Repeal of Regulation Entitled Firewall and Highest Standards of Professional Journalism

Citation85 FR 79427
Published date10 December 2020
Record Number2020-24736
SectionRules and Regulations
CourtUnited States Agency For Global Media
Federal Register, Volume 85 Issue 238 (Thursday, December 10, 2020)
[Federal Register Volume 85, Number 238 (Thursday, December 10, 2020)]
                [Rules and Regulations]
                [Pages 79427-79432]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2020-24736]
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                UNITED STATES AGENCY FOR GLOBAL MEDIA
                22 CFR Chapter V
                RIN 3112-AA03
                Repeal of Regulation Entitled Firewall and Highest Standards of
                Professional Journalism
                AGENCY: United States Agency for Global Media (formerly Broadcasting
                Board of Governors).
                ACTION: Final rule.
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                SUMMARY: The United States Agency for Global Media (formerly known as
                the Broadcasting Board of Governors) is repealing the regulation
                entitled ``Firewall and Highest Standards of Professional Journalism''
                published on June 15, 2020.
                DATES: This rule is effective without actual notice as of December 10,
                2020. For the purposes of enforcement, actual notice will be used as of
                October 26, 2020.
                FOR FURTHER INFORMATION CONTACT: Daniel Rosenholtz at
                [email protected] or (202) 920-2342.
                SUPPLEMENTARY INFORMATION:
                Background
                 The United States Agency for Global Media (``USAGM'') is an agency
                of the Federal Government that exercises authority over non-military
                United States government broadcasting. USAGM, which was created by the
                International Broadcasting Act of 1994 under a different name,
                currently operates five networks--Voice of America (``VOA''), the
                Office of Cuba Broadcasting (``OCB''), Radio Free Europe/Radio Liberty
                (``RFE/RL''), Radio Free Asia (``RFA'') and the Middle East
                Broadcasting Networks (``MBN'') (collectively the ``USAGM Networks'' or
                ``Networks'').
                 On June 4, 2020, the Broadcasting Board of Governors (``BBG''),
                USAGM's leadership at the time, promulgated a regulation governing
                internal agency operations, Firewall and Highest Standards of
                Professional Journalism, 85 FR 36150 (June 15, 2020) (codified at 22
                CFR part 531) (the ``Regulation'') that purported to implement section
                305(b) of International Broadcasting Act (``IBA'') (22 U.S.C. 6204(b)).
                 The Regulation was promulgated only when it became apparent that
                the leadership of USAGM was about to change via Senate confirmation of
                a USAGM Chief Executive Officer (``CEO''). See Firewall and Highest
                Standards of Professional Journalism, 85 FR at 36150 (expressly
                identifying the pending end of the Board's tenure as the motivating
                factor for the timing and issuance of the Regulation). Senate
                confirmation of a CEO caused the BBG to dissolve, and transferred all
                of its powers to the CEO. See 22 U.S.C. 6203(b)(1).
                 At its core, the Regulation asserts that ``a firewall exists
                between anybody involved with any aspect of journalism (e.g., the
                creation, editing, reporting, distributing, etc., of content) and
                everyone else in the organization,'' and that this former Board-
                preferred policy is violated when anyone outside of the ``newsroom''
                ``attempts to direct, pressure, coerce, threaten, interfere with, or
                otherwise impermissibly influence any of the USAGM Networks, including
                their leadership, officers, employees, or staff, in the performance of
                their journalistic and broadcasting duties and activities.'' 22 CFR
                531.3(b), (c). This regulatory instruction by its terms suggests USAGM
                is a typical broadcasting organization, which squarely contradicts
                USAGM's statutory mandate to promote particular United States values
                and interests. See, e.g., 22 U.S.C. 6202(a)(1)-(2) (mandating that
                United States international broadcasting be consistent with United
                States foreign policy objectives, international telecommunications
                policies, and United States treaty obligations); id. Section 6202(a)(8)
                (mandating the promotion of ``respect for human rights, including
                freedom of religion''). Unlike private broadcasting organizations, the
                mission of USAGM from its statutory origins has been to support United
                States foreign policy goals by furthering American values and
                facilitating the dissemination of objectively accurate factual news and
                information overseas. See United States Information and Educational
                Exchange Act of 1948, Public Law 80-402, section 2, 62 Stat. 6, 6
                (1948); see also, e.g., id. section 6201(2) (noting that the values
                furthered by the agency such as the ``[o]pen communication of
                information and ideas among the peoples of the world,'' further
                international peace and stability, and serve ``the interests of the
                United States''); id. section 6202(a)(1), (3) (requiring United States
                broadcasting to ``be consistent with the broad foreign policy
                objectives of the United States'' and with United States treaty
                obligations); id. section 6202(b)(1), (3) (mandating that United States
                international broadcasting include ``news which is consistently
                reliable and authoritative, accurate, objective, and comprehensive''
                and constitutes a ``clear and effective presentation of the policies of
                the United States Government and responsible discussion and opinion on
                those policies''); id. section 6202(b)(4) (requiring United States
                international broadcasting to include ``the capability to provide a
                surge capacity to support United States foreign policy objectives
                during crises abroad'').
