Well, it was about time for a ‘September Surprise,’ wasn’t it?
The term used to be ‘October Surprise’ and it referred to the possibility of news in late October that would have an effect on the elections in early November—especially deliberate dumps of opposition research. But election day in America has now become election season. For instance, this article discusses early voting options across the United States …
First votes of 2024 election are about to be cast https://t.co/soFst91Qpo
— Philip Shook (@macbeestje) September 5, 2024
… and they report that:
Five states begin in-person early voting in September: Pennsylvania (Sept. 16), Minnesota (Sept. 20), Virginia (Sept. 20), Vermont (Sept. 21), and Illinois (Sept. 26).
So, the earliest in-person voting starts in eleven days and just in time for a September surprise, we get this news:
NEWS
— Yashar Ali 🐘 (@yashar) September 4, 2024
The US Department of Justice alleges that Tenet Media, which has Benny Johnson, Tim Pool, and Dave Rubin on its roster, received $10 million from the Russian government to publish content as part of a Russian influence operation.
Tenet is owned and controlled by Lauren… pic.twitter.com/dx5ttHOwmR
The cut off text reads:
Recommended
Tenet is owned and controlled by Lauren Chen, who is affiliated with Turning Point USA, and her husband Liam Donovan.
And then it has a link to the announcement and indictment.
Right, so its Russia, Russia, Russia all over again. So, I looked it over and there are two counts. First, it is conspiracy to violate Foreign Agent Registration Act a.k.a. FARA. As it says:
the defendants, and others known and unknown, knowingly and intentionally did combine, conspire, confederate, and agree, together and with each other, to commit an offense against the United States, to wit, to knowingly and willfully act and cause U.S. Company-1 , Founder-1 , and Founder-2 to act as agents of foreign principals without registering with the Attorney General, in violation of Title 22, United States Code, Sections 612 and 618.
Thus, they are saying basically that Founder 1 and Founder 2, who are supposed to be Lauren Chen and her husband, and their company Tenet Media, violated FARA, and these two RT employees conspired with them to violate it. The second count is money laundering, to basically hide funds to hire Founder 1 and Founder 2 to be agents of the Russian government, more or less.
First, let’s notice right now Founder 1 and 2 aren’t actually indicted. So this gives Chen and her husband no real chance to defend themselves—at least not for a while. First off, they probably aren’t going to say anything until they talk to a lawyer, and the lawyer is likely to say ‘don’t say anything.’ And the reason why is because the DOJ might still charge them—the DOJ might be trying to get these two RT employees to roll over, for instance. But at the moment, Chen and her husband can’t even walk into a court and say ‘I’m not guilty’ because they are not even charged. So, the result is that they are not likely to feel free to defend themselves in any capacity for a while.
Thus my default is ‘innocent until proven guilty.’ It’s true in all cases, but with this DOJ? Yeah, I have no trust that this isn’t just grubby attempted election interference by the government.
But in any case, the lynchpin of this entire case is FARA. It is conspiracy to commit FARA violations, money laundering to pay people to violate FARA, so if FARA didn’t exist, there would be no charges. And FARA is flagrantly, laughably unconstitutional because it violates the First Amendment (and partially the Fifth, too).
Now, let me start by saying that I do think there is room in the law for something to punish a person (citizen or not) for in essence spying for another country, even though spy craft often involves expression. So, if Putin bribes an American to go outside an Air Force (while being careful not to trespass) and count how many planes there are, and report back to him, I think that can rightfully be a crime. This is true even though a regular reporter, acting on his or her own, could go to that same spot outside the base, count the planes and report it on the nightly news, and that would ordinarily be legal. I believe spy craft can be constitutionally prohibited.
But this law goes so much further than spying.
For instance, imagine several scenarios.
1. Imagine that you are a gun control advocate and in the wake of the school shooting in Georgia, you see Piers Morgan say from his studio in Britian, ‘it is past time for strict gun control in America. So, on September 21 and I am going to protest for gun control where I am and I hope you will join me wherever you are.’ Thus on September 21, you go to your city hall and protest for gun control.
