Russian propagandists have First Amendment rights, too

None of the commentators was accused of wrongdoing. Except, of course, on social media, where there was much snickering about “Russian assets” who — lo and behold! — had at last encountered a bona fide conspiracy.

Let’s leaven the schadenfreude with a dose of wariness. As reprehensible as these influencers are, as baleful as Russian propaganda operations are and as vulnerable as the U.S. political system is, it’s helpful to remember: The RT indictment involves the deployment of the U.S. government’s investigative powers in treacherously close proximity to First Amendment freedoms. That proximity carries a risk of nudging us all closer to accepting the application of state power to curb political speech.

This isn’t hypothetical. During a recent interview, MSNBC host Rachel Maddow asked Hillary Clinton about the government’s RT indictment and related measures. “I think it’s important to indict the Russians, just as [special counsel Robert S.] Mueller indicted a lot of Russians who engaged in direct election interference and boosting [Donald] Trump back in 2016,” responded that year’s Democratic presidential nominee, “but I also think there are Americans who are engaged in this kind of propaganda and whether they should be civilly or even in some cases criminally charged is something that would be a better deterrence.”

No question about it! But what about the constitution? It’s unclear whether Clinton was advocating generalized legal action against people who engaged in pro-Russian propaganda, or just against folks like the internet commentators who received Russian money for doing so. In either case, she was flirting with the sort of speech suppression that authorities visited upon dissenters in the World War I era. Maddow didn’t press Clinton to defend herself, nor have media outlets swarmed all over it. Perhaps that’s because of the swirling consensus over the dangers to American society posed by disinformation and propaganda of all kinds, including the Russian variety. Clinton is quite familiar with this stuff, considering that her 2016 presidential campaign was the target of Russian “information warfare,” according to a 2018 indictment from Mueller.

Official urgency in countering Russian interference ratcheted up after Labor Day, as Attorney General Merrick Garland announced the seizure of 32 internet domains and sanctions against 10 people and entities, in addition to the RT indictment. The indictment of the two RT employees centers on an alleged conspiracy to violate the Foreign Agents Registration Act, a 1938 statute that was deployed against fascist propaganda in its early years. As the RT indictment notes, FARA imposes a registration requirement when any person in the United States acts as “an agent of a foreign principal.” Activities that trigger that requirement include “political activities, acting as a publicity agent or information-service employee, and disbursing money for or in the interests of the foreign principal.”

“It’s an instrument of speech control, information control that doesn’t so directly violate what we understand to be First Amendment rights,” says Brett Gary, a former professor of media and communication at New York University.

The point here is transparency and accountability — two commodities ladled out in heaps via the 32-page indictment. It maps out how RT employees Kostiantyn “Kostya” Kalashnikov and Elena Afanasyeva worked with Tenet Media’s founders, right-wing commentator Lauren Chen and her husband, Liam Donovan, to bootstrap a firm heavy on the in-your-face opinions from its roster of chatters. The goal, according to the indictment, was to spread content that would amplify “U.S. domestic divisions in order to weaken U.S. opposition to core Government of Russia interests, such as its ongoing war in Ukraine.”

Credit RT with excellent shopping skills — its selected cast of commentators specialize in provocative topics and online pugilism, a formula that has yielded large audiences. Rubin’s show — “The Rubin Report” — has 2.5 million subscribers on YouTube and routinely browbeats the American left and the mainstream media. Pool, host of “The Culture War” (1.4 million subscribers) rips the “woke left,” discusses a range of lifestyle issues and speaks firmly on immigration. “Democrat policy is, then, open the doors and let everyone come, because we need people,” said Pool in a recent video. “The end result is we don’t know who these people are. We can’t vet them. This is what happens when you panic.” Warnings about the apocalypse stemming from Democratic border policy are generally a good bet when it comes to amplifying U.S. domestic divisions. (Wired has completed a sweeping transcript analysis of Tenet Media videos.)

The marquee data point in the indictment, moreover, is the commentators’ pay scale. Or overpay scale: For four weekly videos, the government alleges, a commentator later identified as Rubin pulled in $400,000 per month, plus a $100,000 signing bonus and performance bonus. Pool is said to have received $100,000 per video. Tenet’s founders, according to the indictment, didn’t inform the commentators who was funding their contracts, and several issued statements on X professing ignorance on that subject. In a chat with podcaster Megyn Kelly, Rubin made clear that he, like others in the Tenet fold, had full editorial control over his show, which focused on “silly viral video kind of stuff.”

After Rubin requested some information on the funder, the company whipped up a risible bio page on fictional mogul “Eduard Grigoriann.” One of the bio points indicated that “Grigoriann” was interested in “social justice,” which drew an inquiry from Rubin. Skeptics on X protested that Tenet’s commentators, given their handsome compensation packages, should have known something was amiss. Maybe so, though I won’t press this particular critique. As a guy trying to put two kids through college, I have little regard for my ability to reject improbable compensation packages (should any come my way).

Juicy as the RT details might be, they come from a questionable legal footing. As Nick Robinson argued in the Duke Law Journal, FARA is an overly broad statute that can lead to the punishment of “dissenting or controversial views.” The law, notes Robinson, was invoked in 1951 against legendary civil rights leader W.E.B. Du Bois, who had helped form a group, the Peace Information Center, that had circulated the Stockholm Appeal to ban nuclear weapons. At trial, the government argued that Du Bois and his cohort didn’t even need to be acting at the behest of a foreign agent — just that they were working to “disseminate information in the United States, propaganda for and on behalf of” the foreign agent. This attempt at thought control ended in a judge’s ruling to dismiss the case, though it “ruined” Du Bois’s reputation. (It has, of course, recovered.)

In a 2018 Columbia Journalism Review piece, Alexandra Ellerbeck and Avi Asher-Schapiro catalogued a range of more recent and dubious FARA deployments, both actual and proposed. Sen. Marco Rubio (R-Fla.), for instance, raised a FARA concern in 2018 about a partnership between Politico and the South Morning China Post: “Maybe this partnership between @politico & Chinese owned newspaper should be required to register as foreign agent. All media in #China operates with the permission of Communist Party. Can this partnership really report without interference from China?” Another proposed target is Al Jazeera, a critical source of on-the-ground reporting in the Middle East that is owned by the Qatari government.

An open-ended registration statute and a world filled with news orgs and propaganda mills: It all adds up to a boatload of discretion for U.S. authorities. In the RT case, the Justice Department appears to have proceeded with appropriate caution. In tweets on the investigation, for instance, commentators cited in the indictment have stated that they hadn’t been contacted by DOJ officials, and one wrote that the department had requested a voluntary interview. Maybe Justice didn’t want to hassle people posting to the internet? Matthew Sanderson, a FARA expert with Caplin & Drysdale, said it’s possible to read official “hesitancy” into the indictment “given the administration that is in power and the nature of the commentary” — essentially a hybrid of political and First Amendment considerations.

Good thing, then, that the Justice Department didn’t channel the sentiments of Clinton, who is busy sprinkling oil all over free speech’s legendary slope. And God help us if Trump wins election and receives a briefing about all the wondrous things he can do with FARA.