Topline
President Donald Trump announced Monday he intends to impose a tariff on films made outside the U.S., and while the full details of such a tariff still remain unclear, it could run afoul of a 1988 law meant to ensure the U.S. can import foreign media and films without restrictions.
President Donald Trump speaks in the Oval Office of the White House on September 25.
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Key Facts
Trump intends to levy a 100% tariff “on any and all movies that are made outside of the United States,” the president said on Truth Social on Monday, claiming the U.S.’ “movie making business has been stolen … by other Countries, just like stealing ‘candy from a baby.’”
The president’s comments echo previous statements he made in May threatening tariffs on foreign films, but Trump did not provide any further clarification Monday on what specifically the tariffs will be applied to and what authority Trump is using to enact them.
The president’s threats have raised concern among legal experts that tariffs could violate the Berman Amendment, a provision added in 1988 to the International Emergency Economic Powers Act (IEEPA), which gives presidents powers to impose economic sanctions during national emergencies.
Trump used the IEEPA to justify his sweeping “Liberation Day” tariffs earlier this year, but the Berman Amendment specifies presidents cannot regulate the import of information materials, including films.
The amendment, which was enacted amid concerns about the government banning materials from certain countries during the Cold War, states the president cannot regulate “the importation from any country, or the exportation to any country … any information or informational materials,” including in such mediums as “publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, compact disks, CD ROMs, artworks, and news wire feeds.”
What To Watch For
Trump has not given any further indication regarding what his tariffs on non-U.S. films will look like or when they could be imposed, saying Monday only that he “will be” imposing the 100% tariff. It’s also still unclear what specifically the tariffs could be applied to, whether that could be film rights, digital or physical copies of any films, or other costs associated with film production. Likewise there is little legal precedent testing whether the Berman Amendment or IEEPA in general apply to tariffs, though the Supreme Court is currently considering the latter.
What Does The Berman Amendment Cover?
The Berman Amendment says the president cannot impose economic sanctions on imports or exports of informational materials, regardless of what format they’re in, how they’re transmitted, or whether they’re sold commercially. The only exception to the amendment is for materials that encourage terrorism. Congress amended the scope of the provision in 1994 with the Free Trade in Ideas Act, which added in the language about the medium of transmission not mattering, in order to prohibit regulation of any materials on the Internet. While the Berman Amendment’s language is fairly broad, the federal government has historically interpreted it more narrowly and claimed it doesn’t include materials that aren’t fully completed, like films still in production or manuscripts that need additional edits. That suggests Trump could try to get around the amendment by arguing it doesn’t apply to U.S. films shooting overseas that are still in production.
Does The Berman Amendment Apply To Trump’s Tariffs?
It’s unclear, especially since the scope of Trump’s tariffs and his legal justification for them are still up in the air. Some legal experts have insisted the tariffs should be covered under the Berman Amendment, with Georgetown University law professor Anupam Chander telling MarketWatch the “statute couldn’t be more plain,” and Fordham University law professor John Pfaff saying Trump “has no authority to do this” because “the law says ‘you CANNOT do this.’” Other experts have suggested the issue could be more difficult for the courts to decide, given the lack of precedent around trying to impose unilateral tariffs on materials the Berman Amendment covers. “This could become a somewhat narrow and granular read of the law,” Matt Wood, vice president of policy at media watchdog Free Press, told MarketWatch in May. The issue of whether Trump is allowed to impose tariffs under IEEPA at all is also set to be decided by the Supreme Court in the coming months, so a ruling in that case could impact how IEEPA—and its Berman Amendment, by extension—can be used to govern further tariffs.
Could Anything Else Stop Trump’s Movie Tariffs?
Any tariffs on films could also be stymied by a global moratorium on customs duties for digital services and goods, which was put in place through the World Trade Organization and has been extended through March 2026. If Trump abides by that moratorium, that could prevent him from putting tariffs on foreign films that are transmitted over the Internet, like via streaming services, law firm Possinger Law Group notes. It’s possible that making it harder to access foreign films could also potentially give rise to legal claims that Trump is stymying filmmakers’ First Amendment rights by silencing their speech through their films.
Tangent
Trump was already previously stymied by the Berman Amendment during his first term, when the president signed an executive order to ban TikTok. A federal judge ruled in 2020 to block Trump’s executive order and keep TikTok online, siding with the social media company, which argued the Berman Amendment prohibited the president from taking any action against the app. Congress went on to pass legislation that exempted TikTok from the Berman Amendment and allowed it to be banned in the U.S. Trump, reversing his earlier position, has kept the app online throughout his presidency by keeping the law on hold, however, and recently signed off on a deal that allows TikTok to remain compliant with the law by divesting from parent company ByteDance in the U.S.
Key Background
Trump has used tariffs as his primary economic tool during his second term, imposing widespread tariffs on imports from nearly all countries, as well as duties impacting specific sectors like steel and automobiles. The president has recently announced new tariffs on imports such as pharmaceuticals, and Trump’s post Monday about imposing tariffs on foreign-made films was accompanied by a separate post announcing tariffs on furniture built outside the U.S. The proposed tariff on foreign-produced films comes as film production has increasingly shifted outside of Hollywood and the U.S., as media companies have been lured by lower costs and lucrative tax credits to shoot overseas. Film and television production in Los Angeles has declined by one-third over the past 10 years, according to FilmLA data cited by The New York Times—though many in the industry have protested that any tariffs on foreign films or film production will only hurt the situation further, and imposing tax credits for U.S.-made films would be a more helpful incentive.