Sue the Bastards: Federalist, Daily Wire Take the State Department to Court

Bookending the historic Consortium News suit, conservative news outlets take on the Global Engagement Center for funding "censorship enterprises" and blacklisting

In late October, the liberal anti-establishment investigative site Consortium News filed a historic suit against the United States of America and Newsguard,* describing a state-funded effort to label, defame, and stigmatize “media organizations that oppose or dissent from American foreign and defense policy.”

Now, a pair of conservative media outlets, The Federalist and The Daily Wire, have filed a bookend suit to match the Consortium News action. This time the defendant is the Global Engagement Center, the State Department organization ostensibly dedicated to countering “foreign state and non-state propaganda.” Much as Consortium News alleged the Pentagon funded Newsguard to censor its critics, the Federalist/Daily Wire action alleges the State Department sponsored Newsguard and the U.K.-based Global Disinformation Index as “censorship enterprises” targeting domestic speech, in direct violation of its charter.

Although the 1947 Smith-Mundt Act barring agencies like the State Department from engaging in propaganda at home was “modernized” through legislation passed in 2012, the broad ban on intelligence or diplomatic services meddling in the domestic news landscapes remains. Even the “modernized” Smith-Mundt Act declares bluntly that no State Department funds shall be “used to influence public opinion in the United States.” Additionally, as the Federalist/Daily Wire action cites, the law governing State Department conduct, 22 U.S. Code § 2656, says unequivocally that its mandate is limited to “matters respecting foreign affairs.” For the State Department to fund organizations that up and down-rank domestic media organizations is a ludicrously obvious no-no.

“The State Department’s mandate to administer foreign affairs is clear, making its role in the censorship scheme doubly unlawful,” says Margot Cleveland, serving here as the New Civil Liberties Alliance attorney representing The Federalist and The Daily Wire.

What is the alleged “censorship scheme”? The suit outlines a number of issues, but the most damaging appears to involve the use of GEC as a mechanism to funnel money to various censorship-by-proxy organizations. One of those groups is NewsGuard, which in a recent press release said a goal of its subscription-based “credibility assessment” services is to “systemically defund sources of harmful misinformation.”

NewsGuard in a presentation of its Library Partnership to the Alaska Department of Education explained in the unabashed dystopian style these organizations are becoming known for that “We are also licensing our White List of legitimate news sites to advertisers, which will cut off revenues to fake news sites”:

I reached out to NewsGuard about this passage. If the company licenses a “whitelist” of “legitimate” sites with the express goal of cutting off “revenues to fake news sites,” aren’t they effectively engaged in a blacklisting service whose real aim is to target what it considers illegitimate sites? Is there any reason, I asked, that this service should not be described as blacklisting?

The company has, now, responded. First of all, with regard to the term “blacklisting”:

Whatever term you use for our service, what we are providing is simply information —our assessments of sites — so that advertisers can decide where to place their ads.

So I guess that’s a yes on “blacklisting”? But that’s not bad, because, they say:

No publisher is entitled to any particular brand’s advertising dollars, and advertisers generally prefer to place their ads on sites that are credible and trustworthy. In a free market, we believe brands should be able to make their own choices about where to place their ads—and to license data that enables them to do so.

The whole point of this suit is that this is not a free market. The litigation is specifically designed to restore a free market. NewsGuard can rationalize all it wants, but when it takes government money and announces an intention to create “white lists” for some and “cut off revenues” for others, that’s the opposite of a “marketplace of ideas.” It’s a government-sponsored thumb on the scale of “credibility” and “trust.” In the absence of a big GEC- or Cyber Command-sponsored Scarlet Letter on disfavored content, advertisers would go to wherever the audiences are — and this arrangement interferes with that organic process.

GDI, meanwhile, says one of its goals is to “defund disinformation” and uses what it seriously calls a Dynamic Exclusion List — the most badly creepy euphemism since the Obama administration dubbed its “kill list” the “Disposition Matrix” — to bleed news outlets deemed “morally reprehensible” or lacking “redeeming social value” of ad revenue. The company also drew up lists of “least risky” and “riskiest” news outlets that seem to contradict its stance that it does not target “information about which reasonable parties may agree, such as varying political views.” Notice any patterns below?

