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

An unintended and unintentionally long rebuke of two law review articles on Smith-Mundt

As I have been and continue to be busy with another writing project that is, to be honest, more important than this newsletter, I’ve been a bit lax in writing here. As both a distraction and to help me focus on that effort, this note revisits a post on my MountainRunner.us blog from December 2015. What follows amounts to a really long preface to that post, which is at the bottom and substantially shorter than the “preface.” If you are remotely interested in the Smith-Mundt Act, you’re likely to dig in. However, if you’re not, in all honesty, you may want to save time and stop reading now.

The context of the 2015 post was the persistent and hardy mythology that continues to be propagated that the Smith-Mundt Act of 1948 intended from the start to prevent the information programs it authorized from being seen or heard by Americans. Pick a law review article – I’ll pick two offenders I hear most often, “Apple Pie Propaganda” by Weston Sager from 2015 with its loaded title or “The Smith-Mundt Act’s Ban on Domestic Propaganda” by Allen Palmer and Edward Carter from 2006 or any number of other articles – and you’ll find logical fallacies, projections, and false assumptions. A key point, but not the only point, which I’ll spend a “moment” on before revisiting the December 2015 post, is the arguments around the “domestic dissemination ban.”

It continues to surprise me that law review articles discussing Smith-Mundt fail to carefully parse words and their meanings, which seems an important point when examining statutes, intentions, and trajectories. I’ll leave aside the use of “propaganda” in these articles, a word these authors do not define nor explain why they knowingly used this inherently loaded term, the use of which could be described as an act of propaganda.

To start, Carter and Palmer, whom Sager cites, state, “There is evidence that legislators did not intend the original Smith-Mundt Act to prohibit domestic dissemination or of propaganda.” Carter and Palmer are nearly correct in their statement above. Nearly.

In their analysis of a 1972 debate, Carter and Palmer do note the US Attorney General (then Acting, his confirmation would come a few months later) differentiated between dissemination and availability. The authors themselves fail to acknowledge the difference, as did Sager. Carter and Palmer then implicitly adopt the narrative that the absence of a domestic ban was an oversight fixed in 1972. This leaves aside Senator Fulbright’s years-long campaign to shutdown USIA, Voice of America, Radio Free Europe, and Radio Liberty.

It should be noted – and I have failed to find this quote in the many Fulbright hagiographies – that on February 17, 1972, just ten days after Fulbright successfully amended the Smith-Mundt Act to end USIA (more on that below) and just weeks before Fulbright sought to prevent a fellow Senator (James Buckley, brother of William F. Buckley) from showing a USIA film on New York television stations, that Fulbright had this to say about the RFE, RL, and VOA: “Mr. President, I submit that these radios should be given an opportunity to take their rightful place in the graveyard of cold-war relics.” Fulbright’s attacks on USIA, which came out in full view in a 1967 hearing where he argued that any access to USIA materials potentially made USIA an arbiter of the truth (as part of an argument he conflates the activities of RFE with that of USIA and VOA).

The lack of context in these reviews is problematic, in my opinion, as intent seems to be a key element of understanding legislative purposes and trajectories. Along with Fulbright’s amendment to the Smith-Mundt Act (see Public Law 92-352 of July 13, 1972), which Carter and Palmer anonymize as merely an action by “Congress,” removing Fulbright’s role as the chief protagonist, Fulbright led the charge to amend the Smith-Mundt Act to prohibit any funding for any of its programs “unless previously authorized by legislation enacted by the Congress after the date of enactment of the Foreign Assistance Act of 1971” (see Public Law 92-226, February 7, 1972, amending Section 701 of the original Smith-Mundt Act). Anyone working in or near the government will recognize this threat to USIA: the agency’s authorization was effectively terminated at the end of the fiscal year, just a few months away. This was passed ten days before the Buckley debate. This, too, does not appear in the Fulbright biographies as far as I could find. While Carter and Palmer did occasionally explore intent in their analysis, as did Sager, they often ignored intent, and equally important context, when convenient, or from a lack of research. I am not suggesting malicious intent by the authors, but these works, like many others, by failing to apply equal parsing and analysis to the various elements appear like they are trying to fit their narrative within the accepted wisdom mythology around the Smith-Mundt Act.

