Tuesday, November 28, 2017

Former Schell Fellow Nick Robinson Directs Program on U.S. Civil Freedoms

Nick Robinson, a former visiting fellow at the Schell Center, recently became a Legal Advisor and coordinator of the U.S. program at the International Center for Not-for-Profit Law (ICNL). ICNL works in more than 100 countries to strengthen civil society, foster freedom of association and assembly, and promote public participation in the political sphere. In an interview with the Schell Center, Robinson discussed his work at ICNL. 

Tell us about your new role at ICNL. What projects are you working on there?

I’m a Legal Advisor at ICNL, and I head the U.S. program. ICNL has worked in the United States since 1994. Recently we’ve focused more heavily on issues around freedom of association, assembly, and expression in the U.S.

One of our initiatives is the U.S. Protest Law Tracker. Since November of last year, we’ve been tracking laws that have been proposed or passed in different states that infringe the right to protest. Since we began tracking them, 27 states have considered 48 bills that would restrict the right to protest, and out of those 8 have been enacted, and there are 25 currently pending. We’ve been working to analyze these laws and then raise awareness about them with the media, journalists, and others.

A second issue that I’ve been spending quite a bit of time on relates to the Foreign Agent Registration Act, or FARA, an obscure 1938 anti-propaganda law that has become a lot less obscure this past year because of the Russia investigation: for example, Paul Manafort was indicted under a number of charges, but one of them was not registering under FARA. Currently there are a number of initiatives in Congress by Republicans and Democrats to strengthen the enforcement of FARA, because the law is traditionally under-enforced in the United States.

ICNL has seen how these foreign agent laws have been used to undercut civil society. For example, Russia has a foreign agent law, which a number of nonprofits, particularly non-profits that receive foreign funding, have had to register under. And instead of facing the stigma of being a “foreign agent” in an era of increased nationalism, a number of those organizations have closed down. When Russia is criticized about their laws, they say, “Look, we’re just basing this law on FARA in the United States.” We recently came out with a report that’s on our website called FARA’s Double Life Abroad. In that report, we detail how Hungary, Israel, and other countries are doing the same thing as Russia: they have recently passed similar acts that they use to crack down on sectors of civil society, and they say that they’re basing these acts on FARA.

Though FARA has historically been very under-enforced in the U.S., if you read its provisions, they’re both very sweeping and quite vague. So, we’ve been doing a lot of work raising awareness not only of how this act has been used abroad, but also of how it could potentially be used to target civil society organizations here in the United States––particularly those with foreign connections. If, for example, a nonprofit in the U.S. wanted to release a joint report with a U.K. nonprofit, they might have to register as a foreign agent. So not only do they have to go through the pain of registering and keeping the Department of Justice updated any time they engage in relevant activity, they also must publicly state that they’re acting on the behalf of a foreign entity. Because of the stigmatizing effect that we’ve seen abroad, a lot of organizations just shut down in those circumstances. We’ve been working on trying to clarify some of the definitions so that the act is more targeted and does not inhibit civil society activity.

Finally, in the last year or so, a number of nonprofits have approached us expressing concern about their vulnerability to either an enforcement act against them by the federal or state government or to third party attacks. We also put up resources for nonprofits on our website, which help organizations understand better where their legal vulnerabilities might be and how to address them.

What are the biggest threats to freedom of assembly and association in the United States?

Such threats are more pervasive and nuanced than people often think. Certainly there are things in the news that we should be concerned about, such as when the president spoke out against players in the NFL protesting. That’s not conducive to freedom to protest. However, with the protest law tracker, we found that this isn’t something that’s just coming out of the White House. State houses across the country are passing or considering laws that would restrict the right to protest––for example, one bill would have gotten rid of civil liability for drivers who hit protesters with their cars. This happened before Charlottesville. Clearly these laws are meant to have a chilling effect on protest. We’ve also seen laws out there concerning expanding conspiracy charges. For instance, if somebody engages in vandalism at a protest, either another protester or the organization that organized the protest could also be liable for that vandalism.

