Pointing to economic problems faced by the film industry and incentives that other nations have offered to entice filmmakers to shoot movies abroad, on May 4, 2025, President Donald Trump announced on Truth Social that he planned to set in motion a 100% tariff on “any and all Movies coming into our Country that are produced in Foreign Lands” (Alpert 2025).
In 1917, Congress adopted the Trading with the Enemy Act (TWE), which allowed the president during times of national emergencies to embargo transactions with hostile nations (Michalec 1992, 813). The International Emergency Economic Powers Act of 1977 further gave the president authority over tariffs, an area that is traditionally exercised by Congress under its power over foreign commerce and taxation.
While economists and members of the U.S. film industry attempt to assess the ultimate impact of such tariffs, how they would be levied, and what effect they might have on increasing movie prices (White and Mason 2025; Zahn 2025), some lawyers are questioning the constitutionality of the tariff. They point out that in 1988 Congress adopted the Berman Amendment to the 1977 Emergency Economic Powers Act, which is found in Volume 50, Section 1702 of the U.S. Code under “Presidential authorities.”
Berman Amendment bars president from regulating film imports
The Berman Amendment provided that, apart from materials designed to promote terrorism, the president does not have “the authority to regulate or prohibit, directly or indirectly ... the importation from any country, or the exportation to any country, whether commercial or otherwise, regardless of format or medium of transmission, of any information or informational materials, including but not limited to publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds.”
In Trump’s first administration, the Berman Amendment came into play when courts ruled that Trump did not have authority to ban the social media platform TikTok from operating in the United States, unless it was sold to a non-Chinese owner. (China-based ByteDance, Ltd. owns TikTok.) Congress responded by changing the law to provide an exception for TikTok. Relying on this change, Trump issued another order directed against TikTok in his second administration, which he has, however, subsequently paused.
Film industry generates a trade surplus
Whereas Trump has aimed his highest tariffs on nations that have huge trade balances in their favor, the film industry has been quite lucrative for the U.S., generating a trade surplus of $15.3 billion a year (Alpert 2025).
Trump’s proposed tariff on foreign-made films may have less to do with First Amendment concerns over the free flow of ideas than with preserving jobs in the U.S. film industry. That might mean that the tariff would not violate traditional First Amendment prohibitions on content or viewpoint discrimination. Courts faced with a challenge on such a tariff might focus more on interpreting the language of the tariff than on constitutional issues.
In the meantime, California Gov. Gavin Newsom has proposed that Trump support a film tax credit program instead (Ables 2025).
John R. Vile is a political science professor and dean of the Honors College at Middle Tennessee State University.