Yes, there is No Smith-Mundt Act in India, nor anywhere else (except Japan?)

My colleague John Brown notes in a post that there is “No Smith-Mundt Act in India.” The context was an article by Rajiv Bhatia in which Bhatia wrote Indian diplomats that “rightly maintain that public diplomacy has to do with both foreign an domestic audiences.” 

John’s reference to the Smith-Mundt Act is the artificial division of the world between domestic and foreign based on America’s political border. This senseless division is what common understanding of the effect – and purpose – of the Smith-Mundt Act of 1948, as amended. To say this means the Act prevents the Government speaking to Americans is misleading – as is most discussion surrounding the Act – as the division is not on audience but geography.

In John’s post, he points us to comments by a Foreign Service Officer regarding the Smith-Mundt Act. These comments require clarification, as they are misleading and not entirely accurate (as I said, most discussion about the Act is ill-informed or inaccurate). Words matter here, which is perhaps ironic considering the Act provide the foundation authorization to use words (among other means of communication) with global audiences (yes, global).

The purpose of the Smith-Mundt Act of 1948, which was almost the Bloom Act of 1946 if it weren’t for a single Senator (who never gave a reason for his objection), was to authorize an information service and the “interchange of persons, knowledge, and skills…in the field of education, the arts, and sciences.” With regard to information, the original legislation authorized the Secretary of State to “provide for the preparation, and dissemination abroad, of information about the United States, its people, and its policies, through press, publications, radio, motion pictures, and other information media.” This information service moved to the United States Information Agency when it was established, several years later.

With all due respect, the comments by the FSO include that of my colleague Nick Cull, who is cited from his book as saying Smith-Mundt was the equivalent of posse comitatus for information is not a good comparison. First, it is important to understand the law applied only to certain activities of the State Department, and later the USIA. Many erroneously believe the Act applies, specifically the limitation on the government on domestic dissemination, applies to the entire government. It does not and does not even apply to the whole of the State Department. Second, the information was never intended to be off-limits. Indeed, it was the intent of the Congress that it would be accessed, monitored and even distributed by the media and the Congress as they deemed fit. It was the Government that was not to distribute the material. This is a material and not insignificant difference.

There were three restrictions, of which people only remember one. The first two dealt directly with preventing “Nazi-style” propaganda which was based on the elimination of alternative voices, and the Free Press movement of the mid-1940’s (which was largely based on preventing the conditions in which Nazi and Fascist propaganda could take over the minds of people) as well as concerns about unfair competitive advantages of a government-financed news agency. These two, which remain on the books today, untouched from their original form. These two are a prevention of a monopoly and the requirement to maximize use of private media whenever possible.

One can only say that the Zorinsky Amendment of 1985 “reaffirmed” something if the original intent was found lacking. This was the contemporary opinion, but it was based largely on the “closing the loophole” by Senator Fulbright in 1972 who tried to kill off both USIA and the Radios (RFE, RL, VOA) because the contemporary environment was substantially different from the environment for which they were created two-three decades earlier. The context of the Zorinsky Amendment is essential, but almost never included let alone understood. Zorinsky was objecting to a USIA (and “public diplomacy”) that far different than that of the 1950s and of the information services authorized in the 1940s (and of the information activities of today). Oft cited is Zorinsky’s statement that

The American taxpayer certainly does not need or want his tax dollars used to support U.S. Government propaganda directed at him or her. My amendment ensures that this will not occur.

However, the reader may be interested in what he said immediately prior to the above two sentences:

By law, the USIA cannot engage in domestic propaganda. This distinguishes us, as a free society, from the Soviet Union where domestic propaganda is a principal government activity.

There is considerable discussion within USIA about using the Agency's so-called second mandate to engage in domestic propaganda. The second mandate -- "telling America about the world" -- has never been implemented. It should not now be implemented as part of a USIA strategy to propagandize the American people on foreign policy issues.

A reading of Zorinsky’s public statements at the time clearly shows his use of the word “propaganda” was as a pejorative label for misleading and manipulative information. His reference to the Second Mandate is important, because the Congress, media, State Department (and its advisors) all highlighted the need to increase the education of the American public in what the government is doing abroad and why.

The Zorinsky Amendment led a federal court to exempt the information products of the USIA from the Freedom of Information Act. Ironically, the U.S. Advisory Commission on Information (now known as the U.S. Advisory Commission on Public Diplomacy) report of 1967, led by Frank Stanton, then head of CBS, wrote,

This Commission feels that, after almost two decades, the walls can come down. The time has come when the vigilance of Congress and the press may be relied upon to provide sufficient safeguard against partisanship and the promulgation of a particular Administration's point of view. The American taxpayer should no longer be prohibited from seeing and studying the product a government agency produces with public funds for overseas audiences. Students in schools and colleges all over this country who are interested in government, foreign affairs and international relations should not be denied access to what the U.S. government is saying about itself and the rest of the world. The Commission recommends that the Congress effect the same "open door" policy on overseas-intended information materials as decreed by the "Freedom of Information" Act (the Moss Act, passed July 4, 1966) for domestically-based governmental operations.

In legal terms, the past prohibition against domestic distribution has been de facto rather than de jure. There is nothing in the statutes specifically forbidding making USIA materials available to American audiences. Rather, what began as caution has hardened into policy. But the law notwithstanding, so hoary a precedent is not lightly discarded. The sense of Congress was accessory to its creation, and the sense of Congress is essential to its demise.

By the way, the Moss Act is today known as the Freedom of Information Act.

Readers may adjust their comments and refer to the generic “anti-propaganda” clause in nearly all information authorizations (and seemingly appropriations) today, but these are so generically worded as to be easily construed to prohibit any communication by any department.

With regard to the Congressional Research Service report of December 2009, the cautions that dropping the “firewall” may cause a shift away from audiences abroad is a red-herring and one that does not reflect CRS opinion but of some within the public diplomacy bureau in the State Department. The so-called “firewall” is not necessary to provide for the engagement of audiences in any particular area.

Back to John’s original point, the “firewall” does limit America’s ability to engage relevant audiences everywhere, both outside America’s borders and inside the borders. The limits can be as fundamental as preventing awareness of an online conversation to blocking domestic use of VOA material by private parties (which the U.S. Attorney General in 1972 agreed was an intent of the 80th Congress… and I would argue of the 79th Congress that passed the Bloom Bill in the House but was killed by one individual in the Senate).

For all the clarifications that were necessary, the Foreign Service Officer’s closing comments are spot on, however: removing the constraints of the amended Smith-Mundt Act would lead to more effective engagement. It is important however to be clear on what was amended and why it was amended.

It is worth noting that only Japan has a prohibition on domestic access to government broadcasts intended for audiences abroad. It should also be noted that the Canadian Foreign Ministry last year established a Public Diplomacy Bureau for Canada.

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