                 Upon taking office, the CEO directed a review of the Regulation and
                sought external legal counsel.
                 The Regulation is hereby repealed.
                I. There Is Tension Between the Regulation on the One Hand, and USAGM's
                Statutory Mission and Article II of the Constitution on the Other
                A. USAGM's Statutory Mission
                 Since United States international broadcasting was first codified
                in 1948, the statutory objective was--and still is--``to enable the
                Government of the United States to promote a better understanding of
                the United States in other countries . . . [including by] an
                information service to disseminate abroad information about the United
                States, its people, and policies . . . .'' United States Information
                and Educational Exchange Act of 1948, Public Law 80-402, section 2, 62
                Stat. 6, 6 (1948) (codified at 22 U.S.C. 1431).
                 When VOA was codified in statute in 1976, Congress made clear that
                VOA's purpose was to serve American interests abroad. VOA was to
                ``communicat[e] directly with the peoples of the world by radio'' to
                serve the ``long-range interests of the United States'' as governed by
                enumerated principles which have been codified in the VOA Charter.
                ``VOA will serve as a consistently reliable and authoritative source of
                news [that is] accurate, objective, and comprehensive''; ``represent
                America . . . and . . . present a balanced and comprehensive projection
                of significant American thought''; and ``present the policies of the
                United States clearly and effectively, and . . . present responsible
                discussion and opinion on these policies.'' Foreign Relations
                Authorization Act, FY 1977, Public Law 94-350, section 206, 90 Stat.
                823, 831-32 (1976).
                 The current statutory mission of USAGM is to serve United States
                interests through Government
                [[Page 79428]]
                sponsored news abroad. Under the IBA, United States international
                broadcasting must:
                 ``[B]e consistent with the broad foreign policy objectives
                of the United States.'' Id. section 6202(a)(1).
                 ``[B]e consistent with the international
                telecommunications policies and treaty obligations of the United
                States.'' Id. section 6202(a)(2).
                 ``[I]nclude a balanced and comprehensive projection of
                United States thought and institutions, reflecting the diversity of
                United States culture and society.'' Id. section 6202(b)(2).
                 ``[I]nclude clear and effective presentation of the
                policies of the United States Government and responsible discussion and
                opinion on those policies, including editorials, broadcast by the Voice
                of America, which present the views of the United States Government.''
                Id. section 6202(b)(3).
                 Maintain ``the capability to provide a surge capacity to
                support United States foreign policy objectives during crises abroad.''
                Id. section 6202(b)(4).
                 ``[P]romote respect for human rights, including freedom of
                religion.'' Id. section 6202(a)(8). VOA is further required to
                ``present a balanced and comprehensive projection of significant
                American thought and institutions'' (id. section 6202(c)(2)) and to
                ``present the polices of the United States clearly and effectively, and
                . . . also present responsible discussion and opinion on these
                policies.'' (Id. section 6202(c)(3)). These tasks are seen as essential
                to serving ``[t]he long range interests of the United States.'' Id.
                section 6202(c).\1\
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                 \1\ See also 22 U.S.C. 6209(b)(1) (if CEO consolidates grantees
                he must require the consolidated grantee to ``counter state-
                sponsored propaganda which undermines the national security or
                foreign policy interests of the United States and its allies''); id.
                section 6201(2) (statutory purpose of IBA to ``[o]pen communication
                of information and ideas among the peoples of the world''); Foreign
                Relations Authorization Act, Fiscal Years 1988 and 1989, Public Law
                100-204, Title IV, section 403, 101 Stat. 1381 (Dec. 22, 1987)
                (``The Congress finds that the overriding national security aspects
                of the $1,300,000,000 facilities modernization program of the Voice
                of America require the assurance of uninterrupted logistic support
                under all circumstances for the program. Therefore, it is in the
                best interests of the United States to provide a preference for
                United States contractors bidding on the projects of this
                program.'').
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                 Because of this special mission, USAGM and its Networks do not
                function as a traditional news or media agency and were never intended
                to do so. See, e.g., id. section 6202(a)(3) (prohibiting United States
                international broadcasting from ``duplicat[ing] the activities of
                private United States broadcasters''); see also id. section 6202(a)(4)
                (prohibiting United States international broadcasting from
                ``duplicat[ing] the activities of government supported broadcasting
                entities of other democratic nations''). By design, their purpose and
                focus is foreign relations and the promotion of American objectives--
                not simply presenting news or engaging in journalistic expression. For
                example, the Networks are to articulate the American perspective while
                countering international views that undermine American values and
                freedom, or that might aid our enemies' messaging, by providing a
                ``clear and effective presentation of the policies of the United States
                Government and responsible discussion and opinion on those policies.''
                Id. section 6202(b)(3). They also counter soft-power through news in
                countries without a free media by presenting ``a variety of opinions
                and voices from within particular nations and regions prevented by
                censorship or repression from speaking to their fellow countrymen.''
