Critics of Russia-funded news outlets are cheering Justice Department moves toward forcing the organizations to label themselves propaganda and publicly disclose their funding and editorial processes, insisting this does not threaten press freedom.
News outlets, including foreign-owned ones, and their employees generally are exempt from making public filings under the Foreign Agents Registration Act, a law applied regularly to lobbyists and foreign tourism boards.
But on Monday the two most prominent Russia-funded outlets operating in the U.S. — Sputnik and Russia Today — emerged in the crosshairs. A report said Sputnik is under investigation for possibly violating the law while Russia Today, also known as RT, disclosed that the Justice Department demanded a company that does its TV production register as a foreign agent.
Supporters of the Justice Department actions say the steps are long overdue, pushing back on concerns raised by press freedom advocates about international retribution against U.S.-funded outlets and about a slippery slope at home, where foreign-owned outlets ranging from Al Jazeera to the BBC employ American journalists.
"The information that we have learned is that RT is a news outlet funded by the Kremlin to promote propaganda," said Rep. David Cicilline, D-RI, who sponsors bipartisan legislation aiming to make Justice Department FARA reviews easier.
"It's an important step in developing good media literacy, so the consumers of information will know this is coming from the Russian government, that they're paying for it, and then they can assign whatever weight they want to it," Cicilline told the Washington Examiner.
FARA requires foreign agents that publish information to carry a disclaimer and to send a copy of material to the Justice Department. Some employees also must identify themselves.
FARA registrants must attach to their publications a two-sentence statement, reading: "This material is distributed by (name of registrant) on behalf of (name of foreign principal). Additional information is available at the Department of Justice, Washington, DC."
Matthew Miller, a former Justice Department spokesman who frequently denounces Russia's role in the 2016 election, said he was pleased with the action and that "at at some point we have to say enough is enough – we're not going to allow a Russian government-backed outlet intent on subverting our elections to operate with impunity."
Miller said delegitimizing Russia-funded news outlets could make it easier to subpoena them in criminal investigations. Justice Department rules adopted during the Obama administration in response to controversial leak probes offer news outlets some protection in criminal investigations.
A January U.S. intelligence community report said Sputnik and RT are part of Russia's "state-run propaganda machine" and "consistently cast President-elect Trump as the target of unfair coverage from traditional U.S. media outlets that they claimed were subservient to a corrupt political establishment."
RT did not identify the affiliated company contacted by the Justice Department, saying only in a statement that "[w]e are consulting with our lawyers and are reviewing the request."
Attorney Joshua Rosenstein, a FARA expert, said RT may face a Catch-22 if it challenges the Justice Department in court, having to make significant disclosures about its internal processes to prove they should not have to release these details.
"Fighting a FARA registration demand is risky and an uphill battle," Rosenstein said. If the outlet argues it deserves a statutory exemption as a news organization, he said, "the regulations place the burden for proving the exemption squarely on the purported foreign agent."
Rosenstein doubts a First Amendment challenge would prevail, likening FARA disclosures to campaign donation reporting the courts have upheld. He added that resisting the Justice Department may increase the risk of criminal prosecution for not registering.
If RT or Sputnik do register, there is uncertainty about whether editors and reporters would be forced to submit individual filings disclosing their employment to the Justice Department.
Rosenstein said he believes prominent editors likely would have identify themselves, but that it's unclear if other journalists would have to do so. Those affected probably would not not disclose their salaries, though freelancers may have to disclose their fee, he said.
Attorney Dan Pickard, another FARA expert, said U.S.-based employees of registered entities need to submit disclosure forms if they perform "substantive services" on behalf of the foreign agent.
Some press freedom advocates expressed concern on Monday that the Justice Department's pursuit of Russia-funded outlets may provoke reciprocal treatment for U.S.-funded news outlets overseas, and said the Justice Department may be setting a worrying domestic precedent.
Gabe Rottman, Washington director of PEN America, said it's reasonable to be concerned about foreign influence in elections, but that "it's very hard to distinguish between state propaganda and 'bona fide' news, which is explicitly carved out by FARA."
Trevor Timm, executive director of the Freedom of the Press Foundation, said "no matter one's feelings on Russia or Sputnik, I think it's concerning anytime the FBI gets involved in defining who is and isn't a journalist."
"The investigation into Sputnik crosses a long-observed red line for media," said George Washington University law professor Jonathan Turley. As part of that probe, a fired employee reportedly gave the FBI thousands of internal emails. "Ironically, since it is part of the Russian influence investigation, many of those normally supportive of the free press are silent," Turley said.
Representatives of two of the most prominent press-freedom organizations, the Reporters Committee for Freedom of the Press and Reporters Without Borders, did not respond to inquiries about the Sputnik investigation or RT's FARA registration issue.
Miller, the former Justice Department spokesman, said he can understand concern about retribution against U.S.-funded outlets, but that he doubts the pursuit of RT and Sputnik "opens that door to some massive abuse."
"You can always make a slippery slope argument, but the fact is there are checks that make the scenarios you're envisioning difficult," he said. "Media outlets could sue, they could apply public pressure as happened when the press pushed back against DOJ in 2013 and convinced Holder to revise the media subpoena guidelines. The fact that RT looks and acts differently from any of those other outlets is a key differentiator – none of those governments was using its media outlet as part of a multi-faceted campaign to subvert our elections."
Pickard said he believes the Justice Department makes judicious use of FARA.
"In my almost 20 years working on FARA-related issues and dealing with the registration unit at the Justice Department, it's become clear that the department officials are particularly conscientious and are appropriately respectful of the First Amendment," he said. "In my experience, I have never seen them require a registration anywhere it wasn't appropriate under the law."
The precise level of control Moscow exerts on RT and Sputnik is unclear to most outsiders, and the probe into Sputnik elicited conflicted accounts from former employees.
Although two former Sputnik employees alleged close control from Moscow, former Sputnik writer Cassandra Fairbanks told the Washington Examiner she didn't see any during her two years at the publication. She said her editor was a vocal Hillary Clinton supporter, that she was barred from accepting leaked documents from the online persona Guccifer 2.0 -- who dispensed Democratic emails allegedly hacked by Russia -- and that the outlet operated as a breaking-news "story mill" without much original content.
The Justice Department declined to comment, but Cicilline said he believes the department gained some new insights, motivating the FARA determination affecting RT.
Cicilline said he doesn't see the action or his bill as threatening press freedom. The law "does not prevent a foreign government from doing this," but only requires disclosure, he said.
"I think FARA doesn't do anything that endangers the First Amendment or prevents the media from doing its job," he said. "We have to err on protecting in a robust way freedom of the press, but this improvement to FARA and the work DOJ is doing can help highlight the source of this information."