Understanding how DOJ rules pertaining to foreign agents might affect your publication.

By William Dunkerley

If you ever handle articles from foreign sources, watch out!

The Justice Department may be able to assert that you are acting as an agent of a "foreign principal." And if you're not registered under the Foreign Agents Registration Act (FARA), you could be subject to a 5-year jail term.

But how in the world could you as an editor be considered a foreign agent? On the surface this seems like a real stretch. But read the following citation from the FARA law that defines who must register as a foreign agent:

"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 ... 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..."

This probably still does not sound like you, right? But look at the term "things of value." If you've been following the contemporary political discourse in the United States, you'll have heard that information is indeed considered a thing of value.

Now let's see how this could apply to a typical editorial office. If a foreign author requests that you publish his or her article and you accept it, you are halfway there toward being a foreign agent. The other half occurs when you disburse that thing of value -- i.e., when you publish the article.

The situation is even worse if you are handling a sponsored article (native advertising). Payment for handling the article could be considered a subsidy under FARA.

My first reaction to learning about these FARA provisions was that they are an abridgment of our First Amendment rights regarding freedom of the press. I confronted the Justice Department with that observation. Quickly they replied assuring me that courts have examined that issue and found FARA to be constitutional.

In support of that, the DOJ cited Meese v. Keene, a 1987 Supreme Court case. After reading the text, I found that the citation seemed irrelevant to the question I asked. That case involved an American who sought to distribute in the US several Canadian films. They were on topics such as nuclear war and acid rain.

Using the FARA law, the Justice Department labeled the content as "political propaganda" and required that the American distributor conspicuously label the films as such when exhibiting them before audiences. He was also asked to furnish the identities of theaters in which the films were shown.

The distributor objected on the grounds that the labeling would prejudice audiences against the content and that distributing "foreign propaganda" would impugn his personal reputation.

The Supreme Court found against the distributor, offering this amazing statement:

"The Act's use of the term 'political propaganda' is neutral, evenhanded, and without pejorative connotation, and is therefore constitutionally permissible"

That's our Supreme Court speaking. Its bending of reality illustrates how the law can be stretched to support a governmental objective. This does not give me much confidence that any actions taken against publication editors will be handled with intellectual integrity.

There is some good news in this story, though: Since FARA's inception in the late 1930s, prosecutions have been sparse. According to National Law Review, "DOJ brought only seven criminal FARA cases between 1966 and 2015 (securing FARA convictions in just three cases) and had not employed FARA's civil injunctive relief since 1991."

What's more, the law actually provides an exemption for newspapers, magazines, periodicals, or other publications. There's a catch, though. They must have "on file with the United States Postal Service information in compliance with section 3611 of Title 39."

That leaves out Editors Only and perhaps your publication or publications as well. So I wrote the Justice Department again:

"On quick read of the case example you provided, the following comes to mind: The original FARA legislation attempted to provide adequate exemptions for the media. In its day they may have been adequate. But the law was written in the last century, decades before the advent of the internet. And even the case you cited was decided only at the dawn of the Internet Age and before the mass migration we've seen by publishers from print to digital. Neither digital publishing nor current media business practices appear to be addressed by the case, and obviously not in the law. Could you comment on that?"

I received an acknowledgment of receipt, but the Justice Department refused to comment on the substance of my inquiry.

In November, National Law Review reported, "Earlier this year, the Assistant Attorney General for the National Security Division publicly confirmed the Department of Justice's intention to make Foreign Agents Registration Act a criminal enforcement priority." It added that this has resulted in a surge of FARA prosecutions."

National Law Review goes on:

"Congress has also given extra attention to FARA, as over a dozen bills related to FARA were introduced in the last session, most of which seek to eliminate statutory exemptions and give additional powers and resources for investigating potential violations and increased enforcement. Because of FARA's startlingly broad language, the new enforcement priority creates compliance challenges and enforcement risks for companies that have international business operations or otherwise deal with foreign governments and firms."

In all likelihood, few EO readers deal with politically charged content that would draw the ire of the Trump administration's Justice Department. But that would still leave our First Amendment protections to the largess of the Department of Justice. That's a far cry from a constitutional guarantee. Something should be done about that.

Editors Only will bring this issue to the attention of the major media associations and organizations concerned with protecting the First Amendment. We'll attempt to rally their support for getting a clear and unambiguous exemption from FARA for all editors and journalists. We shouldn't settle for anything less. Editors Only will keep you posted on future developments.

P.S. FARA is not the only government intrusion into the editing business. California has enacted a law that interferes with our traditional use of freelancers. That issue is covered in EO's sister publication, the STRAT newsletter. Click here to view that article. See also our summary in our monthly news roundup below.

William Dunkerley is principal of William Dunkerley Publishing Consultants, www.publishinghelp.com.

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