Follow up to "You’ve told us why the Voice, but you haven’t told us what it is"

A brief discussion on the third defect of law review articles on the Smith-Mundt Act

Two days ago, I shared an article showing that in 1949, the State Department acknowledged the Smith-Mundt Act did not intend to nor did prevent Americans from seeing what was said in their name and with their tax dollars. The “preface” to that article turned into a long rant on the glaring defects of most legal review articles on the Smith-Mundt Act. In trying to keep that discussion “brief,” I intentionally focused on only two issue areas. The first was failing to provide context to Fulbright’s 1972 amendment to the Smith-Mundt Act, the absence of which conveys the impression Congress was merely righting a perceived wrong. The second was failing to distinguish between dissemination and access. That discussion went quite long, so I left out an equally if not more important third point.

This third area is scope. The Smith-Mundt Act has a very explicit and defined scope regarding its applicability to programs and organizations. The scope may sometimes be inferred, at best, by law review authors, more commonly, it is ignored by reviewers. This is yet another point that confounds me when considering these articles went through a peer review process. Any inference to the scope is often found in the recitation of select arguments, such as the 1967 discussion between Fulbright and US Advisory Commission on Information Chairman Frank Stanton or the 1972 discussion involving Acting Attorney General Kleindienst about Buckley's use of a USIA movie, but that’s typically the extent of it. Authors may mention something outside this scope, like Armstrong Williams and No Child Left Behind, as Carter and Palmer did. Still, such references fail to delineate examples like the Williams case was completely outside the Smith-Mundt framework. The inclusion is about broad intent, but the intent is unrelated to the Smith-Mundt discussion regarding statutory authorities, intentions, and organizations. Here, authors generally ignore or are unfamiliar with existing restrictions, such as the no publicity riders typical in many appropriations and even authorizations and other restrictions or prohibitions. 

Following the above point, authors generally (I'm hedging again as I think “always” fits here) fail to discuss why the specific scope spelled out in the Smith-Mundt legislation and reinforced by the relevant discussions extends beyond the agencies and agency functions mentioned or deduced through statutory authorities. To put it plainly, how does legislative text that specifically names the State Department, the Broadcasting Board of Governors, and the US Information Agency (the legislative text is a mess) somehow apply to all Title 22 activities (Foreign Affairs) but beyond? If the authors dug, they would find that, with regards to the State Department, the Smith-Mundt Act was not applied to the entirety of the department. Notable examples of the exceptions are the former Assistant Secretary for Public Affairs, the Bureau of Democracy, Human Rights, and Labor, and the mechanical point that for information produced for or by public affairs sections at US posts abroad (i.e., public diplomacy sections at embassies and consulates) must be “scrubbed” (reviewed and cleared) by the Assistant Secretary for Public Affairs office in Washington before being shared in the US.

It seems that, in general, legal analyses around Smith-Mundt try to conform to a narrative rather than the legislative realities and history, which typically matter but not here. For example, the Defense Department’s high-level legal review of Smith-Mundt’s applicability to the department in 2009 2006 was based on the argument that since DOD was doing stuff similar to State’s public diplomacy functions authorized by the Smith-Mundt Act, the same specific Title 22 restrictions that intentionally and willfully applied to USIA in 1972 and 1985, and then applied to part of the State Department after 1999 (not the entire department, see above) when USIA was abolished and most of it merged into the State Department, and the formerly named Broadcasting Board of Governors (now the US Agency for Global Media) must also apply to the Defense Department until Congress directs otherwise. This magical (and absurd) reasoning was a direct cause of the Modernization Act of 2012, an amendment to the Smith-Mundt Act that had the primary interest of telling the Defense Department that no, in fact, this piece of Title 22 does not apply to your Title 10 or other activities. The “scrubbing” emphasized that even though the Assistant Secretary for Public Affairs was nominally subordinate to and, therefore, within the Under Secretary of State for Public Diplomacy and Public Affairs structure, it was not subject to the Smith-Mundt Act. (How the department perceives any Smith-Mundt issue on the restructured Assistant Secretary for Global Affairs is unknown to me.)

Note: any person you hear that says the Smith-Mundt Act was “repealed” by this 2012 legislation has no idea what they are speaking of, full stop.

Other notable examples in creating information for audiences abroad include almost every executive department and agency, not to mention the White House Press Secretary. NASA is another example: many years ago, an NBC radio producer asked on Twitter whether a then-new NASA TV channel was a violation of Smith-Mundt. Spoiler: no, Smith-Mundt has nothing to do with NASA. The question reflects the defectiveness of the legal scholarship and damage from the popular mythology around legislation crafted and passed to address the disinformation and misinformation that harmed our national security.

The issue of scope is both much broader and granular than what I described above. If one posits the difference is the intent to “influence,” first consider what communication is not about influence. Some do believe they have a magical ability to “inform without influence,” but that is not reality. Second, the original legislative purpose was to counter (proactively and reactively) disinformation, correct misinformation, and fill in the gaps when there was a lack of information. Reviewers’ use of “propaganda” seemingly absolves them of the need to distinguish the why and how and leave it to the reader. However, by using “propaganda,” they attempt to influence the reader in a certain way to decide whether the material is malign or otherwise.

To me, these are glaring defects of the legal reviews that reveal the lack of attention to detail by the authors, a gross failure of the editorial review process their papers were subject to, and a clear adherence to an accepted narrative rather than exploring the facts. 

That’s it for now, and probably a while as I bury myself again. Eventually, after this immediate writing is done, you’ll eventually get to read something that has the “receipts” (i.e., the citations) to every point made above and earlier along with expanded discussions on the history and evolution of the ideas that became the Smith-Mundt Act and later amended the legislation.