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this nation's foreign affairs are charged by the Constitution, have spoken with one voice. That voice calls for continued foreign assistance to El Salvador. To entertain plaintiffs' claims would have this Court substituting its judgment for that of the President and the Congress as to whether El Salvador may receive foreign assistance. Such decisions, however, have long been recognized to be outside the role of the judicial branch. See Goldwater v. Carter, 444 U.S. 996, 1004 (plurality Opinion by Rehnquist, J.); Atlee v. Laird, 347 F. Supp. 689 (E.D. Pa. 1972), affd without opinion, 411 U.S. 921 (1973). [Defendants' Supplemental Memorandum in Support of Their Motion to Dismiss, February

9, 1982, at 4-5 (footnotes omitted)] On February 10, 1982, the Congressional amici filed a brief in support of the defendants' motion to dismiss. Their arguments roughly paralleled those of the defendants and were based on the contention that the court lacked subject matter jurisdiction over the action since the "case or controversy” requirement of Article III of the Constitution had not been met. The amici maintained that: (1) the case presented a nonjusticiable political question, particularly since every "subcommittee, committee, or full house of Congress which considered plaintiffs' arguments for terminating aid to El Salvador rejected them," and if the court intervened it would be “substitut[ing] its judgment for the policy judgment of the political branches of our government” without any expertise or judicially manageable standards (Brief of Amici Curiae, February 10, 1982, at 21); (2) the plaintiffs lacked standing because they had not suffered injury-in-fact since "no objective injury to their vote has been alleged ..., nor do they even seek any remedy that would give them any opportunity to vote" (Id. at 31-32]; (3) prudential considerations counseled dismissal of the complaint under the holding of the Riegle case, supra, since legislative redress was “not only available, but contemplated under the War Powers Resolution” [Id. at 34); and (4) the plaintiffs' claims were not ripe for judicial review since the Executive and Legislative branches had not reached a constitutional impasse.

Also on February 10, 1982, the amici filed a request to participate in oral argument on the motion to dismiss. This request was denied in an order filed the same day by Judge Green.

On February 12, 1982, the defendants' motion to dismiss was argued and taken under advisement.

On February 18, 1982, the plaintiffs filed two posthearing memoranda: a reply to the amici's brief and a reply to the defendants' supplemental memorandum. The former basically set forth arguments already made by the plaintiffs in prior submissions to the court. The latter disputed the defendants' contention that passage of the International Security and Development Cooperation Act of 1981 rendered the issues in the case moot or nonjusticiable. According to the plaintiffs, the 1981 legislation in no way affected their claim that U.S. troops were in El Salvador in violation of the War Powers Resolution since the act did not purport to authorize the assignment to El Salvador of members of the armed forces

equipped for combat and accompanying Salvadoran forces engaged in hostilities.

On February 23, 1982, the defendants filed a response to the plaintiffs' post-hearing memoranda, once again arguing that the plaintiffs lacked standing and that the case was barred by the political question doctrine.

Status—The case is pending in the U.S. District Court for the District of Columbia.

The complete text of the February 5, 1982 order of the district court is printed in the "Decisions" section of this report at page 483.

IV. Balancing the Speech or Debate Clause With the Law of

Defamation Holy Spirit Association for the Unification of World Christianity t.

Fraser

Civil Action No. 78-1153 (D.D.C.) This suit was filed in the U.S. District Court for the District of Columbia on June 22, 1978 by the Holy Spirit Association for the Unification of World Christianity ("Unification Church") and Bo Hi Pak, a South Korean citizen. Named as defendants in the suit were U.S. Representative Donald M. Fraser from Minnesota, Chair man of the Subcommittee on International Organizations of the House Committee on International Relations ("Subcommittee") and two staff members of that Subcommittee, Edwin H. Gragert and Martin J. Lewin.

The complaint contained two counts. The first count alleged a conspiracy by the defendants to deprive the plaintiffs and the members of the Unification Church of their constitutional rights Specifically, it was claimed that the defendants and other unnamed individuals conspired to deprive the plaintiffs and "all persons as sociated with the Unification Church and Bo Hi Pak" of their rights of freedom of speech, freedom of association, freedom of ex pression and freedom of religion. The plaintiffs alleged that Rep Fraser distributed defamatory materials regarding the plaintiffs attempted to "deceive and trick" Bo Hi Pak during Pak's testimo ny before the Subcommittee; caused the payment of fees to wit nesses who testified before the Subcommittee; and leaked or per mitted leaking of testimony given by Bo Hi Pak in executive ses sion. The plaintiffs claimed that these activities, in addition to vio lating their rights of freedom of religious exercise and association damaged their reputations and resulted in financial damage to them due to curtailment of their activities and a reduction in fi nancial contributions to the Unification Church. As relief under the first count, the plaintiffs sought an injunction barring the de fendants from violating or conspiring to violate the plaintiffs rights under the First, Fourth, or Fifth Amendments, $5 million in compensatory damages, and $10 million in punitive damages.