Highlighted above are both the plaintiffs in this case and unusual entries on the “least risky” side. Now-dead Buzzfeed blazed real trails in disinformation by publishing the Steele Dossier, which it knew was not only “unverified,” but “contains errors.” Meanwhile there are interstate gas stations whose lavatory wall writings are more reliable than HuffPost, which for years now has been jumping on obvious fake news tales like the pee tape with the enthusiasm of a dog humping a leg:

The oldest-in-America New York Post, which published a correct Hunter Biden laptop expose by Miranda Devine, was deemed riskiest according to GDI. Meanwhile, papers that published the absolutely bogus lie that the report that the “alleged” laptop was “possible” Russian disinformation, or even had to publish corrections on that score, were put on safe island. Here for instance is an NPR fine-print oopsie:

NPR is also racking up a fairly extensive record of reports relaying official statements later proven incorrect, like that all 13 of the Ukrainian soldiers on Snake Island were killed or that “breakthrough infections might not be a big transmission risk.” I asked GDI if it only counted non-official errors when it computed its reliability scores. They too have yet to comment.

All news organizations get things wrong, but it’s beyond obvious now that organizations like NewsGuard and GDI are measuring something that has far more to do with where the outlets are oriented in relation to official narratives, than with factuality or reliability. This is why lawsuits by outlets with virtually opposite politics, like Consortium News and The Federalist, can be so strikingly similar in substance. The propaganda/anti-propaganda distinction is most crucial in both cases, and only secondarily is partisan politics a consideration, although it’s clearly more of an issue in this suit.

Moreover, it’s conspicuous that GDI targets popular-but-dissenting organizations like Reason and The New York Post. While the State Department has a massive budget for domestic propaganda operations (the #CTIFiles described $250 million for the year 2020), there’s a reason they’re not simply pouring more money into Voice of America or its “fact-checking website” Polygraph and trying to reach people that way.

That wouldn’t work, due to the increasingly obvious fact that government propaganda efforts are not trusted. Worse, traditional legacy organizations like The New York Times and the Washington Post are seen now as transparent vehicles for official propaganda, which is leading to significant loss of trust for them. The only way to correct that is to err less often, but since that doesn’t appear to be an option, NewsGuard and GDI and organizations like them are needed to correct the “mistake” of the media market. We can’t have people simply choosing what to read organically, can we? No matter how big a bullhorn you give the State Department or the Pentagon, they still need forms of censorship just to compete.

A last note, and a word of encouragement to reporters everywhere. The Daily Wire/Federalist suit would likely not have been possible had Gabe Kaminsky of the Washington Examiner not done such excellent investigative work on GDI in his “Disinformation Inc.” series. Kaminsky said he was “thrilled” to have an impact, and Cleveland generously credited the work. This is proof that if journalists work at cranking out true material, someone will put it to use.

“Gabe Kaminsky’s reporting at the Washington Examiner exposed the underbelly of the State Department’s role in the whole-of-government censorship scheme,” Cleveland said.  “Without Gabe’s reporting, The Daily Wire and The Federalist may never have known GDI targets their speech, and the country may never have known State Department’s role.”

In a related observation, it’s a little odd that breakthrough investigative reporting is needed to expose public programs like this. The GEC doesn’t publish even a fraction of its contracting award details, and even an Inspector General report about agency abuses stunningly left all but 3 of 39 GEC contractor names redacted:

What the public gets to see about GEC awards

Another IG report disclosed the on-the-nose detail that GEC lacked internal controls to “ensure contractors did not perform inherently governmental functions,” which is great, but the public shouldn’t need deep sourcing and/or IG reports to see basic budgeting information, like which agencies are being paid how much, and for what, by the State Department.

That this is necessary speaks to something inherently malodorous about these efforts, and is a reason we should all be looking forward to the discovery process in this case, and in the Consortium News proceedings. These suits are for all of us, and we all have an interest in how they turn out.

*Not “Newsguard Industries” as originally written.