It would also seem worthy of at least a footnote in discussions about the 1972 amendment – or perhaps just for your information – that in March 1972, a 21-member panel headed by Frank Stanton of the US Advisory Commission on Information and formerly of RAND Corporation and former the head of CBS, and supported by Georgetown University’s Center for Strategic and International Studies, recommended shuttering USIA and making VOA a private entity. I would not expect the law review authors to discuss, or even reference, fifteen years of reports that questioned USIA’s viability and effectiveness, but this 1972 recommendation came out essentially at the same time as Fulbright’s objected to Buckely’s use of a USIA film and would seem to be a relevant point left out of these analyses as if Fulbright was a neutral arbiter. A lot happened in a few short weeks.

Back Carter and Palmer being “nearly correct” about the 80th Congress in 1947-1948 prohibiting domestic dissemination of the information produced under the Smith-Mundt Act. Neither the State Department nor Congress intended to share the authorized programs with Americans. It just was not an issue. I’ll leave aside the relevance that much of Carter and Palmer’s and Sager’s historical citations and arguments focus not on the massive non-broadcast information programs authorized by the Act but on the relatively small radio broadcast operation, a relevant distinction they fail to acknowledge if they know about it all. They are “nearly correct” except for the difference between dissemination and access, which is not insignificant and, more importantly, not an oversight by the 80th Congress.

Kleindienst raised the difference in his reply to Fulbright regarding the Buckley matter, which Carter and Palmer share in their paper: “Kleindienst reasoned that the Smith-Mundt Act’s provision making U.S. propaganda [emphasis mine] materials available to news media representatives and members of Congress demonstrated legislative intent [as Kleindienst wrote in his reply to Fulbright] ‘to make USIA materials available to the American public, through the press and Members of Congress.’” The reasoning accurately reflected the intent of the 80th Congress who sought greater oversight over Smith-Mundt materials (remember that USIA was not established until 1953). Further, Stanton’s basic argument in 1967 against Fulbright’s then attempt to isolate USIA from oversight, and thus awareness and support, was that in light of the then-recently passed Freedom of Information Act, Americans should know what is said and done in their name abroad. This idea was turned on its head not just by Fulbright with his 1972 amendment but by Senator Zorinsky in 1985, who sought to close the “loophole” in Fulbright’s amendment, leading a federal court to rule USIA was exempt from FOIA requests. In a completely unrelated move, Congress later amended the Foreign Agent Registration Act to change “political propaganda” to “informational materials.” There’s that word propaganda.

There is a difference between dissemination and access. The Smith-Mundt Act was passed to authorize the State Department to disseminate information globally. The “dissemination abroad” wording of Section 501 of the original Act was an explicit authority requested by the State Department to provide clarity in the face of multiple statutory authorities that seemed to limit where and what State could operate. The text was not a restriction imposed by Congress.

It should be noted, and the law reviews fail to distinguish this with any clarity suggesting a failure to understand the underlying – and overlying – aspects, the context of Fulbright’s amendment limiting Congressional and public access. The same Section 501 provided for “Any such press release or radio script, on request, shall be available in the English language at the Department of State…for examination by representatives of United States press associations, newspapers, magazines, radio systems, and stations, and, on request, shall be made available to Members of Congress.”