The second count asserted that the defendants deprived the plaintiffs of their constitutional rights. It was also specifically alleged, in addition to the acts alleged in count one, that defendants Gragert and Lewin, representing themselves as architects, fraudu

pro

lently gained entry to a Washington, D.C. Unification Church building. The plaintiffs claimed that as a result of this action by Mr. Gragert and Mr. Lewin, their rights to the free expression and exercise of their religion were abridged, their right of free association was impaired, they were subjected to a warrantless search, and they were deprived of the due process of the law. The plaintiffs contended that the activities complained of in Count II also resulted in damage to their reputations and financial harm. Their demands under Count II included an injunction, $5 million in compensatory damages and $10 million in punitive damages, the same relief demanded under Count I.

On October 10, 1978, the defendants moved to dismiss the complaint or, in the alternative, for summary judgment on the ground that the Speech or Debate Clause of the U.S. Constitution vided them with immunity from suit and liability because the actions complained of were within the sphere of legitimate legislative activity. Additionally, the defendants asserted that the complaint failed to state a claim for which relief could be granted.

On December 11, 1978, the plaintiffs filed an opposition to the motion to dismiss contending that the Congressional defendants were not absolutely immune from suit because no legislative function of any of the acts complained of had been shown. Further, because the plaintiffs termed the defendants' conduct "unconstitutional and unlawful", they argued it could not be protected by legislation or other privilege.

On January 25, 1979, the Unification Church filed an amended complaint, which, while restructuring the allegations of the original complaint, contained each of the allegations set out in the original. Additionally, Count I of the amended complaint contained an allegation which had not been made in the original complaint: that Rep. Fraser maliciously and without any valid legislative purpose publicly distributed outside Congress various materials regarding the plaintiffs, or persons associated with the plaintiffs, which were defamatory and libelous per se. The alleged statements were to the effect that the Unification Church was organized by a director of the Korean Central Intelligence Agency who used it as a political tool; that Colonel Pak "was in trouble because he had attempted to initiate into his church (i.e., to have sexual relations with the wife of a visiting ROK official"; that the Unification Church interpreted the Bible in sexual terms and maintained that religious experience is interrelated with sex; and that Sun Myung Moon, the leader of the church, was once arrested because of the sexual practices of the church. The plaintiffs claimed in the amended complaint that they advised the defendants that the statements were false and defamatory. The plaintiffs also alleged that the committee, prior to publication of the subcommittee's final report, at the direction of Rep. Fraser, falsely and fraudulently represented to the plaintiffs that subcommittee procedures prevented advance notice and comment on materials to be published.

The Speech or Debate Clause of the U.S. Constitution provides that "for any Speech or Debate in either House, (U.S. Senators and U.S. Representatives) shall not be questioned in any other Place.” (art. I, § 6, cl. 1]

On April 13, 1979, the Unification Church filed what it styled a "second" amended complaint. While the amended complaint charged only Rep. Fraser with maliciously and without any valid legislative purpose publicly distributing outside Congress various materials regarding the plaintiffs or persons associated with plaintiffs, which were defamatory and libelous per se, the "second" amended complaint charged all the defendants with this allegation. Also, added to the alleged statements made by the defendants were statements made by Rep. Fraser during his election campaign for the Senate to the effect that the plaintiffs "may have been responsible for setting fire to Congressman Fraser's Washington home shortly after the Minnesota primary;" that the plaintiffs campaigned against Rep. Fraser in his reelection campaign; and that there were "links between the Korean CIA and Rev. Sun Myung Moon."

Added to the charges previously mentioned in the amended conplaint was the assertion that some of the alleged statements were contained in a government document which was printed and distributed, with the approval of defendant Fraser, in a quantity in excess of that reasonably required for the legislative function.

