Introduction

“Georgian Dream” considers the introduction of the U.S. Foreign Agents Registration Act (FARA) in the context of exercising oversight and control over civil society and media organizations. However, under any reasonable interpretation of FARA, such organizations should remain beyond the scope of its regulation.

The historical context of FARA’s adoption in 1938, its evolution, and administrative and judicial practice demonstrate that FARA does not regulate the transparency of funding sources for autonomous civil society and media organizations. Rather, it is designed to oversee the activities of agents acting on behalf of hostile foreign powers. Civil society and media organizations cannot fall under FARA’s definition of an “agent” because they fail to meet one of its key criteria—being fully or predominantly funded by a single source—due to their diverse funding channels. Judicial practice that has examined the constitutionality of various aspects of FARA further confirms that the law has a narrow purpose and scope of regulation. FARA’s objective is to monitor the direct influence of foreign powers on domestic politics, specifically in cases where foreign-funded individuals do not act autonomously but operate entirely under the directives of their principals.

The fact that the U.S. Supreme Court has never adjudicated FARA’s foreseeability and chilling effect can be explained by the following reasons: 1. The law remained largely unimplemented for an extended period, from the 1960s until 2016. 2. The narrow scope of regulation and purpose.  3. An independent judiciary system.  4. A strong political and legal consensus on the significance of freedom of expression in the country. In contrast, in Georgia, FARA would be applied within a political culture hostile to civil society, enforced by a "captured" judiciary that is devoid of commitment to the ideals of freedom of expression and association.

One fundamental issue must be taken into consideration in the process of adopting a FARA-like law in Georgia. In the U.S. legal system, which is based on precedent, the enforcement of FARA is guided by judicial rulings that are binding and serve as a source of law. Simply copying the text of FARA without considering its judicial application and the series of rulings that clarify its content, standards, and principles will not guarantee its transplantation in our context. If the Georgian Dream attempts to apply FARA in accordance with the logic of American judicial practice, it is clear that civil society and media organizations funded by foreign countries but operating with an independent agenda will not fall within the scope of a FARA-like law. As it seems, the “Georgian Dream” party seeks to adopt FARA, which at first glance appears incompatible for controlling civil society and media organizations due to the strict criminal mechanisms provided in the law and the potential for its selective and politically motivated application on an individual level.  This is openly indicated by representatives of the ruling party, including Irakli Kobakhidze,[1] Shalva Papuashvili, [2] and Mamuka Mdinaradze.[3] The ruling party envisions the application of FARA in Georgia, distinct from the American context, without the firmly established guarantees of an independent judiciary and the protection of freedom of expression and association. “Georgian Dream” considers using American-style law to harm civil society in Georgia.

Given that the risks of the abuse and chilling effect of the Law remain relevant in the U.S. and continue to attract the attention of critics, clearly, we cannot expect from the "captured" judiciary in Georgia not to interpret FARA’s provisions arbitrarily, unreasonably, or excessively broadly.

Thus, the introduction of FARA, equipped with a criminalization mandate, would lead to a fundamentally different outcome in the Georgian context compared to the U.S. To demonstrate this and to balance the disinformation spread by the “Georgian Dream”, we will examine the following: 1. The purpose and historical evolution of FARA. 2. The scope of FARA’s regulation.  3. The recent signs of FARA’s instrumentalization.   4. The constitutional and legal standards safeguarding the instrumentalization of FARA in the U.S.

The purpose and historical evolution of FARA

The origins of FARA date back to 1934, when one of the special committees of the 73rd Congress of the United States was tasked with investigating "non-American" activities.[4]  The committee held several hearings and published its final report in 1935, which presented evidence against specific individuals engaged in fascist and communist propaganda on behalf of foreign governments and political parties.[5] The committee's report urged Congress to pass a law requiring all agents involved in publicity, propaganda, or public relations representing any "foreign government, political party, or industrial or commercial organization" to register at the federal level.[6] By 1938, FARA had been enacted into law, requiring "agents of a foreign principal" to register information regarding their contracts and compensation.[7]  The law defined an "agent of a foreign principal" as anyone who "implements, is involved in, or agrees to engage in activities as a public relations counsel, publicity agent, servant, representative, or attorney on behalf of a foreign principal or any entity fully or largely, directly or indirectly funded by a foreign principal."[8]