2. Imagine if you are on Twitter/X and you see this post:
😐 The UK Govt want to scrap our #HumanRightsAct & replace it with a #RightsRemovalBill.
— The British Institute of Human Rights (@BIHRhumanrights) July 17, 2022
At BIHR we see the difference our #HRA makes every day. We're worried that legal conversations miss the real life stories so we've put them here.
Read & share ⬇️https://t.co/2pZKucjY8t pic.twitter.com/QOfjztnwtW
And like the post says, you read it and after doing so, you share it by reposting it.
3. Imagine you are a woman married to a man who is an Italian immigrant with a green card. He decided to go back to Italy for a few months to see his family and he is coming back tonight. So, he calls you before he leaves and says ‘hey, honey, why don’t you go online and buy some tickets to see that remake of The Crow on Friday night to celebrate us being together again?’ After the call, you do just that.
4. Imagine you are an American Catholic and the pope has a health scare at his home in Vatican City. He puts out a statement on the Vatican website asking for people to pray for his health. You do exactly that.
Well, in all of those situations you have become a foreign agent under FARA. Well, except for the third one because that would never happen because absolutely no one is watching The Crow remake…
Original Crow director can't stop gloating about remake bombing: 'It's a bit like flogging a dead horse' https://t.co/nbCmhxrN7h via @EW
— Lori Perkins (@LoriPerkinsRAB) September 1, 2024
Okay, jokes aside, let’s break down how such an absurd thing can be true in terms of the law. All of those activities are absolutely protected under the First Amendment, but according to FARA, all of those activities make you a foreign agent and punish your expression by forcing you to comply with onerous reporting requirements.
The registration requirement comes from 22 U.S.C. § 612, which says in relevant part that ‘No person shall act as an agent of a foreign principal unless he has filed with the Attorney General a true and complete registration statement...’ it goes on to says what you must do to register and I will come back to that, later. Meanwhile, 18 U.S.C. § 951 sets up criminal penalties if you ‘act[] in the United States as an agent of a foreign government’ without notifying the Attorney General within 10 days of doing so.
Who counts an agent of a foreign principal? Well, you go over to 22 U.S.C. § 611 which discusses some of the definitions involved and, frankly, it is a poorly crafted law. First, look at the term 'foreign principal:'
(b) The term ‘foreign principal’ includes—
(1) a government of a foreign country and a foreign political party;
(2) a person outside of the United States, unless it is established that such person is an individual and a citizen of and domiciled within the United States, or that such person is not an individual and is organized under or created by the laws of the United States or of any State or other place subject to the jurisdiction of the United States and has its principal place of business within the United States; and
(3) a partnership, association, corporation, organization, or other combination of persons organized under the laws of or having its principal place of business in a foreign country.
Right off the bat, I see trouble with a single word: ‘includes.’
‘Includes,’ in statutory language usually means more or less, ‘the stuff I am about to list, and other unnamed stuff.’ For instance, if I was just having a normal conversation and I said ‘my favorite superhero movies include the Avengers, The Dark Knight and Spider-Man 2,’ it would mean that those three movies are among my favorites, as well an unspecified number of other superhero movies. But you’d have no clear idea what those other movies were, except for that general description of ‘superhero movies.’
That’s not a big deal if you are talking about what kinds of movies I like. But it is a big problem when we talk about criminal statutes, especially when you are discussing ones that regulate expression. There is a concept in constitutional law called the ‘void for vagueness’ doctrine. As the Supreme Court has said in Grayned v. City of Rockford, 408 U.S. 104 (1972):
It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. Second, if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory application. Third, but related, where a vague statute ‘abut[s] upon sensitive areas of basic First Amendment freedoms,’ it ‘operates to inhibit the exercise of [those] freedoms.’ Uncertain meanings inevitably lead citizens to ‘ `steer far wider of the unlawful zone' . . . than if the boundaries of the forbidden areas were clearly marked.’
