Two days ago, Special Counsel Robert Mueller charged 13 Russian nationals and three Russian entities with conspiracy to commit fraud and conspiracy to commit wire fraud against the United States. The basis of these allegations is that Russian individuals and entities used fake identities to spend money, pay protesters, and operate social media accounts, with the goal of influencing our 2016 Presidential election.
These activities violated laws prohibiting foreign nationals from spending money to influence United States elections and laws banning agents from foreign entities from engaging in political activities without first registering with the Attorney General. Further, foreign nationals entering this country must provide truthful information on their visa applications, and some of the Defendants traveled to America without disclosing that the true purpose of their visit was to collect intelligence to inform their election-meddling operations. At first blush, some of these activities appear to be protected by free speech guarantees, but recent case law on both dishonest speech and foreign participation in United States elections likely indicates otherwise.
Some of the allegations in Mueller’s indictment are obviously not protected by the First Amendment. Lying on a visa application, for example, is not protected speech, nor is transmitting money under fraudulent pretenses. However, some of the Defendants’ activities appear to look somewhat similar to First Amendment protected activities. Organizing political rallies, posting articles on social media, and even paying protesters is all part of political speech. Plus, money spent on political speech is protected under Citizens United v. FEC. At least when it comes to United States citizens, the government is not allowed to discriminate on the basis of speaker identity when regulating campaign expenditures.
This prohibition on status-based discrimination could have applied to foreigners and non-citizens, who may be able to assert First Amendment rights regarding speech inside the United States. The First Amendment is generally a limitation on what Congress can do, and is thus speech-specific, not person- or entity-specific. The Supreme Court has held, however, that foreign nationals can be excluded from activities “intimately related to the process of democratic self-government.” These activities include serving as probation or police officers. Recently, the Supreme Court affirmed without opinion the panel of district court judges who held that foreign nationals living in the United States can be prevented from contributing to political campaigns. Thus, the laws preventing foreign nationals from influencing our election appear to be constitutionally sound.
Finally, the Defendants created speech using fake identities, pretending to be Americans – and sometimes co-opted the identities of actual people to do so. While the government is not permitted to ban lying outright, as noted in the Stolen Valor Act case of United States v. Alvarez, it is permitted to prohibit dishonest speech if the dishonesty creates a legally cognizable harm. Thus, while Congress cannot criminalize lies at public meetings about one’s military service, it can criminalize lies that perpetuate frauds to deprive people of benefits. Lying in order to deceive Americans into thinking opinions are held by Americans when it fact they are held by foreign nationals attempting to influence our election likely rises to the level of legally cognizable harm over and above simply lying in order to gain respect (and perhaps influence people). This seems especially true when actual identities are stolen. Falsity alone is not a sufficient basis for criminalizing speech, but here, the falsity is not entirely “determinative of the analysis.”
Robert Mueller is therefore on solid constitutional footing as he proceeds with his indictment. Bringing the Defendants to justice in this country is, however, another matter altogether.