The adoption of FARA in 1938 was directly linked to the issue of the informational security of a country facing the beginning of World War II.[9] At the time, FARA was seen as a mechanism to protect democracy and civil liberties from totalitarian states and as a compromise[10] aimed at criminalizing activities directed toward the overthrow of the government.[11] Instead of directly prohibiting such activities, the law relied on exposing them to the “spotlight of pitiless publicity” to control the spread of destructive propaganda.[12] During World War II, FARA was actively used to investigate and prosecute pro-Nazi activities in the United States.[13] In this sense, FARA represents one of the earliest and most notable examples of the weaponization of transparency measures as a tool of national security policy.[14] At the time, FARA enabled the suppression of Nazi ideology from public discourse, the closure of fascist publications, etc.[15] However, in the following decade, the law’s broad and vaguely defined normative terminology became a source of concern, as it created risks for prosecuting groups working on human rights issues and individuals (see Chapter 3).

FARA underwent three significant amendments in the 20th century: in 1942, 1966, and 1995.[16] In 1942, the enforcement of FARA was transferred from the State Department to the Department of Justice.[17] This change also clarified the law’s purpose: “to safeguard U.S. national defense, internal security, and foreign relations by requiring the disclosure of activities conducted for or on behalf of foreign governments.”[18] At this point, the focus of the law enforcement was shifted from Nazis to communists and their supporters. According to a report by the Department of Justice, between the end of World War II and 1963, prosecutions under FARA were initiated in 12 cases, three of which involved the Soviet Union and five involving Cuba.[19]

In response to the new economic landscape and increased trade in the early 1960s, the issue of lobbying regulation gained significance in the United States. A Senate report noted that “the old foreign agents have been replaced by lobbyists and public relations consultants, whose goal is not overthrowing the government but lobbying for policies favorable to their clients.”[20] To adapt to this new reality, congressional amendments shifted FARA’s focus to “those who promote not only foreign governments but also enterprises and businesses closely affiliated with them.[21] Thus, the 1966 amendments aimed to regulate economic interests.[22] Additionally, FARA introduced a restriction on government authority, shifting the burden to the government to prove that  “the agent is acting at the order, request, direction, or control of a foreign principal.”[23]

The last significant amendment to FARA was taken in 1995, which narrowed its scope in relation to the “Lobbying Disclosure Act”. Specifically, this act imposed a registration requirement on lobbyists acting on behalf of "external commercial interests."[24] According to the amendments, if a lobbyist registered under the “Lobbying Disclosure Act”, they were exempt from registration under FARA.[25] Following this change, the number of FARA registrations dropped by 30%.[26] Additionally, the 1995 amendments replaced the term "propaganda" with the more neutral term: "informational materials."[27]

The scope, objectives, and enforcement mechanisms of FARA and the Lobbying Disclosure Act are different. The lobbying law applies to domestic and foreign commercial organizations rather than governments or political parties. For an individual to be considered a lobbyist, lobbying must be the primary aspect of their activities, meaning that they must devote more than 20% of their time over 3 months to lobbying activities.[28] The direct aim of the law is to ensure transparency in the activities of corporations, trade associations, and professional lobbyists. The enforcement of the lobbying law is supervised by the Secretary of the Senate and the Clerk of the House of Representatives.[29]

Therefore, both the original version of FARA, enacted in 1938, along with its historical antecedents and subsequent amendments, as well as the law's extremely narrowed application, clearly indicate that its adoption was driven by the specific defense and economic security challenges of the time.

1. FARA Regulation Scope: Who does not fall under Fara

FARA requires agents of foreign powers—individuals who attempt to influence U.S. domestic or foreign policy by affecting American institutions or officials in line with the interests of a foreign power—to periodically disclose their activities, financial sources, and amounts. For example, if a lobbying company hired directly by the Georgian government lobbies Congress for military aid of the Georgian army, FARA would require the company to declare the actions taken to achieve these specific results.[30]

