By Alex Belida
When I worked at Voice of America, the flagship U.S. international media operation, the biggest legal problems I heard senior managers wring their hands over were possible violations of an obscure 1948 law known as the Smith-Mundt Act.
This isn’t one of those comic regulations, like “it is illegal to wear a fake moustache that causes laughter in a church.”
In fact this one is pretty serious for a news organization. It states “information produced by VOA for audiences outside the United States shall not be disseminated within the United States.”
At first, I wondered whether there were any real uniformed Smith-Mundt police and how serious the penalties were for breaking the law. I imagined armed and jackbooted security personnel coming into an editor’s office and frog-marching him out of the building in cuffs, telling him he was looking at five years in the slammer.
No such luck.
In reality, the Smith-Mundt enforcers at VOA were the managers themselves. As best I could determine, the penalty they feared was a possible Congressional hand slap or, God forbid, a funding cut.
But with the advent of the Internet and digital audio files and on-line video and such, news organizations and average citizens in the U.S., just like their counterparts abroad, can today independently go to the VOA website, whose contents are public domain, and download pretty much anything they want and use it. Some American newspapers are doing this, as are many websites, and tens of thousands of Americans.
But VOA officials still cannot tell them they are free to do this. That would be a violation of Smith-Mundt.
There was the case of a community broadcaster in Minnesota that wanted to use VOA material in the Somali language. (See Matt Armstrong’s item on Foreign Policy.) They asked for VOA’s permission and were turned down. Had they simply taken the material they wanted off the web and used it, they would have gotten away with it.
All this started swirling around in my head when I heard the current Broadcasting Board of Governors (BBG), the small Federal agency which oversees VOA, wants to ask Congress to repeal the domestic dissemination ban in Smith-Mundt.
I thought, why hasn’t the law been challenged before? As well as being unenforceable, it seems quite clearly unconstitutional.
Doesn’t the first amendment state clearly: “Congress shall make no law… abridging the freedom… of the press…”?
Obviously Smith-Mundt is a law. It was passed by Congress. VOA is part of the press. And this law limits VOA’s ability to disseminate its programs, thus abridging its freedom.
This is an international embarrassment for the U.S. as well. Smith-Mundt is clearly a violation of Article 19 of the Universal Declaration of Human Rights, ratified by the U.S. It states: “Everyone has the right to… receive and impart information and ideas through any media and regardless of frontiers.”
Ironically if there is any group that may oppose the BBG’s efforts to repeal Smith-Mundt, it will probably be the U.S. news media. They will certainly fear the specter of a government-financed news organization in competition for their ever-declining shares of the American market – an organization offering a product for free.
I can’t wait for a showdown over Smith-Mundt in which those who have benefitted from the protections of the first amendment in the past may line up to oppose letting another news organization gain equal freedom.
Alex Belida is a former correspondent and news executive who worked in U.S. International Broadcasting for 40 years.
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