Perhaps you thought we would make it through the midterms without the U.S. Department of Justice taking sides by criminalizing political speech and advocacy from undesirable sources. You would be wrong. On Friday, the department (DOJ) issued a breathless indictment of a Russian national for engaging in a “conspiracy to defraud” the United States by facilitating the posting of political speech on the internet under assumed or anonymous names.
You may be thinking, “Why would I care if the DOJ prosecutes Russians for posting political speech on social media?” Russians make excellent villains, with their “menacing” accents and fetish for invading other countries. The answer dates back to the very origins of free speech itself: If you don’t protect offensive speech by stinky and offensive people, then you don’t have free speech at all.
This is why the American Civil Liberties Union (an organization that formerly supported civil liberties) defends neo-Nazis. This is why that monster Fred Phelps was allowed to protest at funerals for fallen servicemen. So if you’re a Department of Justice interested in taking control of political speech, you don’t start with the popular comic John Oliver. You start with the obscure and unpopular Russian Elena Alekseevna Khusyaynova.
Deputy Attorney General Rod Rosenstein could benefit from listening to one of his own speeches about the rule of law. He once accurately stated, “It is important to keep in mind that the rule of law is not just about prosecuting people who violate our laws. It is also about protecting people who offend our sensibilities.”
Let’s Look at the DOJ’s Case Here
Let’s consider the complaint affidavit the DOJ filed in the Eastern District of Virginia. First, this new DOJ villain is not, to my reading, actually charged with a crime. She has been charged with a violation of 18 U.S.C. 371, the conspiracy statute. The word “conspiracy” sounds sinister, but it only means an agreement to commit another crime. If you and I engage in a conspiracy to have a picnic, the DOJ has to find a law that prohibits picnics before it can allege a violation of 18 U.S.C. 371.
So what is the law that Khusyaynova allegedly conspired to violate? The DOJ’s theory is that Khusyaynova failed to register as a “foreign agent” with the DOJ before conspiring to engage in political speech. Its argument is that Khusyaynova helped make a “contribution or donation” to Republicans by managing the budgeting and payments for various Russian companies that operated social media pages, “designed to attract U.S. audiences and to address divisive U.S. political and social issues or advocate for the election or electoral defeat of particular candidates.”
The DoJ says Khusyaynova is required by law to register in the United States as a foreign agent and disclose to the Federal Election Commission (FEC) any money spent on political speech.
DOJ uses two preposterous applications of the law to charge this political speech as a crime. First, it argues that 22 U.S.C. 611 and 22 U.S.C. 612 require a resident of Russia who apparently has never set foot in America to register as a foreign agent in the United States if she helps buy political ads in the United States.
As I and others have written before, this law (the Foreign Agents Registration Act, or FARA) is a scofflaw that the DOJ has apparently only used to pursue its non-leftist political opponents and never before used against somebody who never came to America. It specifically requires the “agent’s” actions to take place within the United States, implying the physical presence of the agent, which the DOJ has not alleged in this case.
Second, the DOJ is characterizing all political ads that support any candidate for political office as a contribution subject to regulation and disclosure to the FEC. Yet this theory has been clearly struck down by the Supreme Court, which ruled that buying political ads that are not coordinated with a candidate is protected political speech.
Foreigners Should Have Free Speech, Too
Foreign access to the American marketplace of ideas, particularly during elections, is not only legal under the First Amendment, it’s desirable. We Americans should not be forced to consume only news sources that are on the DOJ’s approved list. It matters not that these foreigners spoke under assumed or fake names.
Consider Simon Pegg, a British-born actor whose real name is Simon Beckingham. Did he commit a crime by speaking out against Donald Trump? Or what about that Brit, Reginald Kenneth Dwight, who meddled in American politics by encouraging the president to change his stance on AIDS research? You probably know him as Sir Elton John.
Foreign agent Mike Myers, known for his character Dr. Evil, committed Russian-like evil by meddling in American politics when he used his character to slam Trump. Foreigners Seth Rogan and Russell Peters also violated the DOJ’s theory of FARA by speaking out against President Trump.
Did any of these sinister foreigners register with the Department of Justice or report to the FEC before saying things that were “designed to attract U.S. audiences and to address divisive U.S. political and social issues or advocate for the election or electoral defeat of particular candidates?” Of course not. These are popular speakers whose speech does not offend the DOJ’s political bias. Thus, they may safely express themselves under the unwritten but widely known left-wing immunity to the DOJ’s prosecution of political speech.
Then the DOJ Ignores Actual Collusion
The choking irony about all of this is that former DOJ No. 4 Bruce Ohr colluded with foreign national Christopher Steele to interfere in the 2016 election while apparently breaking actual non-speech laws. Ohr nevertheless remains gainfully employed by the agency entrusted with enforcing the very laws he appears to have broken. But Ohr aligned with the left, so his actions go unpunished.
Rosenstein, who effectively runs the Department of Justice and undoubtedly signed off on this theory of prosecution, can be quoted to illustrate the principles that this prosecution so obviously violates. Rosenstein says he opposes selective prosecution of speech based upon viewpoint. For example, he told one audience, “We use the term ‘rule of law’ to describe our obligation to follow neutral principles.” On another occasion, he stated: “We govern ourselves in accordance with the rule of law rather [than] according to the whims of an elite few or the dictates of collective will.”
But this Rosenstein statement, most of all, illustrates that wrongheadedness of this kind of prosecution:
In the Robert Bolt play that I mentioned, Thomas More tells his son-in-law, William Roper, that the rule of law is so important that he would never deviate from it, even to kill the Devil.
Roper insists that he would cut down every law, if necessary, to destroy the Devil.
More replies, ‘Oh? And when the last law was down, and the Devil turned round on you — where would you hide, Roper, the laws all being flat?… [I]f you cut them down — and you’re just the man to do it — d’you really think you could stand upright in the winds that would blow then?’
More concludes, ‘Yes, I’d give the Devil the benefit of law, for my own safety’s sake.’
Trust the free market of ideas. We have far more to fear from government “protecting” us from dangerous ideas than we do from the ideas themselves. The answer to offensive or false speech is more speech, not criminal prosecution.
Russia may seem like the Devil. But if you put the Department of Justice in control of prosecuting the Devil’s speech, you will have surrendered your own protection when the “whims of an elite few or the dictates of collective will” turn on you.
Rosenstein talks the talk. Now if we could only get him to walk the walk.