First Amendment Doesn't Protect Being "Foreign Government [Agent] Without Notice to the Attorney General"

From U.S. v. Liang, decided Tuesday by Judge Indira Talwani (D. Mass.):

Defendant Litang Liang is charged with acting as an agent of a foreign government without notice to the Attorney General, in violation of 18 U.S.C. § 951, and conspiracy to act as an agent of a foreign government without prior notification, in violation of 18 U.S.C. § 371. The Indictment alleges that between July 2018 through at least 2022, Liang acted under the control or direction of officials of the People's Republic of China ("PRC") without notifying the Attorney General of his status as an agent of a foreign government….

[I.] Facts as Alleged in the Indictment

[A.] Liang Provides Information Regarding Boston Individuals and Organizations to PRC Officials

In July 2018, Liang reported to a PRC official ("PRC Official 1") that someone had destroyed PRC flags in the Boston neighborhood of Chinatown. Liang provided PRC Official 1 with the name of the individual he believed to be responsible for the destruction.

In or around August 2018, Liang informed an associate that the PRC Consulate in New York wanted to know about the "political standing" of a local lawyer, and asked if the associate knew the lawyer. Liang also informed the same associate that the "Consulate" was coming to Boston and asked if the associate wanted to meet with the Consulate to discuss the "blacklist." Liang also informed the associate that PRC Official 1 wanted "something done" about the removal of the PRC flags. Approximately six days later, the associate sent Liang an email titled "Black Name List."

In or around September 2018, Liang helped to organize an event that was attended by PRC Official 1 and a high-ranking official at the PRC Consulate of New York ("PRC Official 2"). A few days later, PRC Official 1 asked Liang for the name of an individual who had attended the event and who worked for a Boston elected official. Liang provided PRC Official 1 the name and title of the individual.

On or about October 5, 2018, Liang shared photographs and videos with PRC Official 2 of the individual he claimed had "sabotaged" the PRC flags in July. Liang claimed to have held a press conference to denounce the individual.. Three days later, Liang shared an article with PRC Official 2 that accused a member of a local Chinese community organization with pro-Taiwan leanings of being the person who "sabotaged" the PRC flags.

On or about December 6, 2018, PRC Official 1 requested from Liang how many individuals worked for the pro-Taiwan community organization. Later that day, Liang and PRC Official 1 had a 15-minute phone conversation.

On or about February 10, 2019, Liang and PRC Official 1 had an approximately 12-minute phone conversation. Several days later, Liang sent PRC Official 1 a list of members of another pro-Taiwan community organization.

On or about February 21–22, 2019, Liang sent PRC Official 1 information about three other local Chinese family associations in New England and New York, including the size of each group's memberships and the names of some group leaders.

[B.] Liang's 2018 Travels to the PRC to Attend a Conference and Meet with Government Officials

In or around October 2018, PRC Official 1 connected Liang with another PRC government official ("PRC Official 3"), the director of a subsidiary entity of the United Front Work Department. The subsidiary entity's goal was to promote the unification of Taiwan with the PRC, which is a core PRC national security goal. PRC Official 3 sent information to Liang regarding the subsidiary entity, including a form to attend a conference for the organization in the PRC. Liang returned the completed form. During this time, Liang also communicated with PRC Official 4, who asked Liang to supply the names of the other individuals who would be attending the conference as well as the most influential organizations who would be traveling with Liang.

Liang traveled to the PRC twice over the next few weeks: once from October 23–27, 2018, and again from November 4–15, 2018. On October 24, 2018, while Liang was in the PRC, PRC Official 4 asked Liang to provide information on Chinese nationals living in the Boston area and further information on the pro-Taiwan community organization in Boston. Liang informed PRC Official 4 that he had communicated his request to another individual, who would contact PRC Official 4 directly.

On November 2, 2018, Liang sent PRC Official 3 a message expressing regret that they had been unable to meet during Liang's October visit and providing details about Liang's November visit itinerary, including meetings with the United Front Work Department and the Taiwan Affairs Office of the State Council, a PRC government agency that promotes the unification of Taiwan with the PRC.

[C.] Liang Coordinates with PRC Officials to Establish the New England Alliance for a Peaceful Reunification of China

In or around December 2018, Liang communicated with another government official ("PRC Official 5") who worked as part of the Taiwan Affairs Office of the State Council at the Consulate in New York. Later that same month, PRC Official 5 traveled to Boston with other Consulate members, including PRC Official 2, and met with Liang and others. On or about December 20, 2018, Liang informed PRC Official 2 that the work for setting up a new reunification organization was ready and the "core team" had been identified.

