Worried that recent rulings by the Treasury Department are having a chilling effect on American publishers' ability to work with authors who live in countries that fall under the U.S. trade embargo, four industry players filed a lawsuit last week seeking to roll back the government-imposed restrictions.
The restrictions are being enforced by the Treasury Department's Office of Foreign Assets Control (OFAC) and stem from the International Emergency Economic Powers Act, which permits the president to impose trade sanctions on any country considered a threat to national security. Although the Berman Amendment, passed by Congress in 1988, excludes "informational materials" from sanctions, OFAC has made a number of rulings that have prohibited publishers from publishing materials from foreign writers. In the suit, the publishers and authors insist that OFAC's rulings violate the Berman Amendment and are also a violation of the First Amendment.
The lawsuit was filed by the Association of American University Presses, the Professional and Scholarly Publishing division of AAP, PEN American Center and Arcade Publishing in the U.S. District Court for the Southern District of New York and seeks to have the court enjoin OFAC from enforcing sections of trade laws that regulate the publication of information. Although the International Emergency Economic Powers Act was passed in 1977, publishers said that only in the past two years has OFAC begun issuing rulings that prohibit publishers from working with authors in embargoed nations unless granted a special license from OFAC. The issue came to the fore last September when OFAC issued two rulings that essentially barred two publishers from publishing materials from Iranian writers. Although OFAC has since issued some favorable decisions allowing publishers to edit works from embargoed countries, it has consistently ruled against allowing publishers to publish new books from authors or to market any books written by authors in such countries as Iran, Cuba and the Sudan.
"In this country, a publisher doesn't need to go to the government to get permission to publish a book," said Marc Brodsky, chairman of AAP/ PSP and executive director of the American Institute of Physics. Brodsky called the regulations "nonsensical" and said they are "clear violations of the First Amendment."
Brodsky added that "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."
The publishers' complaint points to several projects that have been suspended or canceled because of OFAC restrictions, among them Dialogues in Cuban Archaeology and A Colossus in the Sand. Both books, set to be published by the University of Alabama Press, relied on contributions from Cuban experts and were dropped because of the UA Press's fear of prosecution. Possible penalties include a jail term of up to 10 years and fines of $1 million. In another case, Richard Seaver, publisher of Arcade, observed, "It is quite troubling that we will be risking criminal penalties if we proceed with the publication of The PEN Anthology of Contemporary Iranian Literature. Some of that work can't be published in Iran because of government censorship there. If publication is blocked by government interference here, what's the functional difference between Iran's censorship and ours?"
The government has until October 18 to reply to the lawsuit, and the first hearing before Judge Casey could come in November. Lawyers for the publishers and authors have asked that their request for an injunction barring OFAC from making future rulings be consolidated with a ruling on the full merits of the case. If the government agrees, a final decision (excluding an appeal) could be reached before the end of the year.
