Part Two:

Is the Domestic Dissemination Media Ban Obsolete?


Washington communications lawyer James M. Weitzman recalled an experience he had years earlier when he was in high school in Milwaukee. He wrote a letter to the VOA in Washington directed to the famous jazz announcer Willis Conover, requesting information about a record he had played, which Weitzman heard on shortwave radio. "I got back several weeks later a two-page letter that looks like a bill from a lawyer who doesn't want you to know what he's doing on a day-to-day basis, and he just takes everything he did for the month and crams it into a real dense paragraph that doesn't give you the desire to read it," said Weitzman. "They gave me all the reasons why they couldn't supply me with the name of the song. It came in a government-franked envelope, and I said to myself, how ridiculous. For the same postage and less effort they could have just scribbled down the name of the song."


HISTORICAL PERSPECTIVE


In 1948 Congress passed the Smith-Mundt Act, authorizing the government to disseminate information about the United States and its policies abroad. The Act also stated that such information would not be disseminated within the United States, its territories, or its possessions; such material would be made available "for examination only." Those three little words actually mean--hands off, and an act of Congress is required to free a USIA program for domestic release in less than 12 years.8 The first film Congress approved for domestic release was USIA's award-winning John F. Kennedy: Years of Lightning, Day of Drums in 1965. Since then Congress has approved nearly 100 additional USIA film and videotape programs for domestic release.

The Smith-Mundt Act was designed by people of another era--scarcely halfway through the 20th century, when the "war to end all wars" was over but the memory of Nazi propaganda was fresh. Congress wanted to be certain that a U.S. government agency could not brainwash citizens as Hitler had in Germany. On the commercial side, too, the domestic media did not want competition in the marketplace from a nonprofit government-funded entity; they pressured Congress to silence the VOA at home. In addition, the framers of the legislation expressed their concern about what it might cost the government to translate and mimeograph all the radio material for domestic release.

When VOA first signed on, on February 24, 1942, the announcer promised that the listener would hear the truth, the good news as well as the bad. Three decades later, in the 1970s, as head of a government panel, then CBS vice chairman Frank Stanton conducted a wide-ranging study of U.S. overseas information programs and advocated revoking the domestic dissemination ban. If VOA tells the truth, he reasoned, shouldn't everyone be able to hear it? The answer from Congress was still no.


PROPAGANDA THREAT


Today, as we speed along the information superhighway headlong into the 21st century, the American public is bombarded with information that was not available 50 years ago. Efforts to propagandize would be transparent. Moreover, technology has rendered useless the efforts of the U.S. Congress to muffle the voice of government broadcasts. USIA satellites cover the United States, making government TV programs available at home and abroad, and anyone with a modem can download transcripts of VOA news reports from the Internet worldwide computer network.

The major American radio and television networks, with vast news and information resources of their own, traditionally have not shown much interest in accessing USIA programs. Today, however, hundreds of cable operations are eager to receive and retransmit free government programs, perhaps without sufficient review. Congress consistently has expressed concern that any relaxation of the domestic dissemination ban would offer an exceptional opportunity for the occupant of the White House to use VOA and other USIA media products to advance his own political agenda. "By law, the USIA cannot engage in domestic propaganda," said the late Senator Edward Zorinsky, a member of the Foreign Relations Committee, as he introduced an amendment to reinforce the ban on domestic dissemination. "This distinguishes us, as a free society, from the Soviet Union, where domestic propaganda is a principal government activity. . . . The American taxpayer certainly does not need or want his tax dollars used to support U.S. government propaganda directed at him or her."

Today, according to Jon Beard of USIA's congressional relations staff, the obstacle is Republican disenchantment with Clinton administration policies. "They're not unhappy with VOA per se," said Beard. "They know we don't make the policy. But they're unhappy with the policies, and they read the VOA editorials saying what we're doing or not doing in Somalia or Bosnia, for example, and they go up a stump about it. It's one thing if the editorials are intended to be available for foreign audiences. But if they are readily available and are in fact distributed as well to folks in North Carolina, you can bet your bottom dollar we're going to have problems with Senator Helms and others."

It could be argued that the government promotes itself with taxpayers' money, from the White House press and communications office on down. "Government press releases, speeches, briefings, tours of military facilities, publications are all propaganda of sorts," maintains Michael G. Gartner, editor and co-owner of the Ames Daily Tribune (Iowa). "Propaganda is just information to support a viewpoint, and the beauty of a democracy is that it enables you to hear or read every viewpoint and then make up your own mind on an issue."9 To those who fear that American citizens would be brainwashed by USIA material, Gartner offered some advice: "Bring them up press releases from other government agencies and then bring them up VOA material and ask them which they think is the straighter."


