysis is to identify 

the party asserting the right of speech or of political association. The PLO is a 

foreign sovereign or political entity for constitutional purposes. Although the 

United States chooses not to recognize the PLO as such, the PLO nonetheless 

interacts with the United States as a foreign political entity within the structure 

of international law.

The PLO has been accorded observer status at the United Nations, G.A. Res. 

3237, 29 U.N. GAOR, 29th Sess., Supp. No. 31, at 4, U.N. Doc. A/9631 

(1974). It is reported to have diplomatic relations with approximately one 

hundred countries throughout the world. See Kassim, The Palestine Liberation

Organization’s Claim To Status: A Juridical Analysis Under International

119
Law, 9 Denv. J. Int’l L. & Pol. 1, 2-3 (1980). It considers itself a “state” for the 

purposes of international law, and it claims privileges and immunities generally extended only to a sovereign nation and its representatives.

Although the United States does not afford diplomatic status to the PLO, it 

accords to the members of the PLO Observer Mission certain privileges relating to entry into and residence in the United States, as well as transit to the 

United Nations, by virtue of the Headquarters Agreement between the United 

States and the United Nations. 21 U.S.T. 1416. These privileges would otherwise be denied to these individuals under the so-called Solarz Amendment. See

22 U.S.C. § 2691(c). In addition, the PLO claims that it is entitled to even 

greater privileges and immunities than are accorded under the Headquarters 

Agreement, although the United States has consistently resisted these claims. 

The PLO plainly views itself as a foreign sovereign in its relationship to the 

United States, not “amenable” to United States sovereignty. The Schooner

Exchange, 11 U.S. (7 Cranch) at 137. As a foreign political entity, the PLO 

does not itself enjoy constitutional protection.7

Whether the PIO is a foreign political entity for purposes of constitutional 

standing is more problematic. It might plausibly be asserted that the PIO is a 

juridical entity separate and distinct from the PLO, and is thus not a foreign 

political entity as such. We need not definitively resolve this issue since the 

PIO is, at most, a foreign juridical person and/or professes an official identity 

with the PLO. If it is a foreign “person,” it is subject to expulsion for any bona

fid e foreign policy reason, regardless of whether that reason is premised on 

political activities. In any event, because it maintains and professes an identity 

with the PLO, the same rules governing the United States’ legal relationship 

with the PLO apply to the PIO.

Accordingly, it is immaterial whether the PIO (or the PLO itself) is considered a foreign state or a foreign person, or whether it is viewed as an official 

representative and voice of the United States of the PLO; in either event, it may 

be expelled from American soil consistent with the Constitution. Cutting off 

foreign funding and prohibiting the maintenance of an office are ways in which 

this permissible goal may be accomplished.

In fact, we have previously so concluded in a virtually identical context. In 

1977, this Office concluded that a proposed executive order to close the 

Rhodesian Information Office (RIO) was constitutional. Harmon Memorandum, supra, at 2. There, as here, the United States did not recognize as a 

legitimate sovereign the government maintaining the office. The order closing

7 It would be anom alous if the Executive's decision to withhold recognition from a foreign political entity 

— with respect to which it has complete discretion — invested that entity with rights greater than those 

enjoyed by friendly sovereigns present in the United States. It is clear, for example, that the PLO would not be 

recognized by American courts as a juridical entity capable of bringing a constitutional claim. United States

v. Pink* 315 U.S. 203, 229 (1942) Neither will the argum ent that the PLO is not a sovereign nation bring it 

within the constitutional fold. The PLO cannot have it both ways: it is cither a foreign political entity 

claim ing aspects o f sovereignty interacting with the United States within the structure of international law, or 

it is a purely dom estic organization, subject to the sovereignty of the United States and all of its laws, with no 

diplom atic status.

