Legal ambiguity may have crippled DHS’s new board from the start.
The swift backlash to a new federal anti-disinformation board shows how quickly misconceptions can spread—and also how the slow evolution of federal law is hampering efforts to counter them.
On Wednesday, Department of Homeland Security leaders announced the formation of a Disinformation Governance Board to counter harmful false information aimed specifically at migrants. Such disinformation has “has helped to fuel sudden surges at the U.S. southern border in recent years,” according to an AP article on the new board.
Some were quick to complain. “Rather than protecting our border or the American homeland, you have chosen to make policing Americans’ speech your priority. This new board is almost certainly unconstitutional and should be dissolved immediately,” wrote Sen. Josh Hawley, R-Missouri, who last year encouraged rioters at the U.S. Capitol.
Of course, there’s nothing in any of the statements from DHS or other officials to suggest that the new board will suppress constitutionally protected speech.
But the question of what the board is allowed to say is somewhat more ambiguous. U.S. law broadly allows the federal government to inform the public about public safety, the law itself, etc. But other laws prohibit the government from engaging in anything that might be called influence operations aimed at the American people.
Such activities are governed by the 1948 Smith-Mundt Act, which essentially allows the State Department to engage in influence operations aimed at foreign audiences but the act (and a later “modernization” of the act) expressly prohibit State from attempting anything similar aimed at domestic populations.
But does it prohibit DHS from doing so? To some extent, the question is open because the 20-year-old department hasn’t ever tried to.
“DOD does information-supported military objectives. Each of the departments can do public affairs—which is to inform the American public, not to influence—and then the State Department gets to do public diplomacy, which is about influencing foreign audiences. Where's DHS? Conspicuously absent.” said Michael Lumpkin, a former Navy SEAL and Defense Department official who stood up the State Department’s Global Engagement Center to combat disinformation operations abroad.
One interpretation of the law holds that since it’s illegal for the State Department to conduct domestic influence campaigns, it’s also illegal for DHS. Another is that because DHS is not explicitly named in the Smith-Mundt Act, which predates it by decades, it’s free to conduct influence operations. The ambiguity could hurt the credibility of the new DHS board, and thereby cripple it from the start.
The regulation of government messaging is of concern across the political spectrum. In 2019, the appointment of Michael Pack to head the U.S. Agency for Global Media at the State Department provoked a similar response from Trump critics. “We need to strengthen laws to impose disclosure requirements for government messaging to prevent the use of covert domestic propaganda to mold U.S. public opinion,” the Brennan Center’s Raya Koreh wrote in The Hill. “A healthy democracy depends on the public’s ability to hold the government accountable for its messages, and government news must be unmistakably recognizable for what it is.”
But while there may be a need for new legislation to better define the guardrails of government speech, it’s hard to imagine bipartisan consensus on how to draft such law.
“My sense is that the Hill [meaning Capitol Hill] is running away from this because it is a slippery slope,” Lumpkin said. “We just haven't seen a champion who says, ‘Okay, we need to modernize you know, things [like government speech] for social media for the world,’ because it's really complicated.”