Most American scholars remain blissfully ignorant of the risks of international collaboration. Yet simply publishing in the United States an article co-written by a colleague from Cuba, Iran, or Sudan could subject the editor or publisher to criminal liability and fines of up to $500,000 or 10 years in prison. Such is the official interpretation of a ban that derives from the Trading with the Enemy and International Emergency Economic Powers Acts. Those laws forbid, without a government license, the export of certain commodities to any of those countries and others that are embargoed. In passing these laws, the primary concern of Congress was with channeling American funds or supplying weapons and sophisticated technologies to our adversaries in those unfriendly nations.
What was not envisioned at that time was the bizarre extension of the export embargo by the agency charged with its interpretation and enforcement, the U.S. Treasury Department’s Office of Foreign Assets Control, known as OFAC. That office has ruled that revising a piece for publication or enhancing it with notes or illustrations from any of the embargoed nations could, by being interpreted as the export of a forbidden commodity, violate the law. That ruling has now become the focus of a federal court suit, filed in late September by Arcade Publishing, the Association of American Publishers, the Association of American University Presses, and the PEN American Center, whose members have chafed under OFAC’s draconian decree.
The lawsuit challenges the foreign-assets office on two grounds, at least one of which seems quite likely to prevail. The first is a statutory claim: that Congress has consistently disapproved any such application of the embargo. The other attack is constitutional, framing the office’s ruling as a violation of the First Amendment freedoms of American scholars, editors, and publishers. Each prong of the suit merits closer scrutiny.
The statutory claim is more easily presented, and probably more appealing to a federal judge. Nearly two decades ago, Congress was troubled by seizures at the border of several shipments of magazines and books from embargoed countries. The passage in 1988 of an amendment sponsored by Rep. Howard L. Berman, a California Democrat, was designed to put a stop to such activity. That amendment removed from federal authority under the embargo laws “publications, films, posters, phonograph records, photographs, microfilms, microfiche, tapes, or other informational materials.” That last phrase seemed, according to the legislative history, a clear declaration that international scholarship should not be barred at the borders, regardless of the nation of origin or destination.
The foreign-assets office’s response to the Berman Amendment recognized the new standard, but defined “informational materials” to exclude “materials not fully created and in existence at the date of the transactions” and “substantive or artistic alteration or enhancement of informational materials.” When news of that ruling reached Capitol Hill, Representative Berman introduced new legislation to restore the intended broader scope of the earlier law, and to “protect the right of Americans…to exchange information and ideas with foreigners.” That putative amendment would specifically have removed from the embargo’s reach “all First Amendment protected materials and activities.” Although the proposal was withdrawn before passage at the State Department’s urging, Congress two years later did pass the Free Trade in Ideas Amendment, which added “information” to “informational materials”—an action that the plaintiffs in the suit argue was intended, in part, to make sure the measure protected both completed works and those in process.
Despite what seemed a clear and unambiguous message from Congress, the foreign-assets office persisted for the next decade in its narrow view of the exemption. The issue attracted little public note, save for a highly visible penalty imposed on the musician Ry Cooder for a 1996 visit to Cuba to produce an album by Cuban performers, an unlicensed “export” which occasioned a $25,000 fine. (Ultimately, under heavy pressure from President Clinton, the agency did allow Cooder to make a second trip to produce another album.)
The current scholarly concern stems from a directive by the foreign-assets office, issued in the late fall of 2003, warning the Institute of Electrical and Electronics Engineers that routine editing of manuscripts from Iranian authors fell outside the statutory exemption for “information and informational materials” and thus required a license. Specifically, while the ruling allowed the journal to “submit the manuscript to selected member volunteers” for comments, in the manner of peer review, and for questions and comments to be communicated to the author, reviewers’ collaboration with authors “resulting in substantive enhancements or alterations to the manuscript” was strictly prohibited. American journals could accept and print “camera-ready copy” from embargoed-nation authors, but that was about the limit.
Some months later, in April 2004, in response to the engineering institute’s description of its own peer-review process and request for further clarification, the foreign-assets office stipulated that peer review as generally understood is permitted, so long as the process begins with completed manuscripts and does not result in “substantive rewrit[ing] or revis[ing] of the manuscript” by “U.S. persons,” including journal editors. The same directive added that “a collaborative interaction…resulting in co-authorship or the equivalent thereof” was strictly forbidden without a license. In that ruling, about all that remained safe for American journal editors was copyediting, reformatting, and other clearly nonsubstantive activities.
Not surprisingly, the response of the scholarly publishing community has varied widely. However unlikely it seems that a scientific-journal editor would be treated like an international-arms dealer or a drug kingpin, the risks of misjudgment are severe—staggering fines and imprisonment. Even so, some groups are so confident that the foreign-assets office will be ruled out of order that they have dared to flout the ban: The American Chemical Society recently lifted its own moratorium on publishing papers from scientists from the embargoed countries. The effect of that moratorium was hardly trivial; during 2003, the society received almost 200 submissions by authors in the embargoed countries.
Other groups have been less bold than the chemical society. The American Society for Microbiology, no less indignant than the chemists, has nonetheless continued to decline manuscripts from embargoed-nation authors. The Institute of Electrical and Electronics Engineers itself, having first encountered the problem, has reportedly sought export licenses in a few cases. Yet as the pressures in the scholarly community have steadily risen, a court challenge seemed inevitable, with the scholarly branch of the Association of American Publishers and the Association of American University Presses taking the lead.
