Court Tells Trumpian Head Of US Agency For Global Media That He Can't Fire People From The Open Tech Fund (At Least For Now)
from the keep-your-hands-off dept
So, this is interesting. Last month we wrote about how Trump had appointed Michael Pack (a protege of Steve Bannon) to head up the US Agency for Global Media, which controls the various independent US overseas broadcasting operations: Voice of America, Radio Free Europe/Radio Liberty, Radio Free Asia and Middle East Broadcasting. USAGM also oversees the Open Technology Fund, which is basically a government agency funding a ton of really important open source tools for getting around internet censorship and surveillance. OTF may sound like a misfit compared to the broadcasting operations, but it was spun out of Radio Free Asia, so its connection to USAGM is sort of a legacy one.
The story making the rounds was that Pack wished to turn all of the broadcasting operations into a sort of state-sponsored Breitbart, basically destroying their reputations. His first order of business was to essentially fire the heads of all of those organizations. Meanwhile, the backstory on the OTF side is that a bunch of wealthy Republican donors are pushing for OTF money to go towards a pair of sketchy closed source VPN products that actual security experts say are highly questionable.
In response to this, OTF folks sued Pack and now the DC Circuit appeals court has issued an injunction telling Pack he can’t fire folks at OTF and that those who were in their roles prior to Pack’s moves to fire them should remain in their roles for now:
ORDERED that the motion for injunction pending appeal be granted. The government is hereby enjoined from taking any action to remove or replace any officers or directors of the Open Technology Fund (?OTF?) during the pendency of this expedited appeal. The officers and directors of OTF that were in those roles prior to the government?s actions on June 17, 2020, shall continue in their normal course throughout the pendency of this appeal.
As the court notes, OTF has shown a likelihood of success, and that it does not appear that Pack has the authority to remove OTF staff:
Initially, appellants have demonstrated a likelihood of success on the merits. At this juncture, it appears likely that the district court correctly concluded that 22 U.S.C. § 6209(d) does not grant the Chief Executive Officer of the United States Agency for Global Media, Michael Pack, with the authority to remove and replace members of OTF?s board. OTF is not a broadcaster, is not mentioned in § 6209(d), and is not sufficiently similar to the broadcast entities expressly listed in § 6209(d) to fit within the statutory text. As for the government?s argument that the bylaws authorize such intervention by Mr. Pack, they appear at this juncture only to reference the exercise of statutory authority, which does not seem to include control of OTF?s board or operations.
If you’re wondering, 22 USC 6209(d) says that the “officers and directors” of the various broadcast sections “serve at the pleasure of and may be named by the Chief Executive Officer of the Board.” But, here, the court is saying that since OTF is different, it’s not covered by that section. Frankly, this does feel like a strained reading of the law. The law specifically says:
Officers and directors of RFE/RL Inc., Radio Free Asia, and the Middle East Broadcasting Networks or any organization that is established through the consolidation of such entities, or authorized under this chapter, shall serve at the pleasure of and may be named by the Chief Executive Officer of the Board.
Since OTF came out of Radio Free Asia, I can actually understand the argument in the other direction, that Pack has authority to remove officers and directors, even if I don’t like it. Still, the court went the other way, and I’m happy with that result.
The court further notes that the injunction is necessary because of the irreparable harm that may result if Pack is actually allowed to insert his own people at OTF:
Appellants have also demonstrated irreparable harm because the government?s actions have jeopardized OTF?s relationships with its partner organizations, leading its partner organizations to fear for their safety…. Further, absent an injunction during the appellate process, OTF faces an increasing risk that its decision-making will be taken over by the government, that it will suffer reputational harm, and that it will lose the ability to effectively operate in light of the two dueling boards that presently exist.
So, I’m at least cautiously optimistic about this result, though I’m not sure I agree with the logic behind it. The ruling will be almost certainly be appealed, so it may go the other way eventually, but at least there’s a temporary breather and OTF remains protected for now.