120
the RIO was pursuant to a program of international sanctions in which the 

United States had participated for twelve years. The United States viewed the 

government as an “illegal racist minority regime.” 77 Dep’t St. Bull. 64 (1977) 

(quoted in Harmon Memorandum, supra, at 2-3). Plainly, the United States did 

not regard Rhodesia as a “co-equal” sovereign, and had no formal diplomatic 

relations with Rhodesia. Nevertheless, interpreting Mandel, this Office concluded that any limits placed on the information-gathering abilities of citizens 

were indistinguishable from that involved in Mandel and were therefore permissible. We stated:

A fair reading of that decision suggests that in a case such as 

the present one involving a foreign affairs power where Congress has conferred discretion on the Executive, a showing that 

the reason for the action is facially legitimate and bona fide 

would conclude the matter. Clearly as we have shown, that is the 

case here.

Harmon Memorandum, supra, at 4. The reason justifying closure in that case

— that the United States was obligated as a matter of international law to 

implement United Nations Resolution 409 imposing mandatory sanctions on 

the government in Southern Rhodesia — was certainly no more legitimate than 

the reasons here. The PLO is an avowed terrorist organization. It is a declared 

policy of the United States that terrorism presents a serious danger to civil 

order. That policy has been embodied in a wide array of legislation. For 

example, Congress has asserted jurisdiction over terrorist attacks against United 

States aircraft, 18 U.S.C. § 32, and against American citizens abroad, 18 

U.S.C. § 2331. The President is authorized to provide special assistance to 

other parties to combat terrorism, 22 U.S.C. § 2349aa-2, to ban imports to and 

exports from Libya, 22 U.S.C. § 2349aa-8, or any other country supporting 

terrorism, 22 U.S.C. § 2349aa-9. The closing of offices maintained at the 

direction of the PLO would further serve this important policy.

The Harmon Memorandum also analyzed the closing of the RIO with respect 

to the constitutional rights of United States citizens. Applying the O ’Brien test, 

this Office concluded that closing the information office of a foreign entity is a 

valid exercise of government power. See also “The President’s Authority to 

Take Certain Actions Relating to Communications from Iran (Dec. 27, 1979),” 

4A Op. O.L.C. 153, 158 (1980) (opining that the United States probably could 

sever “all telephonic, postal, communication satellite, and microwave links” 

with Iran in connection with the hostage crisis).

We conclude therefore that, whatever standard of analysis is adopted, the 

proposed closure does not violate the First Amendment.

III. An Analysis of S. 1203 and H.R. 2587

H.R. 2587 and S. 1203 each contain three basic prohibitions. They make 

unlawful, “if the purpose is to further the interests of the Palestine Liberation

121
Organization or any of its constituent groups . . . or any agent thereof’: (1) the 

receipt of “anything of value, except informational materials,” from the PLO, 

its constituent groups or agents; (2) the expenditure of any such funds; (3) the 

establishment or maintenance of an office in the United States “at the behest or 

direction of or with funds provided by” the PLO, its constituent groups or 

agents. H.R. 2587, § 3, 100th Cong., 1st Sess. (1987). Section 4 of H.R. 2587 

and of S. 1203 states that “the Attorney General shall take the necessary steps 

and institute the necessary legal action to effectuate the policies and provisions 

of this section.”

As an initial matter, we believe that requiring the Executive Branch to take 

legal action against offices connected with the PLO may well unconstitutionally infringe on the President’s right to receive ambassadors, and therefore 

recommend against the enactment of this legislation. The right to decide 

whether to accord to the PLO diplomatic status and what that diplomatic status 

should be is encompassed within the right of the President to receive ambassadors. U.S. Const, art. II, § 3. This power is textually committed to the Executive alone. See Baker v. Carr, 369 U.S. 186, 212-13 (1962); Jones v. United

States, 137 U.S. 202, 213 (1890). Under the proposed bills, the President may, 

as a practical matter, establish diplomatic relations with the PLO only if he 

certifies to the President pro tempore of the Senate and to the Speaker of the 

House that the PLO, and “its constituent groups, and all successors and agents 

of the PLO groups, no longer practice or support terrorist actions anywhere in 

the world.” In our view, attaching such conditions to the Executive’s absolute 

power to receive ambassadors constitutes a serious infringement on the 

President’s recognition authority. This problem is seriously exacerbated by the 

provision directing that the Attorney General “shalV' take necessary legal 

action to enforce the bill’s prohibitions.

