“Should We Regulate Foreign Speech?”

The book can be found here. Symposium posts are available (from many individuals) here. My post is available as well.

Rick Hasen’s book highlights a very serious problem and offers limited solutions. It is right. I believe that more restrictive restrictions, such as banning “misleading advocacy”, will most likely lead to cures worse than the actual disease.

So I agree with Rick on many points. Rick suggested that we should limit foreign speech in order to prevent it from influencing election campaigns. 102-09).

It is very appealing to protect American self-government against foreign interference, particularly for those like myself who believe in a more nationalist mindset than the universalist. My view of myself is not that of a global citizen; rather, I consider myself to be a citizen in a specific country. I won’t call the UN to help me if I get lost in Elbonia; instead, I will call the American Embassy. My nation is the one that will defend me from peril. To my turn, I would like for fellow citizens to make their own political decisions, without interference from foreign countries (even friendly, but particularly adversarial, such as Russia). “God gave all men all Earth to love / But, since our hearts are small / Ordained for each one spot should prove / Beloved above all.” It is our place, to be governed; I am sure that many people in other countries feel the same about theirs.

However, many important data that is relevant to American politics comes from abroad. Others are temporary students or workers in the United States. There are many people in other countries. They can be citizens or political activists, researchers, scientists, or politicians. You might be able for them to share important facts or ideas regarding the American foreign policy and American actions on global problems, such as climate change, telecommunications technology (or artificial intelligence) or food production.

These people might be able to provide information on the overseas activities of American business and political leaders. These might be religious leaders from other countries who wish to encourage their American counterparts to follow their faiths. These journalists might work for foreign newspapers and write about American politics to a global audience. It is possible that they are foreign government workers (like academics like Rick, who work for an American government), or are allegedly connected in any way with a foreign government.

Although the Court recognizes the rights of American listeners, it has also ruled that information can be obtained from foreign sources. The Court was first to strike down an Act of Congress based on First Amendment grounds. Lamont v. Postmaster General (1965): A law prohibited the sending of communist propaganda from foreign sources. Foreign governments were generally considered to have been linked to them. Such a law, the Court held, “is unconstitutional because it … [is]A restriction on the free exercise of the First Amendment rights by the addressee.”

Rick (p. 106) is correct that it is not the end of this story. Perhaps the analysis should differ for laws focusing on election-related speech. There are many other things. Bluman v. FEC (2012). Judge Kavanaugh’s ruling for a 3-judge court upholding a ban against foreigners (other permanent residents) was summarily agreed to by the Court.[ing]to “expressly advocate for or against the election candidates in U.S. elections.” (One could also consider noting Meese v. Keene (1987), which upheld a requirement that expressive materials funded by foreign governments be labeled “political propaganda.”)

The matter gets more complicated once we get past the restricted zone of donations or express advocacy for candidates to “tightening foreign campaign spending ban”, (p.102). (The Bluman The court explicitly noted that the decision was not made on additional restrictions such as “issue advocacy” and “speaking out about public policy issues.”

Of course, if you really want to address foreign attempts to influence election results, then one will have to do much more than just “expressly pleading for or against” the election. Even if the Senator or President is not “susceptible”, sharp criticisms could still affect the outcome of an election. [a]Reasonable interpretation is not limited to an appeal for votes against or for a particular candidate. Even if the commentary isn’t directed at a specific candidate, it can have an impact on the election.[s]American political unrest” (p. 49). Even though the coverage isn’t advertising-related, it does mean that the distribution of the speech must be free. It will usually have cost money for writers to design, write and record the content.

It’s no surprise that Rick suggests (though maybe not entirely endorsing), Congress “proceed.”[ing]Even more widely and outlaw[ing] all the social media and Internet activity Russians engaged in to influence the 2016 and 2020 elections” (p. 104)—which would presumably extend equally to speech by Swedes or Britons or Israelis or Palestinians that may affect American elections. Rick says that while the Supreme Court may not be able to strike down laws that prohibit foreign entities from paying ads that incite unrest about contentious issues like racial injustice, immigration, and gay rights, it seems Rick sees this as a flaw in his jurisprudence. It is possible that an enlightened Court (not less “libertarian”) would fix this.

Rick also believes it would be illegal for an American candidate to receive opposition research on him from another country. This is because it’s a prohibited contribution of any kind to his campaign. Notice how independent spending does not include buying ads for cash.