GARTNER V. UNITED STATES INFORMATION AGENCY


Ames, Iowa, is a university town with an educated readership interested in the world at large. As editor of the Ames Daily Tribune, Gartner thought it would be interesting for his readers to see occasional reprints of VOA editorials, to inform themselves effectively about government policies on some important world issues and to discover how the VOA was explaining these policies to listeners abroad. After printing editorials on his op-ed page from Russia, China, and elsewhere, he telephoned the VOA in Washington to request that editorials be mailed or faxed to him. The VOA refused but said he was welcome to come to Washington, D.C., to examine the editorials--though he would not be permitted to copy them or take verbatim notes. Gartner had no desire to make the trip from Iowa and felt the editorials could be easily faxed or mailed to him. Nor did he feel that the restrictions on copying and note-taking made any sense. All of this, he believed, infringed on his First Amendment rights to receive and disseminate information. Therefore, with money that he had set aside to buy his wife a new car, Gartner filed suit against the USIA. "I asked for the right for anyone to view the material, to copy it, or to take notes, and to disseminate it in this country," said Gartner. "I also asked for the right to have the material mailed to me so I wouldn't have to go to Washington each time I wanted it."

Judge Donald O'Brien held that "the First Amendment proscribes the government from passing laws abridging the right to free speech; the First Amendment does not prescribe a duty upon the government to assure easy access to information for members of the press."10 The judge added, however, that even though it was the law, "it would be easy to conclude that USIA's position is inappropriate or even stupid."11

A couple of years later, as president of NBC News in New York, Gartner was once again rebuffed by the USIA. "I wanted to read what the VOA was saying about some international crisis or another, and I called down to Washington and asked again if they would send me material, and they declined," he recalled. "So I asked our London bureau chief to call Washington and ask for the same thing. . . . The VOA gladly faxed them the material. London then faxed it to me. I got what I wanted. It just cost the government a few dollars more, and it struck me as exceedingly silly."

Although Gartner lost his lawsuit against USIA, Judge O'Brien made it clear that the press could print anything it got its hands on. "There is no case or controversy as to plaintiffs' ability to publish verbatim transcripts already in their hands," wrote Judge O'Brien. Accordingly, USIA's general counsel's office provided the following internal guidance to agency staffers: "Agency officials may rightfully continue to refuse to disseminate USIA materials domestically. They should take care, however, not to imply that the public may not disseminate USIA materials domestically." Although persons examining documents were still prohibited from taking verbatim notes, no one would inspect their notes. However, no laptop computers or photocopying were permitted. Shortly after Judge O'Brien's decision, in November 1990, Congress somewhat relaxed the regulations and indicated that USIA material could be released to the public after 12 years.


IMPLICATIONS OF THE GARTNER CASE


A direct beneficiary of this new policy was Weitzman, who had tried for years to educate some of his broadcasting clients, especially multiple radio station owners, about the business opportunities of programming for a multicultural audience. He conceived the idea after realizing how many persons of foreign origin crossed his path each day. How, he wondered, do all these people stay in touch with their roots, with their countries of origin? Discovering that clients don't always appreciate the business advice they get from lawyers, he took his own advice and bought a small gospel radio station, WUST, in Washington. After a change in format, New World Radio began to seek out foreign-language programs. Weitzman researched the Gartner case and decided that the station would broadcast VOA language programs--if he could find a way to access them. When he telephoned the VOA for instructions on how to receive the more than 40 foreign language programs fed overseas via satellite, "they were very polite, but they wouldn't offer any help. To find out really how to do it took a little bit more intrigue than being a Watergate burglar." Someone finally gave him a number to call at the VOA. Weitzman called and, as instructed, refrained from telling the person who he was or why he was calling. "I asked him the questions about what we were doing, what we needed to know," said Weitzman. "He supplied information, but then he said, `You didn't talk to me,' and he hung up the phone."

A satellite dish arose on New World Radio's roof, and, with no promotion, the station went on the air. "We started broadcasting in Cambodian, Korean, Chinese, Amharic, Vietnamese, Filipino, and other languages, and the phones went crazy," said Weitzman. "We didn't understand what they were saying, but one thing was clear. Some people were crying tears of joy. These were people who were suddenly making a connection. It's their link to their origins, and it's their handshake to America."

Several years ago, C-SPAN decided to use its satellite subcarriers to transmit audio signals, thereby providing an additional service to subscribers. It signed up the BBC World Service and arranged to carry other English-language broadcasts from Korea, Japan, France, and Israel, among others, as well as Radio Beijing and Radio Havana. After the Gartner decision, according to General Counsel Bruce D. Collins, C-SPAN decided it was safe to pick up the VOA as well. "The Voice of America would not lift a finger to help us get hold of the signal," said Collins. "It was their interpretation of the statute after the famous Gartner decision that, while we could do whatever we wanted with the information if we could get it, they weren't going to lift a finger to help us." To get a good quality feed, C-SPAN sought permission to put in a hard-line wire connection between the VOA studio and its own, a distance of about six blocks. The answer was no. C-SPAN engineers then expended considerable amounts of energy and cash to rig up a special "black box" that would receive a clear satellite signal. Through C-SPAN ingenuity, VOA English-language programs are now available to some 6 million cable households. "C-SPAN long ago stopped thinking of itself as a television network," said Collins. "It thinks of itself, as do most information providers these days in the digital world, as an information network. And as information moves from analog to digital it's all going to be much easier to distribute." He is confident that any government that tries to control the free flow of information will fail.