(Footnotes omitted.) In other words, vagueness is a problem in any kind of law in part because as a matter of due process (under the Fifth Amendment), people deserve to have fair warning so they have a reasonable chance of figuring out what they aren’t supposed to do, so they can avoid doing it. Furthermore, having laws be reasonably specific limits how much room there is for uneven enforcement of the law based on race, religion, viewpoint or whatever.
But it becomes a bigger problem in the context of expression. Why? Because if a person can’t figure out if what they want to say might get them in trouble or not, they might decide to be silent just to avoid the entire problem—even though the expression is actually protected by the First Amendment. We call that a chilling effect, and the Supreme Court has long said it was important to avoid that.
By using the word ‘include’ in this statute, they are saying there are an unknown subset of associations who may or may not be foreign principals under this law with absolutely no guidance in the law to tell what types of associations they might be. That is the very definition of vagueness—they give you literally no idea who else might be included.
And just to clarify some of the rest of that text—because it is a lot to take in at once—let’s highlight this passage:
a person outside of the United States, unless it is established that such person is an individual...
This is one of those times where the law is a bit like a foreign language without doing you the courtesy of sounding like a foreign language, because two of those words have meanings that are unusual compared to ordinary English. Like if I suddenly talked about ‘the doctrine of res ipsa loquitur,’ if you aren’t a lawyer, you would suddenly realize I was talking about something strange and foreign to you. Even if you actually knew Latin, you still would be on notice that I am talking about something strange. But if I talk about ‘persons’ and ‘individuals’ you might think you know what I am talking about, but in law, those words don’t always mean what you normally think it means. I think this is a tendency in the law we should reform to make the law more accessible to regular people. In law, a ‘person’ can not only be an ordinary flesh and blood human being, it can be corporations and other associations.
And as for the word ‘individual’ this is not a Monty Python and the Life of Brian type situation:
But rather the term ‘individual’ is how the law typically describes flesh and blood human beings who are not corporations and other types of associations, whether the human being has very much individuality.
Next, the same law goes on to say …
...and a citizen of and domiciled within the United States...
The term citizen is pretty easy to understand, but ‘domiciled’ can be more complicated. It basically means where your long-term home is. So, obviously, a person can grasp that a person might live in Pennsylvania and visit Florida to see some relatives, while still remaining domiciled the whole time in Pennsylvania because he or she intended to return to Pennsylvania. Pennsylvania is their long-term home, and they were just vacationing in Florida. And that intention can go on for years. For instance, if a young man living in Texas is accepted at law school in Connecticut, but intends to return to Texas when he graduates, that person is still domiciled in Texas, despite being almost constantly away the state for around three years.
So now with that lesson in legal vocabulary, hopefully the definition of ‘foreign principal’ is a bit clearer.
Next up, we have the definition of ‘agent of a foreign principal:’
(c) Expect [sic] as provided in subsection (d) of this section, the term ‘agent of a foreign principal’ means—
(1) any person who acts as an agent, representative, employee, or servant, or any person who acts in any other capacity at the order, request, or under the direction or control, of a foreign principal or of a person any of whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a foreign principal, and who directly or through any other person—
(i) engages within the United States in political activities for or in the interests of such foreign principal;
(ii) acts within the United States as a public relations counsel, publicity agent, information-service employee or political consultant for or in the interests of such foreign principal;
(iii) within the United States solicits, collects, disburses, or dispenses contributions, loans, money, or other things of value for or in the interest of such foreign principal; or
(iv) within the United States represents the interests of such foreign principal before any agency or official of the Government of the United States; and
(2) any person who agrees, consents, assumes or purports to act as, or who is or holds himself out to be, whether or not pursuant to contractual relationship, an agent of a foreign principal as defined in clause (1) of this subsection.
