A curious move by the Department of Justice, and one that may backfire in several different ways. Yesterday, Yahoo’s Michael Isikoff and Hunter Walker reported that the FBI had an open probe into Sputnik, a Russian-funded propaganda outlet that at one time had a White House correspondent covering the Obama and Trump administrations, to see if they had violated the Foreign Agents Registration Act (FARA). Russia Today (RT), which operates under the same executive organization as Sputnik, later announced that the DoJ informed them they would have to register their employees under FARA for its own propaganda efforts:

RT, the Russian government television network, disclosed Monday that one of its U.S. affiliates has been notified by the Justice Department that it must register as a foreign agent that is disseminating propaganda in the United States.

The statement issued by RT’s editor in chief Margarita Simonyan in Moscow is the strongest sign yet the Justice Department may be moving to crack down on the operations of RT and another Russian news agency, Sputnik, by forcing them to register under the Foreign Agents Registration Act — a World War II-era law that requires foreign principals that are seeking to influence U.S. public opinion to disclose their full activities and sources of funding.

“The company that supplies all services for RT America channel, including TV production and operations, in the U.S., has received a letter from the U.S. Department of Justice, claiming that the company is obligated to register under FARA due to the work it does for RT,” Simonyan said in a statement that was posted on RT’s website.

But wait — doesn’t FARA exclude media as an exception? Generally speaking, it does, but that is almost entirely limited to American media outlets. The law, passed into effect in January 1942 to deal with defeatist “fake news” from the Axis powers, has an entire section devoted to “foreign propagandists.”

(d) The term ‘‘agent of a foreign principal’’ does not include any news or press service or association organized under the laws of the United States or of any State or other place subject to the jurisdiction of the United States, or any newspaper, magazine, periodical, or other publication for which there is on file with the United States Postal Service information in compliance with section 3611 2 of title 39, published in the United States, solely by virtue of any bona fide news or journalistic activities, including the solicitation or acceptance of advertisements, subscriptions, or other compensation therefor, so long as it is at least 80 per centum beneficially owned by, and its officers and directors, if any, are citizens of the United States, and such news or press service or association, newspaper, magazine, periodical, or other publication, is not owned, directed, supervised, controlled, subsidized, or financed, and none of its policies are determined by any foreign principal defined in subsection (b) of this section, or by any agent of a foreign principal required to register under this subchapter; …

(i) The term ‘‘information-service employee’’ includes any person who is engaged in furnishing, disseminating, or publishing accounts, descriptions, information, or data with respect to the political, industrial, employment, economic, social, cultural, or other benefits, advantages, facts, or conditions of any country other than the United States or of any government of a foreign country or of a foreign political party or of a partnership, association, corporation, organization, or other combination of individuals organized under the laws of, or having its principal place of business in, a foreign country;

The only exemption for “information-service employees” from propaganda outfits would be those who work explicitly in diplomatic circles as declared officials of the country in question. Otherwise, FARA appears to give the DoJ carte blanche in determining which outlets and individuals are operating as propagandists rather than legitimate media. The definition of propaganda doesn’t encumber that process much:

Every person within the United States who is an agent of a foreign principal and required to register under the provisions of this subchapter and who transmits or causes to be transmitted in the United States mails or by any means or instrumentality of interstate or foreign commerce any informational materials for or in the interests of such foreign principal (i) in the form of prints, or (ii) in any other form which is reasonably adapted to being, or which he believes will be, or which he intends to be, disseminated or circulated among two or more persons shall, not later than forty-eight hours after the beginning of the transmittal thereof, file with the Attorney General two copies thereof.

Subsection (b)(3) makes the application of this very broad outside of American media outlets, defining the jurisdiction as pertaining to:

(3) a partnership, association, corporation, organization, or other combination of persons organized under the laws of or having its principal place of business in a foreign country.

Congress has not seen fit to revisit this authority granted to the Department of Justice since World War II ended — and given the politics of the moment, they are unlikely to do so now, either. That may be a missed opportunity, as this seems like a particularly strong overreaction to two fringe sources of “news,” and one that might actually increase their cachet among their followers. The DoJ is afraid of you hearing the truth!, they will claim, and at least a few nutcases will probably believe them.

Next, it’s unclear just how this will impact the delivery of “fake news.” It doesn’t actually prevent anyone from accessing Sputnik or RT on their own websites. It also doesn’t prevent American readers from passing it along on their blogs and social-media accounts, although Facebook has pledged to ensure it doesn’t enter into their news feeds.  The “foreign propagandists” section of FARA is an anachronism, a relic caught in amber from a time when Americans got their news on their porch or from a handful of radio stations. That’s why the text references “prints” as a means to specify pamphlets and fliers that carried defeatist materials, published by state-run Axis media for use in the US. In the internet age, it’s toothless in terms of stopping propaganda — unless the DoJ plans to go after Americans who read it and pass it on, which would threaten First Amendment free-speech protections.

Furthermore, this action will likely have a significant impact on organizations such as the Voice of America, NPR, PBS, and other American media who get some or all of their funding from the US government. Russia will likely impose reciprocal restrictions on those outlets, and other Moscow satellites will follow suit sooner or later. It also sets a precedent for other, more benign state-owned news agencies. Will the BBC have to register as foreign agents? They meet the same qualifications in FARA — government owned and run, presumably “disseminating” information on the UK in the course of its reporting. A failure by the DoJ to enforce this law consistently might end up running afoul of the 14th Amendment’s due-process clause, although it seems unlikely that RT/Sputnik will bother to sue.

That seems like an awful lot of trouble, potential and real, for an opportunity to embarrass Vladimir Putin’s already-embarrassing “news” outlets.