Issues related to responding to foreign language influence activities in the U.S.
A primer to understanding the Smith-Mundt Act's intent and relevance to a current issue
A recent opinion piece published by the Wall Street Journal rightly sought to raise the issue of adversarial nations engaging audiences abroad. The author, Dr. Seth Kaplan of the Paul H. Nitze School of Advanced International Studies at Johns Hopkins University, discussed Beijing’s use of Chinese language(s) operations – radio, TV, newspapers, social media – to influence the diaspora and suggested these methods would be used to influence upcoming midterm elections in the U.S. Whether there is proof or not, it is wise to anticipate Beijing leveraging their access. As I wrote in my Questions for the Record following my testimony before a House committee on July 29, “it is reasonable to assume the Chinese government will promote narratives through a variety of methods to obstruct, confuse, or diminish our interests when such interests [conflict] with theirs.”
There are not-insignificant issues with Dr. Kaplan’s article, however, to be addressed and discussed. He is right that Beijing has done well in expanding its reach while marginalizing alternative voices and viewpoints. This is a problem related to Chinese political warfare / gray zone activities outside the U.S. as much as it is a valid concern inside the U.S., the latter being the author’s focus.
Issues of access to content in their home language or the languages of their parents or their heritage, the author makes some passing – “flippant” is a word I used in an email discussion this post is drawn from – suggestions that need examination. The author, after having spent the majority of his allowed space describing the problem, subsequently tosses out suggestions without an ounce of context, unpacking, analysis, or consideration. Below is some of the necessary context, unpacking, and analysis for the reader’s consideration, and for consideration by Congress and the Executive Branch.
For the most part, my comments apply to this paragraph:
Washington must work to ensure Chinese-speaking Americans have access to a free media during the upcoming midterm elections and beyond. The U.S. government should require entities to disclose their ownership structures and financial relationship with any Chinese or United Front organization—and insist that those under party influence either be sold off or shut down. The U.S. should also subsidize independent alternatives and syndicated content from outlets such as Radio Free Asia, China Digital Times and BBC Chinese.
There are two enormous asks in the second and third sentences that have potentially significant second- and third-order effects to be managed. In the second sentence, “…to disclose their ownership…” is likely a reference to the Foreign Agent Registration Act. The author goes beyond demanding registration and exposure but effectively demands the closure of these outlets. While this may sound desirable and sensible, there are a host of issues involved here, including First Amendment issues, bargaining opportunities to demand reciprocity to restrict (or allow) Chinese government media access to the U.S. equal to U.S. government media access to China (such as Voice of America and Radio Free Asia), our opportunities for shaming techniques to highlight Beijing’s duplicity and hypocrisy (such as the Chinese government’s use TikTok & Twitter abroad while banning it at home), and a host of other issues and opportunities smarter and more clever people are already thinking about.
In the third sentence, we have this loaded statement: “The U.S. should also subsidize independent alternatives and syndicated content from outlets such as Radio Free Asia, China Digital Times and BBC Chinese.” Based on the context of the article, it appears Dr. Kaplan is suggesting that Radio Free Asia is an “independent alternative” and that the U.S. government should “subsidize” its distribution inside the U.S. This suggests the author isn’t aware that Radio Free Asia is 100% funded by the US government. (While RFA’s charter permits private funding to supplement the money appropriated by Congress, all of which is funneled through the parent organization, the US Agency for Global Media, there is little to no, and likely zero, practical private funding here. As an aside, Radio Free Europe / Radio Liberty still has a non-profit organization that was, and can be used again, to receive monies sent in by Americans to fund its operations abroad.) I have to believe the author is aware of Voice of America operations in China and the failure to mention VOA indicates the author’s effort to bury the U.S. government angle even as he mentions BBC Chinese, a government operation.
I used the word flippant earlier because the target audience here is “Chinese-speaking Americans.” There is a big deal that requires a really interesting and long overdue discussion that could only have been left out through ignorance. I’ll admit I’m a bit aggressive here, but, seriously, leaving significant issues unaddressed doesn’t make them irrelevant or merely minor bumps in the road. The intentional targeting of Americans, Chinese-speaking or otherwise, is probably why the author chose to ignore VOA and pretend RFA is an “independent” operation. Targeting “Chinese-speaking Americans” is still targeting the U.S. market.
On its face, this would seem to violate the Smith-Mundt Act of 1948. But wait, the modern “firewall” concept is directly derived from Senator J. William Fulbright’s attempt to kill the radio operations of VOA, Radio Free Europe, and Radio Liberty in the 1960s and marginalize USIA more broadly, if not shutter it completely, an agency he previously declared should only have existed for only a few years. In 1972, he successfully amended the Smith-Mundt Act to substantially inhibit access to USIA and RFE and RL (VOA being under USIA) content while also changing USIA’s authorization to one year, both facts Fulbright biographers leave out. In 1985, another Senator sought to close the “loopholes” of Fulbright’s amendment, which furthered the modern interpretation of Smith-Mundt being this godawful firewall. In 2013, an amendment to Smith-Mundt Act sought to unravel the negative effects of the Fulbright-Zorinsky amendments so U.S. domestic press could request and reuse VOA and RFA, for example, materials. Prior to that, most requests to access these materials was answered with a “no” though there was no punishment or other recourse for the media or academic or other private actors from accessing and reusing this content. (See my write-up of a similar situation to the author’s case from 2009: Censoring the Voice of America: Why is it OK to broadcast terrorist propaganda but not taxpayer-funded media reports?) Ironically, at about the same time Zorinsky’s amendment led a US federal court to rule USIA material was so unfit for Americans that it was exempt from Freedom of Information Act requests, Congress defanged FARA and removed the requirement to label the source on foreign government materials, which the author below seeks to return.
