From today's decision in U.S. v. Romain by Eleventh Circuit Chief Judge William Pryor, joined by Judges Jill Pryor and Andrew Brasher:

For years, members of the African People's Socialist Party followed the direction of Alexander Ionov of the Russian Federation-backed "Anti-Globalization Movement." Ionov funded trips for Party leadership to Moscow, sponsored multiple Party events, told the Party to publish pro-Russian statements, and appeared on Party media…. [A] jury found {three Party members and one former member} … guilty of conspiracy {to act as foreign agents without notifying the attorney general}….

The court held that the prosecution didn't violate the First Amendment:

{"To violate [section] 951, . . . a person must act," "the action must be taken at the direction of or under the control of a foreign government" or foreign official, and

"the person must fail to notify the Attorney General before taking

such action."}

The indictment necessarily implicated speech. The indictment alleged that the defendants acted and conspired to act at Ionov's direction through several expressive and speech acts, including "author[ing] and publish[ing] articles," "drafting reports," organizing the encampment tour, "hosting virtual conferences" on political and social issues, and "mak[ing] public statements in support of the Russian Federation." So we must next determine whether the charged offenses are content neutral so that we can decide what level of judicial scrutiny applies….

Section 951 is content neutral because it applies equally to all acts taken under the direction or control of a foreign government without regard to the "content of the message" an agent spreads. Section 951 regulates conduct and speech regardless of which government directs it or what a foreign government directs.

Because section 951 is content neutral, we "subject [it] to an intermediate level of scrutiny." Under intermediate scrutiny, "we will sustain a content-neutral law if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests."

Section 951 satisfies intermediate scrutiny. "[T]he Government has an interest in knowing the identity of those acting on behalf of a foreign government within the United States, whether the action is legal or not." "That rationale is decidedly content agnostic" because it "neither references the content of speech [of agents] nor reflects disagreement with the message … [they] convey[]." And by requiring agents only to notify the attorney general before acting, section 951 advances that interest as narrowly as possible. Indeed, after notifying the attorney general about his status, an agent may engage in any speech or expressive conduct on any topic.

The defendants argue that we should apply strict scrutiny because Reed v. Town of Gilbert (2015), treats content-neutral laws as "content-based when used by the government to target speech." But Reed reaffirms only that "facially content neutral" regulations "will be considered content-based" when they "cannot be justified without reference to the content of the regulated speech" or "were adopted by the government because of disagreement with the message the speech conveys." Under that rule, section 951 is content neutral….

[F]ailure to notify the attorney general is an essential element of section 951. That element is "separately identifiable" from the defendants' speech and does not inherently convey any message. The notification requirement neither formally nor functionally repressed the Party's ability to express its political views. Cf. Meese v. Keene (1987) (holding that registration requirement of foreign "political propaganda" placed "no burden on protected expression" because it did "not prohibit, edit, or restrain [its] distribution").

Here are the facts, which the court found sufficed to show a § 951 violation:

[Defendant] Omali Yeshitela founded the African People's Socialist Party in 1972 and still chairs it today. Headquartered in St. Petersburg, Florida, the Party "supports the rights of African people throughout the world to be free from colonialism and exploitation." [Defendants] Penny Hess and Jesse Nevel are Party members, and [defendant] Augustus Romain was a member until 2018. After he left the Party, Romain formed the Black Hammer Party to prompt "the masses in America to revolution."

Aleksandr Ionov, a Russian citizen, directs the Anti-Globalization Movement of Russia, which purports to defend "the right of peoples to self-determination and [the] building of the multipolar world." Ionov is an asset of the Russian Federal Security Service. He regularly communicates with Service officers Yegor Popov and Aleksei Sukhodolov about Movement endeavors.

In May 2015, Ionov invited Party members on an "all expenses paid" trip to Russia to meet "other activists and establish close ties with Russian society." Yeshitela accepted the invitation. Before Yeshitela's trip, Hess told a Movement officer that Yeshitela would "like to meet with an official representative of the Russian government" and "[h]ave [his] own event to speak to students, anti-imperialists and workers about the struggle of African people."

After Yeshitela returned from Russia, Ionov and the Party formed, according to Hess, a "[d]eepening relationship." They were "in touch almost every day." In July, Ionov asked Hess whether the Party was interested in organizing events funded by the Movement. Later that month, Ionov donated $500 to the Party as part of a "Reparations Challenge." And that month, Ionov told Hess that he "need[ed] [her] to make [a] draft of [a] [United Nations] petition on [g]enocide of African people in [the] U.S. since the beginning of time." Ionov explained to Hess that the Movement could support the petition only "as cowriters/supporters" because "we're not exactly black to demand it for ourselves." Hess agreed, and Ionov told her to prepare it "ASAP." Ionov later requested it be posted "to the websites of White House and change.org" and that it be published two days later. Hess said she would "make that happen."