To be constitutional, therefore, two changes would have to be made to the 

proposed legislation. First, § 5(b) of each bill should be changed so that it 

would permit the establishment of any PLO diplomatic premises the President, 

for whatever reason, elects to recognize formally.8 Next, the section requiring

the Attorney General to take the steps necessary to effectuate the policies of the 

bill, must be changed to authorize him to take such steps. With that preface, we 

now turn to a discussion of the specific provisions of the bills and their validity 

under the First Amendment.

A. Restriction o f PLO Funds

We have little doubt that the political branches may prohibit the flow of 

funds into the United States. This choice to “accommodat[e] the exigencies of 

self-preservation and the values of liberty,” Communist Party, 367 U.S. at 96, 

is within the authority of the political branches. This Office reached that

8 This change would have the salutary effects o f excepting the PLO Observer M ission to the United Nations 

and precluding the need to repeal this legislation in the event United States policy changes regarding 

diplom atic recognition o f the PLO.

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conclusion in assessing the constitutionality of the imposition of mandatory 

sanctions on Rhodesia, see Harmon Memorandum, supra, at 3, and has assumed the constitutionality of the International Emergency Economic Powers 

Act, 50 U.S.C. §§ 170-176, which gives the President the power to regulate 

direct investment, see “Legality of Certain Non-Military Action Against Iran,” 

4A Op. O.L.C. 223, 223-24 (1980). See also Nielsen v. Secretary o f the

Treasury, 424 F.2d 833 (D.C. Cir. 1970) (upholding constitutionality of predecessor act); Pike v. United States, 340 F.2d 487 (9th Cir. 1965) (upholding 

constitutionality of predecessor act). Congress has often acted to freeze or seize 

foreign state property. For example, the Trading with the Enemy Act, 50 

U.S.C. app. §§ 1-44, has been used to block assets of, and prevent funds 

transfers to, adversaries including North Korea and North Vietnam. Cuban 

assets frozen in response to Castro’s nationalization program are still blocked. 

See Cuban Assets Control Regulations, 31 C.F.R. § 515 (1986). Economic 

sanctions have been imposed against numerous countries, including the Soviet 

Union, see 15 C.F.R. § 385.2 (1986), Libya, see 15 C.F.R. § 385.7 (1986), 

South Africa, see Exec. Order No. 12532, 3 C.F.R. 387 (1985); Comprehensive 

Anti-Apartheid Act of 1986, Pub. L. No. 99-440, 100 Stat. 1086 (1986), and 

Nicaragua, see Nicaragua Trade Control Regulations, 31 C.F.R. § 540 (1986). 

The Supreme Court has upheld restrictions on the contributions of funds 

intended for use to finance exercise of the right of freedom of expression in far 

more sensitive areas. Buckley v. Valeo, 424 U.S. 1, 29 (1976). Here, where any 

impingement on speech is plainly incidental to the prohibition of funds transfers — a nonspeech activity — the restrictions on the receipt of PLO funds is 

surely constitutional.9

B. First Amendment Concerns

However, the prohibition against opening or maintaining an office “at the 

behest or direction o f’ the PLO clearly has a broader reach than proposed 

restrictions applying only to the PIO as currently constituted or its constituent 

groups. Accordingly, we must determine whether opening such an office is an 

act of agency for the PLO or whether the bill otherwise survives constitutional 

scrutiny.

The language of the proposed bills may not be sufficiently precise to reach 

only agents of the PLO. This inquiry turns in large part on how one defines the 

meaning of “at the behest. . . o f’ and the prohibition of maintaining an office 

for, and receiving funds from, agents of the PLO. As discussed above, the more 

attenuated the nexus between a foreign power and the domestic citizen or 

organization, the more constitutionally suspect the restriction.

