Publishers and Authors File Suit against Treasury Department
Posted on November 19, 2004
A group of publishers and authors associations have filed suit against the Treasury's Office of Foreign Assets Control (OFAC) in federal court in New York. The group claims that the Treasury Department's attempts to exert control over publishing activities involving information and literature from countries under U.S. trade embargo is a violation of the essential right of all Americans to learn about the world. Edward Davis and Linda Steinman of the New York office of Davis Wright Tremaine are lead counsel for the plaintiffs. Marjorie Heins of the Brennan Center for Justice at NYU and law professor Leon Friedman are co-counsel for PEN and Arcade.
The Association of American Publishers Professional and Scholarly Publishing division (AAP/PSP), the Association of American University Presses (AAUP), PEN American Center (PEN), and Arcade Publishing are asking the court to strike down OFAC regulations that require publishers and authors to seek a license from the government to perform the activities necessary to publish foreign literature from embargoed countries such as Iran, Cuba, and Sudan in the United States. Representatives of the plaintiffs' organizations expressed frustration over a series of OFAC rulings that have created uncertainty and confusion among publishers fearful of incurring prison sentences of up to 10 years or fines of up to $1,000,000 per violation. Those rulings and the regulations they interpret mandate that Americans (1) may not enter into transactions for works not yet fully completed, (2) may not provide "substantive or artistic alterations or enhancements" to the works, and (3) may not promote or market either new or previously existing works from the affected countries.
The group challenges the regulations on the grounds that they violate the Trading with the Enemy Act (TWEA), the International Emergency Economic Powers Act (IEEPA) and the First Amendment. TWEA and IEEPA were twice amended by Congress, in the Berman Amendment and the Free Trade In Ideas Amendment, to make clear that the statutes exempt transactions involving "information and informational materials" from trade embargoes. The AAP/PSP, AAUP, PEN, and Arcade contend that OFAC's regulations directly contradict the statutes that authorize trade sanctions and endanger publishers, authors and the public's constitutional rights.
"Our most basic liberties are violated when we, as publishers, have to either ask the government for permission to publish, or risk serious criminal and civil penalties if we do not obtain permission," said Marc Brodsky, chairman of the AAP/PSP and executive director of the American Institute of Physics. "How can the United States uphold our position as a beacon for the free exchange of ideas and science if we ourselves censor authors because of where they live?" Mr. Brodsky continued.
"This is not a hypothetical situation--these rulings are already having a chilling effect," said Peter Givler, executive director of AAUP. "For example, one of our members, The University of Alabama Press, has had to suspend publication of two books by Cuban scholars in the fields of archeology and history. Both include material otherwise unavailable to their colleagues abroad. The journal Mathematical Geology cancelled publication of a paper by Iranian geologists that presented a new methodology related to earthquake prediction. These are only two examples of the books, articles, and scientific research that Americans may never have access to because of OFAC's regulations."
Since the effect of these OFAC regulations became clear late in 2003, publishers, authors, and public interest groups have pursued a number of paths to making OFAC enforcement consistent with the protection for "information and informational materials" mandated by Congress in the Berman Amendment and the Free Trade In Ideas Amendment. "We have decided to pursue the legal challenge because our efforts have not yet yielded a resolution that is satisfactory on either the law or the principle," said Mr. Brodsky.