The current version of FARA includes the following actors under the definition of a “foreign principal”: a foreign government or political party, an entity or association established and operating under the laws of a foreign country, and any individual residing outside the United States, except U.S. citizens. [31]Due to the broad nature of the normative definition, an unscrupulous interpretation could potentially include, among others, foundations, public, and media organizations.[32] However, unlike the Russian "Foreign Agent Law," FARA establishes a standard of reasonable evidence for the relationship between a foreign principal and an agent.[33] An example of this is specific strategic litigation (Inducing Litigation), where the legal activities or boundaries of an organization are directly defined and outlined by a foreign source.[34] In such cases, there must be evidence of an agreement between the foreign principal and the agent, which makes the litigation process an action carried out directly on behalf of the principal.[35]

As for a foreign agent, it can be any person who acts as a representative, employee or servant of a foreign principal; operates under the direction, supervision, instruction, or control of a foreign principal; or acts under the direction of any other individual whose activities are directly or indirectly, wholly or largely financed, controlled, or subsidized by a foreign principal.[36]

For the relationship between a foreign principal and an agent to fall under FARA’s regulation, certain activities (covered activities) must be involved. Four types of activities induce the obligation for registration under FARA. Specifically, on behalf of a foreign principal or in alignment with their interests: 1. Requesting or distributing funds or "property of another value"; 2. Representation before U.S. government bodies or agencies; 3. Engagement in political activities; 4. Acting as a public relations counsel, information-service employee, or political consultant. The last two categories are the broadest and are often the subject of disputes and manipulation.[37] The law specifically defines "political activity" as any activity in which an individual engages with the intent to influence U.S. domestic or foreign policy in accordance with the interests of foreign governments or parties.[38]

The 2020 guidelines developed by the U.S. Department of Justice provide greater clarity on the matters outlined above. The department emphasizes that the purpose of FARA is "not to restrict free speech but to identify speech (or actions) that belongs to a foreign principal."[39] The department further clarifies that FARA should not apply to forms of speech guaranteed under the First Amendment of the U.S. Constitution, which, while potentially aligned with foreign interests, fundamentally represents an individual's or organization's normal exercise of free speech and association. [40] FARA does not require individuals to register simply because their views align with those of a foreign principal.[41] In the "normal case," the law means that the individual expresses their own views and acts independently, rather than as an "agent or alter ego" of a foreign power.[42] According to the Department of Justice, this is the "final test" for determining whether a person qualifies as an agent under FARA.[43]

The guidelines establish specific criteria for determining whether an individual should be designated as an agent under FARA. Specifically, it must be determined:

• whether the individuals who were requested by the principal to carry out certain actions were "specifically directed/defined." General calls or forms of communication targeting different groups (e.g., religious, ethnic minorities) do not fall under this criterion.
• Whether the required actions were specifically formulated. For example, a simple promise for political or financial aid cannot be considered as such a “request”. There must be specific instructions that align with the principal’s requests, confirming the action required.
• Whether the person implements specific action in exchange for compensation (money, support for business, etc) or under duress.
• Is there any affiliation between the individual's political activities and their interests and subjective views, whether it represents the individual/organization's true goals, ideas, or opinions? In other words, it must be determined whether they are acting on their own behalf or on behalf of the principal.
• What is the nature of the relationship between the principal and the individual? Is there evidence confirming their collaboration? Are the individual's actions coordinated by the principal? Does the individual receive feedback on the completed work? How often do the individual and the principal meet? Is their relationship documented through a written agreement, and is the action performed a one-time event or part of a broader plan?[44]

Regardless of a whole set of legislative issues that allow for the political instrumentalization of FARA, it is clear that, with the teleological interpretation of its intended scope, public and media organizations will not fall under its regulation. This is proved by the fact that, as of 2023, the share of non-commercial legal entities registered under FARA in the United States is less than 5%.[45] The same is evidenced by the practice of criminal prosecution under FARA, which has only been commenced against those individuals and organizations involved in money laundering, fraud, sanctions evasion, illegal contributions during electoral campaigns, bribery, terrorism, and hostile foreign powers.[46] FARA also establishes specific exceptions to which the law does not apply: diplomats and official foreign representation; commercial activities; lawyers (who represent foreign powers in court); lobbyists (who are registered under the "Lobbying Disclosure Act"); religious and academic activities; humanitarian aid; and "other activities that do not substantially serve foreign interests."[47]

In the context of public organizations, the practice established by the Department of Justice is particularly important regarding the last exceptional clause ("other activities that do not substantially serve foreign interests"). With the revised decision adopted on March 12, 2024, the Department classified one organization under this exemption based on the following reasoning: the activities related to the foreign power's grant were directly aligned with the organization's declared objectives; the foreign power did not exert significant influence on the organization's activities; and the organization's activities were not directly dictated and did not serve the interests of a foreign government or political party.[48]

2. The recent instrumentalization of FARA

The fact that ensuring transparency in the funding sources of public and media organizations is not the goal of FARA is evidenced by its general practice since its adoption to the present. Despite this, isolated cases of problematic use of the law are recorded, indicating normative setbacks with the law and making it a subject of criticism within legal circles.