Now, if the law reviewers were really parsing and getting into the details, they would note that Section 501 authorized the “preparation, and dissemination abroad, of information about the United States, its people, and its policies, through press, publications, radio, motion pictures, and other information media, and through information centers and instructors abroad.” They would also note the difference between what was authorized to disseminate (like “motion pictures”) and what was available for review (“press release or radio script”), but they fail to get into that detail. Perhaps that’s because there was no intent to limit knowing what motion pictures (or film strips, or posters, or books, or speakers, or…) were sent abroad or seeing the details. Carter and Palmer and Segar, for example, could have noted that Buckley’s film was explicitly outside the apparent scope, but that level of parsing and analysis is absent in this genre. To be fair, the separation was not intended by the 80th Congress. Both Congress and State wanted the additional oversight. For State, greater visibility meant greater support and resources (contrast that with “public diplomacy” today, a sentiment fundamentally based on the Fulbright-Zorinsky narratives plus State’s institutional aversion to public diplomacy reinforced by USIA alumni after 1999). The “on request” was inserted, also at the State Department’s request, to block blanket requests for materials, which Congress concurred would happen. Why block the blanket requests? Because much of the materials were not in English – note the “available in the English language” was another nod to oversight – and would require translators, not to mention filing clerks and paper and, to the point, a greater appropriation.

So the materials were to be available on request. It should be noted there was no prohibition on the press associations et al. from re-using (read: disseminating) the materials, just as there was no prohibition on Congress from re-using (read: disseminating) the materials, which was affirmed by Fulbright’s 1972 amendment that aimed to prevent access, not re-use. It should also be noted that the Smith-Mundt Act required the government to “reduce such Government information activities whenever corresponding private information dissemination is found to be adequate” (Section 502), and one could argue that if you’re focused on State’s domestic dissemination, you should consider the private agencies in the US. In other words, domestic dissemination by the State Department, and subsequently by USIA, of these materials was already blocked.

It should also be noted the Smith-Mundt Act required the government 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 It is the intent of Congress [to] encourage participation in carrying out the purposes of this At by the maximum number of different private agencies…consistent with the present or potential market for their services in each country” (Section 1005). Again, arguably there are adequate private agencies with adequate market share in the US. By the way, both Section 502 and Section 1005 (now 22 USC 1462 and 22 USC 1437, respectively) are specifically highlighted in the Smith-Mundt Modernization Act of 2012. Sager ignores or does not recognize these sections in his analysis. I know the two sections are there and why because I helped write the amendment and recommended they appear to specifically counter arguments such as Sager’s. That Sager is flat wrong in his statement the Smith-Mundt Modernization Act “repealed” the domestic dissemination ban should be evident in the discussion above.

This turned into a bit of the correction I’ve long wanted to write, and sometimes started, to address the problems with the legal review papers on the Smith-Mundt Act, none of which have I found to be accurate in this history or analysis. However, I’ll note that Carter and Palmer’s final recommendations are an argument to revert the Act back to its original intent and strip away the Fulbright-Zorinsky amendments and resulting narratives, but they did not realize that.

Now to the December 2015 post, which I edited it slightly for clarity. Its relevance to the above discussion should be readily apparent.

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In August 1949, Assistant Secretary of State for Public Affairs George V. Allen wrote an article for the Washington Star newspaper. It was a response to a frequent question of the time: why were Voice of America programs not conveniently heard inside the United States? In his role as assistant secretary, Allen was in charge of a vast collection of organizations and operations, far broader than what is typically under the “public diplomacy” umbrella today and broader than what the Director of the US Information Agency ever “owned” and managed. He wrote, in part,

The Voice of America, quite understandably, seems to have captured the greatest American interest among the many activities of our international information and educational program.

A newspaper reporter from my home State of North Carolina said to me the other day, “I’ve heard a lot about the Voice of America, but I’ve never really understood it. Please explain who or what is the Voice? Do you do the broadcasting yourself? If so, the Voice of America sure has a good North Carolina accent.”

Some time ago, I made a speech in Detroit on the subject of the Voice of America, and at the end the chairman of the meeting said: “You’ve told us why the Voice, but you haven’t told us what it is.”

Allen’s title was still new, barely five years old. He was the first Foreign Service Officer to occupy the job and perhaps the only FSO to be formally in charge of all of the U.S. public diplomacy programs (notwithstanding the portfolio shrank with the creation of USIA in 1953 and again with the establishment of the Under Secretary of State for Public Diplomacy and Public Affairs in 1999). Archibald MacLeish and William Benton preceded Allen in the post as the inaugural and second office holders. Allen was in charge of an extensive international information service that included “documentary motion picture films, posters, pamphlets, photographs, and various other means to give foreigners correct information about the United States.” The broadcasting element was a relatively small add-on and not a core function.