(d) The term ‘agent of a foreign principal’ does not include any news or press service or association organized under the laws of the United States or of any State or other place subject to the jurisdiction of the United States, or any newspaper, magazine, periodical, or other publication for which there is on file with the United States Postal Service information in compliance with section 3611 of title 39, published in the United States, solely by virtue of any bona fide news or journalistic activities, including the solicitation or acceptance of advertisements, subscriptions, or other compensation therefor, so long as it is at least 80 per centum beneficially owned by, and its officers and directors, if any, are citizens of the United States, and such news or press service or association, newspaper, magazine, periodical, or other publication, is not owned, directed, supervised, controlled, subsidized, or financed, and none of its policies are determined by any foreign principal defined in subsection (b) of this section, or by any agent of a foreign principal required to register under this subchapter;
And before you guys wonder, no, Aaron did not have a dyslexic moment. I copied the law exactly as it is on the Cornell Law School website and Cornell blames the statute itself for the initial typo and for an incorrect statutory reference. The last amendment to this statute was in 1995, and somehow it has gone at least that long without being fixed.
In any case, let’s dig through this law and talk about how buying movie tickets for your spouse, attending a protest at Piers Morgan’s request, praying for an ailing pope, or how simply retweeting/reposting something on social media, might turn you into a foreign agent.
First, many ordinary people in your life can instantly become agents of foreign principals at the drop of a hat. As you recall, one of the ways you can become a foreign principal is if you are
a person outside of the United States, unless it is established that such person is an individual and a citizen of and domiciled within the United States.
So, in that scenario, the hypothetical green-card-holding Italian husband who spends the summer in the old country to see his family would be counted because 1) he would be a person outside the United States, and 2) he isn’t a citizen so the exception in that language doesn’t apply. Likewise, imagine if your American citizen son goes to England, and decides he loves it there and wants to stay in the long term, but he doesn’t give up his American citizenship. Well, since he would no longer be domiciled in the United States, he could easily become a foreign principal.
The papal example isn’t too hard, either. The current pope is more than likely a citizen of Vatican City, which I understand to be technically its own country, independent of Italy. In any case, the important point here is he isn’t a citizen of America, so unless he actually visits America, he’s always going to meet the definition of a foreign principal.
As for that tweet, it was sent by the British Institute of Human Rights, which, as suggested by the title, is British.
And as for Piers Morgan, it is my understanding that he is a British citizen and not a citizen of the United States.
So, they might be foreign principals, but how can you become an agent of those principals?
Well, look at the language in the law. Now obviously, you wouldn’t necessarily be that foreign principal’s ‘agent, representative, employee or servant’ in any of the scenarios I sketched out. First, that use of the word, ‘agent’ is probably best understood as using the common law definition of ‘agent,’ which you can look up, if you really feel like it. The key thing is if you cannot sign a contract on behalf of the other person and bind them to it, you aren’t an agent in the eyes of the law. The term servant or representative, meanwhile, isn’t too hard to understand and most of us won’t be considered any of those things in those hypotheticals.
But you don’t have to be any of those things, because you can be covered if you are a ‘person who acts in any other capacity at the order, request, or under the direction or control, of a foreign principal[.]’ So just doing something at their order or request, or under their direction or control is enough.
So, take my Piers Morgan example. In my hypothetical. He requested that you engage in a protest. You did it at his request. So how are you not a foreign agent?
Or take my retweet/repost example. As I just pointed out, the British Institute of Human Rights is a foreign company and their post literally asked you to read and share. And you did so, at their request.
Or take my Italian-husband-visiting-the-old-country-and-wanting-to-see-a-movie-everyone-seems-to-hate example. Since he is a green card holder, the moment he steps out of the country, he can be a foreign principal, and if the wife listens to her husband in that scenario, it will create legal trouble for her.
And by now you can see how the Pope, sitting in Vatican City, asking for prayers might cause you to act at the request of a foreign principal. So, if you pray, be sure to tell the Attorney General.
Indeed, you can even do that with an American citizen. Imagine if that hypothetical son did become domiciled in England and he is coming back to the U.S. to visit you and he wants desperately to see the Borderlands movie (because I am only going to use movies that are allegedly awful and definitely bombing at the box office in my hypotheticals). Thus, while standing in England, he calls you up and suggests buying movie tickets for the weekend and you do exactly that. Now you are an agent of a foreign principal. And you are probably going to see a very bad movie, or at least that is what I am told.
