Moreover, it is highly unlikely that the regulation on furnishing boycott information alone, unrelated to and/or without proof of actual boycott conduct, would survive First Amendment challenge, especially without a clear Congressional mandate. The Baldridge case by the 8th Circuit rejecting an early First Amendment challenge was decided before the line of Supreme Court cases expanding First Amendment protection for commercial speech. It is difficult to see how the information furnishing prohibitions could survive the test established by the Hudson Valley and 44 Liquor Market cases, especially when the EAA is in lapse and there is no clear Congressional finding regarding the boycott in the text of IEEPA. But even in those rare times when the EAA is in effect, it is unlikely that the prohibition on providing “negative certificates of origin” would pass constitutional muster under the analysis in the 44 case given that the conduct, compliance with a primary boycott is permitted, and provision of an affirmative certificate is permitted. The regulations are pure content related and therefore unconstitutional.

Imposition of a denial order is also unauthorized. 50 USC 1705 authorizes only civil fines and criminal penalties. It does not authorize imposition of a denial order as a penalty. Issuance of a denial order while the EAA is “in lapse” [sic] is therefore a violation of the Administrative Procedures Act because it is a sanction not specifically authorized by statute.