New York, New York, October 26, 2004—Shirin Ebadi, the Iranian human rights activist who was awarded the Nobel Peace Prize in 2003, has filed suit against the U.S. Treasury Department in federal court in New York because regulations of the Treasury Department’s Office of Foreign Assets Control (“OFAC”) prohibit the publication of a book she wants to write about her life and her work for readers in the United States. Ms. Ebadi and The Strothman Agency, LLC, a literary agency that wants to work with her, filed the suit which will be joined to a legal challenge mounted by publishers and authors last month.
Ms. Ebadi’s predicament provides a perfect illustration of the harm the OFAC regulations cause. Ms. Ebadi has been imprisoned for her human rights work in Iran. She could not publish the book she wants to write in Iran, but the OFAC regulations also prevent anyone from publishing it in the United States. As long as the regulations stand, the book will not come into being.
The regulations were first challenged in a lawsuit filed on September 27, 2004, by 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.
The publishing and authors’ groups point to Ms. Ebadi as exactly the kind of author whose work should be published in the United States.
“Do we really want to deprive an Iranian human rights activist of the opportunity to communicate with the American public?” asked Marc H. Brodsky, Chairman of AAP/PSP and Executive Director of the American Institute of Physics. “These regulations are counter-productive and should simply be scrapped.” Brodsky also responded to recent statements OFAC has made in defense of the regulations, in response to the September 27 suit: “According to OFAC, publishers who have concerns should just come to them for a license, but publishers should not have to ask their government for permission to use their constitutional right of free speech.”
The regulations stem from U.S. trade sanctions imposed on particular countries. Congress has declared that trade embargoes may not be applied to “information and informational materials,” but OFAC has defied that prohibition and maintained regulations that prohibit the publication of many books and articles by authors in Iran, Cuba and Sudan. The regulations are being challenged as violations of the specific instructions of Congress as well as the First Amendment.
The OFAC regulations specifically forbid the publication of works by authors in Iran, Cuba and Sudan unless the works in question have already been completed before any American is involved. Americans may not co-author books or articles with authors in the embargoed countries and may not enter into “transactions” involving any works that are not yet fully completed—even though authors, publishers an agents generally must work with one another well before a new work is fully created—and Americans may not provide “substantive or artistic alterations or enhancements” or promote or market either new or previously existing works from the affected countries, unless they obtain a specific license from OFAC. Violators are subject to prison sentences of up to 10 years or fines of up to $1,000,000 per violation.
Both Ms. Ebadi and the groups that initiated the challenge agree that Ms. Ebadi is only the most prominent example of a valuable voice that has been silenced. “There are untold numbers of less prominent authors whose stories have no chance of reaching us. The embargoes are cutting Americans off from scholars, dissidents, scientists and others in regions that are of enormous public concern,” said Peter Givler, Executive Director of AAUP. He cited books on history, music and archaeology that university presses have been unable to publish, and even an article that had to be withdrawn from the scholarly journal Mathematical Geology. “Ms. Ebadi’s inability to publish her memoirs provides another example of the chilling effect the regulations are having on publishing in America.”
In her court filing, Ms. Ebadi decries the “enforced silence” the OFAC regulations impose, calling it “a critical missed opportunity both for Americans to learn more about my country and its people from a variety of Iranian voices and for a better understanding to be achieved between our two countries.”
“At a time when building mutual understanding between peoples and nations seems to us more urgent that ever, these regulations only serve to reinforce distances and divisions,” said Larry Siems, Director of the Freedom to Write and International Programs at PEN American Center. PEN and Arcade are planning to publish an anthology of works by Iranian writers, poets, and critics since the Iranian Revolution that expose the turmoil and repression of recent years.
“Some of the work can’t be published in Iran because of government censorship there,” said Dick Seaver of Arcade Publishing. “If publication is blocked by government interference here, what’s the functional difference between Iran’s censorship and ours?”
The groups challenging the OFAC regulations point out that the regulations 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 it clear that transactions involving “information and informational materials” are exempt from trade embargoes. The AAP/PSP, AAUP, PEN, and Arcade contend that OFAC’s regulations directly contradict the statutes that authorize trade sanctions and infringe the First Amendment rights of publishers, authors and the public. “Accordingly to Congress and the Constitution, Americans are entitled to receive ideas and information from authors anywhere in the world,” said the organizations’ lead counsel, Edward Davis. Ms. Ebadi’s suit makes the same contentions on behalf of authors and the literary agents who help them prepare and market their works.
Since the effect of these OFAC regulations became clear late in 2003, as a result of several rulings issued by OFAC, 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 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,” explained Mr. Brodsky. The plaintiffs hope for a decision by early next year.
Edward Davis and Linda Steinman of the New York office of Davis Wright Tremaine are lead counsel for the AAP/PSP, AAUP, PEN and Arcade. Marjorie Heins of the Brennan Center for Justice at NYU is counsel for PEN and Arcade. Ms. Ebadi and the Strothman Agency are represented in their suit by Philip A. Lacovara, Anthony J. Diana and Ryan P. Farley of Mayer, Brown, Rowe & Maw.