Class 3. What the U.S. Can (and Can't) Do to Stop Propaganda

(Hint: That pesky First Amendment makes it hard!)

As I write this, Sam Bankman-Fried, owner of the cryptocurrency trading platform FTX, has been arrested in the Bahamas. He’s been indicted by the SEC for (among other things) conspiring to defraud investors in his company. In short, he lied to them. This dovetails with our class discussion last week on the First Amendment limits on punishing speech and how those apply in different contexts, including corporate “propaganda” (which in the case of Bankman-Fried’s representations about his company’s financial practices to investors would probably be classified as gray propaganda — information of uncertain accuracy and where the source is sometimes obscured). We have a lot of mechanisms in place to police corporate lies, not just through the SEC but through laws that, for example, make it illegal for companies to engage in deceptive trade practices — this is what eventually nailed the tobacco industry. (Speaking of corporate truth-telling, I highly recommend the Netflix limited series, “Pepsi, Where’s My Jet?” because it is hilarious.) In short, if it involves companies and profits, the government has a variety of tools to make sure that the information being put into the public sphere is (mostly) truthful.

But what about speech that affects how people think about foreign policy, domestic issues, political candidates, or even how they vote? Not so much. Political speech — even deceptive political speech — enjoys robust First Amendment protection in the United States. The bar for allowing the government to intercede in or punish such speech is very high; consider that even whether former President Donald Trump’s January 6 speech at the Ellipse rises to criminal incitement is a thorny issue, for precisely this reason. To the extent that the U.S. does impose some laws or regulations on political speech (namely propaganda), it’s primarily directed at foreign activity or targets, which I describe below.

I want to frame how we think about these legal parameters in terms of the values I ended my last lecture with: transparency; audience; and purpose. Looking at them through this lens helps to illuminate what democratic interest we are seeking to protect (and, in turn, question whether they are effective in that regard).

Transparency

Even when it comes to foreign propaganda, the U.S. faces a tension between First Amendment values and the national security interest in preventing covert foreign influence on American attitudes and perceptions. The Foreign Agent Registration Act (FARA) seeks the find a balance between these two interests.

FARA was passed in 1938 in response to growing concern about Nazi and Communist propaganda. Congress’ answer was to create transparency when foreign governments were engaged in perception management activities (that’s intelligence lingo for propaganda/disinformation) in the U.S. Basically, anyone who is acting as an “agent of a foreign principal” is required to register as a foreign agent with the Justice Department (formerly State Department), and must disclose that status on any materials they disseminate. (Note: A U.S. person can be an “agent” for purposes of FARA.) The legislative history reveals that Congress believed that more than censorship, foreign propaganda efforts were best countered by

bring[ing] the activities of persons engaged in disseminating foreign political propaganda in this country out into the open ... mak[ing] known to the Government and the American people the identity of any person who is engaged in such activities, the source of the propaganda and who is bearing the expense of its dissemination in the United States.

The underlying assumption here is that by making the source of the information transparent, the American public will have a critical piece of information with which to assess its credibility or value.

In the 1960s, the focus of FARA turned more to “political activities” by foreign governments — i.e., attempts to influence lawmakers and policy, like this recent report on the U.A.E.’s sketchy activities — more than propaganda. And in the 1990s, FARA created an exemption for entities that had registered under the less onerous Lobbying Disclosure Act, which removed a large swath of foreign agents from FARA scrutiny altogether. In addition, FARA is not in itself a particularly threatening enforcement tool. It’s primarily a procedural requirement: Basically someone who is believed to be acting under the “direction and control” of a foreign government or foreign political party is notified that they must register with the U.S. government. Criminal penalties attach only if the recipient “willfully” fails to register after that. And, even in the case of prosecution, the penalties are fairly weak: Violators may face fines of up to $10,000 (the fine hasn’t been updated since 1966) or no more than five years in prison. Needless to say, there’s not a lot of incentives for foreign agents to run out and register as such under the current regime.

That, however, may be changing. First, given Russia’s election interference in 2016, propaganda and disinformation are once again a primary concern. In 2017, two Russian media outlets, RT and Sputnik, were required to register as foreign agents of Russia (i.e., they are officially designated as Russian propaganda) — this is significant, as the U.S. has typically been loath to apply FARA to media organizations (again, out of First Amendment concerns) and FARA even has an exception for “bona fide news organizations.” Further, in the Information Age propaganda intersects with and can’t be disentangled from political activity. This op-ed written by Gen. Mike Flynn on Election Day in 2016 originally did not disclose that he was a foreign agent for Turkey at that time. (Among the crimes to which Flynn pleaded guilty in the Mueller investigation was that he later lied about his relationship to Turkey on a disclosure form.) Paul Manafort, who was a foreign agent for a pro-Russia political party in Ukraine, tried to ghostwrite an op-ed with a Russian intelligence operative while he was in prison awaiting trial. (You can’t make this stuff up!) Finally, legislation has been presented to add more “teeth” to FARA, including increasing the financial penalties, adding civil enforcement mechanisms, and removing the lobbying exemptions. The Justice Department has also beefed up its FARA office in recent years. Nevertheless, when it comes to foreign propaganda, the ultimate goal is transparency and disclosure, not censorship.