                Id. section 6202(b)(7).
                 By law, the USAGM networks must ``not duplicate the activities of
                private United States broadcasters'' (id. section 6202(a)(3)) or ``the
                activities of government supported broadcasting entities of other
                democratic nations.'' (Id. section 6202(a)(4)). Under the Smith-Mundt
                Act of 1948 (as amended) USAGM may broadcast only news ``intended for
                foreign audiences abroad.'' Id. section 1461(a) (emphasis added). And
                ``[n]o funds authorized to be appropriated to the Department of State
                or the Broadcasting Board of Governors shall be used to influence
                public opinion in the United States.'' Id. section 1461-1a(a).
                 The IBA grants the CEO a number of broad authorities to carry out
                these weighty responsibilities to promote American interests abroad.\2\
                In particular the CEO has express power:
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                 \2\ The consolidation from Board to CEO was the result of a
                widespread view that USAGM's predecessor agency needed reform that
                could only come from the energy of a single leader. See, e.g.,
                Statement on Signing the National Defense Authorization Act for
                Fiscal Year 2017, at 3 (Dec. 23, 2016) (noting strong support for
                needed ``structural reform'' of USAGM and ``empowerment'' of the
                USAGM CEO); Markup on H.R. 1853, H.R. 2100, H.R. 2323, H. Res. 213,
                H. Res. 235: H. Comm. on Foreign Affairs, 114th Cong. 104-05 (May
                21, 2015) (statement of Ranking Member Elliot L. Engel) (describing
                predecessor bill as a ``much-needed overhaul''); Terrorist Attack in
                Benghazi: The Secretary of State's View: Hearing before the H. Comm.
                on Foreign Affairs, 113th Cong. 25-26 (Jan. 23, 2013) (statement of
                Hillary Rodham Clinton, Secretary of State) (describing USAGM's
                abilities to project soft power as ``practically defunct'').
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                 ``To direct and supervise all broadcasting activities
                conducted pursuant to this title.'' Id. section 6204(a)(1).
                 ``To review and evaluate the mission and operation of, and
                to assess the quality, effectiveness, and professional integrity, of
                all such activities within the context of the broad foreign policy
                objectives of the United States.'' Id. section 6204(a)(2).
                 ``To ensure that United States international broadcasting
                is conducted in accordance with the standards and principles'' set
                forth in the IBA. Id. section 6204(a)(3).
                 ``To review, evaluate, and determine, at least annually,
                after consultation with the Secretary of State, the addition or
                deletion of language services.'' Id. section 6204(a)(4).
                 To take a number of different expansive personnel,
                materiel, and contracting actions. Id. section 6204(a)(8), (10)-(11),
                (15)-(19).
                 ``To redirect or reprogram funds within the scope of any
                grant or cooperative agreement, or between grantees, as necessary.''
                Id. section 6204(a)(21).
                 To appoint the Officers and Directors of the USAGM
                Networks who serve at his pleasure. Id. section 6209(d).
                 The CEO also ``shall regularly consult with and seek from the
                Secretary of State guidance on foreign policy issues.'' Id. section
                6209b.
                B. Article II of the United States Constitution
                 Article II imbues the statutory scheme charging USAGM to promote
                American interests abroad. USAGM, which is now overseen by a single
                CEO, is not an ``independent establishment.'' \3\ Its CEO is
                ``appointed by the President, by and with the advice and consent of the
                Senate.'' 22 U.S.C. 6203(b)(1). The CEO thus has both the power and the
                duty to execute the applicable laws of the United States under the
                President's supervision. See, e.g., Myers v. United States, 272 U.S.
                52, 135 (1926); Statute Limiting the President's Authority to Supervise
                the Director of the Center for Disease Control in the Distribution of
                an AIDS Pamphlet, 12 Op. OLC 47, 56-58 (Mar. 11, 1988); The Jewels of
                the Princess Orange, 2 U.S. Op. Att'y Gen. 482, 486-87 (Dec. 31, 1831).
                Executive power is at its zenith in the realm of foreign affairs.
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                 \3\ It has long been the case, as the Supreme Court recently
                reaffirmed, just last term, that ``[t]he entire executive Power
                belongs to the President alone. . . . [L]esser officers must remain
                accountable to the President, whose authority they wield.'' Seila
                Law LLC v. CFPB, 140 S.Ct. 2183, 2197 (2020).
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                 ``[T]he President alone has the power to speak or listen as a
                representative of
                [[Page 79429]]
                the nation.'' United States v. Curtiss-Wright Export Corp., 299 U.S.
                304, 319 (1936). Therefore, the President is the ```sole organ of the
                federal government in the field of international relations''' (Id. at
                320 (internal citation omitted)) and the President has ``unique
                responsibility'' for the conduct of ``foreign . . . affairs.'' (Sale v.