In addition to the information side, Allen’s office managed and coordinated broad technical, educational, and cultural “interchanges” with countries abroad. This included sending US government experts abroad without necessarily a corresponding or equal number from the country abroad sent to the US. (At the time, international educational affairs, such as exchanges, were considered cultural affairs.) The portfolio, as noted, was rather broad. As Allen explained, “we give a small but significant support to American schools in Latin America, and we maintain most of the American libraries established abroad [by the Office of War Information] during the war.”

Through the Smith-Mundt Act of 1948, these programs were authorized to disseminate information worldwide (i.e., “abroad”). Without the “dissemination abroad” text in the legislation, the State Department’s informational authorities would be limited to the Western Hemisphere, though maybe the Philippines and possibly Liberia were included (the existing authorities were a bit of a mess), once the temporary expanded authorization of global engagement ended with the expiration of the War Powers Act. The focus of the information programs subject to the “dissemination abroad” language in the Act were the libraries, films, books, and speakers programs as it was the intent of the State Department that the radio operation would be privatized before, or very soon after, the Act was signed into law. In fact, at the end of the 79th Congress in 1946, the privatization of the Voice of America was a higher priority than the broader information and exchange authorization.

Voice of America was only one-fourth of the total budget, and much of this was the enormous cost of the infrastructure. The network of domestic and foreign transmitters was tremendously expensive. This effort was of interest to Americans. While some could hear VOA on their radio sets, many could not. 

To answer “Why can’t we in the United States hear the Voice of America broadcasts?” Allen wrote,

There are two principal reasons. First, the broadcasts are beamed on short-wave directional antennae toward particular areas overseas from transmitters near New York, Boston, Cleveland, and San Francisco. While it is difficult, it is not impossible to pick up the program on a short-wave receiver in the United States. [The second reason is] 85 percent of our programs are in foreign languages, by announcers speaking Polish, Russian, Czech, Chinese, Persian, etc., so if you happen to get the program, the chances are that you would not recognize it. The Department is glad to furnish full schedules and wave lengths on request. As noted [at the start of the article], scripts of all our programs, in English translation, are publicly available.

This is in stark contrast to the common modern interpretation of the limits of the law, an interpretation based almost entirely on Senator J. William Fulbright’s efforts to censor and eliminate USIA. These interpretations are based on limited reading from the 1960s, like the need for Congress to authorize the showing of a USIA film in the US (an action that refers back to language stating such material would be available “on request”) and ignore non-compete elements of the Act.

Allen was pragmatic about the role of the information programs, including the radio broadcast operation, and estimating their effectiveness. Measuring impact was challenging then, more so than today. Here is how he answered the question of effectiveness.

As to the companion inquiry of how effective this activity is behind the so-called iron curtain, my best answer at the moment is that the Soviet Government is now devoting approximately four times the capital equipment in transmitters, monitoring stations and so forth, and 10 times the manpower to jam our programs in their effort to block them off from reception in critical areas. They would hardly go to this trouble if the programs were not effective.

… Another frequent inquiry is: “Do you think you will succeed?” For those who ask the question in the sense of, “Will you solve the world crisis?” or even, “Can the Voice alone bring about a lasting peace?” the answer is, “Very probably not” The Voice and our other overseas information and educational activities are merely a part, and by no means the major part, of the total effort of the United States to achieve a stable and lasting world order. But they are an important part of this effort, and they may be a decisive one.

The role of VOA was clear, and its mission of broadcasting, while distinct, was complementary to the other information programs that disseminated information abroad. It was just as clear that there was no domestic prohibition on accessing any of the information disseminated abroad as authorized by the Smith-Mundt Act. 

Edward R. Murrow would later describe broadcasting to reach target audiences abroad as relatively easy. Murrow said the hard part was that the other information programs operated in the “last three feet,” the in-person, face-to-face with foreign audiences.