For nearly a year and a half, Special Counsel Robert Mueller piloted an audacious effort to protect Americans from “divisive” political speech from foreigners who might cause “discord” within the United States. If his successors are successful, the Department of Justice will gain the authority wielded by the Soviets and the Chinese to prevent politically unacceptable foreign ideas from reaching American eyes and ears.
A May 24, 2019 order in the “Russian interference” case United States v. Concord Management & Consulting exposes a particularly troubling flaw in the government’s effort to control, manage, and curate political ideas from abroad. The special counsel appears to have forgotten to explain how foreign political speech broke U.S. law.
According to the May 24 order, the government is required to demonstrate that Russia-based company Concord had a duty to play “Mother, may I?” with the DOJ and the Federal Elections Commission before posting political speech on the internet using assumed names. Without that, the entire criminal case falls apart.
As noted by Judge Dabney L. Freidrich, speech that might “sow discord among US voters through divisive social media posts and political rallies … by itself, was not illegal.” Truly, all political speech has the potential to be divisive or sow discord. The prosecution of any political criticism of Hillary Clinton without citing the specific laws supposedly being violated is troubling, to say the least.
The case against Concord rests on the idea that if a foreigner publishes “divisive” political speech critical of an American presidential candidate (but only if it’s not Trump), that person must first seek permission from the DOJ and the FEC, disclose his true identity, and reveal his source of funding.
Vivid proof of the potential for retaliation may be found in the DOJ bringing a criminal action to punish political speech that opposed its preferred candidate. The Concord case is all about letting the world know that the DOJ will not tolerate outside criticism of the candidate that aligns with its politics. As far as the candidate that doesn’t fit their preference (Trump in 2016), it’s open season.
Pseudonymous Speech Is an American Tradition
The special counsel report offers sinister but unacceptably vague accusations against Concord, a Russian-based company that has entered its appearance to oppose criminal charges in an American courtroom. The Mueller report and indictment of Concord accuse the company of:
using fictitious US personas, to operate social media accounts and group pages designed to attract U.S. audiences. These groups and accounts, which addressed divisive U.S. political and social issues, falsely claimed to be controlled by U.S. activists. Over time, these social media accounts became a means to reach large U.S. audiences. … By early to mid-2016, IRA operations included supporting the Trump Campaign and disparaging candidate Hillary Clinton.
It might sound sinister for foreigners to generate fake social media persona to intercede in political discourse, but consider how Mueller’s theory affects our own freedoms. Many Americans operate social media accounts under assumed names to avoid retaliation for controversial political speech. The use of alternate “fictitious” personas to offer opinions has been around for as long as political speech has existed.
Wikipedia cataloged nearly 50 pen names of writers who contributed to the constitutional debates more than 200 years ago. Alexander Hamilton wrote under the pen name of “Phocion.” Patrick Henry, who famously exclaimed, “Give me liberty, or give me death!” nevertheless promoted his safety by writing under the name “Senex.” Many other “fictitious personas” remain secret to this day.
The Mueller prosecution seeks to criminalize such speech under the auspices of preventing “fraud.” Yet anonymous or even pseudonymous speech is an essential and longstanding tradition. It allows the powerless to insert unpopular, but needed, dissent into the public forum, strengthening debate in the process.
It shouldn’t matter that the people attempting to speak under pseudonyms are foreign. Criminalizing foreign speech and actively blocking it from entering a country are the hallmarks of dictatorship and should remind people of Soviet jamming of Radio Liberty or present-day efforts by China to block foreign speech from reaching its citizens.
Limiting Speech Is Un-American
The Mueller indictment’s criminalization of Concord’s effort to “sow discord” has chilling similarity to Chinese justifications for censorship: “to curb the harmful effects of illegal information on state security [and] public interests.” Mueller’s report makes little or no effort to explain why political speech that originates from another country is a crime. It’s not.
Mueller shouldn’t be attempting to punish speech critical of Clinton, particularly when no effort was made to criminalize the abundant foreign criticism of Trump. In protecting speech that occurs inside the United States, the Constitution doesn’t differentiate between foreign, domestic, anonymous or pseudonymous. In the boiling cauldron of political discourse, all viewpoints should be welcome. If the target of free speech is running for office, that simply makes the speech more relevant to the public.
It’s particularly damaging to freedom when the partisan Mueller squad criminalizes speech against Clinton but not Trump. Foreigners might not be allowed to vote in American elections, but free speech commands their access to our ears and eyes. We free citizens can decide what speech and claims over foreigners have merit, or not.
The solution to untrustworthy foreign political speech is not to empower politically motivated prosecutors to cleanse our democracy of what they deem “unacceptable speech.”If the really smart attorneys in the Department of Justice don’t agree with political speech, they are free to pen an opinion article explaining their viewpoint to Americans. If their ideas are so superior, prosecution should be completely unnecessary to triumph in the marketplace of ideas.
The DOJ Should Be Politically Neutral
Complicating matters further, on April 24, 2019, Concord filed a motion seeking an order to show cause why Mueller shouldn’t be held in contempt. Concord argued that the Mueller report violated rules prohibiting prosecutors from public pronouncements of the defendant’s guilt that might poison a potential jury pool. Concord pointed to the fact that Attorney General William Barr’s public statements went beyond the Concord indictment to levy a new, otherwise uncharged allegation that the Russian government was behind Concord.
Concord complained that the actions of Barr and Mueller led to multiple news reports “that the Defendants in this case were operating as part of a Russian-government led interference campaign expressly linked to the allegations in United States v. Netyksho et al. This despite the fact that the indictment contains no such allegation.” Concord also disputes Barr’s characterization that the company’s internet activity was illegal.
On May 9, 2019, the government responded to Concord’s contempt motion with barely disguised disdain: “the few sentences cherry-picked by Concord from the report do not create any reasonable likelihood of interfering with a fair trial or otherwise prejudicing the due administration of justice.”
The government did not dispute that Mueller and Barr introduced new allegations to the press, but minimized the significance arguing, “Because the unredacted sections of the report concerning this case largely track the allegations in the public Indictment, there is no likelihood that the public report will interfere with a fair trial or prejudice the due administration of justice in this case.”
In Today’s Political Climate, the More Speech the Better
Concord has pointed out that the government has the speech rules exactly backward. Concord has the right to speak out on any political topic, including criticizing Clinton. It’s the government that should refrain from trashing Concord outside of the courtroom.
The mere existence of Mueller’s Concord case deters foreign speech likely to offend our left-leaning DOJ. Suppose, and I’m picking a hypothetical example totally at random, a foreigner has information that a candidate’s son took money from a foreign interest while that interest had business pending before the candidate when he served in the government? If that candidate has the best chance to defeat Trump, should the DOJ deploy its awesome criminal prosecution powers to prevent that information from reaching the eyes and ears of the American electorate?
In a free country, we should welcome as much speech as possible, both foreign and domestic. In the post-Trump era, it appears like we’re headed for exactly the opposite.