ABC's First Amendment arguments are predicated principally upon the assumption that the congressional or executive power to regulate speech when dealing with foreign affairs is subject to the same scrutiny and limitations that the First Amendment would impose in the domestic context. However, as the decision of the Second Circuit in Teague v. Regional Commissioner of Customs, 404 F.2d 441 (2d Cir. 1968), cert. denied, 394 U.S. 977, 89 S.Ct. 1457, 22 L.Ed.2d 756 (1969), makes clear, that is most assuredly not the case. In Teague, the Second Circuit upheld the constitutionality of the Cuban embargo although it entirely prohibited the importation of all "informational materials," which is now permitted by the Berman Amendment.

Executive Order No. 10896, 3 C.F.R. (November 29, 1960); Executive Order No. 10905, 3 C.F.R. (January 14, 1961); Executive Order No. 11037, 3 C.F.R. (July 24, 1962); Executive Order No. 11387, 33 Fed.Reg. 47 (January 1, 1968). See Sardino v. Federal Reserve Bank, 361 F.2d 106 (2d Cir.), cert. denied, 385 U.S. 898, 87 S.Ct. 203, 17 L.Ed.2d 130 (1966); Teague v. Regional Commissioner of Customs, 404 F.2d 441 (2d Cir. 1968), cert. denied, 394 U.S. 977, 89 S.Ct. 1457, 22 L.Ed.2d 756 (1969); Nielson v. Secretary of the Treasury, 137 U.S.App.D.C. 345, 424 F.2d 833 (1970). Section 500.204(a) of the Foreign Assets Control Regulations prohibits unauthorized dealings in merchandise orginating in, inter alia, North Vietnam. Paragraph 108 of the Appendix to Section 500.204 provides for licenses for the importation of films and publications from North Vietnam, North Korea and Communist China where such films or publications are bona fide gifts not involving "any direct or indirect commercial benefit to [the] designated countries," where payments for such items are made into blocked accounts, or where such materials are sent to libraries, universities, etc., or where they are received in "exchange for publications from the United States."

These issues are concededly foreclosed. See, e.g., Propper v. Clark, 337 U.S. 472, 69 S.Ct. 1333, 93 L.Ed. 1480 (1949); Veterans and Reservists for Peace in Vietnam v. Regional Commissioner of Customs, 459 F.2d 676 (3 Cir. May 4, 1972); Teague v. Regional Commissioner of Customs, 404 F.2d 441 (2 Cir. 1968, cert. denied, 394 U.S. 977, 89 S.Ct. 1457, 22 L.Ed.2d 756 (1969); Sardino v. Federal Reserve Bank, 361 F.2d 106 (2 Cir.), cert. denied, 385 U.S. 898, 87 S.Ct. 203, 17 L.Ed.2d 130 (1966); United States v. Von Clemm, 136 F.2d 968 (2 Cir.), cert. denied, 320 U.S. 769, 64 S.Ct. 81, 88 L.Ed. 459 (1943); Welch v. Kennedy, 319 F. Supp. 945 (D.D.C. 1970). 50 U.S.C.App. § 1 et seq.

That was the case in United States v. O'Brien, 1968, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672: fair and effective exercise of the power of conscription required registration of those eligible for conscription and their identification; thence flowed the power to forbid mutilation or destruction of Selective Service certificates notwithstanding that particular acts of destruction might be intended as dramatic communications of the registrants' political opposition to the Vietnam hostilities ( 391 U.S. at 381-382, 88 S.Ct. 1673); the terms of the statute did not limit its penal sanction to the cases of "symbolic speech" but, conspicuously, comprehended furtive destruction by draft evaders or others. So too in Teague v. Regional Commissioner, 2d Cir. 1968, 404 F.2d 441, cert. denied, 1969, 394 U.S. 977, 89 S.Ct. 1457, 22 L.Ed.2d 756 (three justices dissenting, two in an opinion of Mr. Justice Black) the statute and regulations were addressed to withholding American currency from areas with which the Government had, under the Trading with the Enemy Act, suspended substantially all trade except under license; the control scheme was held not invalid as it applied to publications since it was not addressed to restricting the flow of ideas and only incidentally burdened that flow, nor did it select publications according to their content for restriction. In the present case the impact of subsection (a)(28) on interests protected by the First Amendment is not outweighed by any compensating protection it gives against an evil shown to be grave to some interest clearly within the sphere of governmental concern.