                Haitian Ctrs. Council, Inc., 509 U.S. 155, 188 (1993)). Because USAGM's
                mandate is to further the foreign policy interests of the United
                States, the President's appointee necessarily must have the authority
                to participate in the substance of advancing that mission.\4\
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                 \4\ See also Harlow v. Fitzgerald, 457 U.S. 800, 812 n.19 (1982)
                (conducting foreign affairs a ``central'' ``domain'' of the
                President); Dep't of Navy v. Egan, 484 U.S. 518, 529 (1988) (quoting
                Haig v. Agee, 453 U.S. 280, 293-94 (1981)); Ludecke v. Watkins, 335
                U.S. 160, 173 (1948) (holding that the President is the nation's
                ``guiding organ in the conduct of our foreign affairs'').
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                C. The Regulation
                 The Regulation begins by asserting that USAGM is ``an independent
                establishment of the federal government,'' (Firewall and Highest
                Standards of Professional Journalism, 85 FR 36150) and claims that
                USAGM networks necessarily enjoy full editorial independence in order
                to maintain their ``professional independence and integrity,'' per
                section 305(b) of the IBA. This statutorily mandated firewall protects
                the independence of the networks by insulating their editorial
                decisions from interference from those outside of the network, or from
                impermissible considerations, as set forth in 22 CFR 531.1(a). Section
                305(b) of the IBA, however, provides only that ``[t]he Secretary of
                State and the Chief Executive Officer, in carrying out their functions,
                shall respect the professional independence and integrity of the Board,
                its broadcasting services, and the grantees of the Board.'' 22 U.S.C.
                6204(b).
                 The Regulation then posits that the ``newsroom'' of each USAGM
                Network is ``fully insulated'' from what it calls ``any political or
                other external pressures or processes that would be inconsistent with
                the highest standards of professional journalism.'' Id. section
                531.2(b) (emphasis added). At its core, the Regulation asserts it is
                violated when any person within the Executive Branch or a Network, but
                outside the newsroom, attempts to direct, pressure, coerce, threaten,
                interfere with, or otherwise impermissibly influence any of the USAGM
                networks, including their leadership, officers, employees, or staff, in
                the performance of their journalistic and broadcasting duties and
                activities. It is also violated when someone inside the newsroom acts
                in furtherance of or pursuant to such impermissible influence. Id.
                section 531.3(c). The Regulation purports to bind not only USAGM
                officials, but the entire Executive Branch--up to and including the
                President of the United States. The Regulation's only exception to this
                general edict is that the firewall does not prevent a USAGM CEO or
                Board from undertaking the same type of direction and oversight that
                those in equivalent leadership positions in an organization overseeing
                other reputable news organizations may provide, in a manner consistent
                with the highest standards of professional journalism. Id. section
                531.3(e)(3).
                D. The Regulation Is in Tension With USAGM's Statutory Mandate and
                Article II
                 There is a significant tension between the Regulation on the one
                hand, and USAGM's statutory mandate and the CEO's responsibilities and
                powers under statute and Article II on the other.
                 The Regulation relies solely on section 305(b) of the IBA for its
                conclusion that ``USAGM networks necessarily enjoy full editorial
                independence in order to maintain their `professional independence and
                integrity.' '' Id. Sec. 531.1(a).
                 But section 305(b) clearly does not use the terms ``respect'' or
                ``independence'' in anything approaching the concept of structural,
                managerial, or policy independence, or the manner in which those terms
                may apply to any given private news network. Rather, the statutory
                reference to ``professional independence'' requires the preservation of
                professionalism and technical excellence. See, e.g., Oxford English
                Dictionary (``professional'': ``[c]haracteristic of or suitable for a
                professional person''; ``[t]hat has or displays the skill, knowledge,
                experience, standards, or expertise of a professional; competent,
                efficient''; ``[t]hat has knowledge of the theoretical or scientific
                parts of a trade or occupation, as distinct from its practical or
                mechanical aspects''; ``that raises a trade to a learned profession'');
                see also, e.g., 22 U.S.C. 6202(a)(5) (requiring United States
                international broadcasting to ``be conducted in accordance with the
                highest professional standards of broadcast journalism''); Id. section
                6202(a)(6)-(7) (requiring broadcasting to ``be based on reliable
                information'' and ``be designed so as to effectively reach a
                significant audience''); Id. section 6202(b) (mandating, e.g., the
                provision of ``news which is consistently reliable and authoritative,
                accurate, objective, and comprehensive,'' presentations that are
                ``clear and effective,'' and ``reliable research capacity'').
                 By its terms, the IBA's reference to ``professional independence''
                is distinct from other statutory provisions purporting to establish
                entities independent from managerial or policy control or significant
                executive supervision. The phrase ``professional independence'' appears
                nowhere else in the United States Code. Statutory uses of the term
                ``independen[t]'' reference separate or freestanding entities, in
                contrast, and typically employ just the standalone adjective
                ``independent'' or ``independence.'' See, e.g., 5 U.S.C. 105 (``For the
                purpose of this title, `Executive agency' means an Executive
                department, a Government corporation, and an independent
                establishment.'' (emphasis added)); 24 U.S.C. 30 (``head of the
                department or independent agency'' (emphasis added)); 42 U.S.C. 1962b-
                1(b) (``each Federal department or independent agency'' (emphasis
                added)); 44 U.S.C. 1907 (referencing ``executive departments'' and
                ``independent agencies'').