Given the importance of the concept of agency to our analysis and to the 

proposed legislation, we turn to a description of the circumstances in which a

9 We assume as a m atter o f logic that a permissible restriction on the receipt of funds necessarily makes 

permissible a prohibition of the expenditure o f those same funds. The latter merely serves to implement the 

former.

123
domestic organization or person is accorded the constitutional nonstatus of the 

foreign power for all purposes or, alternatively, the circumstances in which 

there are sufficient links between the foreign and domestic entities to justify 

some less intrusive restrictions on the domestic actor. We also set forth various 

formulations of agency to determine which might best be added to the legislation to cure any potential vagueness or overbreadth problems.

The myriad of formulations used to define an agency relationship “carries 

meaning only as a situation in human relationships which arises and takes 

shape in different modes and patterns in the context of different circumstances.” Communist Party, 367 U.S. at 37. Moreover, any such attempt at a 

regulatory definition should be as narrow and as precise as feasible in order to 

enhance its constitutional viability. For, as a general rule, “even though the 

governmental purpose be legitimate and substantial, that purpose cannot be 

pursued by means that broadly stifle fundamental personal liberties when the 

end can be more narrowly achieved.” Shelton v. Tucker, 364 U.S. 479, 488 

(1960). Although the general rule is tempered in the foreign affairs field by the 

Court’s oft-repeated admonition that regulations in this area may sweep with a 

broader brush and that distinctions “need not be as ‘carefully tuned to alternative considerations,’”10 it nonetheless remains true that precision in regulation 

is an important virtue when First Amendment interests are implicated.

Activities at the extremes are easy to classify. Plainly, First Amendment 

protection extends to all the expressive activities of the United States citizen 

who, without ever having contact with a PLO, forms an organization called 

“Friends of the PLO,” finances it entirely without PLO funds, and writes or 

distributes literature spreading the teachings of the PLO. It is equally clear that 

an official diplomatic agent is “identified completely with the foreign state” so 

that “his communications, like his acts, are treated as if they were those of the 

sending state.” Harmon Letter, supra, at 7. Although the PLO is not recognized 

by the United States and thus has no agents with official diplomatic status, by 

analogy we think it clear that if a member of the PLO addresses the United 

Nations on behalf of the PLO, his “speech” is not protected by the Constitution. 

His speech is protected solely by the agreement between the United States and 

the United Nations, which is the reason and the condition for the PLO’s official 

presence in the United States.

In between these two extremes lies a constitutional gray area. Consideration 

of other formulations used to describe various agency relationships may shed 

some light on where a line may properly be drawn. The Restatement of Agency 

defines an “agent” as a “fiduciary relation [with the principal] which results 

from a manifestation of consent by one person to another that the other shall act 

on his behalf and subject to his control.” Restatement (Second) o f Agency, § 1 

(1958). We think that this definition would withstand constitutional scrutiny, 

because the requirement of manifest consent to the principal’s control may 

fairly be said to cloak the agent with the constitutional non-status of his foreign

10 Fiallo, 430 U.S. at 799 n.8 (quoting Trimble v. Gordon, 430 U.S. 762, 772 (1977)).

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principal. We also think that the definition of an “agent of a foreign power” 

contained in the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801(b), 

would be constitutionally defensible. “Agent of a foreign power” is there 

defined as:

(1) Any person other than a United States person, who —

(A) acts in the United States as an officer or employee of a 

foreign power, or as a member of a [group engaged 

in international terrorism or activities in preparation 

therefor];

(B) acts for or on behalf of a foreign power which engaged 

in clandestine intelligence activities of the United States 

. . . or when such a person knowingly aids or abets any 

person in the conduct of such activities ....

