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FARA and the First Amendment: How will the United States Calibrate its Response to Foreign Propaganda?

Remember how we talked about bipartisan legislation introduced in March 2017 (which seems like a million years ago) to investigate the Russian media outlet RT for spreading propaganda without registering as a foreign agent? Since then, you might have seen (including in our blog, here) the Foreign Agents Registration Act (FARA) starting to rise from obscurity.

Well, RT has felt the heat. On November 10, 2017, according to a U.S. Department of Justice announcement, a U.S. production company has registered under FARA as an agent of ANO TV-Novosti, the Russian government entity that administers global broadcasts of the RT Network (RT).

And now RT is fighting back on free speech grounds, as only a democratic-backsliding, federal semi-presidential republic could. On November 14, RT ran the headline, “Slap at the First Amendment,” complaining that FARA is suppressing RT’s freedom of speech.

Just letting that sink in a minute.

RT’s story even quotes a former U.S. intelligence official criticizing the U.S. government for suppressing using FARA to suppress “comments the U.S. government doesn’t like.”

But wait. The plot thickens. In retaliation for having to register RT as a foreign agent in the United States, Russian lawmakers unanimously passed legislation permitting the Russian government to force foreign media organizations like CNN and the BBC in Russia to register as foreign agents.

U.S. Senator John McCain reportedly responded that CNN and BBC that “seek the truth, debunk lies, and hold governments accountable,” in contrast to RT, which he says “debunk the truth, spread lies, and seek to undermine democratic governments in order to further Vladimir Putin’s agenda.”

Under FARA, any person who acts on behalf of a foreign government to influence government officials or the American public “with reference to the political or public interests, policies, or relations” of the foreign government is required to register as a foreign agent with the U.S. DOJ. Additionally, section 614 of FARA has requirements for “filing and labeling of political propaganda.” FARA requires that any “informational materials” that a foreign agent distributes must be labeled with a “conspicuous statement” that the materials are being disseminated on behalf of that foreign government. It also requires that such “propaganda” be filed with the U.S. Attorney General.

FARA was established in the period of heavy Nazi and Communist propaganda activities in the United States. One of the underlying goals was to control the spreading of what the U.S. government deemed to be harmful propaganda, even though FARA does not directly censor speech. Today, the issue is even more complicated because the days of leaflets and pamphlets are over. As we saw this past year, propagandists target consumers in social media, web sites, email, and other media. But should every tweet be “conspicuously labeled”? Is that even workable?

This past year has awakened Americans to a concept of propaganda that we may have formerly thought was in the past. But we now know foreign political propaganda is alive and well. The problem we all face is how to counter the obvious threat to our democratic institutions while maintaining our values of free speech. It is not an easy problem – and it’s not going away. We anticipate that FARA (and DOJ’s FARA Registration Unit) will again become a very hot topic. We’ll keep you posted on developments.

Copyright © 2017, Sheppard Mullin Richter & Hampton LLP.

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About this Author

Fatema Merchant, international, trade, Lawyer, Sheppard Mullin
Associate

Fatema Merchant is an associate in the Government Contracts, Investigations & International Trade Practice Group in the firm's Washington, D.C. office.

Fatema’s practice focuses on investigations and compliance counseling related to international trade laws.  She has extensive experience with U.S. Foreign Corrupt Practices Act and U.S.-Sanctioned Countries investigations, compliance, due diligence, and training.  Fatema also advises clients on compliance with International Traffic in Arms Regulations, Export Administration Regulations, Customs and Anti-Money Laundering...

202-469-4930
J. Scott Maberry, Lawyer, Sheppard Mullin, International Trade, Trade Practice
Partner

Mr. Maberry is an International Trade partner in the Government Contracts, Investigations & International Trade Practice Group in the firm's Washington, D.C. office.

Areas of Practice

Mr. Maberry's expertise includes counseling and litigation in export controls, the Foreign Corrupt Practices Act (FCPA), anti-terrorism, economic sanctions, anti-boycott controls, and Customs.  He also represents clients in negotiations and dispute resolution under the World Trade Organization (WTO), North American Free Trade Agreement (NAFTA), and other multilateral and bilateral agreements.

202-469-4975