A bipartisan group of lawmakers has called for Attorney General Jeff Sessions to investigate whether Al Jazeera, the news outlet connected to the Qatari government, should register with the Justice Department as an agent under the Foreign Agents Registration Act (FARA). This will have broad implications for the First Amendment, our access to dissenting opinions, and even how the rest of the world views us.
The lawmakers include Representatives Josh Gottheimer, (D-NJ), Lee Zeldin (R-NY), and 16 other House members. Senator Ted Cruz, Texas Republican, also signed the letter to Sessions. The letter claims Al Jazeera “directly undermines American interests” and broadcasts “anti-American, anti-Semitic, and anti-Israel” material. If forced to register, Al Jazeera would join Russian outlets RT and Radio Sputnik, Japan’s Cosmomedia, the Korean Broadcasting System, and China Daily as acknowledged foreign state propaganda outlets. The DOJ has also been asked to look into a range of other Chinese media.
Ironically, the bipartisan request to force Al Jazeera to register comes amid a controversy over the network’s filming of a documentary critical of pro-Israel lobbying in the United States. For that exposé, the network used an undercover operative to secure footage revealing possibly illegal interactions between advocacy groups and lawmakers.
The Foreign Agents Registration Act was never intended to regulate journalism. In fact, the legislation includes finely worded exemptions for journalists, scholars, artists, and the like, who are not required to announce themselves as “agents of a foreign principal” regardless of what they do. The law was created in 1938 in response to German propaganda, specifically Nazi officials and those they employed who were delivering pacifist speeches in then-neutral America to organize sympathetic German Americans. By requiring those working for the Nazis to register and report their finances and spending, U.S. counterespionage authorities could more easily keep track of their activities.
FARA doesn’t even prohibit straight up propagandizing, though it does seek to limit the influence of foreign agents by labeling their work, apparently to help out Americans who otherwise would not be able to tell the difference on their own. The law specifically says that “disclosure of the required information facilitates evaluation by the government and the American people of the statements and activities of such persons in light of their function as foreign agents.” Indeed, the Atlantic Council claims these actions “do not suppress freedom of speech; instead, it serves the First Amendment by supplementing information available to the public.”
Here’s a use of FARA in line with the law’s original intent: the Abu Dhabi Tourism and Culture Authority, whose job is to lobby Americans on behalf of a foreign government—in this case, to take vacations in Abu Dhabi—is a FARA registrant. That way, when the Abu Dhabi Tourism and Culture Authority says they have decent beaches you should visit, you know who is up to what. Other typical registrants might include an American lawyer hired by Saudi Arabia to lobby Congress in favor of more arms sales. Being a foreign agent is very legal and very popular with former congresspeople and government bureaucrats; you just need to announce who your employer is.
But FARA can also serve a more nefarious purpose: as a catch-22 prosecution (a “compliance statute”) for those the U.S. wants to declare as foreign agents but who resist. Once the feds want to taint you as a foreign agent, you either agree and register or face jail time.
That is what happened in the cases of RT and Radio Sputnik. Following the 2016 election, frightened officials demanded that the Russian organizations register as propaganda agents. RT’s editor-in-chief maintained her network was an independent news outlet, but chose to comply rather than face criminal proceedings, adding “we congratulate the American freedom of speech and all those who still believe in it.” Critics then swung RT’s snarky comment on free speech into “proof” that it unfairly criticizes America.
The use of FARA to allow the government to declare which foreign media outlets produce “news” and which produce “fake news” and propaganda is “a shift in how the law has been applied in recent decades,” said the Committee to Protect Journalists. “We’re uncomfortable with governments’ deciding what constitutes journalism or propaganda.”
As the Justice Department wields its FARA weapon, here’s what Al Jazeera’s journalists could face.
Designation under FARA requires that a media outlet label its reporting “with a conspicuous statement that the information is disseminated by the agents on behalf of the foreign principal”: in other words, a nutritional label for journalism. It also means the outlet must open its finances to the Department of Justice. It means Americans who choose to watch that media, or participate in its talk shows, or who work legally for those outlets, open themselves to accusations of “treason” (one political staffer was fired after being interviewed by Radio Sputnik). It adds credence to the muddy cries of “fake news” used to shut out dissenting opinions. It gives credibility to groups like PropOrNot, which lists websites it “determines” are Russian propaganda, and Hamilton 68, which does the same for Twitter.
Subjecting journalists to FARA sends a message about America. It encourages other governments to impose their own restrictions (Russia has already passed a law requiring outlets like CNN to register as foreign agents). It uses the full authority of the American government to declare that Al Jazeera, a network that reaches 310 million people in more than 160 countries, has no place within a free press because its broadcasts are “anti-American, anti-Semitic, and anti-Israel.” In the specific case of Al Jazeera, it seemingly extends America law to cover anti-Israeli propaganda as well. As with attempts to claim Wikileaks is espionage and not journalism, this particular use of FARA looks to be another instance of laws wielded to harass those with “un-American” opinions.
The employment of FARA to restrict foreign journalists also adds to the growing sense among too many already frightened Americans that our freedoms are being used against us. “The U.S. is at a huge strategic disadvantage when it comes to the New Media Wars because our information environment is so open and rich,” said one former CIA deputy director of intelligence. Perhaps too many dissenting voices isn’t a good idea. The Internet is just too much freedom to responsibly allow. Maybe the government should become more involved in what we say, hear, watch, and read, as Facebook and Twitter (which banned RT from advertising) do now—you know, for our own protection. Our open society is a vulnerability, not a strength.
The roots of our most basic rights can be found in the freedom of the press written into the First Amendment. The press must be unfettered in reporting so citizens can make informed decisions when voting, protesting, and petitioning their government. Government should play no role in designating good journalists from bad, in licensing who can report on or access a broad range of ideas. Sorting out the marketplace of ideas—opposing opinions, bias exposed and hidden—is supposed to be our task as an informed citizenry. We should reclaim that mantle and do the job ourselves.
Peter Van Buren, a 24-year State Department veteran, is the author of We Meant Well: How I Helped Lose the Battle for the Hearts and Minds of the Iraqi People and Hooper’s War: A Novel of WWII Japan. Follow him on Twitter @WeMeantWell.