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How Congress Violated the First Amendment and Got Away With It

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.

[Editor: See also Smith-Mundt and a brief history of Smith-Mundt. -mca]

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Alex Belida is a former correspondent and news executive who worked in U.S. International Broadcasting for 40 years.

Guests posts are the opinions of the respective authors, do not necessarily reflect the opinion of MountainRunner.us, and are published here to further the discourse on activities that understand, inform, and influence.


  • quslera says:

    VOA may be part of the “press”, but the unfortunate reality is that 70 years after its founding, so-called mainstream non-government media still view it and other broadcast pieces built up by the BBG as government propaganda outlets.

    Sad but true, especially considering the excellent journalism that has been produced over the decades by individuals who have been part of VOA’s respected correspondent corps.

    Mr. Belida and others are quite correct — the fact that Smith Mundt has not been challenged before, that the BBG itself seemingly chose to fight this battle only recently, is an embarrassment (though he argues the case on constitutional grounds).

    The other sad fact is that decades of superb reporting by VOA and other parts of the U.S. international broadcasting structure has, in essence, gone to waste (though one can always argue that anything that “got through” to overseas audiences did not constitute a waste of effort).

    Even though material has been available to Americans via the Internet for two decades, most people on the street today hearing about VOA, or being approached for an interview)say “VOA? That still exists?

    What a shame, and what a glaring comparison to what occurred with the BBC, which today is instantly recognized and respected the world over — including quite ironically — by Americans who have been able to view it easily on TV in their living rooms and hear it on their car radios.

    An interesting project would be to get surviving members of previous BBGs together for a conversation to try to learn which of them may have attempted to fight this battle, and what barriers they faced both within the BBG and on Capitol Hill.

    February 23, 2012 at 1:59 pm
  • CW says:

    Alex Belida must know that public entities do not possess First Amendment rights. The taxpayers, through their chosen government, are the owners/publishers of VOA, and have every right to establish laws, however silly or ineffectual, to control what is done with VOA’s output. Americans can now access VOA programs in English and some 40+ other languages through the websites, and that sort of direct access and monitoring by taxpayers of programs they’re paying for is all to the good. But to aim VOA programs at U.S. audiences, when there is always at least a broad foreign policy motive, as determined by the NSC, behind the continued existence of any given language service, presents precisely the potential for propaganda that Smith-Mundt is intended to prevent — especially given that one of VOA’s three charter principles has been interpreted since the 1980s to allow for U.S. government editorials. As an American citizen, I certainly don’t want to turn on my television and hear a U.S. government editorial. Nor would I want to wonder if there was a political reason why certain stories were being reported over others. Only if VOA became fully editorially independent of the government — with zero NSC involvement in choosing which language services exist — and if it were transferred into a new international arm of NPR, for example — could offering some of those programs to segments of U.S. audiences, like a Somali community in Minneapolis, be justified. But that also begs the point of whether U.S. audiences really want or need those broadcasts or cable programming, given that they can be found so easily on the internet.

    March 6, 2012 at 12:19 am

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