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free speech and the FARA problem

In 2018, an American environmental group, the Natural Resources Defense Council, got a letter from a pair of Republican congressmen warning them that they might be criminals. The NRDC criticizes American environmental policy, the congressmen noted, but also talks to Chinese government officials — and doesn’t that make them agents of a foreign government? Reps. Bruce Westerman and Rob Bishop demanded that the non-profit explain why it hadn’t registered under the Foreign Agents Registration Act (FARA) and warned that they might be prosecuted for their environmental advocacy because they hadn’t registered as Chinese agents:

I spoke this morning with David Keating, the president of the extraordinarily important Institute for Free Speech, about the indictment of four U.S. citizens for the alleged crime of serving as agents of Russian interests. The indictment, Keating said, isn’t over the speech acts, and it’s not for accepting Russian money. “There’s no law that says you can’t speak and take money from a foreign person or a foreign government,” he said.

But there is a law — FARA — that imposes a reporting requirement for advocacy undertaken with foreign influence or support. The prosecution of Americans as Russian agents, in this instance, is because of their paperwork crime: They didn’t fill out a FARA form. If they had, they wouldn’t be facing an indictment.

“I think the prosecution of the Americans here is just ridiculous,” Keating said.

FARA is ambiguous, subject to selective prosecution, and highly weaponizable for partisan interests. Americans who served in Afghanistan, Keating noted, came home and advocated for the rescue of Afghans who worked with the U.S. military and faced the danger of Taliban retribution. Were they advocating for the interests of foreign nationals? Can they be prosecuted for the failure to register as foreign agents? “All of that activity arguably was covered by FARA,” Keating says.

The indictment also covers alleged Russian agents who supposedly worked to influence the indicted Americans, and Keating views the legal and political issue of those charges as a different matter. “I could see going after the Russians,” he says. But the indictment of Americans for expressing opinions after talking to some Russians is another matter. “I find it shocking that this is a priority for the DOJ,” he says.

See also the prosecution of Gen. Michael Flynn, and other distinctly political decisions to regard people as unregistered foreign agents. Be careful about saying you support Ukraine if you got an email or a message on social media from someone overseas, criminal.

Sometimes enforced and sometimes not, in a highly connected post-Internet world, FARA makes speech acts potential crimes — if you don’t do your paperwork.

“Really, if they had filled out the form, there wouldn’t be a prosecution,” Keating says.