There’s little doubt that Kremlin-bankrolled media outlets RT America and Sputnik played an insidious role in last year’s presidential campaign, as detailed in the U.S. Intelligence Community report on Russian meddling in the election.
But both outlets—part of “Russia’s state-run propaganda machine” that favored Donald Trump over Hillary Clinton, as the report concluded—insist they were, and are, simply practicing journalism.
That claim, however debatable, is prompting a certain amount of soul-searching among freedom of the press and First Amendment advocates now that the Justice Department and the FBI are reportedly targeting Sputnik’s and RT’s Washington, D.C., operations for alleged violations of the Foreign Agents Registration Act, otherwise known as FARA.
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“No matter one’s feelings on Russia or Sputnik or RT, I think it’s concerning anytime the FBI gets involved in defining who is and isn't a journalist,” said Trevor Timm, executive director of the Freedom of the Press Foundation, reacting to reports this week by Yahoo News that the FBI is investigating whether Sputnik is the agent of a foreign government, while the Justice Department recently notified RT America that U.S. law requires it to register under FARA.
First Amendment lawyer and press advocate Lucy Dalglish, dean of the University of Maryland’s Philip Merrill College of Journalism, warned that the government’s actions against Sputnik and RT “are a total slippery slope and that’s what makes me nervous about this.”
Dalglish told The Daily Beast: “This can launch a process that will start rolling downhill, and where are we going to be able to stop it?”
Noting that the FBI interviewed former Sputnik White House correspondent Andrew Feinberg, who provided the bureau with a thumb drive containing thousands of internal emails and documents concerning Sputnik’s coverage plans, Dalglish said law enforcement officials would likely be thinking, “This guy gave us information about Sputnik, let’s go see what RT is up to, and while we’re at it, let’s go look into these other alleged news organizations and start this big hunt for people who do not register. And, hey, we just used it on these folks, let’s go use it on everybody else.”
Such fears are by no means universal in the media advocacy community. Surprisingly, the American Civil Liberties Union—famous for its uncompromising purity on free speech issues—declined to enter the fray (perhaps out of concern that anything the ACLU said could undermine its defense of surveillance whistleblower Edward Snowden, currently living in Moscow under the protection of Vladimir Putin).
“Thanks for reaching out to us and our apologies for the delayed response,” an ACLU spokesperson emailed in response to a request for comment. “Unfortunately, I’ve been informed that we do not have anyone able to do this.”
Prominent First Amendment attorney Floyd Abrams—who, among other celebrated press freedom cases, helped defend the New York Times’ right to publish the “Pentagon Papers”—told The Daily Beast: “I have little doubt that Sputnik engages in newsgathering. Its conduct in doing so would generally be protected by the First Amendment. But if it was ordered by its Russian owners to slant its news coverage so as to favor one candidate for the American presidency over another, that would be of the most direct relevance to a highly significant ongoing investigation relating to American national security.
"It’s not that what Sputnik says affects anything more than the slimmest sliver of American public opinion. It’s that the decision of Russia to engage in such conduct matters a great deal.”
Abrams added: “I think foreign governments would understand the appropriateness of such an inquiry. My concern is that it’s critically important that the FBI stay away from investigating American publications based on their editorial positions. The Hoover days are over and we should do nothing to revive them. I have no reason to conclude that this investigation, if accurately reported on, strays over the line.”
Former Sputnik reporter Feinberg, whom the FBI contacted after his bosses fired him in May for refusing to ask questions during the televised White House briefing touting debunked conspiracy theories about Democratic staffer Seth Rich’s murder and Syrian autocrat Bashar al-Assad’s lethal gassing of his own people, voiced approval of the government’s actions.
“Sputnik does not function as a bona fide news agency,” said Feinberg, a veteran Washington reporter who wrote about his troubled, nearly five-month stint at the online and radio operation for Politico magazine. “To me, it feels more like an open-source intelligence-gathering operation than a newsroom,” he added, noting that he’s not well-versed in the intelligence world and was simply expressing an opinion.
“I think 99 percent of foreign news agencies operating in this country do a very good job, the way the job is supposed to be done,” Feinberg added. “But there’s a ham-handedness with Sputnik that makes them different. And if this [the investigation] sets a precedent, its that foreign governments cannot do shoddy propaganda masquerading as journalism and then try to hide behind the First Amendment that we guarantee to bona fide journalists. I think we should welcome this because agencies like Sputnik give all journalists a bad name.
“Sputnik and RT have used journalism for a hybrid warfare strategy. And wringing one’s hands and clutching one’s pearls about the government deciding who is and who isn’t a journalist—that’s not what’s happening here.”
Sputnik’s U.S. editor in chief, Mindia Gavasheli, dismissed the FBI investigation of his operation as the product of paranoia. “I think it tells about the atmosphere of hysteria that we are witnessing now,” Gavasheli told Yahoo News.. “Anything being related to Russia right now is being considered a spycraft of some sort.”
Gavasheli added: “Any assertion that we are not a news organization is simply false.”
Yahoo News investigative reporter Michael Isikoff, who authored the Sputnik and RT stories, said of the Russian outlets in the Feds’ crosshairs: “Its unusual—but these are unusual times. And it also may not be surprising given the pressure that the Justice Department has been getting from Congress over this. But no question this is going to raise some interesting issues for the press.”
U.S.-based foreign news organizations, financially supported by their home governments but nominally structured as independent entities—including the British Broadcasting Corporation, the Canadian Broadcasting Corporation, Al Jazeera, and Agence France-Presse—are traditionally exempted from the onerous FARA registration requirement.
This “media carve-out,” as Feinberg describes it, allows those organizations to operate freely under the constitutional provision that “Congress shall make no law…abridging the freedom of speech, or of the press.”
If forced to register as a foreign agent, RT and Sputnik will be required to file regular publicly available reports disclosing such details as ownership structure, contractual relationships, certain salaries, entertainment expenses, summaries of meetings and interviews, documents used in the preparation of stories, emails to U.S. government officials, and other minutiae, while meticulously labeling each of their broadcasts and online reports as Russian government propaganda.
“Narrowing the media exception under FARA could not only have implications for all sorts of other foreign news outlets operating in the US,” Trevor Timm added, “but also for Voice of America or independent journalists operating overseas if Russia chooses to retaliate by investigating them in a similar manner.”
Indeed, RT’s Moscow-based editor in chief Margarita Simonyan, in a statement disclosing the Justice Department’s demand for FARA registration, seemed to be making a veiled threat that American journalists should expect some form of retribution.
“I wonder how U.S. media outlets, which have no problems while working in Moscow, and that are not required to register as foreign agents, will treat this initiative,” Simonyan declared on RT’s web site. “The war the US establishment wages with our journalists is dedicated to all the starry-eyed idealists who still believe in freedom of speech,” she added. “Those who invented it, have buried it."