THE FUTURE OF THE DOMESTIC DISSEMINATION BAN


In January 1994 VOA took a bold step by placing transcripts of its news and English-language broadcasts on the Internet computer service, designed for people "all over the world as a source of current and reliable news and information any time of the day or night," according to VOA executive Joseph B. Bruns. The initiative was approved by USIA lawyers even though Internet users in the United States also may download the VOA product. During its first few months of operation, an average of 4,000 to 7,000 files were downloaded each day by Internet users. "If you know how to do it, you can pull it in here," says Carol Epstein, Assistant USIA General Counsel. "But we're not telling you to do that. . . . There is a legitimate overseas distribution purpose in this, and there is some spillover because technology has overtaken this law [Smith-Mundt] . . . . " Epstein noted that the Smith-Mundt Act had never carried with it any enforcement authority. But former USIA General Counsel Richard Schmidt recalled that during the 1960s, when a Peace Corps volunteer brought back a USIA film from overseas that later showed up at a Democratic Party fundraiser, Congress asked the FBI to investigate, claiming it was pure political propaganda. The investigation was subsequently dropped.

In addition to the Internet gateway, anyone with a backyard satellite dish can pick up signals from the USIA's 24-hour, multiple-language global television network, WORLDNET, whose swath of satellite coverage blankets the United States and areas overseas. When Smith-Mundt was passed in 1948 there were no TV satellites. USIA films traveled abroad in diplomatic pouches.

Former USIA attorney John Lindberg noted that "there is a very real question about the enforceability of the [domestic dissemination] ban. You'll notice there are no criminal provisions, there are no penalties at all. And so, to a certain extent, it's a law without teeth. But it is really very difficult for the U.S. Information Agency to be in a position to relax the law because . . . it is the USIA that will always be suspect, whether they deserve it or not, of being the agency that will want to flood the United States with propagandistic material. If there's even a hint that they're doing that, some Senator or Congressman up on Capitol Hill is going to slap their wrist for it . . . [by] cutting their funds or passing even more restrictive legislation."

A former USIA General Counsel, Thomas Harvey, feels domestic dissemination laws must be brought up to date. "The technology is such that you've got TV satellite footprints all over the place, so a whole lot of people can pick up the signal, if not in Ames, Iowa, certainly in Dubuque or Des Moines or various other places," said Harvey. "So it is silly to say, well, we can't give it to you or we can't send it to you, when you know that someone with even the slightest bit of sophistication can tune their dish to pick up the signal."


USIA'S ROLE IN THE POST-COLD WAR ERA


The Clinton administration has emphasized on the Hill that the USIA has a very different mission in the post-Cold War world. "We are not a policy-advocacy organization," insisted Wilson, USIA's Director of the Office of Congressional and Intergovernmental Affairs. "The United States Information Agency is not just an agency of product, it is an agency of service."

Schmidt had a different opinion. "I think when Mr. Wilson talks about not having a policy-advocate position, I'm sure he's sincere," said Schmidt. "But there are a lot of people who would like to turn it into a domestic policy advocate."

Wilson cited the USIA's many other activities, including its educational and cultural exchange programs involving thousands of participants each year, and its economic research data on countries all over the world, which are of interest to city halls, academics, and business people in the United States and overseas. Making USIA materials more freely available in the United States, Wilson believes, would help at the grassroots level. "There are medium- and small-sized businesses that are desperate to find out how to get into markets abroad, not just where you can do business, but how to do business," Wilson contended. "They need help in understanding the culture of doing business. I would venture to say that there are many state and local officials who travel abroad more every year than their national representatives in Congress. Local governments, state houses, city managers, all represent constituencies that have a new interest in things international because it means jobs; it means business. Many in the administration feel that the role of the USIA . . . has got to be as a channel for the grassroots individuals with whom we have established relationships abroad . . . to connect them to those in the United States who are increasingly interested in being involved in those channels abroad."

Nonetheless, serious doubts persist on Capitol Hill. "My concern is human nature," said Richard W. McBride, former majority staff consultant to the House Foreign Affairs Committee. "It would distort the true mission of the USIA, which is to communicate with audiences abroad. With every new administration the people put at the top of the USIA are political appointees who see the value of domestic publicity to promote the White House point of view and themselves. There would be the temptation to divert resources from the overseas mission." McBride opposes a blanket lifting of the domestic dissemination ban that would give the agency a "procreative" role, but he would make it possible for academics and others with legitimate requests to obtain copies of documents by mail or fax upon request.

Because Carol Epstein had represented the USIA in the Gartner law suit, Gartner had some concluding questions for her: "If I come over to the USIA, am I now permitted to use the Xerox machine?"

Replied Epstein: "As much as we in the general counsel's office have been blamed for this law . . . there was considerable talk about how thinly we sliced the words to try not to interpret it absolutely verbatim and to give a little play to it. But the law is still there. And I don't think the Xerox machines would be allowed."

"Can I bring my own copier?"

"No."