Audience

So FARA addresses what the U.S. can do about foreign activity here, but what about the ability of the U.S. to engage in counter-propaganda? I’m going to leave it to my guest speaker next week, Matt Armstrong, to discuss the details of the Smith-Mundt Act (on which he is an expert), which was passed in 1948 to “to promote a better understanding of the United States in other countries, and to increase mutual understanding between the people of the United States and the people of other countries." The U.S. Information Agency was created shortly thereafter. We'll discuss how effective these mechanisms (and their later iterations) were in the ideological battle for hearts and minds during the Cold War, but for our purposes, I want to highlight that in 1972, the Smith-Mundt Act banned the dissemination of U.S. government propaganda (which is technically what our overt, pro-U.S., pro-democracy messaging was) to domestic audiences in the U.S.

All of that, of course, dealt with overt U.S. propaganda — the stuff we were pumping out to foreign audiences on behalf of the U.S. government. There was another channel, though, where it could get to U.S. audiences: the covert side. In the 1950s and 1960s, the CIA was basically the legal Wild West, meaning, it didn’t really operate under a lot of legal restrictions. This was due to a broad reading of the National Security Act of 1947, which created the CIA. The so-called “fifth function” contained in the act (which referred the the original numbering outlining the CIA’s activities) was a broadly worded catch-all which was interpreted by leaders of the agency as permitting covert actions abroad — things like coups, assassination attempts, economic and political subversion, and, yes, propaganda. (I mean, easier to ask for forgiveness than permission so you have to admire the creativity and hutzpah.)

One CIA covert action that made major use of propaganda abroad was the overthrow of the Iranian Prime Minister, Mohammad Mossadegh, in 1953. In an effort to destabilize the Iranian government, the CIA secretly took control of the Iranian press (mainly through bribes) and disseminated messaging that Mossagdegh was a Communist. But the CIA also placed articles in U.S. media that were disseminated in Iran to erode confidence in the prime minister (remember deflective/legitimizing propaganda?). Even if the U.S. wasn’t the CIA’s intended target (and it may have been — shoring up U.S. public support for the coup would have been important), domestic audiences would have been exposed to it. The CIA engaged in other forms of covert propaganda — we’ll discuss the “cultural Cold War” in a few weeks — but the point is that U.S. audiences would have undoubtedly consumed this covert propaganda, the “official” ban on domestic government propaganda notwithstanding.

In any event, this is all to underscore that with the signing of Executive Order 12,333 by President Ronald Reagan in 1981, the CIA was expressly prohibited from engaging in activities “intended to influence United States political processes, public opinion, policies, or media, and do not include diplomatic activities.” The Intelligence Authorization Act of 1991 mirrors this prohibition.

Presumably, these bans — given that they apply to both overt and covert government activity — stem from a general American distaste for anything that could be labeled as “government propaganda” being fed to U.S. audiences, and/or an interest in not allowing the government to influence public opinion.

Purpose

What if there is a really, really good reason to engage in covert, pro-democracy propaganda, even if it might reach domestic audiences? What if it’s to help an ally, like, say, Ukraine, counter an actual military aggression by winning hearts and minds in the information space? Yeah, no, we Americans don’t really go for that, either.

This recent report by Graphika and the Stanford Internet Observatory recently investigated a number of inauthentic accounts on Twitter, Facebook, Instagram, and five other social media platforms and found that they were at least partly linked to a U.S. government messaging campaign called the Trans-Regional Web Initiative (the origins of some of the accounts were unclear). According to the report:

These campaigns consistently advanced narratives promoting the interests of the United States and its allies while opposing countries including Russia, China, and Iran. The accounts heavily criticized Russia in particular for the deaths of innocent civilians and other atrocities its soldiers committed in pursuit of the Kremlin’s “imperial ambitions” following its invasion of Ukraine in February this year. To promote this and other narratives, the accounts sometimes shared news articles from U.S. government-funded media outlets, such as Voice of America and Radio Free Europe, and links to websites sponsored by the U.S. military. A portion of the activity also promoted anti-extremism messaging.

That sounds…not so bad, sort of like what we probably should be doing in the information space, right? Well, the Pentagon didn’t think so. It’s initiated a review of Military Information Support Operations (MISO), which conducts psychological operations, to determine whether its activities are in compliance with U.S. laws and policies. Leaving aside for a moment that it seems really weird that the undersecretary for defense for policy apparently had no idea that these operations were happening (really??), the implicit and explicit prohibitions on potential exposure of domestic audiences to this content will likely be an issue. I’ll write on this more as it unfolds, so stay tuned.

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So when we look at all of these laws and prohibitions, what are we really trying to protect? The driving force seems to be an interest in ensuring that Americans can be fully informed consumers (hence the need for transparency) whose views won’t be shaped by government influence (hence the ban on government propaganda at home). And even furthering important national security, foreign policy, or democratic interests (the purpose) doesn’t seem to trump that. My piece earlier this week discussed the “marketplace of ideas” theory of speech in the U.S., and these laws very much fit into that paradigm of the information ecosystem — they attempt to protect the integrity of the “market.” We should ask whether in the digital age, where transparency can be impossible, geographic boundaries are erased, and that very marketplace is being weaponized against us by foreign adversaries, it’s time for a new paradigm.

Audio here:

Discussion Questions

1. If you can, take yourself back to 2016, before you knew that Mike Flynn was a total kookpot. How much credibility did his op-ed carry without a disclosure that he was working on behalf of Turkey? How would such a disclosure (before the op-ed ran) had impacted The Hill’s decision to publish it? Does transparency effectively “neutralize” black propaganda?

2. Should the permissibility of U.S. government propaganda (overt or covert) depend on whether the target audience is foreign or domestic? Can this distinction even be enforced in today’s information ecosystem?

3. As noted in the article about the Pentagon, one reason U.S. officials are concerned about potential exposure of U.S. covert propaganda activities abroad is that it erodes our international credibility (this is known as blowback). Is this a valid concern?