Publishers’ and Authors’ Groups End Litigation that Prompted Change
Publishers’ and authors’ groups announced today that they have successfully resolved their lawsuit against the Treasury Department’s Office of Foreign Assets Control (“OFAC”), because OFAC has revised its regulations in response to the suit and no longer requires specific license applications for government permission to engage in certain basic publishing activities. Before the suit was filed in September 2004, OFAC, which enforces U.S. trade embargoes against “enemy” nations, had effectively prohibited Americans from publishing works written by authors in Cuba, Iran and Sudan by requiring prior approval through the issuance of a government license.
“After the lawsuit was filed,” said Edward Davis, lead counsel for the plaintiffs, “OFAC quickly reversed course and revised its licensing regulations to provide that Americans could engage in all the activities that are necessary and incident to publishing works from authors in Iran, Cuba and Sudan without the need to apply for a government license except in very limited circumstances.”& The plaintiffs then embarked on negotiations with the government to ensure that electronic publishing would be similarly free of requirements for prior government approval. The results of those negotiations became public on August 30, 2007 with OFAC’s issuance of further revised regulations. The plaintiffs have now agreed to dismiss their lawsuit, while continuing to oppose the idea that requirements for a government license to publish books and journals are permitted under the First Amendment, the Berman Amendment or the Free Trade in Ideas Amendment, and reserving the right to challenge the regulations in the future, should OFAC again threaten to require American authors and publishers to obtain prior government permission before working with authors in countries that are subject to U.S. trade sanctions. A stipulation reflecting these developments has today been submitted to the Court.
The original regulations required publishers to obtain a government license before paying advances, doing substantive editing or enhancing works from Cuba, Iran or Sudan, or marketing works from those countries, which effectively meant they could not be published for American readers without such a license. The regulations included stiff fines and even imprisonment for violations. After a series of rulings by OFAC strictly interpreting the provisions, publications ranging from books of poetry and cultural criticism to articles in scientific journals were threatened, and a number of scholarly projects were halted. After attempts to negotiate with OFAC failed, the Association of American University Presses (“AAUP”), the Professional and Scholarly Publishing Division of the Association of American Publishers (“AAP/PSP”), the authors’ organization PEN American Center (“PEN”) and an independent publisher, Arcade Publishing (“Arcade”), filed suit in the U.S. District Court for the Southern District of New York against OFAC. Fifty-five mostly not‑for‑profit publishers contributed funds from their very tight budgets to support the litigation.
As plaintiffs’ attorney Linda Steinman explained, “The lawsuit charged that OFAC’s prior license requirements violated not only the First Amendment to the Constitution but also two acts of Congress – the Berman Amendment and the Free Trade in Ideas Amendment – which prohibit OFAC from regulating ‘information and informational materials’ from countries subject to sanctions, because of the paramount importance of the free exchange of ideas between Americans and peoples of all countries.” The lawsuit cited more than a dozen works that were threatened by the regulations, ranging from an article by Iranian scientists on advances in techniques for identifying earthquake hazards to an encyclopedia of Cuban music and the PEN Anthology of Contemporary Iranian Literature. (A list of some of the projects publishers have since been able to carry out as a result of the lawsuit is attached.)
Marc H. Brodsky, Chairman Emeritus of AAP/PSP, commented, “It is unfortunate that so much money and time had to be expended by publishers just to bring us back to the obvious conclusion that American publishers have the basic freedom to bring to the American public information about what people in all countries write and think. This is what Congress emphasized in the Free Trade in Ideas Amendment and this is a responsibility as well as a right that publishers and writers take seriously.”
For more about the suit, including the complete filed complaint and affidavits, read more here. For more details about the settlement of the suit, please contact Mr. Davis or Ms. Steinman.
Mr. Davis and Ms. Steinman are partners in the New York office of the firm of Davis Wright Tremaine LLP. Other attorneys representing the plaintiffs were Leon Friedman and Marjorie Heins, representing PEN American Center and Arcade.
Projects Now Permitted As a Result of Revisions to OFAC’s Regulations
University of Alabama Press
Dialogues in Cuban Archaeology, edited by L. Antonio Curet, Shannon Lee Dawdy and Gabino La Rosa Corzo. This volume, prepared by scholars in both the United States and Cuba, provides a rare forum for discussion between archaeologists in the two countries. Published in Summer 2005.
A Colossus on the Sand: The Slave Revolt of 1825 in Guamacaro and the Atlantic World, by Manuel Barcia Paz. This important history of a previously unstudied slave rebellion is based on materials in the Cuban National Archives otherwise inaccessible to American scholars. The work is being translated from the Spanish.
Arcade Publishing
Strange Times, My Dear: The PEN Anthology of Contemporary Iranian Literature, edited by Ahmad Karimi Hakkak and Nahid Mozaffari. A showcase of contemporary fiction and poetry from Iran and an important window into a culture that has been cut off from many Americans, this volume was published in April 2005.
Cornell University Press
The Field Guide to the Birds of Cuba, by Orlando H. Garrido and Arturo Kirkconnell, has been reprinted with necessary corrections that were held up by the original OFAC regulations. The acclaimed guide is once again available.
The Johns Hopkins University Press
The Journal of Democracy has published a letter from Iranian dissident Akbar Ganji, paired with an essay on Ganji by Azar Nafisi, author of Reading Lolita in Tehran. A former revolutionary whose disillusionment with the Islamic regime led him to the reformist movement, and whose investigative journalism linked high-ranking officials with the murders of dissidents, Ganji has been jailed since 2000 on the charge of spreading propaganda against the Islamist government of Iran.
The New Press
Literature from the Axis of Evil, edited by Alane Mason, Dedi Felman and Samantha Schnee. This collection of fiction by authors in Iran, Iraq, North Korea, Syria, Cuba, Sudan and other countries, shedding light on how people live and what they are thinking in those crucial countries, was published in September 2006 in conjunction with Words Without Borders, an online magazine for international literature and a partner of PEN American Center.
Northwestern University Press
Cubanacan: Recent Writings from Cuba, edited and translated by Esther Whitfield and Jacqueline Loss. The project, bringing together twelve recent short stories written by young Cuban writers, is going forward. A publication date has not yet been set.
Random House
Iran Awakening, by Shirin Ebadi and Azadeh Moaveni. Nobelist and Iranian human rights lawyer Ebadi joined the suit against the OFAC regulations in October 2004, fearing that her memoir—an important story of a life and political development in contemporary Iran—would not be able to reach American readers. The memoir was published in May 2006.
Scientific and Technical Publications
Numerous articles in periodicals such as The American Journal of Cardiology, Chemical Physics Letters, the Journal of the American Academy of Dermatology, the Journal of Chromatography A and Tetrahedron Letters (a weekly publication on developments in organic chemistry).