Fact-check: BBG can now broadcast to Americans?
Saturday, December 17th 2016
The change to the governance structure of the Broadcasting Board of Governors through an amendment in the National Defense Authorization Act has raised some concerns that the BBG might turn inward to target American audiences through domestic broadcasting. An article at Politico stated that because of the Smith-Mundt Modernization Act of 2013, "the BBG can now broadcast in the U.S., too.” Fox’s Howard Kurtz was more accurate in writing that the three year-old amendment means that the "BBG's content can also be broadcast in the United States.” The first is inaccurate the second is slightly misleading. Here is why.
The BBG may not, and never could, broadcast in the United States. The Smith-Mundt Modernization Act of 2013 removed the ban domestic access to BBG and State Department public diplomacy content. In 1972, Senator Fulbright amended the Smith-Mundt Act to block not just the media, the public, and acadmices, from accessing USIA material (and not specifically VOA programming), but also to prevent Members of Congress from accessing it for any reason other than review. At the time, he also declared that VOA, RFE and RL (which had not yet merged) "should take their place in the graveyard of Cold War relics."
In 1985, Senator Zorinsky, upset at USIA's management, modified the Act to “close the loopholes” left by Fulbright’s amendment the previous decade. This led directly to a U.S. federal court ruling that USIA material, including VOA programming, was exempt from Freedom of Information Act (FOIA) requests. The 2013 “modernization” of Smith-Mundt permitted everyone — media to academics to anyone else — to not just access BBG and State Department's public diplomacy programming, but to share and even reuse it (as in rebroadcast).
As a technical matter, if you are a broadcaster and intend to rebroadcast VOA material (or any other BBG material), you must have the necessary licenses from the wire and image services that contributed to the VOA (or other) product you’re going to rebroadcast. VOA often incorporates AP, Reuters, or other news service content (reporting, photos, etc) under a license for non-US distribution (i.e. outside the United States market). Any broadcaster intentionally targeting markets within the U.S. must have the appropriate license from the appropriate service (AP, Reuters, Getty, etc) or not rebroadcast content with such licensed content. This is not a matter of Smith-Mundt, but a business matter of copyright licensing.
Where Politico missed the fact, is that a BBG entity, such as VOA, could produce a feature for a foreign market, say Ukraine or perhaps Liberia, on any subject and a U.S. domestic broadcaster may pick that up and distribute it domestically.
Around 2009, near the beginning of President Obama's first term, there were requests by at least one U.S. univerisity, a military school (I recall it may have been National Defense University), and NATO's TV channel to rebroadcast a VOA program on poppies in Afghanistan. Each was denied under the Act (even the NATO request as an American might watch the channel), though each may used the version that was available on YouTube. When Congress debated passing a law to permit domestic access to this film, the vote was strictly partisan. The irony is the film was made under President Bush and thus reflected President Bush's policy on poppies, which was markedly different to President Obama's policy.
Now, back to 2012, or before the “modernization” act. A U.S. domestic broadcaster may have rebroadcast any content without permission. The Smith-Mundt Act never had penalties, and never barred a domestic person from accessing or reusing the material. The Fulbright modification was a ban on availability. So in effect, nothing is really different, which goes to the point of the legislation: too many times, Government agencies were hiding behind Smith-Mundt to avoid engaging overseas audiences. In 2011, a situation was shared with me that an element of the U.S. State Department decided against an American going on a TV program for fear it would violate Smith-Mundt. A CBS radio producer once questioned — on Twitter — that NASA establishing a TV channel may be a violation of Smith-Mundt. (Smith-Mundt never applied to the whole of government, despite both popular belief, including the Defense Department's past insistence that it was covered.) The list goes on.
As for those who claim Smith-Mundt was *always* a censorship act — and for full disclosure my early writings bought into that narrative, though with a twist — in 1949, George V. Allen, the Assistant Secretary for Public Affairs and the "owner" of all U.S. public diplomacy including VOA, wrote in a DC newspaper that VOA was not off-limits and available on request. Read 1949: “You’ve told us why the Voice, but you haven’t told us what it is”.
For a more detailed discussion, including the purpose of the phrase "dissiminate abroad" in the original Act, see my post at MountainRunner.us on this.