50 U.S.C. § 1801(b).

In contrast, we believe the definition of an agent used under the Foreign 

Agents Registration Act probably sweeps too broadly to impose restrictions 

other than registration requirements. In that Act, an agent is defined, inter alia,

as “any person who acts as a representative . . . or . . . in any other capacity at 

the request of . . . a foreign principal . . . [and who] engages in political 

activities within the United States for or in the interest of such foreign principals] 

. . . .” 22 U.S.C. § 611(c)(1) (Foreign Agents Registration Act of 1938, as 

amended). Courts are apt to require as narrow and restrictive a definition of agency 

as possible to limit the potential infringement on citizens’ First Amendment rights.

Thus, if “behest” is read to mean “at the request o f’ the PLO, the legislation 

probably sweeps within its ambit action taken outside of an agency relationship. Voluntarily acquiescing in a single request by Yasir Arafat to open or 

maintain an office is not sufficient to establish that one is thereby acting as his 

agent; it may be “mere cooperation” with the PLO. “Behest” may be read far 

more narrowly, however, thus minimizing such over-breadth problems. 

Webster's Third International Dictionary defines “behest” as “a command; a 

mandate; an injunction.” The American Heritage Dictionary, however, defines 

behest as both “[a]n order or authoritative command” and “a request or bidding.”

It is thus unclear whether the bill imposes a prohibition that embraces the 

acts of citizens who are not PLO agents or reaches only those persons who, by 

virtue of their agency relationship with the PLO, have adopted its constitutional nonstatus. This definitional ambiguity is of obvious significance. Commands are generally given by a principal to an agent; requests are made by one 

co-equal party to another. Acceding to an “order” or “authoritative command” 

of the PLO to open an office could thus naturally be viewed as an act of agency, 

while acquiescing in a request should not be so viewed.11

11 For this reason we would have serious doubts about any proposed bill that, for example, would prohibit 

speech or the dissem ination of information “at the behest of the PLO.” O f course, neither H.R. 2587 nor S. 

1203 imposes such a direct prohibition on expressive activity. Rather, they restrict only the maintenance o f an

Continued

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Accordingly, we believe that the safer course would be to change the 

language of H.R. 2587 and S. 1203 to eliminate the phrase “at the behest o f’ 

and to draft the bill focusing only on those acting at the “direction” and/or 

“control” of the PLO. As noted above, this language has been deemed acceptable by the Supreme Court in the past in the Communist Party case. It avoids 

the problem of including within the statute’s restrictions the kind of conduct 

considered to be constitutionally-protected “affiliation.” Alternatively, if the 

phrase “at the behest of’ is to be included in the bill, the legislative history 

should indicate as clearly as possible that the more restrictive definition of 

“behest” is the one intended for use in applying the statute.

C. Bill o f Attainder

Finally, that the PLO is named in the bill does not make it unconstitutional as 

a bill of attainder, for it is not “a law that legislatively determines guilt and 

inflicts punishment upon an identifiable individual without provision of the 

protections of a judicial trial.” Nixon v. Administrator o f General Services, 433 

U.S. 425, 468 (1977). As noted above, the Bill of Attainder clause of the 

Constitution does not apply to the PLO. Furthermore, with respect to American 

citizens, these bills do not satisfy any of the three requirements that make a bill 

of attainder: (i) they lack the requisite specification for affected persons; (ii) 

they are not a legislatively-imposed punishment; and (iii) punishment is not 

being imposed without a judicial trial. Selective Service System v. Minnesota

Public Interest Research Group, 468 U.S. 841, 847 (1984).

First, the statutes do not use past activity as ‘“a point of reference for the 

ascertainment of particular persons ineluctably designated by the legislature’ 

for punishment.” Id. (quoting Communist Party, 367 U.S. at 87). Congress’ 

purpose here is to discourage terrorism and to give effect to the Executive’s 

decision not to recognize the PLO. The acts would apply only to those who 

contravene their prohibitions; any individual can avoid their application simply 

by not engaging in the forbidden activities.

