Adams, Gibbons and Hunter, Circuit Judges.
Plaintiff has frontally assaulted the Trading with the Enemy Act, 50 U.S.C. App. § 5(b)*fn1 and the Foreign Assets Control Regulations, 31 C.F.R. Part 500*fn2 as being unconstitutional facially and as applied in this case. The attack is essentially two-pronged: the statute and regulations establish an unconstitutional delegation of legislative power without adequate standards, and violate the First Amendment by prohibiting the receipt of unsolicited publications unless the addressee obtains a license, submits to a permanent record his desire to receive the proscribed publications, and proves he has made no payment.
The facts of this controversy are not in dispute. By letter dated February 17, 1970, plaintiff, an unincorporated association, received notice from the Regional Commissioner of Customs that a shipment of Red Chinese literature from North Vietnam had been detained and would not be released until a license had been secured. Plaintiff alleges that the publications, copies of an English language newspaper, were unsolicited and that plaintiff had no intention of making payment to anyone for them. However, rather than apply for a license, plaintiff brought suit in the district court for injunctive relief and moved for summary judgment, or in the alternative, for a preliminary injunction and the formation for a three-judge court under 28 U.S.C. §§ 2282, 2284 (1970). Defendants cross moved for summary judgment, and their motion was granted. The district court relied on 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).*fn2a
Plaintiff's first argument is that the statute unconstitutionally delegates legislative powers without appropriate standards. In support of this contention, plaintiff has traced the history of predecessor statutes from the original Trading with the Enemy Act of 1917, 40 Stat. 414, to demonstrate that the present statute "permits profoundly drastic action at the whim of the administrator" that "may be [utilized] to carry out" domestic economic policy.*fn3 The only restriction on this vast power, plaintiff asserts, is that it can be exercised solely in time of war or other national emergency declared by the President, and since a President's declaration of national emergency is unreviewable,*fn4 "the statute contains no limitations whatsoever." Therefore, according to plaintiff, the statutory grant of authority is repugnant to the Constitution, A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 55 S. Ct. 837, 79 L. Ed. 1570 (1935), especially where the overbreadth of the statute affects First Amendment rights. United States v. Robel, 389 U.S. 258, 88 S. Ct. 419, 19 L. Ed. 2d 508 (1967).
We note that the statute contains two express limitations: (1) it becomes operative only during "the time of war" or "any other period of national emergency declared by the President," and (2) it applies only to "property in which any foreign country or any national thereof has or has had any interest." Ordinarily, when dealing with matters of foreign relations, Congress may lawfully delegate to the President broader discretion than would be permissible with regard to domestic affairs. Zemel v. Rusk, 381 U.S. 1, 85 S. Ct. 1271, 14 L. Ed. 2d 179 (1965); Chicago & Southern Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 68 S. Ct. 431, 92 L. Ed. 568 (1948); United States v. Curtiss-Wright Corp., 299 U.S. 304, 57 S. Ct. 216, 81 L. Ed. 255 (1936). Were the standards expressed in these cases the only criteria of relevance here, we would have no difficulty holding that the delegation does not render the statute unconstitutional, especially since the national emergency qualifies as a "time of crisis."
But the matter is not that simple. Clearly, items entitled to First Amendment protection may be encompassed within the definition of the term "property." When the operation of an otherwise valid law "clashes with those individual liberties protected by the Bill of Rights, it is our 'delicate and difficult task' to determine whether the resulting restriction on freedom can be tolerated." United States v. Robel, 389 U.S. at 264, 88 S. Ct. at 424. In deciding "whether Congress has adopted a constitutional means in achieving its concededly legitimate legislative goal" it is "necessary to measure the validity of the means adopted by Congress against both the goal it has sought to achieve and the specific prohibitions of the First Amendment." Id. at 268 n. 20, 88 S. Ct. at 426. Thus there are two essential criteria: (1) the legislative purpose must be legitimate, and (2) the means of achieving that purpose must not violate the First Amendment.
There is little doubt regarding the propriety of the purpose of the Trading with the Enemy Act. Its obvious goal is to prevent countries such as North Vietnam and Communist China from deriving any economic benefit from transactions with persons subject to the jurisdiction of the United States. Considering the state of our relationship with North Vietnam, and that money is an important weapon in any international struggle, we conclude that the Congressional design under-pinning the Act is wholly proper. See Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398, 84 S. Ct. 923, 11 L. Ed. 2d 804 (1964); Teague v. Regional Commissioner of Customs, supra ; Sardino v. Federal Reserve Bank of New York, supra.
The question whether the means adopted by Congress to reach its goal -- delegation of authority to promulgate regulations -- comport with the First Amendment does not admit to facile solution. Most, if not all, of the authoritative Supreme Court cases dealing with this issue concern instances of delegation of authority where the function of the delegatee was to determine only whether certain materials were protected by the First Amendment. See e. g., United States v. Thirty-Seven Photographs, 402 U.S. 363, 91 S. Ct. 1400, 28 L. Ed. 2d 822 (1971); Blount v. Rizzi, 400 U.S. 410, 91 S. Ct. 423, 27 L. Ed. 2d 498 (1971); Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 88 S. Ct. 1298, 20 L. Ed. 2d 225 (1968); Teitel Film Corp. v. Cusack, 390 U.S. 139, 88 S. Ct. 754, 19 L. Ed. 2d 966 (1968); Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734, 13 L. Ed. 2d 649 (1965).*fn5 However, none of those cases involved the precise problem confronting us: whether Congress may delegate authority to regulate so broad that the regulation of First Amendment protected rights incidentally falls within the ambit of the authority.
In other contexts, though, the Supreme Court has validated statutes and ordinances regulating various activities although such regulation incidentally curtailed First Amendment rights. In Valentine v. Chrestensen, 316 U.S. 52, 62 S. Ct. 920, 86 L. Ed. 1262 (1942), the Supreme Court upheld an anti-littering ordinance directed against advertising handbills despite the fact that the handbills also contained materials protected by the First Amendment.*fn6 And in American Communications Assn. v. Douds, 339 U.S. 382, 70 S. Ct. 674, 94 L. Ed. 925 (1950), the Supreme Court explained:
"Those who, so Congress has found, would subvert the public interest cannot escape all regulation because, at the same time, they carry on legitimate political activities." Id. at 412, 70 S. Ct. at 691.
Adderley v. Florida, 385 U.S. 39, 87 S. Ct. 242, 17 L. Ed. 2d 149 (1966), indicated that a state could nondiscriminately deny to demonstrators access to its property, provided such denial was "evenhanded." Id. at 47-48, 87 S. Ct. 242.*fn7 An antipicketing statute was held valid and not overly broad in Cameron v. Johnson, 390 U.S. 611, 88 S. Ct. 1335, 20 L. Ed. 2d 182 (1968), since it did not prohibit picketing unless it obstructed or unreasonably interfered with ingress or egress to or from a courthouse, and there was no ...