We’ve seen some college campuses restricting protest rights, too. The University of Wisconsin just passed a measure that creates mandatory penalties including suspension and expulsion for students who disrupt others’ speech, for example by protesting at speaker event. Ohio University had a measure that was passed by the administration that barred all protest inside university buildings. A lot of these things don’t make the news in the way that, say, the president’s statements do. But together, they have this pervasive effect on what we think is and is not legitimate protest.

We can see that same kind of incremental chilling effect when we look at the dangers of FARA. One of the pieces of rhetoric we hear a lot abroad when civil society speaks up is that their objections are all foreign-backed. And we have concerns that when we see FARA being strengthened in the United States, we’re going to see a similar move that delegitimizes dissent as foreign or fake or not done in the correct, polite way.

What are some challenges you’ve encountered in your new position and how have you overcome them?

One challenge is trying to get attention for issues such as FARA when there always seems to be some crisis or threat to the rule of law in the U.S. FARA is an obscure statute—it’s so hard to understand that a number of people who have been working around FARA issues for years don’t actually understand its full implications or how it’s been used abroad. That’s led to a concerted attempt by both Democrats and Republicans and a number of transparency organizations to strengthen the act. I can understand why there’s a feeling that something needs to be done right now to strengthen laws around, for instance, lobbying by foreign governments, which was at the crux of the civil indictment of Manafort. But finding a way to communicate effectively to both transparency groups and members of Congress that there are real issues with the act is sometimes difficult. In the heat of the political moment, there’s this idea, “We have to do something, so we’re going to go ahead with it.” But there needs to be a realization regarding the implications of this act on civil society abroad, where it has been used again and again to justify repressive measures.

Our approach––we’ll see if it’s successful or not––has been first to raise awareness. We had a meeting with a number of groups working on transparency or other related issues to express our concerns. We brought in other organizations that work on rights issues abroad and have seen how these foreign agent laws have worked to help better make the case. I’d say we’ve used a similar strategy for raising awareness more generally, including on the Hill. We’re not an organization that traditionally lobbies much in the United States, but we have been working with other organizations that do have a larger lobbying presence and helping inform them about this set of issues so that they can go and speak to members of Congress.

What do you find most exciting about your new position?

Although ICNL has worked on the United States in the past, I’m the first person to be leading the new U.S. program. It’s exciting thinking about being part of an international organization that has worked on protecting civil society abroad and then thinking about what value we add in the United States, a place where there’s already a vibrant civil society. We’re asking ourselves, what can we do that will be most helpful here, building off the work that we have been doing for some years?

It’s also exciting to have to respond to events in real time. Sometimes you can only come up with an imperfect response, but I enjoy trying to think as quickly as possible and draw on my own knowledge and the other resources and network that I have.

Did your time at the Schell Center prepare you for or influence the work you’re doing now?

One of the things I was doing at the Schell Center was thinking about and analyzing the United States in a time of rising illiberal democracy globally. I organized a workshop of activists and academics on exactly that topic that we had just this spring. I think that that really goes to the heart of what I’m doing now.

During that workshop, we discussed what kinds of lessons we have learned globally during the last few years or decades about illiberal democracy and the rise of authoritarian leaders, and we considered which of those lessons might apply to the United States and which don’t. The United States clearly has its own political situation; it’s a vibrant and healthy democracy, but it’s not a perfect democracy. There are concerning elements in our politics. So what lessons can be learned from abroad? Additionally, when the U.S. has reacted to some of these authoritarian, illiberal strands in its politics, civil society has mounted a number of really smart and powerful responses, so we considered how the rest of the world can learn from those responses.

Now I’m in an organization that very much does those things. As head of the U.S. program, I’m frequently drawing on my colleagues to learn about how different policy issues or laws or narratives that we see in the United States compare similarly or dissimilarly to abroad and lessons learned from abroad. And I’m feeding back information to my colleagues elsewhere about the kind of responses we’re seeing in the United States and whether they can be helpful in other countries. My time as a fellow at the Schell Center gave me the space to really engage and reflect on this set of issues.