The War on ‘Foreign Influence’ Has Become a War on the First Amendment
2024 could be called the Year of FARA. Once an obscure and rarely enforced lobbying regulation, the Foreign Agents Registration Act (FARA) has become the center of several explosive political scandals this year. Last week, the FBI accused Russian agents of funneling $10 million to unwitting conservative podcasters and indicted a former deputy chief of staff to New York Gov. Kathy Hochul for acting as a Chinese agent.
Earlier this year, Sen. Bob Menendez (D–N.J.) was convicted of taking bribes from Egyptian military intelligence. Congressional Democrats are now looking into whether Egypt did the same to Donald Trump’s campaign. Meanwhile, the authorities have indicted Rep. Henry Cuellar (D–Texas) for taking bribes from a Mexican bank and the Azerbaijani state oil company. And they’re investigating New York City Mayor Eric Adams’ staff for taking campaign money from Turkey, a close ally of Azerbaijan.
All of these cases involved cloak-and-dagger conspiracies, allegedly funneling money to buy off political figures in secret. It’s the kind of thing Americans think of when they hear the term “foreign agent”—and the kind of thing that should probably be illegal. But espionage and deception are not the only activities covered by FARA, and “foreign influence” doesn’t just refer to foreign agents on American soil.
Practically, the question is how to separate Americans being ordered or tricked by a foreign government from Americans doing things of their own accord. Philosophically, the question is whether stamping out “foreign influence” is possible or desirable in a free society—especially one that is so heavily involved in the rest of the world.
Many of the attempts to infiltrate U.S. politics aren’t coming from U.S. rivals. While China, Russia, and Iran have done their fair share of dirty tricks, American allies and partners have spent a lot of effort, both legally and illegally, trying to influence Washington. Many of these attempts come from the Middle East, where U.S. policy is constantly shifting, and where many U.S. partners are at odds with each other.Â
FARA, passed in 1938 amid fears of Nazi infiltration, requires anyone who conducts “political activities for” or “represents the interests of” a foreign power to register with the Department of Justice. During the Cold War, the U.S. government tried to use the law to cast the writer W. E. B. Du Bois as a Soviet agent for his anti-war positions. After he was acquitted, the Department of Justice took a much more limited approach.
Today, most registered foreign agents are lobbyists, lawyers, and public relations firms working for friendly countries. In 2022 and 2023, registered foreign agents gave $14.3 million in campaign contributions to American politicians, according to a report by the Quincy Institute for Responsible Statecraft, where I used to work as a researcher.
The U.S. government also uses the term “foreign influence” to describe propaganda created abroad and aimed at American audiences, whether or not American agents were involved in making or spreading it. There is a long history of the U.S. government trying to stamp out this kind of propaganda—and an equally long history of rulings that Americans have the First Amendment right to consume whatever media they want.
In fact, the first time the Supreme Court had overruled Congress on First Amendment grounds concerned “foreign influence.” In the 1960s, a law required the postmaster general to screen the mail for “communist political propaganda.” When former American Civil Liberties Union (ACLU) Director Corliss Lamont received a notice that his copy of the Peking Review was being held up by the post office, he sued. (Lamont wasn’t even a subscriber; “I was rather annoyed at getting the postcard,” he later said.) The Supreme Court ruled that trying to withhold any media based on its content, even hostile foreign media, violated Americans’ First Amendment rights.
That hasn’t stopped the U.S. government from using digital-age techniques to keep out foreign media. In 2021, authorities seized the .com domains of several news outlets, affiliated with the Iranian government or falsely accused of affiliation with the Iranian government, claiming that hosting an Iranian website on an American server would violate the economic embargo on Iran. This year, Congress forced the Chinese company ByteDance to divest from the social media platform TikTok over concerns that it could be used for propaganda.
Since 2017, the Department of Justice has also required some foreign news outlets to register as foreign agents. Many civil libertarians are worried that the use of FARA against journalists could lead to “a ‘nightmare scenario,’ where government officials in the US were unhappy with a specific piece of journalism produced by an international outlet and tried to wield FARA to seek retribution,” according to the Columbia Journalism Review.
Leaving aside the First Amendment questions, the effectiveness of foreign propaganda is pretty questionable. During the 2016 election, Russia’s Internet Research Agency reached 126 million Facebook users through fake accounts. Look at the accounts themselves, though, and they turn out to be peddling low-quality content slop in broken English.
Boosting messages written by Americans has been similarly ineffective. The alleged $10 million Russian influence operation broken up last week had been funding a group of B-list political commentators, with a cumulative 16 million views on YouTube. Independent journalist Ken Klippenstein pointed out that his own “dumbass posts” on social media have nearly 30 times as many views.
Russia’s alleged influence network inside America shows the same lack of savvy in dealing with U.S. politics. In 2022, the Department of Justice accused Russian operatives of supporting a one-man Californian secessionist movement, a small black nationalist party, and a cult run by an accused rapist who used to make bizarre videos in Joker makeup. (They brought charges against the black nationalist party and cult leader in 2023.)
In June 2020, The New York Times unveiled an Israeli influence campaign that tried to personally target memb
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