                 Further, as discussed, USAGM Networks are statutorily prohibited
                from competing with private ``United States broadcasters'' and other
                ``state supported broadcasting'' from democratic nations, and they
                cannot seek to influence public opinion in the United States. 22 U.S.C.
                6202(a)(3)-(4); id. section 1461-1a(a). Conversely, the USAGM Networks
                are required to program specific content to meet ``[the] needs which
                remain unserved by the totality of media voices available to the people
                of certain nations,'' (Id. section 6202(b)(5)) and ``[i]nclude clear
                and effective presentation of the policies of the United States
                Government and responsible discussion and opinion on those policies.''
                (Id. section 6202(b)(3)).
                 The IBA provides that the CEO must, among other things, ``direct
                and supervise all [USAGM] broadcasting activities''; ``review and
                evaluate the mission and operation of, and to assess the quality,
                effectiveness, and professional integrity of, all such activities
                within the context of the broad foreign policy objectives of the United
                States''; and ``ensure that United States international broadcasting is
                conducted in accordance with [certain] standards and principles,''
                including that such broadcasting ``shall . . . be consistent with the
                broad foreign policy objectives of the United States,'' ``be consistent
                with the international telecommunications policies and treaty
                obligations of the United States,'' and ``be conducted in accordance
                with the highest professional standards of
                [[Page 79430]]
                broadcast journalism.'' Id. section 6202(a)(1)-(2), (5), 6204(a)(1)-
                (3). The IBA does not prohibit USAGM or the CEO from supervising the
                broadcasting networks; to the contrary, the IBA requires that the CEO
                oversee those networks for consistency with United States foreign
                policy and international treaty obligations, as well as the
                journalistic integrity of their operations. It is difficult to see how
                the CEO could fully discharge these statutory responsibilities under
                the Regulation, which prohibits him from ``direct[ing] . . . USAGM
                networks . . . in the performance of their journalistic and
                broadcasting duties and activities.'' 22 CFR 531.3(c).
                 Finally, nothing in the IBA purports to authorize USAGM Networks to
                engage in broadcasting activities that would impair the President's
                conduct of foreign affairs as ```the sole organ of the federal
                government in the field of international relations.''' Curtiss-Wright
                Exp. Corp., 299 U.S. at 320 (internal citation omitted); See also Id.
                22 U.S.C. 6202(a)(1) (requiring United States International
                Broadcasting to be ``consistent with the broad foreign policy
                objectives of the United States''); 22 U.S.C. 6209b (The CEO also
                ``shall regularly consult with and seek from the Secretary of State
                guidance on foreign policy issues.'').
                 But the Regulation's blanket prohibition on Executive Branch
                activities that affect editorial decision making--seemingly in all
                circumstances and for any reason--could improperly cabin the Executive
                Branch's ability to protect and advance its interests in foreign
                affairs, as necessary.
                 A proper analysis of section 305(b) should have taken into account
                the relationship between that provision and USAGM's statutory
                responsibility to oversee United States international broadcasting
                networks, as well as the President's authority to conduct foreign
                affairs. The Regulation failed to consider these relevant factors in
                its analysis, and instead incorrectly read section 305(b) in isolation
                to be a bar to effective supervision.
                * * * * *
                 A few examples, including those observed from USAGM's experience
                operating under the Regulation, illustrate that the Regulation is
                unworkable because it undermines the ability of USAGM to discharge its
                core statutorily mandated functions.
                 1. USAGM's statutory mandate and Article II necessarily require
                USAGM--at times--to control content. Yet directly mandating particular
                content would seem within the Regulation's prohibition.
                 This limitation creates tension with USAGM's proper role in those
                scenarios that, under USAGM's mandate, would require it to regulate
                content. Determining USAGM's proper role and assessing USAGM's ability
                to carry out its statutory mandate under the current Regulation can be
                unclear and generates operational uncertainty.
                 For example, could the CEO direct the newsroom to withhold a story
                that posed a clear and present danger to national security or to the
                survival of United States military personnel? Arguably, the Regulation
                prohibits such direction. See, e.g., 22 CFR 531.3(b) (``[A] firewall
                exists between anybody involved with any aspect of journalism (e.g.,
                the creation, editing, reporting, distributing, etc., of content) and
                everyone else in the organization.'').\5\ VOA has previously taken the
                position that the aspect of the ``firewall'' prohibiting control over
                content is absolute. See Steven Springer, Transcript of Editorial
                Firewall Session, at 5 (May 17, 2018) (``Really can't get any more
                basic than that. Basically it's saying no one from the US government,
                no agency or official, can reach in and interfere with our work. Very
                plain and simple.''). That absolute position collides with USAGM's
                statutory mission and Article II. But so long as the Regulation exists,
                it creates operational uncertainty that has slowed down or otherwise
                interfered with necessary action.