Next, even if the specificity element is deemed satisfied, the bills do not 

implicate the Bill of Attainder clause because they do not “inflict forbidden

11 (. . . continued)

office at the PLO ’s behest. Thus, we believe the bills might nonetheless withstand constitutional scrutiny. 

M aintaining an office, while perhaps an im portant symbolic action, is not a restriction on speech per se. The 

incidental restriction on speech seems necessary to a legitim ate foreign policy goal, and the restriction does 

not prevent the flow of information about the PLO to American citizens. For example, the PLO and its agents 

may provide interview s to the press, issue press releases, place political advertising, and so forth. See United

States v. O'Brien, 391 U.S. 367, 377 (1968). O f course the PLO ’s citizen-friends, acting in their individual 

capacities, may continue to communicate inform ation as they choose.

Nor do the bills unduly restrict the associational rights o f American citizens. Zemel v. Rusk, 381 U S. 1 

(1965) and Regan v. Wald, 468 U. S. 222 (1984), establish that the right to associate with foreign entities is by 

no means absolute. See Kleindienstv. Mandel, 408 U.S. 753 (1972). The restriction on the maintenance o f an 

office — like the restrictions on travel by American citizens to Cuba — furthers important foreign policy 

objectives of the United States. Each is based on the current policy of the United States towards that foreign 

entity w ith which association is restricted. The restriction is incidental to the achievements of important 

foreign policy goals and is narrowly drawn.

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punishment,” Selective Service, 468 U.S. at 852. The sanction is merely forbidding the maintenance of an office on behalf of, and the receipt or expenditure of 

funds from the PLO. Citizens ‘“carry the keys of their prison in their own 

pockets,’” Id. at 853 (quoting Shillitani v. United States, 384 U.S. 364, 368 

(1966)). The bill serves important nonpunitive goals: to combat worldwide 

terrorism and deter the PLO’s illegal activities.12 Forbidding the PLO to be 

represented here is “plainly a rational means,” id., towards accomplishing the 

congressional goal of deterring the PLO’s terrorist activities. Congress seeks 

not to punish, but to promote compliance with international law. No punishment has been imposed without a judicial trial. No one is punished by the 

statute automatically — the Attorney General must bring an action to enforce 

the statute in court.

The Communist Party case supports this conclusion that the bills are not bills 

of attainder. There, the bill was aimed at the Communist Party as an identifiable entity. 367 U.S. at 82. The Court held that the “Act is not a bill of 

attainder,” for “[i]t attaches not to specified organizations but to described 

activities in which an organization may or may not engage.” 367 U.S. at 86. 

Domestic organizations supporting the PLO are simply prohibited from maintaining an office on its behalf or at its direction and from receiving money from 

it. Forbearance from such activities will insulate the group or individual from 

prosecution. In enacting either of these bills, Congress would be making a 

legislative finding to regulate activity “potentially dangerous to the national 

interest.” Id. at 88. They are not bills of attainder.

C o n clu sio n

The PLO qua PLO, as a foreign entity, has no constitutional rights. Nor do 

those individuals and organizations who act at the direction and control of the 

PLO, even if engaged in otherwise constitutionally protected activities, so long 

as they act in their capacity as agents of the PLO. Although the determination 

of when and whether an individual or group is acting as the agent of a foreign 

entity is a difficult one, a restriction can be narrowly drawn to limit the 

application of the restriction to United States citizens only insofar as they are 

acting as the PLO’s agents. H.R. 2587 and S. 1203, to the extent that they might 

require the closing of the PIO, therefore, are constitutional so long as the PIO 

either is itself a foreign entity or is an agent of the PLO, acting at its direction 

and control. Broad restrictions on the receipt of funds in the United States from 

the PLO or its agents are in any event constitutional.

M ic h a e l A. C a r v in

Acting Assistant Attorney General

Office o f Legal Counsel

12 In this context, it is worth noting that the bill would continue in effect only until such time as the 

President certifies that the PLO no longer practices or supports terrorism. H.R. 2S87, § 5; S. 1203, § S.

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