The day after April Fool's Day, the Treasury Department asserted with a straight face the government's right to criminalize the heretofore First Amendment-protected act of editing an article or book. It is a sign of either how debased our expectations have become or how skillfully the Bush administration can shift the goal posts of public debate that the move was hailed as a victory for free speech.
Last September, Treasury's ominously named Office of Foreign Assets Control (OFAC) made an obscure ruling on a question posed by the Institute of Electrical and Electronic Engineers (IEEE): How did the publishing of scholarly work by Iranian scientists square with the Trading With the Enemy Act and International Emergency Powers Act? OFAC advised that most basic editing -- even as little as the "reordering of paragraphs or sentences, correction of syntax, grammar, and replacement of inappropriate words," or the addition of a single illustration -- constituted a "service" provided to a citizen of a fully embargoed country and was therefore punishable by up to 10 years in prison.
The decision seemed to violate the 1988 Berman Amendment, which specifically exempted the exchange of "information or informational material" from various trade embargoes. After the outcry, OFAC issued a climbing-down clarification on April 2, saying that all of what the IEEE had described as "editing" would now be permissible. The IEEE congratulated itself for scoring a "First Amendment victory," and news stories based on its press release and OFAC's announcement made it sound like the issue was resolved.
But the same ruling reasserted OFAC's intention to prohibit "substantive or artistic alteration or enhancement" of editorial works originating from Iran, Cuba, Libya, and Sudan -- legislative and constitutional restraints be damned. "I think that there's a very good argument to be made that OFAC's regulations, and the manner in which they've been implemented through these rulings, constitute an impermissible prior restraint of publication," says Allan Adler, vice president of legal affairs for the Association of American Publishers. "And historically, prior restraint of publication has been viewed as presumptively unconstitutional."