Smith-Mundt

Fact-check: BBG can now broadcast to Americans?

The change to the governance structure of the Broadcasting Board of Governors through an amendment to the National Defense Authorization Act has raised some concerns that the BBG might turn inward to target American audiences through domestic broadcasting. An article at Politico, for example, stated that because of the Smith-Mundt Modernization Act of 2013, “the BBG can now broadcast in the U.S., too.” Fox’s Howard Kurtz was more accurate when he wrote that the three-year-old amendment means that the “BBG’s content can also be broadcast in the United States.” The first is not accurate, while Kurtz is slightly misleading. Here’s why.

For some, the Smith-Mundt Act is simply an anti-propaganda law. This conventional narrative is a direct result of an amendment by Senator J. William Fulbright in 1972. When his attempts to shutter first the United States Information Agency and then the Voice of America failed, he amended the Smith-Mundt Act to ban USIA from making its content available to Americans — whether the media, academia, Congress, or the general public — when they requested it.

The words “disseminate abroad” in the original Smith-Mundt Act, is what academics to pundits latch onto in the legislation as “the” prevention of domestic access. Taken from Sec 2 of PL 80-402, the context was…

to enable the Government of the United States to promote a better understanding of the United States in other countries, and to increase mutual understanding between the people of the United States and the people of other countries. Among the means to be used in achieving these objectives are (1) an information service to disseminate abroad information about the United States, its people, and policies promulgated by the Congress, the President, the Secretary of State and other responsible officials of Government having to do with matters affecting foreign affairs… [emphasis added]

In contemporary public statements, Congressional testimony, and repeated in transcripts of executive sessions of the Senate Foreign Relations Committee, the State Department had requested the language “disseminate abroad” be included in the bill to give them explicit authority to operate anywhere in the world. At the time, the Department’s clear authority, based on 1939 legislation, was geographically restricted to what was then called the American Republics (what we refer to today as South, Central, and North America). Further, when the language first entered the bill that would ultimately become the Smith-Mundt Act, the radio broadcast operation (later to be known as VOA) was to be spun out into a private non-profit foundation. Interestingly, this 1946 organization was to have a permanent CEO and an eight-person bipartisan board appointed by the President and confirmed by the Senate. At the time, the “information” programs were the libraries, books, pamphlets, posters, photos, films, and the speakers and training programs, not the radio broadcast division.

The Smith-Mundt Act was the basic authorization for everything we refer to today as public diplomacy, and it centralized all of it within the Office of the Assistant Secretary of State for Public Affairs, an office established just a few years earlier. In December 1944, Archibald MacLeish became the inaugural Assistant Secretary of Cultural and Public Affairs, though “Cultural” was dropped from the title following MacLeish’s resignation after the death of FDR. The purpose of the office was clearly laid out as furthering “the steps taken during the year to develop a program designed to provide American citizens with more information concerning their country’s foreign policy and to promote closer understanding with the peoples of foreign countries.” In other words, the mission was engagement and transparency with censorship nowhere in sight.

In 1949, over a year after the Smith-Mundt Act became law, George V. Allen, then the Assistant Secretary for Public Affairs, answered the question why VOA is not readily available to audiences inside the United States. In an article he wrote for a DC newspaper, he described that while Americans are not the target audience, VOA’s programs are readily available to them at their request.

From the start, the information programs, including the radio operation, was never intended for an American market. This was explicit in what was essentially a non-compete clause that required a reduction in “such Government information activities whenever corresponding private information dissemination is found to be adequate.” (PL 80-402, Sec 502) In the U.S., there was adequate private information dissemination. Further, the Act also directly the use of the private resources 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.” (PL 80-402, Sec 1005)

However, through the deliberate efforts of Senator J. William Fulbright, the prevailing narrative of the Smith-Mundt Act is that it is an anti-propaganda law protecting American citizens from the lies of their own government.

The modern “firewall” came about legislatively in 1972. This shift was several years in the making. While his attacks on USIA started earlier, they were in full steam by the mid-1960s. A 1967 U.S. Advisory Commission on Information (the predecessor to today’s Advisory Commission on Public Diplomacy) recommended relaxing of the growing de facto prohibition led by Fulbright, then the Chairman of the Senate Foreign Relations Committee, in the spirit of the Freedom of Information Act passed the year before. The purpose was to create transparency for citizens to know the activities of their government. The Commission, chaired by Frank Stanton, the president of CBS, declared the “American taxpayer should no longer be prohibited from seeing and studying the product a government agency produces with public funds for overseas audiences.”

In an April 1967 hearing, never a fan of the information programs, Fulbright pressed Stanton that the mere availability of USIA content to Americans who requested it was the equivalent to domestic distribution. Fulbright’s attacks focused on the books, films, and other material published by USIA and less frequently on VOA’s radio operations.

In 1972, Fulbright tried to enforce the growing de facto prohibition by attempting to block a fellow Senator from showing a USIA film in New York. Senator Buckley (I-NY) wanted to air the movie on his monthly show to constituents. The U.S. Attorney General disagreed with Fulbright, stating Smith-Mundt “prohibited USIA from actively disseminating its materials in the United States but required the agency to make materials available upon request by the press or by members of Congress.” (This varied slightly with the original intent of the makers of the legislation, which wanted maximal visibility for greater oversight and awareness.)