Rarely has the dissonance between realities of scholarship and government policy been so acute. Irving A. Lerch, a distinguished physicist with a strong military background and director of international affairs for the American Physical Society, lamented after the 2003 ruling: “There is nothing in the OFAC letter to indicate any comprehension at all of the nature of scientific communications. Since 75 to 80 percent of the world’s intellectual productivity resides outside the United States, all [enforcement of the OFAC position] would do would be to isolate the U.S. scientific community.”
The likeliest of the challengers’ claims to prevail in court is that the foreign-assets office has simply disregarded its clear mandate from Congress. Federal courts usually welcome the chance to pass first upon statutory issues, since invalidating an agency action or policy on that basis makes moot what are typically (and certainly in this case) more difficult constitutional claims. Although we do not yet know how the lawyers for the Justice and Treasury Departments will defend the office’s interpretation, Congress has on two occasions made about as clear as lawmakers can make such a message that international scholarship is not to be disrupted under the trade-embargo law—regardless of the country of origin, or the format in which the scholarship is embodied.
The one possibly complicating feature is the license provision, which invites editors to seek federal approval for an otherwise unlawful “export.” That option probably won’t help the government’s case for two very different reasons. For one, the licensing procedure lacks the safeguards that the Supreme Court has required even for local motion-picture screening, as federal courts recently reminded us in striking down the closely analogous ban on exporting encryption technology. Those safeguards require that any administrative restraint be of very limited duration, that the censor bear the burden of proof throughout, and that prompt and final judicial review be available to resolve any legal disputes.
Even more basic, if the inclusion of scholarly articles within the trade embargo is simply not authorized by Congress, it should be clear that the foreign-assets office may not require a license for an activity that it lacks statutory power to regulate at all. Thus there seems little doubt that OFAC’s interpretation should fail the first test in court, since the contrary will of Congress seems unusually transparent here.
The much harder question implicates the First Amendment freedoms of editors and publishers. For starters, it is clear that foreign authors may not raise such concerns in American courts. Some years ago the Supreme Court flatly rejected the claim of the late Belgian Marxist Ernst Mandel to obtain a visa for a long-scheduled lecture tour. So long as he was a noncitizen physically beyond our borders, he could seek no such relief from our courts. (Presumably the Guantᮡmo detainees would have received a similar answer last summer but for the agreement with Cuba that transforms the legal status of the naval base where they have been held.) Thus it is hardly surprising that no foreign authors are among the plaintiffs, for their presence would be legally irrelevant.
The First Amendment claims of scholars, editors, and publishers in this country are, however, entitled to serious consideration and may persuade a sympathetic judge to strike down the foreign-assets office’s policy on an alternate ground. The fact that the office’s ruling extends to co-authorship and other forms of collaboration between American scholars and colleagues from any of the embargoed nations imposes a ban on the speech of domestic scientists. Such a prohibition finds no support in any of the recognized exceptions to our constitutional presumption that expression is free until and unless it encounters one of a few carefully defined exceptions. The ban by the foreign-assets office is not a neutral policy aimed at time, place, or manner, but is specifically content based—albeit triggered by geography rather than by the more familiar viewpoint or message. There is no suggestion that mere collaboration with an Iranian or Cuban scholar could so endanger national security as to be punishable on that basis alone. Indeed, a canvass of all the possible grounds for such a ban finds no acceptable basis for limiting so severely the speech of American scholars and authors.
Beyond that familiar and apparently conclusive failing, the OFAC policy is being challenged on other First Amendment grounds. Although we seldom hear much about it, the Supreme Court has on several occasions recognized a constitutional “right to receive information and ideas.” Nearly 40 years ago the justices barred the U.S. Post Office from requiring those who wished to continue receiving unsealed mail from foreign countries containing “Communist propaganda material” to return a postcard declaring that desire. Elsewhere the Supreme Court had vindicated “the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas” since “it is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” The application of the “right to receive” seems unusually compelling here, as the information and ideas that are blocked because of the author’s nationality have clear and demonstrable value to the American scholarly community and well beyond.
Finally, the scope of the ruling by the foreign-assets office severely inhibits the editorial and publishing process in other respects that invite constitutional challenge. One example is a ban on payment of advances for incomplete works, which are a natural and sometimes necessary incident even of scholarly publishing. The Supreme Court has expressly recognized that “prohibition on compensation unquestionably imposes a significant burden on expressive activity” in ways that may violate First Amendment rights of the person who makes the payment for expressive activity as well as of the recipient.
The foreign-assets office’s ban on substantive alteration or enhancement of a scholarly work even more clearly impedes the editorial process. Any possible doubt that the First Amendment protects that process was dispelled many years ago when the Supreme Court ruled that states may not compel newspapers to print responses to published articles or editorials “because of [such a mandate’s]…intrusion into the function of editors.” What is manifestly true for those who edit daily newspapers and magazines should be no less clear for those who edit our nation’s most prestigious scholarly journals—the outlets which, by definition, are most likely to be sought by the ablest scholars in the embargoed countries.
Since September 11, 2001, the need for the government to forbid the export of certain materials to the embargoed countries merits substantially greater deference than in the past. Yet if any lesson is clear in these past three stressful and painful years, it is the need to keep open the channels of scholarly communication—no less with those in enemy lands than with those in friendly nations. We in the United States are almost certainly the net beneficiaries of such collaboration and interaction. Even a policy grounded solely on the most selfish of national interests would differ sharply from the one that is now in force.
Robert O’Neil is founding director of the Thomas Jefferson Center for the Protection of Free Expression and a professor of law at the University of Virginia.
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