The Foreign Agents Registration Act’s lurking threat to a free press

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Back in August, we flagged an important, if under-the-radar, federal case in New York involving the Foreign Agents Registration Act, a World War II-era law originally meant to counter Nazi propaganda but that is written so broadly that, were it applied consistent with its text, it could be used to target constitutionally protected journalism and other speech. The case we noted in August, involving a think tank analyst, is a criminal prosecution under FARA based on allegations that are, in part, legally indistinguishable from run-of-the-mill opinion journalism.

There have recently been a few updates in that case, including the Reporters Committee for Freedom of the Press filing a friend-of the-court brief supporting the defendant. The Reporters Committee also filed comments in a proceeding at the U.S. Justice Department to revise the federal regulation implementing FARA. We dive into those two things below.

First, it’s important to have a bit of background on how FARA works. Unless an exception applies, the law requires anyone acting as an “agent of a foreign principal” engaged in certain covered activities to register with the DOJ, file periodic disclosure reports, and submit and label “informational materials” one disseminates. “Willful” failure to register is a criminal offense. 

The law is a poster child of expansive and vague legislative drafting.

“Foreign principal,” for instance, is defined so broadly in the statute that it can cover even a U.S. citizen living abroad (like your newsletter author’s mom in Canada). 

“Agency” is usually a legal term of art that is limited to a person or entity acting under the control of another and where the agent’s actions can affect the legal rights and duties of the principal. One’s lawyer is a good example. You pay the lawyer to act on your behalf and the lawyer’s actions can legally bind you.

But the FARA definition, however, can be read more broadly. Crucially, an “agent of a foreign principal” can include acting merely at the “request” of a foreign principal — even if the “agent” makes an independent decision to take some action. So, for instance, if my mom asks me to call her this afternoon and I’m free and think that would be a great idea and do so, that could theoretically be acting at the “request” of a foreign principal. Or, in an example close to the allegations in the Terry case, discussed below, if a source overseas gives a journalist a good story tip, and the journalist independently decides to write the story, one could argue FARA applies. (Such an application would plainly violate the Constitution, but the literal text sweeps that far.)

Finally, activities that trigger registration under the statute are likewise defined broadly and cover pretty much any action intended to “influence” U.S. public opinion (“political activities”), as well as disseminating any written or audio-visual material (“publicity agent”).

Given the sweeping and vague language in the statute, the DOJ has historically issued federal regulations that attempt to clarify some of the ambiguities in the law. That’s the regulation that the department, at the tail end of the last administration, proposed amending. 

With that background, here is more detail on the New York criminal case and the Reporters Committee’s comments in the FARA rulemaking.

United States v. Terry

In July 2024, the Justice Department charged Sue Mi Terry, a foreign policy expert and former CIA analyst, with conspiracy to violate and failure to register under FARA. The indictment, in the U.S. District Court for the Southern District of New York, accuses Terry of being an unregistered foreign agent for the Republic of Korea, based on organizing meetings with ROK officials, disclosing “nonpublic” government information to ROK intelligence officers, and publishing articles and making media appearances advocating “ROK policy positions.”

As that last item suggests, many of the alleged activities described in the indictment look a lot like traditional news reporting, including cultivating sources, asking them for information, and then using editorial discretion in reporting that information. While the indictment includes allegations that Terry received gifts from the officials she interacted with, prosecutors do not allege that her journalistic-type activities were controlled by the ROK. One allegation, for instance, states that she texted a South Korean official a list of questions and then published an article that was “broadly consistent with the responses.”

Terry has filed a motion to dismiss the indictment, arguing that FARA must be construed narrowly to avoid First Amendment concerns. We agree, and filed a friend-of-the-court brief in support in early March.

We made several arguments in support of the motion to dismiss. In particular, we noted that requiring journalists to register as “foreign agents” poses a different concern than requiring lawyers, public relations consultants, or other advisers who work on retainer for a client to register. As we wrote in the brief, journalists could face pressures to avoid “reporting that could trigger scrutiny from the FARA Unit” and “even the intimation of foreign influence would fatally undermine the trustworthiness of the journalism in the eyes of the reader, listener, or viewer.” In other words, the requirement that one register as a “foreign agent” would be “poison” for a profession that “relies on both actual and perceived autonomy to survive.”