In academic literature, an example of instrumentalization is cited as the political persecution of the anti-war public organization, the Peace Information Center, in the early 1950s.[49] Among those persecuted under FARA was the prominent civil rights and anti-racial segregation activist W.E.B. Du Bois.[50] From the 1960s onward, the law was practically not applied. Between 1966 and 2015, the Department of Justice initiated only 7 criminal cases under FARA.[51] It is notable that the relevance of FARA, which had declined since the 1960s, was revived in 2016 following the dissemination of information regarding Russia's interference in the U.S. elections. For example, in this context, charges were brought against members of Russia's Internet Research Agency for avoiding registration.[52] Registration was also imposed on two media outlets funded by the Russian budget: Sputnik[53] and RT TV America[54].

The latest example of FARA's use against critical public organizations occurred during President Donald Trump's first term, targeting environmental organizations.[55] For instance, the U.S. Department of Justice activated FARA against the non-profit environmental organization NWF, funded by the Norwegian government. Additionally, during the same period, representatives of the Republican Party in Congress began investigating the activities of several non-profit environmental organizations for FARA purposes. However, this investigation, initiated in Congress, did not lead to any legal action. These cases demonstrate the problematic nature of FARA, as they bypass the criteria outlined in the law, yet the temptation for its misuse remains.[56] It is noteworthy that the Department of Justice's decision requiring NWF's mandatory registration, which the organization opposed, did not reach the courts, so there is no final legal clarification on the lawfulness of NWF's registration obligation.

The risks of FARA's misuse in terms of its constitutionality have been acknowledged in both academic literature[57] and among political and civil rights organizations. This criticism intensified starting in 2016, when the law was "revived," initially in response to evidence of Russian interference in the U.S. elections, and later, during President Donald Trump's administration, due to the political inclinations of his administration against environmental organizations.[58]

Both highly reputable and experienced conservative organizations (e.g., Americans for Prosperity) and liberal organizations (e.g., ACLU, NRDC, and Oxfam America) have expressed concern that the overly broad and vague nature of FARA could be harmful to freedom of expression and association.[59] Recently, this criticism has intensified with the viewpoint that, in various parts of the world, including in Georgia,[60] some of the legislation aimed against civil society organizations[61] has, at least rhetorically, been based on FARA or in some cases, on identical versions of it (e.g., in Nicaragua).[62] These laws have been used to weaken or dismantle civil society, as seen in Nicaragua where nearly 3,000 civil organizations were shut down, which became possible due to the absence of an independent judiciary and the unconstitutional broad interpretations of FARA-like laws.[63]  

3. Constitutional and Legal Standards Preventing the Instrumentalization of FARA

As noted, the instrumentalization of FARA in the United States is secured by, on the one hand, the narrow scope and purpose of its regulation and on the other hand, the significant political and legal consensus on the importance of freedom of expression. The U.S. Supreme Court has not deliberated on the chilling effect of FARA on freedom of expression precisely due to this consensus, as well as the fact that the law was largely unenforced from the 1960s until 2016.

Supreme Court on FARA’s objective

Supreme Court cases addressing various aspects of FARA confirm that the law has a narrow purpose and scope, aimed at controlling the direct influence of foreign powers on local politics, particularly when individuals funded from abroad do not act autonomously but, as agents, are fully subject to the directives of their principals. The reasoning developed in these cases is sufficient to conclude that the Court considered a narrow interpretation of the law’s purpose and scope as a prerequisite for assessing its constitutionality. According to the Court, "The law aims to identify information of foreign origin so that listeners and readers can know that the information does not come from a disinterested source."[64] The Court also points to the legislative committee’s findings, which clarified that the legislator’s intent was not to require agents to disclose information that did not pertain specifically to activities conducted on behalf of a principal.[65] The Supreme Court further postulated that the law’s objective is not to subject individuals to penalties for actions that offend patriotic sentiment.[66]

Thus, US Supreme Court discusses about FARA in the sole context of its narrow regulation, which does not apply to the local organizations if they maintain autonomous scope of their work.