So that seems kind of broad, doesn’t it? Like maybe even overly broad? Well, there is another legal doctrine implicated by that: The overbreadth doctrine. That is the concept in freedom of expression cases that a statute can reach too far—it might outlaw too much expression. That is grounds for striking down the entire statute.
Now, the obvious response is ‘this isn’t making it illegal. You just have to register.’ Yes, and that registration requirement is onerous.
Here’s what 22 U.S.C. § 612 says about the registration requirements:
(a) Filing; contents
No person shall act as an agent of a foreign principal unless he has filed with the Attorney General a true and complete registration statement and supplements thereto as required by subsections (a) and (b) of this section or unless he is exempt from registration under the provisions of this subchapter. Except as hereinafter provided, every person who becomes an agent of a foreign principal shall, within ten days thereafter, file with the Attorney General, in duplicate, a registration statement, under oath on a form prescribed by the Attorney General. The obligation of an agent of a foreign principal to file a registration statement shall, after the tenth day of his becoming such agent, continue from day to day, and termination of such status shall not relieve such agent from his obligation to file a registration statement for the period during which he was an agent of a foreign principal. The registration statement shall include the following, which shall be regarded as material for the purposes of this subchapter:
(1) Registrant’s name, principal business address, and all other business addresses in the United States or elsewhere, and all residence addresses, if any;
(2) Status of the registrant; if an individual, nationality; if a partnership, name, residence addresses, and nationality of each partner and a true and complete copy of its articles of copartnership; if an association, corporation, organization, or any other combination of individuals, the name, residence addresses, and nationality of each director and officer and of each person performing the functions of a director or officer and a true and complete copy of its charter, articles of incorporation, association, constitution, and bylaws, and amendments thereto; a copy of every other instrument or document and a statement of the terms and conditions of every oral agreement relating to its organization, powers, and purposes; and a statement of its ownership and control;
And I am going to stop here, because you probably got the idea of just what an enormous pain in the tuchus all this is. And there are 11 subsections in total. It’s like doing your taxes. Imagine having to do that every time you retweet/repost a post from British Institute of Human Rights, or any other foreign entity asking you to like and share information on social media—or just to pray for the health of the leader of your faith. And it's not enough to do that once, because the registration also requires:
(6) A detailed statement of every activity which the registrant is performing or is assuming or purporting or has agreed to perform for himself or any other person other than a foreign principal and which requires his registration hereunder, including a detailed statement of any such activity which is a political activity;
So technically, you would have to tell them about every retweet/repost you do for that British group. And for that matter, you would have to list every single thing you do for your hypothetical Italian immigrant wife while she is in the old country with some limitations I will get to in a moment. And if you don’t tell them everything, you could then be charged with a crime.
Simply put, the government has no right to burden activities protected by the First Amendment this way.
But it gets worse than that.
For instance, imagine if Super-Duper-Power Company (‘SDPC’) runs an ad telling you how wonderfully environmentally conscious they are and urges everyone to participate in Earth Hour—that virtue-signaling nonsense when you turn off many non-essential electrical items for one hour toward the end of March. Imagine you are a good environmentalist type and decide you are going to do exactly that. Then you remember that you might become an agent of a foreign principal if you act at the request of
a person [which can be a corporation] any of whose activities are directly ... controlled, financed, or subsidized in whole or in major part by a foreign principal[.]
So then that means that you need to look into whether any of the stockholders are foreign principals, or perhaps important officers in the company are foreign principals. I mean even an American company operating in America, owned by Americans, might still have a President or CEO who is a foreigner who telecommutes from outside of America. Indeed, if SDPC got a big enough loan from a foreign bank, that might be enough to make them into a foreign principal that you are acting at the request of. And then of course one’s status as a foreign principal might change from day to day. For instance, 51% of the stock of this fictional SDPC might be owned by a lawful green card holder originally from Australia, who then decides to go home for Christmas to the old country. So, before that vacation, obeying the requests of SDPC does not make you an agent of a foreign principal, but during the vacation it does, and then when the vacation is over, it doesn’t, again. And how the hell you are supposed to keep track of that sort of thing is anybody’s guess.
