Justice at War: Silencing Foreign
Agents and Native Fascists
The numerous prosecutions under FARA embody a very important but virtually ignored episode in U.S. communications, political, and legal history. They enabled the Justice Department to hone its legal arguments and strategies against those disseminating foreign propaganda materials without resorting to high-profile First Amendment cases. Importantly, they also provided Justice Department lawyers with federal court–approved formulae to prove the connections between propaganda and seditious intent, a proof that relied on an elaborate analogical argument about propaganda's invidious effects. In this way, FARA cases were rehearsals for the more difficult and politically controversial wartime mass sedition trials against the domestic far right,
The propaganda-as-seditious-intent construction utilized by U.S. attorneys William Powers Maloney and O. John Rogge was the centerpiece of the federal government's efforts to silence and punish the thirty-plus defendants indicted in the cases U.S. v. Winrod et al. and U.S. v. McWilliams et al. The defendants were the main disseminators in the United States of defeatist, anti-Semitic, generally pro-Axis materials during the prewar and wartime years, and because they were ideological—but not demonstrably legal or contractual—agents of foreign governments, most were not subject to the FARA or Voorhis acts’ requirements. Rather, they were subject to the Espionage Act of 1917 as well as to the broad reach of the 1940 Smith Act's seditious conspiracy provisions. The indictments and, ultimately, failed prosecution of the so-called seditionists in these cases represents the victory of nervous liberalism over free-speech liberalism within Robert Jackson's and then Francis Biddies Justice Department.
The rationale behind the prosecution of the far-right publicists and organizers was not that their speech had a demonstrated effect on the morale or efficiency of the armed forces; indeed, there was virtually no evidence of this. Rather, the broad and imprecise definition offered by the federal courts that was subsequently reused by the Justice Department stated that, given that Nazi propaganda had had devastatingly powerful effects in Germany and elsewhere in Europe, propaganda in the United States was clear