Prohibition of excessively broad application/opacity of the Law in the context of First Amendment

Even if there is no question regarding the constitutionality of FARA’s objectives, the risks of instrumentalization still fall under the constitutional-legal standard of “overbreadth challenge”. This standard is particularly strictly checked in the context of freedom of expression to prevent a “chilling effect”. Any law may appear problematic for the Supreme Court that broadly regulated freedom of expression and may fall within the scope of its protection.[67] Based on this standard, in 2021, the Supreme Court declared unconstitutional the decision of the General Prosecutor’s Office of California to impose an obligation to the charity organization on information disclosure regarding the donor (with the guarantee of confidentiality), which had a chilling effect on the freedom of assembly.[68] The Supreme Court’s position is different when the obligation to disclose information on funding source is related to such donations that directly serve lobbying of a specific law.[69]

 Prohibition of  unconsitutional application of the Law within the context of First Amendment

Even if the Supreme Court considers FARA sufficiently obvious to attribute a chilling effect on freedom of speech and association (even without its active enforcement), it will still have the opportunity to assess the constitutionality of the law's application in individual cases, for example, due to the disproportionate harm caused to a specific organization. According to the Court, before imposing any obligations, even in the presence of a constitutional mandate, government authorities must consider the reasonable risks of physical, economic, personal, or reputational harm to organizations and their members in the specific case.[70] In evaluating individual legal harm, including chilling effects, the Supreme Court will also take into account the specific substantive guarantees of freedom of speech and association, as discussed below.

Therefore, the United States Supreme Court protects individuals and organizations from chilling effects on freedom of speech and association or other potential harms.

The specific standards of the First Amendment: The standard regarding the prohibition of compelled association and the right to privacy in association.

The U.S. Supreme Court also establishes a substantive standard that laws must not permit compelled expression[71] and association[72]. It is significant that the prohibition of compelled association is equally important for both conservative and liberal groups, as demonstrated by the Court’s practice. This necessity to prohibit compelled association led the Court to grant the request of war veterans who were seeking not to be forced to allow members of the Irish-American LGBT community to participate in the Saint Patrick's Day Parade they organized.[73] Similarly, the Court upheld the request of those clinics that were being required by the government to post information about the availability of abortion services at state-funded clinics.[74]

Therefore, in addition to protecting against the chilling effects on freedom of speech and association, the U.S. Supreme Court also safeguards individuals and organizations from being compelled to associate with something against their will. This standard would protect public and media organizations in the U.S. from being forced to act as conduits for a foreign power, provided they are autonomously working on local issues related to reporting, documentation, and resolution.

The U.S. Supreme Court has also developed a standard regarding the inviolability of an organization’s private space. The Court sided with the prominent civil rights organization, the NAACP, when state legislation required the organization to disclose the identities and addresses of its members. In a unanimous decision, the Court emphasized a standard in which the protection of personal space is an integral part of the freedom of association.[75]

Therefore, any obligation to disclose information about an organization will be strictly evaluated, particularly in light of protecting the personal space of members of autonomous associations. While the state may be interested in an organization’s financial sources, it should not automatically equate the organization with any external force, especially a foreign one, nor should it serve as a basis for requesting other personal information.

Conclusion

FARA was enacted in the U.S. for specific purposes and, until recent years, it has been applied narrowly, consistent with the law's objectives, with only a few exceptional cases. The U.S. Supreme Court also considers the scope of FARA's regulation as narrow, as reflected in the recent clarifications issued by the Department of Justice on March 12, 2024.

In the Georgian context, the particular problematic nature of FARA lies in the intention of the "Georgian Dream" to use FARA as an analog instrument to achieve the same outcomes for which the so-called "Russian law" was adopted. For "Georgian Dream," the adoption of FARA is merely a mechanism to increase pressure on public organizations and activists that produce critical opinions and, ultimately, to reject their voices from the public sphere, as pointed out by the leaders of "Georgian Dream" themselves. Notably, the tendency to broadly interpret FARA and/or the adoption of "Agents' laws" modeled after Russia, by appealing to it, is not a local, isolated phenomenon but rather one manifestation of the global spread of right-wing populism and the authoritarian governance model.

