The Foreign Agents Registration Act was put under the microscope recently during a hearing before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties. As explained in a previous post, FARA requires certain individuals and entities within the United States to register and report their status as agents or foreign principals to the Department of Justice and disclose this status on informational materials disseminated within the United States.
During the hearing, witnesses criticized FARA as being vague, overly broad, inconsistently enforced, and susceptible to politicization.[1] To a certain extent, these aspects have been a feature not a bug of FARA since its enactment in the 1930s to counter the rise of Nazi and Communist sympathizers in the United States.[2] According to Jonathan Turley of the George Washington University Law School, FARA “was expressly meant to create a stigma by tagging certain people and groups as not just foreign agents by also to label their views as un-American.”[3]
A glaring example of FARA as stigmatizing cudgel is its use against civil rights pioneer W.E.B. DuBois in 1951 for disseminating antiwar literature on behalf of French not-for-profit organization that was suspected of having communist predilections.[4] Although DuBois ultimately prevailed at trial, the publicity left the 83-year-old’s career in shambles, with DuBois “scrabbling to earn enough money just to buy groceries.”[5]
Nick Robinson of the International Center for Not-For-Profit Law pointed out more recent targets of the Justice Department’s questionable application of FARA’s registration requirements, including a U.S. church that printed out banners at the request of foreign congregants and a nonprofit that accepted funds form the Norwegian government to improve product chain sustainability.[6]
Turley and Robinson also raised concerns about authoritarian governments around the world using FARA as a template for their own laws aimed at stifling political activity.[7]
From the more pro-FARA side of the spectrum, Dylan Hedtler-Gaudette of the Project On Government Oversight lauded FARA as “an indispensable tool that can be used to shine a light into the murky crevices of lobbying on behalf of foreign interests . . . .”[8]
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[1] See Jonathan Turley, Statement for the Record to the House of Representatives, Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties at 2, 3, 4 (Apr. 5, 2022); Nick Robinson, Written Testimony Before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties at 1-2, 4-6 (Apr. 5, 2022).
[2] At the time, FARA was merely the latest example of an American tradition of suppressing nonconforming viewpoints. See, e.g., Act of May 16, 1918, ch. 75, 40 Stat. 553 (amending the Espionage Act of 1917 to prohibit persons from making certain statements or taking certain actions to hinder that could hinder the United States’ war effort during World War I); Schenk v. U.S., 249 U.S. 47 (1919) (upholding the application of the Espionage Act against a defendant who mailed leaflets to U.S. military draftees that argued that the draft was despotism and urged the draftees to assert their rights, with Justice Oliver Wendell “three generations of imbeciles are enough” Holmes reasoning, somewhat apropos nothing, that “[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”); Debs v. U.S., 249 U.S. 211 (1919) (upholding the application of the Espionage Act against labor leader and perennial Socialist Party presidential candidate Eugene V. Debs for disseminating a document opposing American intervention in World War I based on his socialist beliefs).
[3] Jonathan Turley, supra note 1, at 2 (Apr. 5, 2022).
[4] See Turley, supra note 1, at 5; Robinson, supra note 1, at 2.
[5] Turley, supra note 1, at 5 (citing and quoting Andrew Lanham, When W.E.B. DuBois Was UnAmerican, Boston Review (Jan. 13, 2017)).
[6] Robinson, supra note 1, at 3.
[7] Nick Robinson, Written Testimony Before the House Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties at 8 (Apr. 5, 2022).
[8] Dylan Hedtler-Gaudette, Testimony before the House Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights, and Civil Liberties at 1 (Apr. 5, 2022).
