Sanctions as a counter-strategy for disinformation
Berman Amendment notwithstanding, there's a way to do it, it turns out
In principle, it seems like state-sponsored disinformation targeting Americans is exactly the kind of thing that the U.S. Federal Government should try to restrict, especially state-sponsored disinformation that targets voters and undermines the informed-choice aspects of our democracy. Sanctions against state-sponsored disinformation outlets seem like they are, on face, the way you are supposed to do it.
Sanctions are an enormously attractive tool from the perspective of a disinformation researcher: they are, above all, a restriction on one’s own citizens from doing business with a sanctioned person. If we’re looking to answer the question “how do we stop Russia from doing in 2024 the exact same thing they did in 2016”, an answer like “make it illegal to give a platform to Russian disinformation targeting Americans” seems like it’s how it should work in theory.
In practice, this is not the case, but it seems to be changing. An indictment out of SDNY, U.S. v. Hanick, is one part of the puzzle; the other part is the May 8, 2022 designation of state-sponsored Russian television outlet RUSSIA-1.
This is somewhat abstruse subject matter so let me try to bullet point it:
The First Amendment applies in theory, if not in practice, to everyone in the world, because it’s essentially a negative restriction.
It is a remarkably plain and clear exercise in lawmaking, stating simply that:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
That doesn’t say “We are going to invade your country to protect your speech rights”. It just says “people” - not citizens, not white people, not men, people, which means every single human being on the face of the planet - will not have laws passed by the U.S. Congress restricting their speech.The free speech rights of foreign nationals, and a desire to maintain the free international exchange of ideas, motivated Congress to pass the Berman Amendment to the International Emergency Economic Powers Act (IEEPA), which limits the President’s ability to regulate informational materials with sanctions.
The IEEPA sets forth the President’s ability to sanction people as we currently use it. Broadly oversimplified, the Berman Amendment to the IEEPA - as it applies, for instance, to Ted Cruz’s 2020 kerfuffle with Twitter - says you can’t sanction informational materials. The Berman Amendment was clarified in 1994 to informational materials “regardless of format or medium of transmission”, which works out in case law to mean something like “sanctioned entities’ informational materials, regardless of format, can’t be blocked”.U.S. v. Hanick and the RUSSIA-1 designation make it looks like there’s a workaround to the Berman Amendment: substantive business deals with traceable income accruing to disinformation producers.
Hanick is a former Fox News producer who tried to start a Greek television station with Konstantin Malofeyev, a sanctioned Russian oligarch. On March 3, 2022, SDNY announced an indictment against Hanick for violating sanctions and making false statements relative to the TV station.
RUSSIA-1 is a popular Russian television station that airs regime-sponsored propaganda; notably, it recently featured Ireland being nuked. On May 8, 2022, it was sanctioned - not because of what it says, but instead:
Today, OFAC is designating three of Russia’s most highly viewed state-owned television stations pursuant to E.O. 14024 for being owned or controlled by, or for having acted or purported to act for or on behalf of, directly or indirectly, the (Government of Russia). All three stations are directly or indirectly state-owned and controlled and have been among the largest recipients of foreign advertising revenue, which is fed back to the Russian state. (U.S. Dep’t of Treasury, “U.S. Treasury Takes Sweeping Action Against Russia’s War Efforts”, home.treasury.gov (official website), May 8, 2022, https://home.treasury.gov/news/press-releases/jy0771)
SDNY’s reasoning in Hanick and the May 8 OFAC designation of RUSSIA-1 are of a piece, I’d argue.
They represent a conscious strategy to get around the Berman Amendment: by tracing financing. That’s why Hanick centers on the business deal that Hanick and Malofeyev tried to do; that’s why OFAC is mentioning RUSSIA-1’s advertising revenue, instead of the crazy things it says - which is closer to the U.K.’s stated rationale for sanctioning RT.
It makes RT look a lot less hard to sanction, that’s for sure.