And still, it gets worse.
Did you notice that phrase ‘in major part?’ So, suppose we imagine that SDPC is an American company, in America, where one American who never leaves America controls 51% of the stock and has appointed himself President and other American citizens sans passports in every other position down all the way to janitor. But what if 11% of the stock is owned by a Saudi businessman? Is that enough of a part to be a ‘major part’ of ownership or finance? Or perhaps out of $100 million in loans SDPC has received, $11 million came from this Saudi. Is that enough to make it so that everyone who acts at the request of this company an agent of a foreign principal? Just how much of a part does a foreigner have to play in order for it to count as a major part? There’s no good way to know.
And, believe it or not, it gets even worse.
Suppose you know for a fact that SDPC is 100% American, no foreign employees, no foreign stockholders, no foreign money at all. It’s as American as Steve Rogers baking an apple pie in the shape of the American flag, using American made fireworks as a heat source inside the Liberty Bell. So, they put out that Earth Hour ad, and you decide to participate. Well, guess what? You might still be an agent of a foreign principal. Why? Because SDPC might have acted at the direction of a foreigner. What does direction mean? Well, I don’t see a statutory definition, but in that situation the courts are likely to look at something like Black’s Law Dictionary (I am looking at the Sixth Edition, for you law nerds), which defines ‘direct,’ when used as a verb, as meaning ‘[t]o point to; guide; order; command; instruct. To advise; suggest; request.’ And little did you know, but that super-American company hired a foreign consulting company to suggest ways to improve their operations and they gave their advice telephonically from their home country. So in the language of the statute, you ‘act[ed] in any other capacity at the ... request ... of a person any of whose activities are ... directed ... in whole or in major part by a foreign principal[.]’ Is that consultancy enough to constitute a ‘major part?’ There is literally no way of knowing.
Indeed, since all it takes is a suggestion, let’s imagine this entire Earth Hour thing was pushed because of a suggestion sent to them by email … and then it turns out that the email was written by a foreigner living in a foreign land. Apparently American companies are not allowed to even take suggestions from those dirty, evil foreigners so, yep, if you follow along, you need to register. It’s so strange that the left, which typically prides itself as cosmopolitan and international in its thinking would endorse a law that is so parochial.
Still, there is some slight limitation on all of this. The reporting requirement is only triggered if you (directly or through any other person) do one of the following:
(i) engages within the United States in political activities for or in the interests of such foreign principal;
(ii) acts within the United States as a public relations counsel, publicity agent, information-service employee or political consultant for or in the interests of such foreign principal;
(iii) within the United States solicits, collects, disburses, or dispenses contributions, loans, money, or other things of value for or in the interest of such foreign principal; or
(iv) within the United States represents the interests of such foreign principal before any agency or official of the Government of the United States;
So let’s run through my examples again.
Protesting for Piers? Well, that would count as engaging in political activities ‘for’ Piers so you have to register. And the same can be said for sharing the post of the British Institute of Human Rights. And since the Pope is technically the leader of a foreign nation, that would also seem to be political. So that covers most examples.
I do admit that it is harder to argue that buying movie tickets for one’s husband is political—unless the movie itself is political. And of course, what counts as a political movie is a matter of debate. For instance, somehow Sound of Freedom, whose primary message seems to be ‘child sexual exploitation is bad, actually’ somehow became a charged issue. And for some reason the 2016 Ghostbusters remake became weirdly entwined with Hillary’s 2016 presidential campaign. And, certainly, some other movies are clearly political, so if the husband wanted to see a brand new Michael Moore documentary, I think there is a good chance that this documentary—whatever it was—would obviously be political.