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                 \5\ The assertion that the Regulation bars any restriction of
                content is particularly striking because throughout American
                history, the private press have at times acceded to requests from
                the Executive Branch to refrain from the publication of certain
                material that, if otherwise distributed, would have imperiled United
                States national interests. For example, during armed conflict,
                newspapers and other outlets, complying with government appeals,
                have withheld information involving troop positions as well as
                imminent tactics, protecting the lives of American men and women in
                uniform. See, e.g., Gabriel Schoenfeld, Necessary Secrets: National
                Security, the Media, and the Rule of Law (New York, New York: W.W.
                Norton 2010); Daniel Smyth, Avoiding Bloodshed? US Journalists and
                Censorship in Wartime, War & Society. Vol. 32, Iss. 1. 2013. At
                other times, the reason for refraining from the publication of
                specific content has arisen from concerns involving America's
                security more broadly. For example, the New York Times complied with
                government requests in 2004 by holding an article about the National
                Security Agency's Terrorist Surveillance Program for more than a
                year due to a ``convincing national security argument.'' Byron
                Calame, More on the Eavesdropping Article, The Public Editor's
                Journal, New York Times (Dec. 31, 2005).
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                 2. Absent the ability to enforce basic standards of conduct through
                investigations and discipline, USAGM cannot effectively discharge its
                statutory duties, such as to ``direct and supervise all broadcasting
                activities,'' ``review and evaluate the mission and operation of, and
                to assess the quality, effectiveness, and professional integrity'' of
                USAGM Network broadcasts, and ``ensure that United States international
                broadcasting is conducted in accordance with the standards and
                principles'' set forth in the IBA governing journalistic standards. 22
                U.S.C. 6204(a)(1)-(3).
                 For example, some argue that the Regulation bars the CEO from
                promulgating policies governing employee conduct, such as the existing
                USAGM Social Media Policy, USAGM, V-A BAM 530-Social Media Policy (July
                8, 2019). See, e.g., Elliot Engel, Engel Statement on USAGM Officials
                Breaching the ``Firewall'' and Targeting VOA Journalist (Oct. 5, 2020).
                But this creates an unworkable situation because the CEO is required to
                ``ensure'' adherence to broadcasting standards and to ``direct'' and
                ``supervise'' all broadcasting activities. 22 U.S.C. 6204(a)(1), (3).
                Personal social media posts by journalists can affect their
                ``[f]airness, objectivity & balance'' (VOA Best Practices Guide, at 8-9
                (June 2020)) which in turn are components of ``the highest professional
                standards of broadcast journalism.'' 22 U.S.C. 6202(a)(5); see also The
                New York Times, Social Media Policy (Oct. 13, 2017). Such posts can
                undermine all USAGM Networks and accordingly justify heightened
                governmental restrictions on reporters' conduct. See Navab-Safvavi v.
                Glassman, 637 F.3d 311, 317 (D.C. Cir. 2011) (regulating private speech
                of VOA journalists necessary to achieve particularly strong
                governmental interest in presenting a clear message on United States
                foreign policy).
                 For there to be effective management of the USAGM Networks (or
                simply consistency in this area), the CEO must have authority to set
                and enforce such policies. But again, the Regulation injects a great
                deal of ambiguity and confusion. This ambiguity stalls, and sometimes
                stops, important action critical to USAGM Network operations. This,
                too, counsels for repeal of the Regulation.
                 3. Similarly, the CEO has express statutory authority ``[t]o
                redirect or reprogram funds within the scope of any grant or
                cooperative agreement, or between grantees, as necessary.'' 22 U.S.C.
                6204(a)(21). But making the decision to drastically reduce or increase
                a grantee's budget based on an acute, critical foreign policy need of
                the United States could arguably ``influence'' ``journalistic and
                broadcasting duties and activities,'' as prohibited by the Regulation.
                22 CFR 531.3(c). And there is at least a question about whether such
                action falls under
                [[Page 79431]]
                the Regulation's general exception. If it does not, the Regulation runs
                into the sound policy reason underlying the statute: USAGM must be able
                to reprogram funds quickly to focus resources on global hotspots as
                crises suddenly unfold in order to tell America's story where it
                matters most. Cf. 22 U.S.C. 6202(b)(4) (requiring that United States
                international broadcasting have ``the capability to provide a surge
                capacity to support United States foreign policy objectives during
                crises abroad''). This uncertainty and tension further counsel repeal
                of the Regulation.
                * * * * *
                 The foregoing examples demonstrate that the Regulation is
                unworkable in the context of managing USAGM consistently with the CEO's
                statutory mandate and the Agency's purposes, and should therefore be
                repealed.
                III. The Regulation's Vagueness Also Renders It Unworkable
                 The Regulation is so vague that it creates immense difficulty for
                USAGM officials attempting to determine the rules by which their
                conduct will be judged. This lack of ``fair notice'' and operational
                functionality has burdened the CEO and other USAGM officials in the
                discharge of their duties--and will continue to do so unless and until
                it is repealed. Vagueness delays action that requires expedition and
                needlessly consumes substantial scarce resources better spent
                elsewhere.\6\ Operationally, this vagueness renders the Regulation
                unworkable and further counsels its repeal.
