Skip to main content
Menu

Main navigation

  • About
    • Annual Reports
    • Leadership
    • Jobs
    • Student Programs
    • Media Information
    • Store
    • Contact
    LOADING...
  • Experts
    • Policy Scholars
    • Adjunct Scholars
    • Fellows
  • Events
    • Upcoming
    • Past
    • Event FAQs
    • Sphere Summit
    LOADING...
  • Publications
    • Studies
    • Commentary
    • Books
    • Reviews and Journals
    • Public Filings
    LOADING...
  • Blog
  • Donate
    • Sponsorship Benefits
    • Ways to Give
    • Planned Giving

Issues

  • Constitution and Law
    • Constitutional Law
    • Criminal Justice
    • Free Speech and Civil Liberties
  • Economics
    • Banking and Finance
    • Monetary Policy
    • Regulation
    • Tax and Budget Policy
  • Politics and Society
    • Education
    • Government and Politics
    • Health Care
    • Poverty and Social Welfare
    • Technology and Privacy
  • International
    • Defense and Foreign Policy
    • Global Freedom
    • Immigration
    • Trade Policy
Live Now

Blog


  • Blog Home
  • RSS

Email Signup

Sign up to have blog posts delivered straight to your inbox!

Topics
  • Banking and Finance
  • Constitutional Law
  • Criminal Justice
  • Defense and Foreign Policy
  • Education
  • Free Speech and Civil Liberties
  • Global Freedom
  • Government and Politics
  • Health Care
  • Immigration
  • Monetary Policy
  • Poverty and Social Welfare
  • Regulation
  • Tax and Budget Policy
  • Technology and Privacy
  • Trade Policy
Archives
  • February 2021
  • January 2021
  • December 2020
  • November 2020
  • October 2020
  • September 2020
  • August 2020
  • July 2020
  • June 2020
  • May 2020
  • April 2020
  • March 2020
  • February 2020
  • January 2020
  • December 2019
  • November 2019
  • October 2019
  • September 2019
  • August 2019
  • July 2019
  • June 2019
  • May 2019
  • April 2019
  • March 2019
  • February 2019
  • January 2019
  • December 2018
  • November 2018
  • October 2018
  • September 2018
  • August 2018
  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • July 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • January 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • August 2016
  • July 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • February 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • July 2015
  • June 2015
  • May 2015
  • April 2015
  • March 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • August 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • February 2014
  • January 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • August 2013
  • July 2013
  • June 2013
  • May 2013
  • April 2013
  • March 2013
  • February 2013
  • January 2013
  • December 2012
  • November 2012
  • October 2012
  • September 2012
  • August 2012
  • July 2012
  • June 2012
  • May 2012
  • April 2012
  • March 2012
  • February 2012
  • January 2012
  • December 2011
  • November 2011
  • October 2011
  • September 2011
  • August 2011
  • July 2011
  • June 2011
  • May 2011
  • April 2011
  • March 2011
  • February 2011
  • January 2011
  • December 2010
  • November 2010
  • October 2010
  • September 2010
  • August 2010
  • July 2010
  • June 2010
  • May 2010
  • April 2010
  • March 2010
  • February 2010
  • January 2010
  • December 2009
  • November 2009
  • October 2009
  • September 2009
  • August 2009
  • July 2009
  • June 2009
  • May 2009
  • April 2009
  • March 2009
  • February 2009
  • January 2009
  • December 2008
  • November 2008
  • October 2008
  • September 2008
  • August 2008
  • July 2008
  • June 2008
  • May 2008
  • April 2008
  • March 2008
  • February 2008
  • January 2008
  • December 2007
  • November 2007
  • October 2007
  • September 2007
  • August 2007
  • July 2007
  • June 2007
  • May 2007
  • April 2007
  • March 2007
  • February 2007
  • January 2007
  • December 2006
  • November 2006
  • October 2006
  • September 2006
  • August 2006
  • July 2006
  • June 2006
  • May 2006
  • April 2006
  • Show More
February 20, 2018 5:05PM

The Russian Danger

By John Samples

SHARE

Last week Robert S. Mueller III, the special counsel, indicted 13 Russians for intervening in the 2016 United States election. Two of the charges  - buying political advertisements and mandatory disclosure - bear on free speech.