We also pointed out a number of examples of important public interest journalism that relied on foreign sources and tips. For example, in 2019, The New York Times reported on China’s treatment of ethnic minorities based on 403 pages of internal documents leaked from inside the Chinese Communist Party. 

And we noted that journalists often report on foreign adversaries of the United States. We cited the groundbreaking “Face the Nation” interview with Soviet leader Nikita Khrushchev in 1957. Khrushchev himself noted that his desire in agreeing to the interview was to both improve relations with the United States and to promote the Soviet political system. Notably, “CBS was accused by some government officials of distributing communist propaganda.”

Finally, the brief lays out how, while FARA is written broadly, it hasn’t been applied that way. Were it applied “consistent with its textual sweep,” it would plainly apply to a substantial amount of First Amendment-protected speech, and would pose “vagueness” concerns because of its ambiguity — nobody really knows what qualifies as a “request,” for instance.

Complementary points were also raised in a friend-of-the-court brief filed by the Knight First Amendment Institute at Columbia University and the American Civil Liberties Union, which discussed the equities for civil society in general were FARA applied inline with its text. The brief cites the infamous case of civil rights leader W.E.B. Du Bois, who was investigated and prosecuted for distributing anti-nuclear literature from a French nonprofit. Du Bois was ultimately acquitted, but his reputation was deeply wounded by the case.

On March 19, the Justice Department filed its opposition to Terry’s motion to dismiss. Interestingly, the DOJ’s first example of Terry’s allegedly criminal “unregistered activities” is publishing “magazine articles purporting to convey her own independent views about Korea policy, but” where “in truth, the ROK Government paid her and gave her specific talking points.” 

Again, what’s notable is what isn’t in the quotation. Nothing in that statement precludes Terry from having simply agreed with the ROK’s position. And that sounds an awful lot like garden-variety opinion reporting.

We’ll be following this one closely.

The proposed FARA rule

Two days before we filed the Terry brief, we also submitted comments to the Justice Department on its proposed change to the FARA regulations. The fundamental concerns we expressed are similar to those in the Terry case — that FARA’s text paints with so broad a brush that it could be used to target reporting that the enforcers perceive as critical or unfavorable. The specific issue we flagged is a bit different.

Recall that FARA has a number of exceptions. The definition of “agent of a foreign principal” excludes some media organizations but the exclusion is narrow. One, it applies “solely by virtue of any bona fide news or journalistic activities.” What qualifies as “bona fide” is undefined and up to the discretion of the enforcer. Two, it only applies so long as the organization is 80 percent owned by, and its officers and directors are, U.S. citizens. Consequently, some media entities must rely on other exemptions in the law.

The most important is the so-called “commercial exemption.” That applies (1) to “private and nonpolitical activities in furtherance of the bona fide trade or commerce of such foreign principal” and, crucially, (2) to “other activities not serving predominantly a foreign interest.” The latter is the key thing to focus on here.

Under the current regulation, that exemption is pretty broad, and registration is only required when the activity predominantly serves the interest of a foreign political party or government. In other words, writing an editorial lauding the anti-bribery reforms of a private foreign company — even if done at the “request” of the company — would likely fall under this exemption because it doesn’t benefit a state entity.

The proposed rule would narrow that exemption dramatically by incorporating a totality-of-the-circumstances test to determine whether activity serving any foreign interest, not just that of a party or government, triggers registration.

And that’s a huge problem. As we put it in our comments, the “totality” test would “expand the Department’s ability to enforce FARA in a manner which, if not carefully supervised, could be selective and politicized” because of the possibility that it could “be used to force journalists or news organizations who are editorially independent but have some tie to foreign principals to register.” To be sure, we argue that deploying FARA in this manner would “flatly” violate the First Amendment, but the burden and chill of selective enforcement doesn’t go away even if one ultimately prevails after a lengthy court battle.

It remains to be seen precisely how the current DOJ will proceed with the rulemaking. It was initiated under the last administration, and Attorney General Pam Bondi issued a memorandum to the field early in her tenure disbanding certain task forces and units at DOJ with a role in FARA enforcement and limiting criminal enforcement to “conduct similar to more traditional espionage.” That could portend changes to the rulemaking.