The Secretary argues that the travel-payment restrictions are aimed at denying hard currency to Cuba, rather than at suppressing the receipt of information from or about Cuba, and Walsh does not dispute this point. See Teague v. Regional Comm'r of Customs, 404 F.2d 441, 445 (2d Cir. 1968). Walsh does, however, dispute the importance of the governmental interest served.

The restriction of first amendment freedoms is only incidental to the proper general purpose of the regulations: restricting the dollar flow to hostile nations." Teague v. Regional Comm'r of Customs, 404 F. 2d 441, 445 (2d Cir. 1968). Fourth, the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of the governmental interest in national security.

Furthermore, courts have upheld the prohibition of the receipt of publications from designated "enemy" countries, without a license, as permissible restrictions on First Amendment activities. Teague v. Regional Comm. of Customs, 404 F.2d 441 (2nd Cir. 1968); Veterans and Reservists for Peace in Vietnam v. Regional Commissioner of Customs, 459 F.2d 676 (3d Cir. 1972) ("Veterans"). The regulations were upheld despite the fact that the publications in question expressed political viewpoints.

Plaintiff sought to convene a three-judge court under 28 U.S.C. § 2282, 2284, to entertain his challenge to the constitutionality of the Act. This application was denied, for the constitutionality of the Trading With the Enemy Act has been repeatedly upheld in cases such as Sardino v. Federal Reserve Bank, 361 F.2d 106 (2d Cir. 1966), cert. denied, 385 U.S. 898, 87 S.Ct. 203, 17 L.Ed.2d 130; Teague v. Regional Commissioner of Customs, 404 F.2d 441 (2d Cir. 1968), cert. denied, 394 U.S. 977, 89 S.Ct. 1457, 22 L.Ed.2d 756; and Campbell v. Chase National Bank, 5 F. Supp. 156 (S.D.N.Y. 1933), aff'd, Campbell v. Medalie, 71 F.2d 671, cert. denied, 293 U.S. 592, 55 S.Ct. 108, 79 L.Ed. 686. The gist of plaintiff's argument is that Congress never intended to authorize defendants to regulate humanitarian medical relief to foreign nations, and that in any event Congress does not have the power to do so where the relief is motivated by religious conscience.

Prior to 1988, trade sanctions that hampered the exchange of informational materials were routinely justified under TWEA and IEEPA as incidental to the broader commercial purpose of these trade measures. See, e.g., Teague v. Regional Comm'r of Customs, 404 F.2d 441, 445 (2d Cir. 1968) (upholding TWEA regulations that effected a categorical prohibition on importation of informational materials from China, North Korea and North Vietnam because the limitation was "incidental to the proper general purpose of the regulations: restricting the dollar flow to hostile nations"). In Veterans Reservists for Peace in Vietnam, we wrote:

Our sister circuits have uniformly reached similar conclusions. Denial of hard currency to hostile regimes, including Cuba, has been described as "vital," Teague v. Regional Comm'r of Customs, 404 F.2d 441, 445 (2d Cir. 1968), and as "compelling," Veterans Reservists for Peace in Vietnam v. Regional Comm'r of Customs, 459 F.2d 676, 682 (3d Cir. 1972). Further, on numerous occasions, content-neutral restrictions on travel to Cuba and other hostile nations have been upheld in the face of similar First Amendment challenges. See, e.g., Zemel v. Rusk, 381 U.S. 1, 16-17, 85 S.Ct. 1271, 14 L.Ed.2d 179 (1965) (passport validation); Freedom to Travel Campaign v. Newcomb, 82 F.3d 1431, 1441 (9th Cir. 1996) (educational travel); Clancy v. OFAC, No. 05-C-580, 2007 U.S. Dist. LEXIS 29232, 2007 WL 1051767, at *16 (E.D.Wis. March 31, 2007) (travel to Iraq as "human shield").