Hit & Run

You Can Almost Speak Freely Now

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Under the threat of lawsuits that would have likely shown it to be the First Amendment-trampling organization that it is, the Treasury Dept.'s Office of Foreign Assets Control climbed down yesterday from its idiotic new rules prohibiting American publishers from collaborating significantly with authors (including persecuted dissidents) from the embargoed countries of Cuba, Iran and the Sudan. Unlike OFAC's previous disingenuous attempt at "compromise", the new ruling actually exempts publishers from having to obtain additional licenses to "engage in most ordinary publishing activities." Marc Brodsky, chairman of the Association of American Publishers' professional and scholarly publishing division, which had brought suit against OFAC, called the news "A victory for freedom of speech."

So what's in the fine (PDF) print? Americans are forbidden from dealing with the Government of Cuba (and, I assume, Iran and Sudan … too lazy to read the whole thing), defined as "the state and the Government of Cuba, as well as any political subdivision, agency, or instrumentality thereof, including the Central Bank of Cuba; any person occupying the positions identified in § 515.570(a)(3); employees of the Ministry of Justice; and any person acting or purporting to act directly or indirectly on behalf of any of the foregoing."

Publishers cannot:

* "operate a[n] … office in Cuba"
* "engage in transactions related to travel to, from and within Cuba"
* "engage the services of publishing houses or translators in Cuba unless such activity is primarily for the dissemination of written publications in Cuba"
or
* "provide or receive individualized or customized services (including, but not limited to, accounting, legal, design, or consulting services), other than those necessary and ordinarily incident to the publishing and marketing of written publications."

"OFAC's previous guidance," the agency says, "was interpreted by some as discouraging the publication of dissident speech from within these oppressive regimes. That is the opposite of what we want."

Amazing, the unintended consquences of criminalizing Americans' speech. And travel.

UPDATE: I just received an e-mailed statement from the office of Congressman Howard Berman (D-Calif.), author of the 1988 Berman Amendment specifically exempting informational materials from trade embargoes. Excerpt:

While I'm pleased that OFAC has made it clear that publishers will no longer need to seek a specific license to publish new works by authors who live in Cuba, Iran and the Sudan, the regulations continue to represent that the government has the inherent legal authority to regulate these activities under a so-called 'general license.' This violates both the letter and spirit of my amendment, which has been the law of the land since 1988.

It also raises critically important Constitutional issues -- in America, publishers do not need permission. OFAC is still acting like they have the authority to grant permission and that interferes with our fundamental right to freedom of expression.

The second major flaw in these new regulations is that they apply only to publishing, and not other elements of the creative community. Why should it be okay for a publisher to commission a book from an Iranian dissident, but not for a film studio to work with a Sudanese filmmaker, or a recording studio to collaborate with a Cuban musician? This makes absolutely no sense, and reflects the fact that these regulations were issued in a desperate attempt to head off mounting legal and political pressure -- not as part of a serious effort to rationalize an indefensible and counterproductive policy.

Hear hear.