In or around January 2019, Liang co-founded the New England Alliance for the Peaceful Reunification of China ("NEAPUC") and subsequently served as its Vice President. A similar organization had previously existed in Boston ("the Boston Group") and two individuals associated with the Boston Group ("Boston Group Individual A" and "Boston Group Individual B") had left the United States for the PRC and not returned at the time of their involvement in events described below.

On or about April 18, 2019, Liang sent a WeChat message to the leader of another reunification organization in the United States ("Individual 4") informing the individual that NEAPUC consisted of chairmen of local community organizations and had high standards for accepting new members. Liang informed the individual that he would rather discuss details over the phone.

On or about April 22, 2019, Liang sent NEAPUC's logo to PRC Official 1 and sent the logo as well as the incorporation documents to PRC Official 5. Liang also informed PRC Official 5 that NEAPUC had developed a "core team" from local organizations, that it had strict membership requirements, and that Liang could provide more details over the phone.

[Further factual details from the sections below omitted; see the opinion for more. -EV]

[D.] Liang Coordinates a Counter-Protest to the "Boston Stands with Hong Kong" Rally …

[E.] Liang's 2019 Visit to the PRC …

[F.] Liang Provides Updates on NEAPUC to PRC Officials …

[G.] Liang Exchanges Information with PRC Officials Regarding Chairmen of Local Organizations …

[II.] Whether Section 951's Definition of "Agent" Is Unconstitutionally Vague

Liang argues that Section 951 fails to clearly define the term "agent," which renders the statute unconstitutionally vague….

First, Section 951 sufficiently defines the proscribed conduct on its face. Section 951(d) defines "agent" as "an individual who agrees to operate within the United States subject to the direction or control of a foreign government." Liang argues that this definition is so broad as to potentially penalize any person "who communicates with embassies on a regular basis." But that is plainly not true. A person is not considered an "agent" under the statute when he is merely "communicating," but only when the individual "agrees to operate … subject to the direction or control" of a foreign government….

Second, Section 951's definition of "agent" does not invite arbitrary enforcement. Liang's argument on this point is largely based on his interpretation of the Foreign Agent Registration Act ("FARA"), which is a related—but distinct—statute from the one at issue in this case. FARA's definition of "agent" is much broader than Section 951's definition of "agent," and embodies a "concept of agency that [includes] less formally defined (and more episodic) behavior [undertaken] 'in any other capacity' at the 'order' [or] 'request'" of a foreign principal, rather than actions undertaken only "under the direction or control" of a foreign government. Because Section 951 expressly defines "agent" in narrower terms, Liang's FARA-specific arguments are not persuasive.

[III.] Whether the Indictment Alleges Facts to Support that Liang was an "Agent" of the PRC

Liang also argues that the Indictment is devoid of facts suggesting he was "being paid or compensated in any way" or that he had an "explicit agreement" with the PRC…. [But] Section 951 does not contain any requirement that the government prove compensation or an explicit agreement between the individual and the foreign government in order to establish that the individual was operating under the direction or control of the foreign government…. [T]he Indictment sufficiently alleges facts that could support a finding that Liang "agree[d] to operate subject to the direction or control of a foreign government." …

[IV.] First Amendment Violation

Liang argues that the Section 951 charge penalizes him for "communicating … with PRC officials" and therefore violates his First Amendment rights to free speech….

[But] Section 951 does not inherently criminalize pro-foreign government sentiment or regulate in any way the content of any speech or expressive act. Nor does the statute belong to the second category of laws which, although facially content neutral, 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."

Instead, the dividing line between lawful and unlawful speech under Section 951 has to do with the relationship between the speaker and a foreign government, and whether, if the speaker is an agent of that foreign government, the speaker has notified the Attorney General of that relationship. Neither of those factors turns on the content of the speech itself. As a result, Section 951 is subject to intermediate scrutiny, which requires that "the law must not 'burden substantially more speech than is necessary to further the government's legitimate interests.'"

By enforcing a system to keep track of foreign agents working domestically, Section 951 furthers an undisputedly important governmental interest—that of national security. And Section 951's purported restriction on speech is avoidable—if an individual notifies the Attorney General prior to acting as an agent of a foreign government, then Section 951 carries no penalty for any speech in which that individual might subsequently engage. Finally, Section 951 leaves open ample channels of information between U.S. citizens and representatives of foreign governments. The statute does not prohibit U.S. (or foreign) citizens from communicating with embassies or from communicating with each other. Any incidental restriction on speech is therefore "no greater than is essential" to protect the government's national security interest. As a result, Section 951 satisfies the criteria for a reasonable restriction on the manner of speech….

The government is represented by Assistant U.S. attorney Timothy Kistner.