                ---------------------------------------------------------------------------
                 \6\ To be sure, USAGM's interpretation of its own regulations
                receives deference. See Auer v. Robbins, 519 U.S. 452 (1997). But
                that merely mitigates--and does not solve--the substantial
                operational issues flowing from the uncertainties caused by the
                breadth and ambiguity of the Regulation.
                ---------------------------------------------------------------------------
                A. The Regulation's Prohibition
                 The Regulation reaches any conduct to ``direct, pressure, coerce,
                threaten, interfere with, or otherwise impermissibly influence'' any
                staff within the ``newsroom'' ``in the performance of their
                journalistic and broadcasting duties and activities.'' 22 CFR 531.3(c).
                This language sweeps in a substantial range of actions by the CEO and
                USAGM staff, but it is not clear which, or to what degree. Several key
                definitions make clear its problematic vagueness.
                 1. The range of actions that could be construed to constitute an
                ``attempt'' to ``direct, pressure, coerce, threaten, interfere with, or
                otherwise impermissibly influence'' is undefined. What constitutes such
                an attempt? What constitutes ``coercion,'' ``pressure,'' or
                ``interfere[nce]''? Must it be objective or subjective? If objective,
                objective against what standard? And what renders an influence
                ``impermissabl[e]''? What degree of causal connection must there be
                between action and effect? What work does performance of ``journalistic
                and broadcasting duties and activities'' capture? All the work of
                federal employees in the ``newsroom''? Or just some of it? The
                Regulation does not clearly answer these questions.
                 2. What constitutes the ``newsroom''? The Regulation initially
                defines that term as the news division of a USAGM-Network. The scope of
                the news division depends on the structure of the Network. Depending
                how a Network is organized the head of that Network may or may not be
                considered to be within the news division. The Board of a Network is
                considered to be outside the news division. Those within the news
                division must adhere to the highest professional standards of
                journalism in carrying out their responsibilities. Even if outside the
                newsroom, as set forth herein, the head of a network is still required
                to act in accordance with the highest standards of professional
                journalism in carrying out their roles with respect to the journalism,
                and thus ensuring the professional ``independence and integrity'' of
                the network. Id. Sec. 531.4(e).
                 But this definition is supplemented by a second definition of the
                ``newsroom'' in the definition of those outside the ``firewall.'' Under
                that definition, the newsroom is also composed of anyone who, under the
                ``highest standards of professional journalism,'' is ``involved with
                carrying out any aspect of journalism (e.g., the creation, editing,
                reporting, distributing, etc., of content) . . . .'' Id. Sec.
                531.4(c).
                 This distinction matters substantively. Under a pure structural
                approach, a publisher is likely outside of the newsroom's
                organizational chart. But looking to the publisher's substantive role,
                the publisher may ``edit'' stories under unusual circumstances, such as
                when a story is controversial or if there is concern about a libel
                action.
                 The second definition interjects substantial ambiguity. Two
                examples illustrate this point.
                 No serious newspaper allows the publication of material likely to
                result in a libel action without legal review. Assume the lawyer who
                reviews the story ``edits'' for legal reasons. Does the lawyer sit
                inside the newsroom? Almost certainly not. The lawyer ``edits'' the
                story, but not within the realm of the day-to-day ``editing''
                conception of the word ``editing.'' It is a special type of
                ``editing.'' Is that example inapposite, as it is not an everyday
                ``common'' usage of the term ``edit,'' or does the term ``edit''
                receive a broad definition? The Regulation does not provide an answer.
                Looking to the predicate clause regarding the ``highest standards of
                professional journalism'' is circular--almost all reputable newspapers
                subject certain stories to heightened legal review and a lawyer might
                ``edit'' in that limited circumstance. Does the term vary with the
                story, i.e., is the lawyer within the newsroom only as to those stories
                the lawyer ``edits''?
                 Most broadcasters have program directors that sit outside of the
                Newsroom. But when stories involve matters of critical import, or are
                highly controversial, program directors can and do step in and ``edit''
                or otherwise provide controls. But again, this is a special sort of
                ``extra'' editorial review that is outside the normal instance. So the
                analysis above applies.
                B. The Regulation's General Exception
                 The ambiguity as to what the Regulation prohibits is compounded by
                the general exception in the Regulation, that the CEO can ``undertak[e]
                the same type of direction and oversight that those in equivalent
                leadership positions in an organization overseeing other reputable news
                organizations may provide.'' 22 CFR 531.3(e)(3). This exception, too,
                is unclear.
                 For starters, what is a ``reputable news organization''? The
                Regulation's definition does not answer the question, defining that
                term as ``a news organization that adheres to the highest professional
                standards of journalism and has a firewall which insulates the news
                side of the operation to ensure that editorial decisions are not
                influenced in a manner or by factors inconsistent with the highest
                standards of professional journalism.'' Id. Sec. 531.4(i). The term
                ``highest professional standards of journalism'' is then defined as
                ``highest professional standards in the field of journalism.'' Id.