Let’s say, for example, that in Summer 2024 Donald Trump is running to be President again. A top Kamala Hilary staffer gets a text message from a Slovene student in the Wharton School. He said: “I did extensive research on Donald Trump’s participation in Miss Universe, and I found out that Miss Slovenia claimed that Donald Trump had sexually harassed my daughter.” This is the story. According to the staffer, “I’d like to” and he does indeed get the information. He uses the information in the campaign, which many Americans find valuable.

Rick’s theory states that Harris receiving this would constitute a crime, as this “opposition research” is considered valuable. It might not be illegal under this theory if Harris receives it. Payed for it, since then it wouldn’t be a donation to the campaign, but that would be a very odd rule: We usually frown on paying for incriminating evidence, rather than thinking that paying for such evidence is what makes otherwise criminal conduct legal, plus what would the fair market value of such one-off incriminating evidence even be?) If it’s illegally contributed to a campaign then the Slovene publishing this information online may be treated as an independent expenditure made by a foreign national and therefore constitutionally insecure.

Rick does not elaborate on what Rick believes the appropriate constitutional framework for foreign speech on issues that could directly or indirectly impact American elections. However, I believe it would be useful for us to consider that question if “the foreign spending ban” were indeed tightened and if an altered Supreme Court faced a ban foreign “issue advocacy, speaking out on matters of importance to…” [American]”Public policy”. It is important to not only define rights for foreign citizens, even those who are living in America, but to also define rights for Americans to listen to a wide range of opinions, from every source, regarding American politics.

Rick appears to suggest that Rick’s possible explanation (p. 107) would be that foreign news media should publish such speech, but that it shouldn’t be published by other foreign speakers. (“[D]As complicated as any controversy over an extended general foreign spending ban could be, any law specifically designed to shut down fake news websites run by foreign entities like Russia’s Peace Data (described in chapter last) will cause trouble among Court conservatives. This is because the definitions of news media are so vague. As I’ve noted, the Supreme Court has generally held that the Free Press Clause protects “press” in the sense of a technology (the printing press and its technological heirs, which is to say mass media communications) and not “press” in the sense of an industry. Although that doctrine may change in the future, any change to it will require a difficult distinction about who has rights to free press and who doesn’t.

Rick endorses (p. 109) Sonja West’s suggested framework. Under this system, courts will identify “press” through “four factors: (1) recognition by other people as press; (2) holding yourself out as press; (3) education or experience in journalism training; and (4) periodicity of publication with established audiences. A Times of London editorial, or an article condemning an American politician who seeks reelection would therefore be “press.” It is possible that other online material will not be considered press.

However, this is a bad basis to define a term with constitutional meaning. Element 1 involves delegating constitutional rights decisions to unspecified “others”, often motivated by ideological or self-interest. The second element would allow advocacy groups to label themselves as “news”, “media” and other similar terms. Element 3 would, if accepted at face value remove protection from opinion magazines such as The New Republic, National ReviewIt is possible to include such things as academics, policy advocates, researchers from think tanks, policy advocates, etc., even though they aren’t journalists and sometimes only write occasionally so don’t have much experience in journalism. Element 4 would favor established media entities (however biased, deceptive, or foreign-government-influenced) over new upstarts.

Americans routinely make comments about foreign politics, even on elections. American government funding speech to influence citizens in foreign countries has been a tradition. These speech are often made by American nongovernmental organisations, including on issues such as democracy, transgender rights and religious freedom.

American newspapers with significant overseas circulation comment on the foreign governments’ politics and policies. American-based social media platforms and search engine companies enforce their policies regarding political speech, as well as any other speech in foreign countries. These may not involve significant spending on express advocacy to support or oppose a candidate (I am not certain), but Rick’s suggestion seems to go beyond this narrow area.

Perhaps we need to think that America, American organizations and individuals should be free to do whatever they want in other countries. However, we must also limit foreign speech that might influence American politics. The eternal truth that the strong do whatever they can while weak people suffer what they must, even though it is difficult to apply to military force, may make more sense when discussing politics. However, we might find it helpful to learn if there’s a general principle that can be applied to all restrictions to Americans’ right to talk about foreign election (e.g., about critical issues) and to us restricting rights of foreigners.

These are only a few thoughts to consider when considering “tightening” the existing restrictions on foreigners speaking about American elections.