But even if the choice of movie is not in any obvious way political, subsection (iii) deals with the distribution of money in the United States, and guess what you have to do to buy a ticket?
And there is another problem with all of this. Several times you have seen that it deals with activities that are ‘for or in the interests of such foreign principal.’ Well, the problem there is that it only punishes one side of a debate, which becomes viewpoint discrimination.
Consider, for instance, RAV v. St. Paul, 505 U.S. 377 (1992). In that case, the Supreme Court confronted a local ordinance that said
Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.
The Supreme Court reasoned that this ‘hate speech’ law was unconstitutional, reasoning in part that
In its practical operation, moreover, the ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination... One could hold up a sign saying, for example, that all ‘anti-Catholic bigots’ are misbegotten; but not that all ‘papists’ are, for that would insult and provoke violence ‘on the basis of religion.’ St. Paul has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules.
So, picture this scenario. Imagine that a British citizen named John Doe was locked up in Britain because he was convicted of violating that country’s hate speech laws. Imagine if, from prison, Doe is allowed to hold a press conference where he says ‘I want everyone to tell my country to abolish these hate speech laws and stand up for free speech, and if you are in a foreign country, I want you to ask your government to pressure my country to abolish these hate speech laws.’ So you, an American, write a letter the President of the United States telling him to demand that Britain abolish its hate speech laws under threat of embargo. Well, you know by now this makes you an agent of a foreign principal (the principal being Doe), and that is obviously engaging in ‘political activities... in the interest of such foreign principal.’ So that would require registration beforehand, on pain of criminal punishment.
But now imagine that a second British citizen, Jane Roe, is convicted of violating that country’s hate speech laws and she is allowed to give a press conference. But in this case, she says the following: ‘I am wrongly accused. I didn’t actually say the things they said I did. But I still believe that hate speech laws are a good idea. I know John Doe told people outside of Britain to urge your governments to put pressure on Britain to abolish those laws. I advise you to do the opposite. Write to your government in support of these laws.’ Now, suppose you decide that she is right, hate speech laws are a great idea, and so you write to the American President telling him that he should support Britain’s hate speech laws.
Well, guess what? In that second scenario, you would very obviously fall outside of the law. I mean Roe’s request is obviously not in her own interest. Clearly, any person in prison for violating a law has an interest in seeing those laws abolished given that this might free them. So, an American advocating that Britain keep those laws is not in her interest, so that person doesn’t have to register.
But then that means that whether the registration requirement is triggered depends on the point of view being promoted. If you are pro-hate speech laws, you are fine; but if you are opposed, then failure to register is a crime. That is viewpoint discrimination.
But it still manages to get worse.
You see, it’s not a rule against advocating for all foreigners because there is a different statute, 22 U.S.C. § 613 that creates an exception to this rule:
The requirements of section 612(a) of this title shall not apply to the following agents of foreign principals: …
(f) Defense of foreign government vital to United States defense
Any person, or employee of such person, whose foreign principal is a government of a foreign country the defense of which the President deems vital to the defense of the United States while, (1) such person or employee engages only in activities which are in furtherance of the policies, public interest, or national defense both of such government and of the Government of the United States, and are not intended to conflict with any of the domestic or foreign policies of the Government of the United States, (2) each communication or expression by such person or employee which he intends to, or has reason to believe will, be published, disseminated, or circulated among any section of the public, or portion thereof, within the United States, is a part of such activities and is believed by such person to be truthful and accurate and the identity of such person as an agent of such foreign principal is disclosed therein, and (3) such government of a foreign country furnishes to the Secretary of State for transmittal to, and retention for the duration of this subchapter by, the Attorney General such information as to the identity and activities of such person or employee at such times as the Attorney General may require. Upon notice to the Government of which such person is an agent or to such person or employee, the Attorney General, having due regard for the public interest and national defense, may, with the approval of the Secretary of State, and shall, at the request of the Secretary of State, terminate in whole or in part the exemption herein of any such person or employee[.]