Much of the indictment documents activities during the election that would be both normal and protected by the Constitution if undertaken by American citizens. The defendants bought political advertisements, staged political rallies, and even “posted derogatory information about a number of candidates,” Hillary Clinton in particular. Lacking all scruples, they are said to have “solicited and compensated real U.S. persons to promote or disparage candidates” which means paying an actress to impersonate Hillary Clinton in jail. The defendants tried to create “political intensity through supporting radical groups, users dissatisfied with [the] social and economic situation and oppositional social movements.” Overall the Russians hoped “to sow discord in the U.S. political system.”

As it happens, all this activity may be illegal because the Russian government supported these activities. The Federal Election Commission concisely explains regulation 110.20: , “The Federal Election Campaign Act (FECA) prohibits any foreign national from contributing, donating or spending funds in connection with any federal, state, or local election in the United States, either directly or indirectly.”  The Commission notes that this ban “was first enacted in 1966 as part of the amendments to the Foreign Agents Registration Act (FARA), an "internal security" statute.  The goal of the FARA was to minimize foreign intervention in U.S. elections by establishing a series of limitations on foreign nationals.” FARA also required agents of foreign principals to register with the federal government presumably, as the indictment says, so “the people of the United States are informed of the source of information and the identity of persons attempting to influence U.S. public opinion, policy, and law.” (It should also be noted that the defendants are charged with several counts of fraud and identity theft).

These two parts of the law establish different rules for different audiences. Voters in an election are prohibited from hearing speech funded by a foreign power. Arguably, they are prevented from hearing any speech by an employee of a foreign government; such speech would  involve indirect spending on an election. Other listeners, unnamed in the law, need not be prevented from hearing speech of foreigners “attempting to influence U.S. public opinion, policy, and law.” The public, apart from electoral appeals, and public officials, including above all members of Congress, may hear foreign speech assuming disclosure of its source. Voters, however, should be, and are protected from such speech.

The law seems informed by the following assumptions. Public officials need to hear foreign views, especially about international affairs. They have the ability to sort out the false from the true if they know who is behind the arguments. In contrast, voters might be moved by foreign speech to the detriment of the nation. Hence, voters must be prevented from hearing such speech even if its source is disclosed. To put it mildly, this distinction between officialdom and voters is contrary to the foundations of freedom of speech. If voters lack this basic capacity of citizenship, why protect speech through the First Amendment? The distinction seems paternalistic.

There’s little evidence that the Russian efforts had much effect on the voters in 2016. The New York Times indicates that the Russians may have persuaded a few people to show up at a small anti-Muslim rally in Texas. Speculation about others effects does abound, as the Times article shows. However, as Brendan Nyham indicates, political science research shows how hard it is to change votes even with significant spending. The Russian effort was a miniscule portion of overall spending in 2016.

The law is the law, and the indictment made a good enough case against the defendants that at least 12 grand jury members endorsed the charges. But the indictment comes at a difficult time for free speech. Facebook and other tech giants have been put on the defensive in DC. For some, only foreign malevolence could propel a man like Donald Trump to the White House. Fears about national security can foster public actions that otherwise would be rejected.  This might be one of those moments when something must be done and the “something” that is selected does real harm to freedom of speech. That outcome could easily be worse than whatever threat the Russians pose to American democracy.  

Related Tags
Government and Politics

Stay Connected to Cato

Sign up for the newsletter to receive periodic updates on Cato research, events, and publications.

View All Newsletters

1000 Massachusetts Ave, NW,
Washington, DC 20001-5403
(202) 842-0200
Contact Us
Privacy

Footer 1

  • About
    • Annual Reports
    • Leadership
    • Jobs
    • Student Programs
    • Media Information
    • Store
    • Contact

Footer 2

  • Experts
    • Policy Scholars
    • Adjunct Scholars
    • Fellows
  • Events
    • Upcoming
    • Past
    • Event FAQs
    • Sphere Summit

Footer 3

  • Publications
    • Books
    • Cato Journal
    • Regulation
    • Cato Policy Report
    • Cato Supreme Court Review
    • Cato’s Letter
    • Human Freedom Index
    • Economic Freedom of the World
    • Cato Handbook for Policymakers

Footer 4

  • Blog
  • Donate
    • Sponsorship Benefits
    • Ways to Give
    • Planned Giving
Also from Cato Institute:
Libertarianism.org
|
Humanprogress.org
|
Downsizinggovernment.org