It is noteworthy that the tendency to broadly interpret FARA and/or the adoption of Russian-style "Agents' Laws" by appealing to it is not a local, isolated phenomenon, but rather another manifestation of the global spread of right-wing populism and the authoritarian governance model.

The criticism that existed regarding the "Agents' Law" — that it was needed by the "Georgian Dream" for undemocratic purposes — is valid in the case of FARA as well. A law that serves the consolidation of authoritarianism is fundamentally unacceptable, regardless of its origin. Law, as it is a social and political phenomenon, gains its significance through its use.

It is important to note that FARA was enacted in the United States on the brink of World War II, at a time when the global doctrine of human rights and liberal democracy, as understood today, practically did not exist. The post-World War II Cold War regime and the division of the world into two fundamentally different economic, social, and cultural spheres are far removed from today's reality. Today, it is evident, that the adoption of a law similar to FARA in the Georgian context carries serious risks of being misinterpreted by the political class, and even more so, being used for specific partisan purposes, which would be incompatible with the principles of freedom of speech, rule of law, and democracy. In such a case, FARA-like laws can easily become tools of political repression, as they have in several countries (e.g., the example of Nicaragua).

The use of FARA as a political tool ("weaponization") is precisely the danger that is particularly alarming in our context. While the so-called "Russian law" achieved its purpose through explicit normative constraints on public organizations and critical individuals within its scope, FARA represents a legal gray area with unclear and ambiguous regulatory boundaries. This legal zone is interpreted by the "Georgian Dream" to align with its partisan interests. The reputationally damaging, unconstitutional effect of labeling an organization as an "intermediary for foreign interests" is being established by the "Georgian Dream" through the criminalization mechanism of FARA, despite targeting an entirely different group and activity. This seemingly strange decision by the "Georgian Dream" to adopt FARA for controlling public and media organizations can only be explained by the fact that the activation of FARA is seen as a necessary tool for dealing with civil society and ongoing protests.

The standards set by the U.S. Supreme Court leaves no doubt that the goals driving the Georgian analogue to FARA are different. As demonstrated above, in the American context, the infringement of civil and media organizations' freedom of expression and association is controlled by an independent judiciary and a broad political and legal consensus on the significance of these rights. While in Georgia, FARA is met by a politically hostile culture towards civil society and a "captured" judiciary, devoid of the ideals of freedom of expression and association.

To summerize:

• The discussions surrounding the adoption of FARA and its implementation were based on radically different temporal, state, ideological, and social contexts.
• The direct copying of FARA in Georgia aims to impose stricter criminal liability measures than the "Russian law," under conditions where the ruling party has total control over the judiciary.
• FARA, except a few cases, is applied in a highly restricted manner and practically has no impact on the activities of public and media organizations.
• The recent political instrumentalization of FARA is linked to President Trump's administration's anti-environmental agenda, which has been strongly criticized by human rights organizations. It is noteworthy that this process has not been legally concluded.
• The U.S. Supreme Court's interpretations, including those regarding FARA's regulatory scope, leave no doubt that civil and media organizations acting autonomously remain outside the scope of FARA's application.
• The U.S. Supreme Court additionally establishes strong guarantees to protect civil and media organizations, which, among other things, mitigate the risks of FARA's instrumentalization. Appealing to the literal transfer of FARA, in the absence of such guarantees, serves to mislead the public.
• The "Georgian Dream" is already violating the standards set by the U.S. Supreme Court regarding freedom of expression and association through the so-called "Russian law," against which the Constitutional Court of Georgia has not yet taken action.

All of the above, especially the daily reality of the violation of freedom of expression and association, including the threats stemming from the implementation of the so-called "Russian law," is irrefutable evidence that the "Georgian Dream" does not limit itself to reasonable interpretations of FARA. Moreover, protection from its instrumentalization by constitutional and legal standards cannot be ensured by the Georgian judiciary system, which will lead to irreversible consequences for civil society and democracy in Georgia.

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