The next month, Ionov invited Yeshitela to the Movement's "Dialogue of Nations," an "international expert conference" held in Moscow involving discussion of "the right of peoples to self-determination." Yeshitela again agreed to attend, and Ionov paid for his travel expenses.

While Yeshitela was in Moscow, Hess emailed him, Romain, and Nevel news coverage of the conference. One article in The Guardian, titled "Russia Funds Moscow Conference for US, EU and Ukraine Separatists," explained that "the National Charity Fund, which was founded as the National Military Fund in 1999 by … Vladimir Putin," funded the event. And after Yeshitela returned, he confirmed to Party members that the Movement had Russian government connections:

Anti-Globalization Movement of Russia is a solid institution of Russian politic. Some articles said they got 30 percent funding from charity tied to Putin, et cetera, but it is clear that it is instrument of Russian government. This does not disturb us.

In January 2016, Ionov pledged $12,000 to the Party for a four-city encampment demonstration against genocide. Hess thanked Ionov for "envisioning such actions," and the Party held the tour. At a Party debriefing, Yeshitela explained that the Movement asked for the tour as "a big mobilization around the genocide question."

But Ionov sent only $7,000 of the promised $12,000. Yeshitela traced the underpayment back to Ionov "hav[ing] to justify … getting resources for this." Indeed, Movement agents asked Hess to "give [them] links or send a report about the action," including, for example, "where the action took place" and "how many people attended."

At the Movement's request, Party leadership also published pro-Russian statements on Party media. In May 2016, Ionov asked Hess to publish two articles about Russians detained in America. And another Movement agent asked Hess to post a statement supporting the Russian Olympic team after some members were banned from the 2016 Olympics. Hess and Yeshitela complied both times. Later, a Movement member asked Yeshitela to record a "video with congratulations to the residents of the Donetsk People's Republic" on the anniversary of their "self-determination." Yeshitela prepared the video, and Ionov sent it to Popov.

On February 24, 2022, Russia invaded Ukraine. Ionov sensed that Russia was "losi[ng] the whole information campaign." So he made several "emergency phone [calls] with some leaders of antiwar organizations" in the United States, including Party members. Ionov "request[ed] [the Party] … support Russia in the information war unleashed by the West," and asked Yeshitela to "make an official statement on the situation and show support for Russia."

Yeshitela published YouTube videos discussing "Russia's defensive war in Ukraine against the global colonial powers." One video, for example, displayed the promo: "APSP stands with Russia. APSP stands with Putin." Ionov also appeared on Yeshitela's YouTube broadcast.

Ionov then targeted Meta, Facebook's parent company, because he believed Meta "allow[ed] calls for violence against Russians." In March 2022, he asked both Party members and Romain, who by then had founded the Black Hammer Party, to protest outside Meta buildings. Yeshitela and his team scheduled a protest entitled "Unfriend Facebook Lies" in Silicon Valley and another demonstration "demanding an end to the censorship of Russia and Africa" in front of Facebook's San Francisco office.

Ionov also directed Romain to hold a protest at Meta and sent him banners to print, saying "Stop Meta Segregating Russian People. Stop Russian Segregation. Stop Meta Fascism" to display. Ionov booked flights and hotels for Romain and his associates. And he instructed Romain to send "a lot of videos and photos … that [he] c[ould] throw in the [Russian] media." …

Sufficient evidence supports the convictions. The defendants concede that they entered a voluntary "agreement" with each other and the Russians. Indeed, Yeshitela explained during Party meetings that the "Party developed a relationship with forces in Russia" and entered the relationship as "allies." Moreover, the defendants' agreement aimed to violate section 951.

The conspirators committed several overt acts to advance their objective. Yeshitela knew that the Movement was an "instrument of Russian government"—a fact he shared with the others. And Party members consistently obliged Ionov's "needs" and "requests," which allowed a reasonable jury to find that they agreed to be subject to his direction. Toward the beginning of their "[d]eepening relationship," Ionov told Hess he "need[ed] [her]" to draft the United Nations petition, and he later told her to prepare it "ASAP." Ionov "asked [the Party] for a big mobilization … around the genocide question" and "envision[ed]" the encampment tour as part of the mobilization.

The Party members knew that the Russian government sponsored the encampment because Ionov told Yeshitela he "need[ed] … details" from the tour to "justify … getting resources" for it. The Party members also agreed to Ionov's requests to post statements supporting the Russian Olympic team, to record a video of congratulations for the "Donetsk People's Republic", to use social media to support Russia during the Ukraine invasion, and to stage two protests outside of Meta. And none of the defendants notified the attorney general of those activities….

The jury could have reasonably found that the defendants subjected themselves to Ionov's guidance by carrying out his plans….

The court also concluded that § 951 doesn't require proof that defendants knew of their legal duty to register.

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