That’s a lot to dig through, but here’s the first thing to highlight: It sets up different rules depending on which countries you are defending, and which countries get this special treatment can change any time the President decides. So, if the President designates Israel as a country whose defense is deemed vital to the defense to the United States, but he doesn’t do this for Iran, a message at the request of the Israeli government on behalf of Israel that Iran should be bombed into the stone age is entitled to the special protection of this law, while a message at the request of the government Iran that Israel should be similarly bombed is not. Now, the fact I am more inclined to believe Iran should be bombed doesn’t stop me from recognizing that my view on this point is exactly that: A viewpoint.
But even within that exception there is even more viewpoint-based discrimination. For instance, your advocacy has to be ‘in furtherance of the policies, public interest, or national defense both of such government and of the Government of the United States, and are not intended to conflict with any of the domestic or foreign policies of the Government of the United States.’ So if you advocate peace between Israel and Iran, at the request of the Isreali government, and some jury decides that is not in the interest of the United States, then you are not entitled to this statutory exception. That is viewpoint discrimination within viewpoint discrimination.
I could go on and on, and arguably I already have, but my point is that this law is unconstitutional and its not even close. I have identified at least two vague terms, I have shown massive overbreadth, and even viewpoint discrimination upon viewpoint discrimination. If challenged before the Supreme Court, I think most justices’ responses would be something along the line of ‘are you kidding us?’ This will not survive any serious constitutional inquiry—at least not given the ideological makeup of the current court.
So I genuinely hope the day comes when the courts finally wake up to the problems in this law and it becomes a nullity. Congress can write a narrower statute that doesn’t have the same problems and does address true spying. One might expect any number of criminal defendants to challenge this law, but ordinary citizens can challenge this law, too. Any citizen can say that they want to be free to listen to Piers Morgan or some other foreign citizen without fear of being accused of being a foreign agent, and without having to comply with the onerous requirements of registration. So maybe one of our civil rights organizations will wake up and make the argument I made. Only time will tell. But this law needs to be struck down.
But also more basically, this neo-McCarthyism needs to end. We need to stop constantly looking for evil Ruskies under our beds. One of my favorite quotes from John F. Kennedy is this:
We seek a free flow of information across national boundaries and oceans, across iron curtains and stone walls. We are not afraid to entrust the American people with unpleasant facts, foreign ideas, alien philosophies, and competitive values. For a nation that is afraid to let its people judge the truth and falsehood in an open market is a nation that is afraid of its people.
My joke is that modern left agrees with this, it’s just that they are actually afraid of the American people—it explains their stance on freedom of expression and the right to bear arms. And in the end, you can’t actually stop foreigners from telling you what they think. For instance, Vladimir Putin allegedly came out in support of Harris:
Putin supports Kamala for President.
— Libs of TikTok (@libsoftiktok) September 5, 2024
So if Russia is interfering in our elections like the Left claims, it’s to help Kamala win.
I’m sure the media will be outraged by this foreign election interference... pic.twitter.com/4QmwWEWWu9
(I say ‘allegedly’ because I don’t actually speak Russian. And one can only guess how sincere he was.)
So, there is Putin ‘interfering’ with our election and there is nothing anyone can do about it. So we need an FBI and DOJ that will stop trying to control the flow of information to the American people. Stop protecting us from opinions and facts they don’t agree with.
After all, the First Amendment contains not only the right to speak but also the right to listen and it violates my right to listen when the government silences voices because they are foreign or because they are from specific countries the president hasn’t designated to be vital to our security.
Maybe FARA made more sense and was less galling sense in a different time. When I was growing up—about half my life being in the last century—the world was so much less connected than it is now. For instance, when a massive earthquake struck Japan a couple years ago, I was uniquely concerned because my wife has family there and I quickly discovered that I could find first hand reports and video from Japan, through Twitter. If memory served, they even had a working translate button on most posts at the time. When I was a kid, you would just have to hope your local newspaper or nightly news decided it was worth covering. Words and ideas flow across borders more easily than ever. At is stands right now, FARA does too much to restrict that flow.
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