National Defense is Now an Exportable News Source - Fordham Intellectual Property, Media & Entertainment Law Journal
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National Defense is Now an Exportable News Source

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National Defense is Now an Exportable News Source

Is the United States principally opposed to state-run media?  It is safe to say that most United States citizens would find the U.S. government’s interference or influence in domestic news, which is aimed at informing the general public in the general public’s best interest, troubling and unconstitutional. 1 see also Near v. State of Minnesota ex rel. Olson, 283 U.S. 697 (1931).2 But, what about the U.S. government’s involvement in foreign news sources and media?  This question may be answered within the coming months and years.

The Countering Foreign Propaganda and Disinformation Act of 2016, (the “ House Act”), introduced by the House in May 2016 and eventually signed into law in December 2016 as part of the National Defense Authorization Act of Fiscal Year 2017 (the “Defense Act”).3 passed in both houses with a veto-proof majority and was subsequently signed into law by then President Obama.4.  The House Act’s and the Defense Act’s construction addresses propaganda originating in other countries; countries that Congress perceives as a threat to the United States.

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The preamble to the House Act asserts “[i]t is the sense of Congress that” foreign governments, including but not limited to, Russia and China are purposely generating propaganda that seeks to undermine the United State’s sovereignty, interests, and national security as well as the same for its allies.5 The House Act declares “the challenge of countering disinformation extends beyond effective strategic communications and public diplomacy, requiring a whole-of-government approach leveraging all elements of national power[.]”6 The purpose of the House Act is clear:  the United States believes that ‘disinformation and propaganda’ in foreign media is not only real, but also poses a severe threat to the United States and its allies.   The nefarious motives of Russia, China, and the other unnamed countries, present themselves in propaganda and intentions to undermine U.S. Sovereignty and must be counteracted.

The Defense Act contains the final mark-up of the House Act.7  It calls for the establishment of the Global Engagement Center (the “Center”) within 180 days of the Defense Act becoming law.8 The Center will be created by and with the cooperation of the Secretaries of the Department of State, the Department of Homeland Security and “other relevant Federal departments and agencies.”9 The Center will be housed within Department of State10 and the Head of the Center will be appointed by the President.11 In its charge, the Center shall “…lead, synchronize, and coordinate efforts of the Federal Government to […] expose, and counter foreign state and non-state propaganda and disinformation efforts aimed at undermining United States national security interests.”12 It is the stated objection of the United States to counter foreign media it perceives to be propaganda.

Exactly how countering foreign propaganda will be accomplished will develop in the coming years. But it will be accomplished, in part, by: “[identifying] current and emerging trends in foreign propaganda and disinformation in order to coordinate and shape the development of tactics, techniques, and procedures to expose and refute foreign misinformation and disinformation and proactively promote fact-based narratives and policies to audiences outside the United States.”13 The proactive refuting of propaganda with fact-based narratives developed by the United States through the Center is arguably tantamount to U.S. state-run media abroad.

The Defense Act does, however, provide a specific limitation, “None of the funds authorized to be appropriated or otherwise made available to carry out this section shall be used for purposes other than countering foreign propaganda and misinformation…”14 Ultimately, Congress has mandated the creation of a Center to identify foreign propaganda and provided the Center with the authority to actively promote ‘fact-based’ news outside the U.S., yet has explicitly limited the Center’s reach to foreign nations.

The approach to countering-propaganda-media in the United States is, to say the least, complicated.15 But, it would seem that an approach is now legally exportable. Due to the newness of the Defense Act, there is not presently a challenge to its creation or purpose. It will be interesting to watch the development of the Center’s existence and how it may be challenged here in the courts of the United States and what that implicates for our constitutional principle of freedom of the press.

Melek Dunn