                Sec. 531.4(f). This does not provide clear guidance.
                 Moreover, within that definition, how does one define the term
                ``firewall''? Are there variations in what constitutes an acceptable
                ``firewall''? How does one determine what is permissible ``direction''
                or ``oversight''? If news organizations disagree, which standards
                control, and how is that decided? Is the reference to American ``news
                organizations'' or does one look to foreign nations? This last question
                is particularly important, as different nations--even those who share a
                strong tradition of a free press--have different traditions regarding
                some journalistic standards. For example, Britain is
                [[Page 79432]]
                democratic and has a strong and storied tradition of a free press. But
                its libel laws are much more plaintiff-friendly. Some British papers
                reflect this in terms of the publisher's authority over the newsroom.
                * * * * *
                 At the end of the day, the Regulation creates substantial hurdles
                to everyday USAGM operations through its lack of clarity. Under the
                Regulation any decision that could engender controversy and could
                somehow be argued to violate Regulation, must go through a long and
                time consuming legal and operational review--no matter how minor the
                decision. This is contrary to the purposes of a regulation of internal
                agency procedure, which should be to clarify and facilitate agency
                operations. It also undermines the purpose of centralizing control of
                USAGM in a single CEO. These points strongly support repeal of the
                Regulation.
                 Repeal due to the Regulation's vagueness is also supported by
                another related fundamental factor--accountability. The Regulation's
                vagueness breaks and obfuscates clear lines of authority and
                accountability within the organization. For example, if United States
                Government employees can break a story by knowingly and willfully
                publishing classified information, the voters and Congress should know
                why, and most importantly, whose call it was. And if the President or
                his officers decide against taking such a risk, they should have the
                clear ability to do so and to ensure that the decision is carried out
                by the organization.
                Conclusion
                 The Regulation was voted on by the BBG via an email notation vote
                hours before the CEO was confirmed by the United States Senate. The
                putative statutory basis for the Regulation has existed for many years
                and USAGM: (1) Did not promulgate a regulation during that time; and
                (2) did not seem to suffer any major issues--on this point--for want of
                a regulation. The Regulation is repealed.
                Effective Date
                 Analogous to the immediate operation of the Regulation now being
                repealed, this repeal is already effective upon the Agency having been
                promulgated by the CEO. Cf. Firewall and Highest Standards of
                Professional Journalism, 85 FR 36151. Publication will codify the
                repeal into the Federal Register. Those provisions pertaining to non-
                supervisory employees deemed subject to collective bargaining
                requirements set forth under the Federal Service Labor-Management
                Relations Statute and the Agency's negotiated labor-management
                agreements would only become effective subject to the terms and
                conditions within those bargaining agreements.
                Rulemaking Requirements
                 1. This final rule has been determined to be exempt from review for
                purposes of Executive Order 12866.
                 2. This rule does not impose information collection and
                recordkeeping requirements. Consequently, it need not be reviewed by
                the Office of Management and Budget under the provisions of the
                Paperwork Reduction Act of 1995.
                 3. This rule does not contain policies with federalism implications
                as this term is defined in Executive Order 13132.
                 4. The provisions of the Administrative Procedure Act (5 U.S.C.
                553, et seq.,) requiring notice of proposed rulemaking, the opportunity
                for public participation, and a delay in effective date, are
                inapplicable because, just like the underlying regulation hereby being
                repealed (Firewall and Highest Standards of Professional Journalism, 85
                FR at 36151), this rule involves a rule of agency organization,
                procedure, or practice. (5 U.S.C. 553(b)(A)). Further, no other law
                requires that a notice of proposed rulemaking and an opportunity for
                public comment be given for this final rule. Because a notice of
                proposed rulemaking and an opportunity for public comment are not
                required to be given for this rule under 5 U.S.C. or by any other law,
                the analytical requirements of the Regulatory Flexibility Act (5 U.S.C.
                601, et seq.) are not applicable. Accordingly, this rule is issued in
                final form. Although there is no formal comment period, public comments
                on this rule are welcome on a continuing basis. Comments should be
                submitted to Daniel Rosenholtz, 330 Independence Avenue SW, Washington,
                DC 20237 (email at: [email protected]).
                List of Subjects in 22 CFR Part 531
                 Conflict of interest, Communications, News media.
                Authority and Issuance
                 For the foregoing reasons, pursuant to the Chief Executive
                Officer's authorities under the U.S. International Broadcast Act (22
                U.S.C. 6201, et seq.), the United States Agency for Global Media amends
                22 CFR chapter V as follows:
                0
                1. Revise the heading for chapter V to read as follows:
                Chapter V--UNITED STATES AGENCY FOR GLOBAL MEDIA
                PART 531--[Removed and Reserved]
                0
                2. Remove and reserve part 531.
                Michael Pack,
                Chief Executive Officer, U.S. Agency for Global Media.
                [FR Doc. 2020-24736 Filed 12-9-20; 8:45 am]
                BILLING CODE 8610-01-P
                

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