Let’s set aside that U.S. media and private actors may now freely access VOA and RFA content produced for Mandarin and Cantonese audiences (the content is primarily in the former with the latter reduced by budget cuts, but my information is dated) and reuse it as they wish. (The only limitation on reuse was whether the VOA or RFA had licensed content from, say, the AP or AFP or other news services, as the license did not include distribution in the U.S. market, thus someone redistributing such content with licensed material would have to attest they had a valid license for the U.S. market from the appropriate commercial news service.)
The author wants to have RFA, a government-funded operator, intentionally seek out audiences in the U.S. (I’d use the term “target,” but I will go with a lighter touch.) A distinction is required here as the specific case raised by Dr. Kaplan did not violate the original Smith-Mundt Act as it was worded before Fulbright tried to kill the information activities he felt inflamed tensions with an otherwise peaceful Russia. Domestic access to these materials was desired by Congress and by the State Department, which owned the operations authorized by the Smith-Mundt Act, to increase oversight. (Radio Free Europe and Radio Liberty were established under separate authorities; there was a short-lived Radio Free Asia in 1951-55 under the same structure of RFE and RL. Today’s RFA was established in 1996 and is, like the since merged RFE/RL and VOA, understood to operate under the Smith-Mundt umbrella of authorities.) This means the author’s suggestion of encouraging syndicated content is already possible at no charge with regard to VOA and RFA (while allowing for the licensing of commercial content included in materials as noted above). BBC has a different licensing structure and likely requires a licensing fee in contrast to USG content being inherently free. It is worth noting that RFA has historically been problematically reticent in encouraging the development of private media – which RFA saw as competition – whereas VOA has historically and aggressively supported the development and growth of potential competitors in the interest of increasing access to professional journalism and accurate information, a model VOA was executed across Asia and Latin America to great effect.
With the syndication issue addressed, at least with respect to RFA and VOA (the BBC with its different model that doesn’t inherently seek to produce competitors nor fundamentally has the U.S.’s media goal of closing its doors when local capabilities are found to be adequate), we can now look at the non-compete clause that is the real “don’t target Americans” provision in the original (and current) legislation.
Section 502 of Public Law 80-402 (the Smith-Mundt Act of 1948), now 22 USC 1462, stated that the government “shall reduce such Government information activities whenever corresponding private information dissemination is found to be adequate; (2) that nothing in this Act shall be construed to give the Department a monopoly in the production or sponsorship on the air of short-wave broadcasting programs, or a monopoly in any other medium of information.” (See one of my discussions of this here: No, the US Agency for Global Media does not compete with US commercial media.)
The argument can be made, as the author lays out with his extensive evidence (though I’m not in a position to evaluate the strength of his evidence), that there is a severe lack of “corresponding private information” to Beijing’s operations. Further, such “private information,” a term in the Smith-Mundt Act that included commercial and non-profit operations alike, is very clearly not adequate in the area of “Chinese-speaking” (Mandarin or otherwise) peoples in the U.S. Further, any such promotion of these materials, whether for VOA or RFA, to this/these linguistic demarcated market(s) would not create a monopoly. Section 502 was the contemporary embodiment of the true lesson drawn from the Nazi’s domestic propaganda, which was successful partly because of the elimination of alternative voices and not merely the availability of the content, an issue Dr. Kaplan raises with Beijing’s operations.
Returning to the author’s suggestion to “subsidize independent alternatives and syndicated content,” beyond the points discussed above and leaving aside the Informational Media Guarantee program, an amendment to the Smith-Mundt Act made through the European Recovery Program legislation to reduce barriers to U.S. producers reaching foreign markets, the original intent of Congress was to maximize the utilization of private media in foreign information operations. The relevant language here was Section 1005 of the original Smith-Mundt Act, today 22 USC 1437, which required the operations “to utilize, to the maximum extent practicable, the services and facilities of private agencies, including existing American press, publishing, radio, motion picture, and other agencies, through contractual arrangements or otherwise.”
Section 1005 – or today’s 22 USC 1437, which the Smith-Mundt Modernization Act specifically called out – was and is an important feature to both encourage domestic capacity – important to Dr. Kaplan’s argument and to reduce what was then seen as an unfair competitive advantage due to the government’s deep pockets to hire the limited number of Americans fluent in the relevant foreign languages. This was also intended to reduce government expenses (ie appropriations) under the assumption that private organizations could produce content more cheaply than the government.
The emphasis on using private content quickly went awry after a severe lack of oversight by the government became apparent. In 1948, about three-quarters of VOA’s content was outsourced. This was until the “Know North America” debacle, a Spanish language series developed by NBC for the State Department and broadcast over VOA in 1948 that was a true disaster. This remains an option that fits with Dr. Kaplan’s suggestion, though this option will take actual leadership, accountability, and backstopping by senior leadership to implement and implement effectively, especially in the face of expected political opportunism by opponents. There is already a minefield in this area with Falun Gong and its Epoch Times that wield substantial influence and push their ideas on how these activities should be run, which may not align with U.S. interests, regardless of which party is in the White House.
While I appreciate the details above would not fit into an opinion piece, I hope I showed that some suggestions, whether their substance is intentionally or unintentionally obfuscated, require substantial discussions that are long overdue, yet to take place, and generally subjected to incredible (and deeply ironic) disinformation and misinformation.