Fulbright declared VOA, RFE, and RL “should be given the opportunity to take their rightful place in the graveyard of Cold War relics.” He would “win” the fight against USIA, New York’s Buckely, and the Attorney General by successfully amending the Smith-Mundt Act to permit USIA material to be disseminated within the U.S. only with explicit an authorization by the Congress. According to H.R. Rep. No 1145 (1972): “In direct response to the proposed broadcast, the Congress amended the Act to prohibit dissemination and distribution generally and to restrict its own members’ access to USIA materials to “examination only.” The “provision was amended … to clarify … that U.S.I.A. materials are to be made available to Members of Congress for examination only and not for dissemination.” [Emphasis added]

In 1985, upset with USIA’s management, Senator Zorinsky sought to close the “loopholes” left by Senator Fulbright’s amendment. At the time, Zorinsky was investigating USIA for nepotism, reviewing questionable and imperious spending by USIA Director Charles Wick (including tens of thousands of the agency’s dollars for a home security system), and voicing concerns over other activities labeled as “public diplomacy,” such as the Office of Public Diplomacy run by Otto Reich that had nothing to do with USIA, or public diplomacy, for that matter. Zorinsky said the “Second Mandate” of USIA, which was to inform Americans about the world abroad (the first “mandate” was informing foreign publics about America) should never be allowed.

A few years later, a DC Federal Court cited the Zorinsky amendment when it ruled that USIA material was exempt from Freedom of Information Act (FOIA) requests, a decision that was relaxed, though not undone until the Smith-Mundt Modernization Act of 2013. Until then, under the “for examination only” construction those who successfully petitioned to see USIA material, including VOA scripts, would often be denied the ability to take notes or make copies of the material they were permitted to review.

It is interesting to note that in 1994 the Congress amended the Foreign Agent Registration Act to stop labeling information produced by foreign governments for use in the United States as generated by a foreign government or as propaganda. (That same year saw the establishment of the Broadcasting Board of Governors, though it did not become an independent agency until 1999.)

The ban by Fulbright applied only to USIA and by extension VOA and, from 1994 to RFE/RL, RFA, OCB, and then to MBN when it was formed in 2004. It never barred a person or organization within the United States from accessing, using, reviewing, or rebroadcasting USIA or VOA material. There were no penalties if someone did acquire a book, film, TV program, or radio broadcast and disseminated it through whatever means, including commercial distribution.

The 2013 “modernization” of Smith-Mundt permitted everyone — media to academics to anyone else — to review the content without limits and to share, reuse and even broadcast it domestically. The change did not alter the basic non-compete clause, in fact, the 2013 act specifically called it out as an essential element. The fundamental purpose of the Modernization Act was to prevent agencies from using Smith-Mundt as a reason not to engage a foreign audience out of “concern” that somehow that engagement might be heard or seen by an American.

Of the many examples I encountered, an American on a State Department-funded trip abroad was not permitted to speak on Armed Forces Television because that might be seen by an American in the United States. Fulbright’s legacy extended beyond State. The Act was believed to apply to the whole government. There was the CBS radio producer who questioned, through Twitter, whether a then-forthcoming NASA TV channel might violate Smith-Mundt. The Defense Department’s lone legal review on the subject held that without explicit direction from Congress to the contrary, Defense should consider the Smith-Mundt Act as applying to Defense. This interpretation is remarkable considering the legislation refers strictly to State, USIA, and BBG (the multiple references owing to amendments that never fully cleaned up the text to reflect changing organizational structures), is in Title 22 of the U.S. Code, covering Foreign Affairs, and not Title 10 or Title 50, covering military affairs, and that Smith-Mundt didn’t apply to the whole of State, and quite obviously did not apply to the White House or other departments.

As a technical matter, if you are a broadcaster and you intend to rebroadcast VOA content (or any other BBG material), you must have any necessary licenses from any content provider that contributed to any VOA (or other) product you’re going to rebroadcast. This is because VOA often incorporates AP, Reuters, or other news service content (reporting, photos, etc) into its reporting. VOA’s licenses are for non-US use only (i.e. outside the United States market). Thus any broadcaster taking BBG content and intentionally targeting markets within the U.S. must have the proper license from the appropriate news service (AP, Reuters, etc) or must avoid rebroadcasting content with such licensed content. This is not a matter of Smith-Mundt, but one of copyrights and commercial licensing.

The Modernization Act did not change whether the BBG may broadcast domestically. The board of the BBG, or CEO per the pending legislation, are not permitted to do this according to existing authorities, including the Smith-Mundt Act, and Congressional limits on the use of appropriated funds. The Congress, for its part, must also exercise its oversight and has plenty of corrective measures at its disposal.

What is possible, and was before the Modernization Act, is that a BBG network, such as VOA, could produce a feature for a foreign market, say Ukraine or Liberia, that states the President (pick your President) is the greatest President ever. A U.S. private broadcaster may then pick that up and distribute it domestically. Again, this could have happened before, and there would have been no penalties.

In summary, Smith-Mundt was not written to be an “anti-propaganda” law, despite claims otherwise, and such views are the direct result of Senator Fulbright’s attempt to shut USIA and VOA down. Quite the legacy, isn’t it?

This post was updated on January 5, 2017, for clarity.