On May 14, 1979, Rep. Fraser, Mr. Gragert, and Mr. Lewin filed a motion to dismiss the first amended complaint, or in the alternative, for summary judgment. (The defendants noted that the socalled “second” amended complaint was not properly before the court since the plaintiffs had not been granted leave of the court to amend their original complaint for a second time as required by Rule 15 of the Federal Rules of Civil Procedure. As a consequence, the defendants addressed the first amended complaint as supplemented by the more specific statements attributed to Rep. Fraser.) In a memorandum accompanying the motion, the defendants argued first that injury to reputation did not constitute a violation of a constitutionally protected right and therefore could not be the basis for a suit for money damages in Federal court. Next, the de fendants stated that Rep. Fraser's involvement in the Government publication in question consisted solely of voting in favor of its being published. Citing Doe v. McMillian, U.S. 306 (1973), they argued that under the Speech or Debate Clause, one may not challenge a Member's decision to vote to print a publication, even when the number of such publications printed is excessive or goes beyond the reasonable requirements of the legislative function. As to the defamatory statements allegedly made by Rep. Fraser during his election campaign, the defendants contended that the statements did not possess the characteristics of official action necessary to form the basis for any claim of constitutional violations. Finally, the defendants took the position that the plaintiffs were asserting the First Amendment rights of Unification Church members whose claims were not before the court. Thus, said the defendants, the plaintiffs lacked standing.

On June 18, 1979, the plaintiffs filed a memorandum in support of their opposition to the motion to dismiss. They characterized their complaint as being based upon violations of specific First Amendment rights, not upon the common law of defamation, and argued that the action was therefore cognizable by the Federal courts. Subsequently, on July 10, 1979, the plaintiffs filed a supple mental memorandum citing, as additional authority in support of their position, the Supreme Court decision in Hutchinson v. Proxmire, 443 U.S. 111 (1979). (See page 122 of Court Proceedings and Actions of Vital Interest to the Congress, March 1, 1981 for a discussion of that case.)

On September 21, 1979, the defendants filed a reply memorandum to the plaintiff's opposition to the defendants' motion to dismiss the first amended complaint. The defendants charged that the

suit was vindictive and frivolous and that the plaintiffs' opposition E to their motion to dismiss was without merit and was an attempt

to cloud the issues with matters that had nothing to do with the plaintiffs' complaint. The plaintiffs, the defendants alleged, for the fourth time attempted to raise issues not previously raised in the lawsuit. The defendants cited Supreme Court decisions in support of their argument that the Speech or Debate Clause was a complete bar to the action.

On October 19, 1979, the plaintiffs filed a memorandum in response to the September 21st memorandum. The plaintiffs maintained that all matters raised by the defendants had previously been addressed. In addition, the plaintiffs argued that the Speech or Debate Clause did not bar the litigation because the conduct of Rep. Fraser and his staff exceeded the proper functioning of the legislative process. They also reasserted that the unauthorized search of the plaintiffs' church was a violation of their Fourth Amendment rights and that distributing and printing denigrating statements about the plaintiffs violated their First Amendment

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rights.

Although there was no docketed activity in this case for over two years after the plaintiffs' response memorandum was filed in October 1979, the case was not closed and the defendants' motion to dismiss the first amended complaint remained pending before the district court.

On January 11, 1982, the plaintiffs filed a second supplemental memorandum in opposition to the defendants' motion to dismiss. In this memorandum, the plaintiffs brought to the court's attention the recent Federal court decision in Benford v. American Broadcasting Companies, Inc., 502 F. Supp. 1148 (D. Md. 1980), aff'd, No. 81-1200 (4th Cir. June 17, 1981), cert. denied, 102 S. Ct. 612 (1981) as additional support for their position. (See page 204 of this report for a discussion of that case.) According to the plaintiffs, defendant Fraser had “improperly made and distributed derogatory statements about (them) in press conferences, communications with federal agencies, and numerous campaign appearances" [Second Supplemental Memorandum . . ., January 11, 1982, at 3), and, as the court found in Benford, neither "the Speech or Debate Clause, [n]or the attendant concept of the 'informing function' (of Congress) can properly be used to protect the publication outside the halls of Congress of materials injurious to private parties." [Id. at 2, citing Benford, supra, 502 F. Supp. at 1155)

Status—The case is pending in the U.S. District Court for the District of Columbia. Food Service Dynamics v. Holtzman

Civil Action No. 79C-2074 (E.D.N.Y.)

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