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While rules on collaborating with authors from U.S.-sanctioned countries have been eased, some concerns remain
From the Winter 2005 issue of The News Media & The Law, page 38.
By Kimberley Keyes
American publishers and editors previously restricted from publishing works from U.S.-sanctioned Cuba, Iran and Sudan are concerned about a rule change designed to ease collaboration with authors from those nations.
Americans can now participate freely in most publishing activities with Cubans, Iranians and Sudanese although their countries remain under U.S. trade embargoes according to rules unveiled in December by the U.S. Treasury Department's Office of Foreign Assets Control.
The new rules establish a "general license" that requires no application for permission to collaborate with individual authors.
But the rules seem to assert government authority to categorically approve editing and publishing activities a power that lawyers who represent U.S. publishers and editors say OFAC lacks.
"When people say we got what we wanted because they've issued a general license that says they're granting us permission to engage in these transactions without having to specifically in each case come to them for approval, the point is they're still granting permission, and that's an authority that [we believe] they do not have," said Allan R. Adler, vice president for legal and government affairs for the Association of American Publishers, the national trade association of the U.S. book publishing industry.
The organization is one of the plaintiffs in a lawsuit filed last fall against the U.S. government challenging the previous regulations, which appeared to prohibit U.S. publishers from providing "services" including editing and promoting to authors from Cuba, Iran and Sudan. U.S. embargoes prohibit Americans from providing goods or services to people in sanctioned countries without permission from OFAC.
The group of plaintiffs, which also includes the Association of American University Presses, the PEN American Center and Arcade Publishing Inc., sued OFAC in September in U.S. District Court for the Southern District of New York, claiming the old rules were both illegal and unconstitutional. The plaintiffs claimed the rules were invalid because they violated a statute exempting speech from trade bans, and were unconstitutional because they imposed a prior restraint on publishers in violation of the First Amendment.
Nobel Peace Prize winner Shirin Ebadi, a lawyer and human rights activist, and the Strothman Agency joined the suit in November, after Ebadi learned that the regulations prevented her from publishing her memoirs in the United States without a special license. The following month OFAC published the new rules, which Treasury official Stuart Levey said in a statement "will ensure [that] dissident voices and others will be heard without undermining our sanctions policy."
Despite the changes to the rules, the lawsuit is still pending. Adler said that is in part because the new rules still violate the so-called Berman Amendment, which exempts from regulation the flow of information and informational materials between the United States and trade-sanctioned countries.
"What we wanted was a recognition that the Berman Amendment had eliminated OFAC's ability to license transactions that fall within the scope of the subject matter of the exemptions," Adler said.
The new regulations establish general licenses "to authorize transactions not already exempt from regulation that directly support the publishing and marketing of manuscripts, books, journals and newspapers, in paper or electronic format." U.S. publishers are still forbidden from engaging in such activities with the governments of those nations.
The plaintiffs are not the only ones concerned about the new rules. The American Society of Newspaper Editors wrote to OFAC in January asking for removal of the general licensing provision and clarification on several other points.
ASNE attorney Kevin M. Goldberg of Cohn & Marks LLP credited OFAC for changing the practical effect of the rules so that Americans no longer need specific permission to engage in publishing-related activities with authors from the sanctioned countries. But, he wrote, "continued use of a license, even general in nature, to implement these changes remains a major concern, as we believe that any license required of a journalist, general or specific, violates the American Convention on Human Rights.
"The use of a general license opens the door to content review by the Department of the Treasury in order to determine whether a given publication or writer does, in fact, qualify for the license," Goldberg wrote.
In an April letter to OFAC's then-director Richard Newcomb protesting the old regulations, former ASNE President Peter Bhatia, executive editor of The Oregonian, said editors were concerned about editing even grammar and syntax in works by authors from the sanctioned countries for fear of being prosecuted.
"The old regulations gave American editors one choice when working with these foreign journalists: accept a work 'as is' or do not accept it at all," Goldberg wrote more recently.
While the new rule seems to permit editors to translate and edit submissions from Cuban, Iranian and Sudanese writers, the prohibition on interacting with the governments of those nations could bar republication of articles from government-run newspapers such as Cuba's daily Granma, Goldberg said.
Asked how he would advise a client who wanted to republish a piece from Granma, Goldberg said, "I would tell them it depends on how much risk they're willing to take.
"I would say that you would probably end up winning a court case that involved any sanctions, but that you'd better be prepared for that case to be brought, because technically under the rule it could happen," he said.
He questioned whether the government would bring such a case, however, since it could be a "public relations nightmare."
Another concern for ASNE is whether the new rules' relaxed restrictions on "informational materials" includes allowances for items such paper, ink and computers. Goldberg also asked OFAC for clarification on whether a prohibition on operating an office in the three countries extends to news bureaus like The Associated Press and CNN in Havana a possibility he said is "hard to conceive," since the rules seem aimed at preventing U.S. businesses from enhancing the economies of the sanctioned nations.
"I suspect what they're trying to prevent is paying money to foreign governments," said Goldberg, pointing out that OFAC is under the jurisdiction of the Treasury Department.
Goldberg wrote OFAC because "ASNE thought it was important to not only bring up the problems that are inherent in the law, but certainly commend OFAC for what they've done, which is take a major functional step forward from the old rule," he said. "There's no denying that editors should feel more secure in their dealings with journalists and commentators from these countries."
ASNE decided not to join the lawsuit because of its "uncertain status" at this point, said Goldberg.
The government has until early February to respond to the plaintiffs' complaint, according to Adler.
In the meantime, he said attorneys for both sides met in January to discuss what impact, if any, the revised rules had on the lawsuit, as well as potential settlement options.
Adler said he would not be surprised if the government moves to dismiss the suit, claiming the new regulations render it moot. But because of the disputed general licensing authority, "we strongly contend that it is not," he said.